Print Edition
Articles, notes, and symposia pieces published in CLR’s print volumes.
Courts across the country force indigent criminal defendants to spend absurd amounts of time in pretrial detention, where they endure the horrors of incarceration, the stigma of guilt, and the diminished ability to mount an effective defense. These defendants spend months, years, even decades, waiting for their innocence to be vindicated. The consequence of this delay is that the poor, regardless of their innocence, are de facto prisoners, and their public defenders, once imagined as the fulfillment of our Constitution’s loftiest ideals, are the unknowing foot soldiers of chronic crisis. The criminal legal system forces these public defenders to endure crushing caseloads that jeopardize their clients’ lives. Yet the legal community has become acclimated to this status quo, a “systemic breakdown” in indigent criminal defense—one that punishes the poor and subjects them to unreasonable and unconscionable delay. This Note brings attention to the madness. Centered around the Supreme Court’s decision in Vermont v. Brillon, which coined the term that inadequately addresses this unconscionable delay, this Note argues that there has indeed been “systemic breakdown” in our public defender system. The government hamstrings public defender offices by wrongfully blaming them and their indigent clients for the same delay these offices and defendants decry. But many courts, including the highest court in the land, refuse to see this breakdown and instead construe the law to absolve the government of its own inadequacy. Beginning with the country’s history of indigent criminal defense, this Note connects political choices with Supreme Court decisions to argue that public defenders, like their clients, are the victims of constitutional root rot.
Subordinate groups form social movements to contest societal norms and practices that sustain inequality. Social mobilization by subordinates can spark countermovements by privileged classes who perceive egalitarianism as a threat to their economic, political, and social power. Privileged-group countermovements often seek to suppress speech that challenges oppression, known as liberation speech. In the nineteenth century, defenders of enslavement suppressed “liberation speech” by legal and extralegal means in order to maintain Whites’ social dominance. Abolitionist resistance to speech suppression helped foster a culture of free speech that created a foundation for First Amendment doctrines developed in the twentieth century. Drawing from this history, legal scholars counsel against any restrictions on speech—including racist speech. These arguments, though powerful, tend to submerge the ultimate goal of abolitionism. Abolitionists struggled to achieve emancipation and full citizenship for Blacks, not simply freedom of speech. If abolitionist views on speech should influence First Amendment interpretation, then this same history should have even greater importance for contemporary equality theories.Although the Roberts Court attempts to situate its equality doctrine within a civil rights tradition, the Court’s conception of equality has no support in abolitionism or subsequent antiracism movements. On the contrary, the Court’s equality framework contradicts the vision of equality that Blacks deem essential for freedom and full citizenship.
To date, antidiscrimination law has centered on specific domains widely believed to be most central to human life and democratic participation: education, voting, employment, housing, and public accommodations. The right to vote, the ability to receive an education, and the capacity to obtain shelter and employment are essential to human survival, particularly within a market economy. But while voting, education, employment, housing, and travel might be necessary for human survival and democratic participation, they are not sufficient for human flourishing. People need more than an education, a steady job, a roof over their heads, and the right to vote—they need things in their lives that will bring them joy and satisfaction. They need time and space for recreation, for play, or even merely for relaxation. In short, they need leisure. It is an obligation of a just polity to provide leisure opportunities for its citizens. If a polity is obligated to ensure that its citizens have the capacity for leisure, then it is obligated to do so in an equitable and nondiscriminatory manner. The availability of leisure should not vary on the basis of race, gender, or disability any more than the right to vote or the right to an education. It is past time to begin considering the question of leisure justice: Are all citizens able to access sufficient opportunities for leisure, and can they do so on a nondiscriminatory basis? This Article provides the first systematic account of leisure law—the wide array of legal doctrines that structure Americans’ access to leisure opportunities and the distribution of those opportunities. Leisure intersects with a surprising array of legal fields, from foundational areas such as constitutional law, tort law, property law, and criminal law to specialized domains like employment law, civil rights law, administrative law, and intellectual property law.
