Articles, notes, and symposia pieces published in CLR’s print volumes.

Print Edition

Article, Volume 112, February 2024, Lauren van Schilfgaarde California Law Review Article, Volume 112, February 2024, Lauren van Schilfgaarde California Law Review

Restorative Justice as Regenerative Tribal Jurisdiction

For more than a century, the United States has sought to restrict Tribal governments’ powers over criminal law. Tribes are increasingly embracing Indigenous-based restorative justice models, which have regenerated Tribal jurisdiction and enhanced the well-being of Tribal members.

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Article, Volume 112, February 2024, Andrea Roth California Law Review Article, Volume 112, February 2024, Andrea Roth California Law Review

The Embarrassing Sixth Amendment

In his 1989 essay The Embarrassing Second Amendment, Sanford Levinson suggested that left-leaning scholars avoid studying the Second Amendment because they are embarrassed that its text might mean what gun-rights proponents claim it means—an individual right to bear arms. Levinson urged such scholars to better engage the text, both to model intellectual integrity and to avoid unnecessarily ceding the terms of a critical constitutional debate. This Article makes a similar argument with respect to the right to counsel granted by the Sixth Amendment.

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Note, Volume 111, December 2023, Dylan Houle California Law Review Note, Volume 111, December 2023, Dylan Houle California Law Review

Preventing the Next Global Crisis: Addressing the Urgent Need for Space Debris Removal

Space debris is an undeniable threat to the future use of orbital space around Earth. Most experts agree that we are reaching the point of maximum capacity in many parts of space and the threat of future collisions is growing more severe. However, little is being done to address the issue

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Symposium, Volume 111, December 2023, Martha S. Jones California Law Review Symposium, Volume 111, December 2023, Martha S. Jones California Law Review

Response to Professor Blight’s Frederick Douglass and the Two Constitutions: Proslavery and Antislavery

In his essay Frederick Douglass and the Two Constitutions, Professor David Blight explores the constitutional thought of the nineteenth century’s great human rights advocate, statesman, and orator, Frederick Douglass. How should we understand, he asks, Douglass’s arrival at a natural rights interpretation of the 1787 Constitution?

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Symposium, Volume 111, December 2023, Annette Gordon-Reed California Law Review Symposium, Volume 111, December 2023, Annette Gordon-Reed California Law Review

Comment on Frederick Douglass and the Two Constitutions: Proslavery and Antislavery

Thank you for inviting me to participate in this symposium. I want to thank David Blight, in particular, for this rich and provocative Essay. It was fascinating for me to learn that he has come over to the position of my friends James Oakes and Sean Wilentz, with whom I have argued about the concept of the antislavery American Constitution.

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Symposium, Volume 111, December 2023, David Blight California Law Review Symposium, Volume 111, December 2023, David Blight California Law Review

Frederick Douglass and the Two Constitutions: Proslavery and Antislavery

Born a slave on the eastern shore of Maryland and spending the first twenty years of his life in bondage, Frederick Douglass possessed no conventional education. He did not spend a single day of his life in schools of any kind. His “education” came from people around him, from books, from journalism, from wide reading, and finally, from his personal experience and relationships.

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When Judges Were Enjoined: Text and Tradition in the Federal Review of State Judicial Action

It is virtually a tenet of modern federal jurisdiction that judges, at least when they are acting as judges, are inappropriate defendants in civil suits. Yet on rare but salient occasions, state judges might be the sole or primary party responsible for violating the constitutional rights of citizens, for instance by imposing excessive bail or by opening their courtrooms to oppressive private suits like those under Texas’s Senate Bill 8 bounty regime.

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Article, Volume 111, December 2023, John Harland Giammatteo California Law Review Article, Volume 111, December 2023, John Harland Giammatteo California Law Review

The New Comity Abstention

In the past ten years, lower federal courts have quietly but regularly abstained from hearing federal claims challenging state court procedures, citing concerns of comity and federalism. Federal courts have dismissed a broad range of substantive challenges tasked to them by Congress, including those under the Americans with Disabilities Act and the Indian Child Welfare Act.

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Democracy’s Other Boundary Problem: The Law of Disqualification

Almost all national constitutions contain one or more ways to disqualify specific individuals from political office. Indeed, the U.S. Constitution incorporates at least four overlapping pathways toward disqualification. This power of disqualifying specific individuals or groups stands at the heart of the complex project of maintaining democratic rule.

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Note, Volume 111, October 2023, Sarah M. Garrett California Law Review Note, Volume 111, October 2023, Sarah M. Garrett California Law Review

Coercive Control Legislation: Using the Tort System to Empower Survivors of Domestic Violence

This Note analyzes the various approaches to legislating against coercive control and ultimately recommends against criminalizing the behavior, as such efforts could cause backlash against survivors and are likely to disproportionately affect marginalized communities.

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Note, Volume 111, October 2023, Geraldine Burrola California Law Review Note, Volume 111, October 2023, Geraldine Burrola California Law Review

Reclaiming LA’s “Mulholland Moment”: Wastewater Recycling, the Public Trust Doctrine, and Saving the LA River

Los Angeles is experiencing an unprecedented “Mulholland Moment”: a period of bustling enterprise, skyrocketing socioeconomic inequality, and dwindling water resources. After years of yellow lawns and increasing water use restrictions, Angelenos are thirsty for local, reliable, and affordable water supplies even as climate change and prolonged periods of drought become the norm.

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Article, Volume 111, October 2023, Tarek Z. Ismail California Law Review Article, Volume 111, October 2023, Tarek Z. Ismail California Law Review

Family Policing and the Fourth Amendment

Each year, Child Protective Services (CPS) investigates over one million families. Every CPS investigation includes a thorough, room-by-room search of the family home, designed to uncover evidence of maltreatment. Most seek evidence of poverty-related allegations of neglect; few ever substantiate the allegations.

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Article, Volume 111, October 2023, Nadiyah J. Humber California Law Review Article, Volume 111, October 2023, Nadiyah J. Humber California Law Review

A Home for Digital Equity: Algorithmic Redlining and Property Technology

Property technologies (PropTech) are innovations that automate real estate transactions. Automating rental markets amplifies racial discrimination and segregation in housing. Because screening tools rely on data drawn from discriminatory—and often overtly segregationist—historical practices, they replicate those practices’ unequal outcomes in the form of algorithmic redlining.

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Article, Volume 111, October 2023, Kate Weisburd California Law Review Article, Volume 111, October 2023, Kate Weisburd California Law Review

Rights Violations as Punishment

This Article argues that “punishment exemption”—the assumption that criminal punishment is exempt from traditional constitutional scrutiny—has no legal basis. Drawing on original empirical research, this Article first exposes a maze of modern non-carceral punishments that infringe on constitutional rights, justified by nothing more than the assertion that they are punishment and therefore permissible.

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Note, Volume 111, August 2023, Lauren Trombetta California Law Review Note, Volume 111, August 2023, Lauren Trombetta California Law Review

Jet-Setting to Napa Vineyards and Las Vegas Casinos on the Company’s Dime: How the SEC’s Recent Enforcement Actions Expose the Need for Executive Perquisite Reform

Despite the increased attention on executive compensation generally, little scholarship has focused on executive perquisites: benefits granted only to executives above and beyond their salary and untied to their job performance. Since 2006, the Securities and Exchange Commission (SEC) has refused to update its disclosure requirements…

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