This article argues that amendment is the foundational if forgotten contribution of American constitutionalism. Adopting a written constitution requires making provision for its future by allowing for change: Americans devised that mechanism. The idea of constitutional repair, correction, and improvement through revision was so essential to the founding of the United States that it can best be described as a system of thought, which I call the philosophy of amendment and describe as the epitome of the eighteenth-century idea of progress.

Professor Lepore is issuing a timely and necessary warning about the need to think deeply about reforming our Constitution. The enemy, in this case, is not the British. Rather, it is ourselves, in our complacent unwillingness to engage with clear deficiencies of the present Constitution. She begins her essay with the extraordinary reminder that everything in the world is subject to decay, including the parchment on which the Constitution was originally written (for starters). That is true, of course, of the more abstract Constitution itself.

Professor Jill Lepore’s Jorde Symposium lecture paints a rich portrait of state constitutional conventions as engines of democratization during the 1800s and issues a dire warning about the United States’ ongoing amendment drought. Citing their unfamiliarity, however, Lepore declines to consider federal constitutional conventions as a possible corrective. In this response Essay, I argue: first, that Lepore’s marginalization of Article V’s convention mechanism is in tension with her own historical and normative account; second, that while Lepore’s wariness of conventions is entirely understandable given the state of our politics…

The Constitution, as I like to remind the students in my Constitutional Law I class, is very old, very short, and very vague. Among the 7,762 words of the Constitution are the twenty-seven amendments, the first and last of which were both proposed in 1789 but were ratified 201 years apart—the First Amendment in 1791, and the Twenty-Seventh in 1992.

Constitutional amendment has become irrelevant to most Americans of the twenty-first century—even to lawyers and leaders pursuing major systemic change. The most recent amendment was added to the U.S. Constitution in 1992, and that amendment was actually written two centuries prior. It has been nearly half a century since the last time Congress adopted an amendment and sent it to the states for ratification, which failed. What remains of the philosophy of amendment without any practice of it?

This Article explains how speech became the constitutional vehicle for the right to discriminate on religious grounds in places of public accommodation. It argues that cause lawyers for the New Christian Right cobbled together a right to exclude from a surprising doctrinal source: the egalitarian tendencies within the First Amendment.

The Ninth Circuit’s decision in Lam v. University of Hawaiʻi is the “high water mark” of intersectional Title VII jurisprudence. However, this Note suggests that despite thirty years since Lam, courts have struggled to conceptualize the intersectional identities of plaintiffs and the multifaceted discrimination they face.

Drawing on an original, interview-based case study of Immigration and Customs Enforcement (ICE) and a synthesis of six decades of social science literature, this Article offers a theory of physical violence in the administrative state that challenges foundational assumptions about administrative law.

The child welfare system, more accurately referred to as the family policing system, employs extensive surveillance that disproportionately targets marginalized families and subjects them to relentless oversight. This Article provides a nuanced and novel analysis of the family policing system and its extensive surveillance targeted at disabled parents and their children.

Once considered a dying language, ‘ōlelo Hawaiʻi (the Hawaiian language) has made a powerful resurgence in recent decades, thanks in large part to the proliferation of Hawaiian immersion programs at schools across the State. In 2019, the Hawaiʻi State Supreme Court strengthened these programs in Clarabal v. Department of Education, which held that the State of Hawaiʻi has a constitutional obligation to make all reasonable efforts to provide access to Hawaiian immersion education. This Note argues that Clarabal serves as an example of the type of reparative jurisprudence that is necessary to provide tangible restitutive benefits to historically victimized peoples.

Through an examination of the history, structure, jurisprudence, and theory of the Eighth and Fourteenth Amendments, the Article concludes that an Antisubordination Eighth Amendment is both possible and necessary to address the systemic racism of the criminal legal system.

This Article examines the history and legal status of inmate trust accounts and the vulnerability of these funds. The Article places prison banking within the broader landscape of racialized wealth extraction through the criminal system and challenges the assumption that prisons and jails—subject to little regulation despite apparent conflicts of interest—should be permitted to operate a low-transparency banking system with exclusive control.

This Note argues that today’s increased racial diversity in the UC’s student body is a result of a two-part system: (1) the UC’s diversity efforts within its self-prescribed limits under Proposition 209, and (2) the hidden ecosystem of private actors acting outside doctrinal limits to increase diversity in higher education.

This Article proposes reforms to better align tax agency efforts with their revenue-generating mission and to protect immigrants caught in the crosshairs. Those reforms include redesigning criminal tax investigations, crafting interagency agreements, and providing immigration relief.

Despite its growing prominence, the sliding-scale approach to unconscionability remains undertheorized. Courts have seldom discussed its rationale, and scholarly commentators have largely neglected the concept. To help fill this lacuna, this Note provides a history and analysis of California’s sliding-scale approach to unconscionability.

This Article interrogates the need for a right to be left dead and takes some preliminary steps towards defining its contours, chief among them an awareness that an individual right to prevent unauthorized reanimations of the dead must look very different than the existing privacy, consumer protection, and property laws marshalled against unauthorized invocations of the living.

Despite the widespread enthusiasm, after decades of implementation it is increasingly clear that information regulation largely fails to achieve its environmental goals. This Article makes two main contributions. By drawing on quantitative and qualitative case studies of information-forcing regulations, it first answers the question of whether this approach to environmental regulation is effective. This Article then analyzes the mechanisms behind information forcing in conjunction with these case studies to propose characteristics that determine the success, or failure, of information regulation.

This Note examines the current legal landscape around “poppers,” an alkyl nitrite-based inhalant that has a strong association with the LGBTQ+ community as a party and sex drug.

This Note is concerned with the unique conflict of interest presented when a prosecutor who accepts campaign contributions from a police union is responsible for investigating police shootings or other officer misconduct.

This Article makes two interventions into existing legal scholarship. First, the Article identifies an intersectional nexus of hazard between environmental and reproductive justice, which is especially acute for women of color living in under-resourced communities. Second, the Article argues for a ground-up approach based on community power-building and interdisciplinary cooperation, which can inform legal and policy solutions at scale.