What does it mean to condition federal tax liability on the degree to which a Native American has assimilated? Native Americans have been long presumed to be subject to federal income taxation despite the absence of express congressional authorization. This presumption obscures the complicated history by which Native Americans were incorporated into the federal tax base. This Article provides a normative, long-overdue description of Native federal income tax liability by situating that historical path within the longer trajectory of federal Indian law. This Article traces how an assimilative framework that includes allotment policy, competence determinations, and the Indian Citizenship Act of 1924 collectively transformed Tribal members from “Indians not taxed” into presumed taxpayers. Historical federal taxation jurisprudence required that Native Americans abandon their Tribal membership to be taxable. But now, courts quietly ignore this requirement. The failure to resolve the impact of dual citizenship—the coexistence of U.S. citizenship with continued Tribal citizenship—collapses political distinctness into presumptive assimilation. By excavating this history, this Article demonstrates that Native federal income taxation is neither inevitable nor doctrinally coherent. It argues that courts have misapplied statutory canons of interpretation by privileging the presumption of taxability over Indian canons of construction, which require express congressional intent for courts to impose a statute of general applicability on Tribal citizens. But more fundamentally, this Article contends that taxation doctrine has failed to account for the implications of Native dual citizenship, thereby erasing the sovereign-to-sovereign relationship that the law otherwise recognizes.
Immigrants’ lives are measured and debated along many axes: language acquisition, neighborhood choice, and even family formation. But another overlooked form of assimilation persists. I use “financial assimilation” to capture noncitizens’ inclusion within American financial markets, for better or for worse. The law defines financial assimilation in different ways for different types of migrants. Federal law can tie migrant resettlement to private sponsorship—as Americans’ financial stature supports newcomers—or protect work-authorized noncitizens under financial antidiscrimination laws. Federal law can also deter, if not prohibit, financial assimilation when it limits lending in marquee markets like housing, even as state laws forge a different path. The law offers a far less glossy form of financial assimilation by conditioning detained immigrants’ freedom on financial bonds. Immigration law’s exclusive forces do not preempt financial assimilation. Beyond defining and describing financial assimilation, this Article uncovers its risks. Financial assimilation generates visibility, and therefore surveillance and immigration enforcement, especially as legal safeguards falter in markets for money transmission and carcerality. I argue that a safer future for financial assimilation is possible, even amid heightened immigration enforcement. Noncitizens and their financial transactions will endure.
The California Voting Rights Act (CVRA) spurred hundreds of cities, school districts, and other local governments to transition from at-large to district-based elections. Although the CVRA attempts to address racial vote dilution, this Note finds that the CVRA creates unique incentives to adopt district-based elections, and that hundreds of California school districts have adopted district-based elections in the last twenty years. Drawing on data collected from school districts in the Bay Area, this Note finds that although the CVRA has likely had a positive effect on Latine and Asian American Pacific Islander (AAPI) officeholding in Bay Area school districts, our findings align with existing literature that some Bay Area school districts see no or even negative changes in Latine and AAPI officeholding. This Note argues that California law should be reformed to permit alternatives to district-based elections, that might better improve minority officeholding. This Note further argues that the CVRA should be amended to remove current incentives which have discouraged the use of alternative election systems.
CLR Online
The web edition of the California Law Review.
In Relational Justice (OUP 2024) we rethink the normative foundations of private law and chart the path for a just reconstruction. We claim that the fundamental maxim of reciprocal respect for self-determination and substantive equality—relational justice, as we dub it—is (or should be) the distinctive normative commitment of a genuinely liberal private law. Anna Stilz, Mark Gergen, Abbye Atkinson, and Daniel Viehoff intriguingly challenge this proposition from various important perspectives. Addressing their critical concerns allows us to clarify the irreducible function of relational justice in guiding law’s construction of the legal frameworks that significantly structure a range of social spheres such as work, home, family, community, and commerce. These settings figure prominently in people’s lives as private persons rather than members of a specific political community. Relational justice captures the distinctive justice considerations that must guide law when it sets up the terms of interaction—the interpersonal rights and duties—within the legally constructed frameworks that constitute private law. Adherence to relational justice is necessary to establish private law’s legitimate authority and should guide its forms and functions.
