Steve Sugarman joined the Berkeley faculty nearly fifty years ago. Since then, he has made unparalleled contributions to the law school and to legal scholarship. This Festschrift provides the opportunity to honor someone whose career has contributed enormously to the University of California’s missions of teaching, scholarship, and service…

Scholars have long debated whether surrogacy furthers or inhibits equality and reproductive liberty. What has gone almost entirely unremarked upon, however, is whether and to what extent the ways U.S. jurisdictions regulate surrogacy further these principles. This oversight is produced and re-produced by existing scholarship that focuses on the threshold question of whether to ban…

Medicines and vaccines are complex products, and it is often extraordinarily difficult to know whether they help or hurt. The Food and Drug Administration (FDA) holds an enormous reservoir of data that sheds light on that precise question, yet currently releases only a trickle to researchers, doctors, and patients. Recent examples show that data secrecy…

Cities throughout the country respond to homelessness with laws that persecute people for surviving in public spaces, even when unsheltered people lack a reasonable alternative. This widespread practice—the criminalization of homelessness—processes vulnerable people through the criminal justice system with damaging results. But recently, from the epicenter of the…

The Immigration and Nationality Act (INA) deems an individual inadmissible to the United States for having engaged in terrorist activity. Both “engaged in terrorist activity” and “terrorist activity” are terms of art that are broadly defined under the INA to include activity that courts, scholars, and advocates agree stretches the definition of terrorism. An individual…

The right to vote and the right to representation are often, to each of their detriment, conflated. But to combat voter disenfranchisement most effectively and honestly, we must conceive of these as two separate rights with a distinct relationship. Part I defines representative government. It then highlights the differences between the right to vote and…

Pro bono at big law firms is often viewed as an altruistic way for attorneys to give back to society. But when big law firms partner with public interest law organizations (PILOs) to do pro bono work, conflicting interests among the parties involved may interfere with the aims of pro bono work. In this Note…

Tactics of domestic violence are nothing new. However, as with various other aspects of modern life, technology threatens disruption. The increasing prevalence of Internet of Things (IoT) devices has given abusers a powerful new tool to expand and magnify the traditional harms of domestic violence, threatening the progress advocates have made in the past thirty…

In October 2019, the Trump administration proposed a dramatic expansion of DNA collection from immigrants in federal detention. The final rule, which took effect in April 2020, eliminated a regulatory provision that had previously allowed the U.S. Department of Homeland Security (DHS) to exempt noncitizens from DNA collection if collection was “not feasible because of…

The electricity sector is often appropriately called the linchpin of efforts to respond to climate change. Over the next few decades, the U.S. electricity sector will need to double in size to accommodate electric vehicles, while transforming to run entirely on clean energy. To drive this transformation, states are increasingly adopting 100 percent clean energy…

It is legal to follow and watch people in retail stores based on their race, give inferior service to restaurant customers based on their race, and place patrons in certain hotel rooms based on their race. Congress enacted Title II of the Civil Rights Act of 1964 to protect Black and other people of color…

In this Article, we argue that accounting for the experience of Indigenous Peoples in the creation and regulation of borders is critical to advancing a human rights approach to migration and to addressing the legacies of conquest and colonization that undergird nation-state territorial sovereignty. By focusing on the unique situation of Indigenous Peoples, this Article…

Police use of force is a persistent problem in American cities, and the number of people killed at the hands of law enforcement has not decreased even as social movements raise greater awareness. This context has led to reform conversations on use of force that seek less violent ways for police to engage the public…

Social determinants play into who gets to die prematurely while others get to have healthy productive lives—these are loosely called health disparities. Health disparities are typically understood socially, economically, and politically, but rarely analyzed within the legal system. The Social Security Administration (SSA)—the federal program for providing Americans with disabilities benefits and…

In Franchise Tax Board v. Hyatt (Hyatt III), the Supreme Court overruled forty-year-old precedent that allowed a citizen to sue a state in another state’s courts. The Court’s 5–4 decision creates another barrier for plaintiffs who seek to hold states accountable. Hyatt III expands the doctrine of sovereign immunity to provide states additional protection against…

You live in Mississippi, work an hourly, minimum wage job, have no savings, and have young children. You are also seven weeks pregnant and want to have an abortion. Technically, you can go to an abortion clinic. But even though you have Medicaid, it won’t cover any of the procedure’s costs because Mississippi generally follows…

I want to press a bit on the question of what the unwritten aspects of our constitutional structure establish. Rather than a fixed legal order constructed by conventions, I want to suggest that this unwrittenness points to the provisionality of the constitutional order itself—that is, to its essentially unsettled character. This perspective raises three problems…

The Constitution emerged from a convention—a convention of the states. State popular conventions, by ratifying it, made it law. Though it was meant to “form a more perfect union,” no one could have supposed the Philadelphia Convention’s proposal was anything close to perfect. Indeed, the Constitution’s terms refute any blithe confidence in its flawlessness. Article…

In this Essay, I identify several shifts in focus that might further illuminate the intersection of constitutional conventions and judicial review: first, attending to the role of internal executive-branch conventions, which are distinct in important ways from settlements between the political branches that are Issacharoff and Morrison’s primary focus; second, widening the lens to include…

We are told that we live in the era of textualism. Inspired by the commanding presence of Justice Antonin Scalia, many accounts of American constitutional law focus on, and stress the preeminence of, the written word. On this view, the contractual sense of the constitution as a defined pact means that the intentionality of the original…