Latest Print

The Law of Rescue

Diverse areas of law regulate acts of rescue, often inconsistently. For example, maritime law mandates rescue, immigrant harboring law prohibits it, and tort law generally permits it but does not require it. Modern legal scholarship has focused principally on mandatory and permissive forms of rescue. With humanitarian actors facing prosecution for saving migrants’ lives in […]

The Institutional Design of Community Control

A growing set of social movements has in recent years revived interest in “community control,” the idea that local residents should exercise power over services like the police, infrastructure, and schools. These range from a call from the Partnership for Working Families, a grassroots coalition, to build community control through the direct democratic governance of […]

Bankruptcy Hardball

On the eve of the financial crisis, a series of Delaware court decisions resulted in a radical change in law: creditors would no longer have the kind of common law protections from opportunism that helped protect their bargains for the better part of two centuries. In this Article, we argue that Delaware’s shift materially altered […]

Revisiting and Confronting the Federal Judiciary Capacity “Crisis”: Charting a Path for Federal Judiciary Reform

The modern federal judiciary was established well over a century ago by the Judiciary Act of 1891. Over the next seventy years, the structure and core functioning of the judiciary largely remained unchanged apart from gradual increases in judicial slots. By the mid-1960s, jurists, scholars, practitioners, and policy-makers had voiced grave concerns about the capacity […]

Foreword: BJI/CLR Symposium on Charting a Path for Federal Judiciary Reform

A principal mission of the Berkeley Judicial Institute (BJI), which I am privileged to serve as Executive Director, is to “fill a long-standing need to establish an effective bridge between the legal academy and the judiciary.” This mission statement reflects a common perception among both legal scholars and judges that the two institutions often talk […]

The Current Challenge of Federal Court Reform

Keynoter? What a daunting assignment before this gathering! I’m reminded of President John F. Kennedy’s remark at a dinner honoring Nobel Prize winners: “This is the most extraordinary collection of talent . . . that has ever been gathered together at the White House, with the possible exception of when Thomas Jefferson dined alone.”[1] As I survey this […]

Interbranch Information Sharing: Examining the Statutory Opinion Transmission Project

In 2007, the Administrative Office of the U.S. Courts revitalized a little-known program to “foster communication” between the judicial and legislative branches, enabling federal appellate judges to send to Congress, without further comment, opinions “that describe possible technical problems in statutes.” In our view, such a program is sensible: The Judiciary is uniquely situated to […]

Regulating Implicit Bias in the Federal Criminal Process

Like other supervisory lawyers, federal judges have twin responsibilities. They must comport with ethical and professional rules that govern their own behavior while simultaneously monitoring other attorneys to ensure they are not violating similarly controlling rules. The judicial robe, however, adds an extra dimension of responsibility in the trial oversight process. Specifically, as our understanding […]

Iron-ing out Circuit Splits: A Proposal for the Use of the Irons Procedure to Prevent and Resolve Circuit Splits Among United States Courts of Appeals

Part I of this Article discusses the problems circuit splits pose and how the circuit courts’ growing caseloads, combined with the Supreme Court’s shrinking docket, are perpetuating the potential for increasing circuit splits. Part II discusses the informal en banc procedures currently in place in the courts of appeals. Part III provides an overview of […]

Latest Online

Discriminatory Paycheck Protection

Deciding how and whom to protect during this crisis is a quintessentially political choice—among the most central of the current moment. But as these cases show, relief funding during a crisis not only can’t avoid First Amendment scrutiny—the newly expanded funding might actually be what prompts scrutiny of programs that previously spent decades flying under courts’ radar. […]

Sikhs in America: “Perpetually Foreign, Automatically Suspect, and Potentially Terrorist”

This essay examines two points in American history during which the United States effectively perceived Sikhs as terrorists even while they sought freedom from oppressive regimes, first British and then Indian. Although Sikh immigrants resided on U.S. soil, the United States’ alliances with the colonizing British government and the successor Indian government contributed to the criminalization of Sikh immigrants who were involved in political struggles against those entities. This history reveals how Sikhs have been caught in the nexus of criminal law and immigration law for over a century. Awareness of this history, in turn, allows us to contextualize the current immigration issues facing Sikhs within the broader landscape of Sikh American subjugation. […]

Law Schools Have A Moral and Social Responsibility to End Systemic Racism

This blog post will describe how law schools are pipelines for government positions in America, while also being institutions that have engaged in discriminatory practices. I conclude by providing seven actions that law schools can take to work towards remedying a history of discrimination and ensuring that the legal profession reflects the diversity of our society. […]

Public Charge: The Beginning of the End for Nationwide Injunctions?

Immigrants would disenroll from Medicaid and federal housing assistance programs for fear that use of public benefits would weigh against them should they apply for a change in immigration status. This, in turn, would result in greater use of city and county health services and greater housing insecurity risking homelessness. Given these deleterious consequences, if the public charge rule—as multiple federal courts have found —appears to violate the Constitution, APA, and federal immigration laws, why shouldn’t it be enjoined uniformly nationwide? In this essay, I argue that it should, because nationwide injunctions are both a permissible exercise of judicial discretion and a desirable check on executive agencies. […]

An Equal Protection Defense of SB 826

Introduction On September 30, 2018, Governor Jerry Brown approved Senate Bill 826 (SB 826), requiring female representation on California-based companies’ corporate boards. SB 826 is the mandatory version of Senate Concurrent Resolution 62, which in September 2013 urged California companies to increase female representation on their boards to between one and three women, depending on […]

Free Exercise’s Lingering Ambiguity

It has become common, for example, for churches to demand that their ability to gather for worship not be considered less essential than the operation of liquor stores in those states that have designated the latter as “essential” businesses. In other words, these churches argue that the First Amendment does not permit states to prioritize pinot noir over prayer. Judges hearing these challenges have had to grapple with an old question imbued with new pandemic-related nuance: What constitutes discrimination against religion under the Free Exercise Clause? […]