After decades of dominance, the American Bar Association’s (ABA) influence on legal education faces challenges from both states and the federal government. States began increasingly questioning whether a single, self-selected organization should retain exclusive control over who may become a lawyer. Just this year, Texas and Florida were among the first to cease their dependence on the ABA, triggering a domino effect that prompted Ohio and Tennessee to open their own reviews. The federal government has also launched challenges against the ABA. The Trump Administration severed its decades-old practice to collaborate with the ABA to vet judicial nominees. These challenges may have long-lasting effects that can reshape law school attendance and bar admissions. At their core, questions about the ABA’s accreditation power signal a broader shift in who decides who becomes a lawyer.
Every day, in communities across the country, residents, consumers, workers, and the environment are subjected to unlawful conduct by public and private actors. Litigation challenging these pernicious practices has most visibly been led by private lawyers, non-profits, and state attorneys general. But local governments have also been an important part of the picture—a mighty but often untapped engine of progressive lawyering capable of redressing harms on multiple levels. The first essay in this two-part collection describes San Francisco’s current affirmative practice and the tools the City uses to hold both private companies and the federal government accountable to the people. This second essay details San Francisco’s longstanding partnership with Yale Law School—one of many capacity-enhancing strategies that has enabled the City to keep up with the demands of resource-intensive affirmative work. Together, the essays offer a potential path for other law schools and local governments seeking to establish clinics, externships, and other partnerships that can help law schools and public law offices to meet this moment and fulfill their potential as progressive plaintiffs.
Every day, in communities across the country, residents, consumers, workers, and the environment are subjected to unlawful conduct by public and private actors. Litigation challenging these pernicious practices has most visibly been led by private lawyers, non-profits, and state attorneys general. But local governments have also been an important part of the picture—a mighty but often untapped engine of progressive lawyering capable of redressing harms on multiple levels. This first essay in this two-part collection describes San Francisco’s current affirmative practice and the tools the City uses to hold both private companies and the federal government accountable to the people. The second essay details San Francisco’s longstanding partnership with Yale Law School—one of many capacity-enhancing strategies that has enabled the City to keep up with the demands of resource-intensive affirmative work. Together, the essays offer a potential path for other law schools and local governments seeking to establish clinics, externships, and other partnerships that can help law schools and public law offices to meet this moment and fulfill their potential as progressive plaintiffs.
Proponents of private law as a normatively distinct legal institution, including the influential Toronto School, assert that private law is an end in itself because it is uniquely suited to support the individual as the driver of their own destiny. In other words, private law should be understood as more than a mere instrument of public law’s broad utilitarian aim to serve the polity. Hanoch Dagan and Avihay Dorfman (“D&D”) are among these proponents. Yet, although D&D align themselves with the Toronto School to the extent that it “resist[s] the tendency of previous theorists to perceive private law as the continuation of public law by other means,” D&D proffer a unique view of private law’s orienting lodestar.
In Relational Justice Hanoch Dagan and Avihay Dorfman adopt a posture of indifference towards social morality. They take the position relational justice should neither follow nor try to improve social morality. This paper challenges the latter position and argues the relational justice project need not, and should not, be indifferent to social morality. While law should not follow social morality when it is immoral, lawmakers still have reasons to care when there is a gap between law and social morality. Trying to improve social morality to bring it into line with what law demands is one-way to address such a gap. Dagan and Dorfman renounce this solution arguing several reasons preclude law from trying to change social morality. These reasons include a commitment to liberal neutrality, an objection to rules based on motives, and an objection to ad hockery. This paper will show these reasons at most preclude using certain legal mechanisms to try to improve social morality. This paper will also explain in a general way how lawmakers should think about proposed laws that demand more of people than existing social morality, and the nature of the gap between relational justice and existing social morality.
Symposia
Articles accompanying CLR’s conferences. Published in the print edition.
Before Ashcroft v. Iqbal, and its companion predecessor Bell Atlantic Corp. v. Twombly, a pleading only had to provide proper notice and set forth claims that were legally sufficient. But Twombly and Iqbal added a new factual-sufficiency standard to the pleading test: The nonconclusory allegations must set forth a claim to relief that is factually plausible in light of judicial experience and common sense. The two opinions were like earthquakes that rocked academics, practitioners, and judges. Although much ink was spilled in the immediate aftermath of Twombly and Iqbal, initial assessments, when the shockwaves were still being felt, could not fully capture the adjustments, practices, rulemaking angst, and doctrinal scaffolding that have developed with experience under the new standard. Fifteen years out, the iron has cooled, and expectations and understandings have settled. Now seems like an excellent opportunity for reassessment of Twiqbal’s more enduring legacies.
This Article presents the first systematic empirical study of “conclusory pleading” as a form of plausibility analysis in the U.S. courts of appeals following Ashcroft v. Iqbal, which critics argued would harm plaintiffs by creating excessive demand for information before discovery, and by increasing judicial subjectivity and ideology in decision-making in Rule 12(b)(6) decisions, particularly in civil rights litigation. Contrary to the canonical two-step account of plausibility pleading, courts of appeals almost never evaluate whether pleadings are conclusory fact by fact before proceeding to assess plausibility. Instead, in a one-step analysis they assess whether allegations, on the whole, are generally too conclusory to be plausible, or they render that judgment as to some particular key assertion in the context of the full complaint, without rejecting any other pleaded fact. Findings suggest that any increased judicial subjectivity after Twiqbal likely stems from aspects of plausibility doctrine other than conclusory pleading, shifts in case composition triggered by Twiqbal, or the broader politicization of pleading standards.
In this brief Essay, I want to focus on one aspect of the Iqbal decision that I have taught for many years and which, in my view, is useful for thinking about the policy implications of the heightened pleading regime that Iqbal and its predecessor, Bell Atlantic Corp. v. Twombly, introduced: the goal of deterring nuisance suits. Both Iqbal and Twombly famously changed the standard of fact pleading for nonfraud claims. They shifted the standard from the “possibility” regime suggested by the “no set of facts” language of Conley v. Gibson to one of “plausibility,” where the factual allegations must be nonconclusory and have some “heft.” Much has been written about just what plausibility means and whether it changed anything, either in theory or in practice. Here, I want to focus on the motivation for the change in pleading standards, specifically the strain and expenditures put on defendants in civil litigation.
In 2007 and 2009, the Supreme Court upended the long-understood notice pleading framework, replacing it with the plausibility standard introduced in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. I proceed from the assumptions that the pre-Twombly/Iqbal pleading standard was, roughly speaking, the one announced in Conley v. Gibson, and that courts now generally apply the framework set forth in Twombly and Iqbal—which instructs judges to determine whether the nonconclusory allegations in a complaint plausibly show entitlement to relief—when defendants move to dismiss for failure to state a claim. The raison d’être of this Essay is my proposal, in Part II, for an amendment to Rule 12. In substance, this proposal amounts to a rebooting of efforts in the period shortly after Iqbal’s decision, to promote limited pre-dismissal discovery as a means of blunting Twombly and Iqbal’s effects on cases involving asymmetric information.
Ashcroft v. Iqbal is a doctrinally instructive case. Iqbal teaches that the test for sufficient pleadings turns on the concept of plausibility.[1] It clarifies that the previous, more permissive understanding of a sufficient pleading under Conley v. Gibson is no more.[2]Iqbal also reflects the Supreme Court’s skepticism regarding district court judges’ ability to manage complex discovery disputes effectively.[3] And it demonstrates the Court’s complex view of its rulemaking role—changing procedural rules by opinion. Yet, for civil procedure scholars, Iqbal also marks a shift in our approach to the scholarly enterprise. This Essay will explore three scholarly trends that can be derived from the academy’s response to the Iqbal decision. First, a vast array of scholars responded swiftly to Iqbal, with many civil procedure scholars taking an empirical turn. Second, Iqbal emboldened a burgeoning area of civil procedure scholarship focused on non-federal court procedure and adjudication. Third and finally, Iqbal sharpened scholars’ critical focus on procedure. While a strong “access-to-justice” perspective existed in procedural scholarship before Iqbal, that work focused less intently on immutable characteristics such as race.
The concern raised by David Strauss’s Essay might be addressed by positing an alternative, broader conception of judicial review than the one he proposes, which is inspired by the influential footnote in the Carolene Products case. My alternative view on the scope and nature of judicial review does not grow out of experience with American Constitutional history (which I am no expert on), but rather from a philosophical perspective grounded in liberal and democratic theory and from a comparative constitutional experience drawn from the European and Israeli contexts. I will present my position through a defense of two distinctions that seem essential to me.
Podcast
Interviews with the authors of articles, notes, or online pieces published in CLR.
It's almost election season in California, and this year marks the 25th anniversary since the introduction of the California Voting Rights Act, a law intended to eliminate electoral systems that dilute the voting power of racial minorities. Since the CVRA took effect in 2003, the Act transformed California's electoral systems. But did it create fair representation for people of color? On today's episode, Berkeley Law students Zach Griggy and Jonah Smith join Source Collect to discuss their student Note, Beyond District Lines: Rethinking the California Voting Rights Act's Promise of Fair Representation.
Algorithms shape our modern world, determining everything from which ads we might see on Instagram to who is afforded access to credit. Yet if you're not a machine learning engineer, it's hard to discern what decisions go into the development of these algorithms. That question -- what input decisions go into the creation of machine learning algorithms -- motivated Professor Fanna Gamal's latest article, The Algorithmic Racial Proxy. Professor Gamal, Assistant Professor of Law at UCLA School of Law, noticed that developers often exclude race and racial proxy variables as an input when creating machine learning algorithms.
In 2023, the Supreme Court decided Mallory v. Norfolk, Southern Railway Company, which held that consent remains a method of establishing personal jurisdiction independent of the minimum contacts test, first introduced by International Shoe Company. Washington. On the surface, this decision resolved ambiguities in personal jurisdiction doctrine. But, to explain to us how Mallory failed to consider the many complexities underlying consent to personal jurisdiction, Scott Dodson, a Distinguished Professor of Law at UC San Francisco, joins us to discuss his article, The Complexities of Consent to Personal Jurisdiction.
The amorphous administrative state is often oversimplified and misunderstood. Now, with the Trump Administration pushing for mass deportation and the DOGE dissecting and even disemboweling federal agencies, it is increasingly important to understand the different types of agencies, how they are run, and how agencies like the CBP, ICE, and the Bureau of Prisons create “at a massive scale the ‘field of pain and death’ that the law occupies.” From detaining federal criminal prisoners and immigrants to engaging in armed conflicts and carrying out domestic arrests, these agencies are governed by statutes, regulations, and internal guidelines that nonetheless fail to stop violence and the misuse of force.
People usually think that all tax agencies do is ensure tax laws are followed. But for decades, the IRS has regularly facilitated immigration raids. These raids target employees even as the IRS investigates their employers’ potential tax violations. What can this state of affairs teach us about agency overreach? And what alternate paths could better align the IRS’s efforts with its mission? In this episode, UC Davis School of Law Professor Shayak Sarkar discusses the IRS's underappreciated role in immigration enforcement.
Traffic courts resolve over half of the cases in the U.S. legal system. These cases are easy for some defendants to handle by paying a fine, but they can have devastating effects for those with fewer means. And despite the key role these courts play in funding state judicial branches and other state and local programs, they have not been comprehensively studied in decades. What’s going on in traffic courts? And what can they teach us about the legal system more broadly? In this episode, Arizona State University Sandra Day O’Connor College of Law Professor Justin Weinstein-Tull explains his research on traffic courts.
