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Education Federalism in Action: English Learner Education Policy

Author’s Note: my interest in this topic is intensely personal. After college and before law school, I taught fourth grade at a public elementary school in Oakland, California. Over three-quarters of my students spoke a language other than English at home. Though the plurality spoke Spanish at home, my students collectively spoke over a dozen […]

An Environmental FOIA: Balancing Trade Secrecy with the Public’s Right to Know

This Note discusses the growing use of trade secrecy to withhold critical environmental information from the public. Over the last decade, trade secrecy has moved to the forefront of intellectual property law as an effective method for protecting valuable business information. Trade secrecy grants individuals and businesses the sole right to information they have obtained […]

The Real Enemies of Democracy

This article is a part of the 2020 Jorde Symposium. The other three pieces are linked below: The New Countermajoritarian Difficulty The New Pro-Majoritarian Powers Countering the Real Countermajoritarian Difficulty Professor Karlan argues that the Constitution is undemocratic and that the Supreme Court is not helping matters. There is some truth to those claims, but […]

Countering the Real Countermajoritarian Difficulty

This article is a part of the 2020 Jorde Symposium. The other three pieces are linked below: The New Countermajoritarian Difficulty The New Pro-Majoritarian Powers The Real Enemies of Democracy     Introduction Writing about the countermajoritarian difficulty is a rite of passage for constitutional law scholars. Indeed, the sheer number of articles that have […]

The New Pro-Majoritarian Powers

This article is a part of the 2020 Jorde Symposium. The other three pieces are linked below: The New Countermajoritarian Difficulty Countering the Real Countermajoritarian Difficulty The Real Enemies of Democracy In her Jorde Lecture, Pam Karlan paints a grim picture of American democracy under siege. Together, the malapportioned Senate, the obsolete Electoral College, rampant […]

The New Countermajoritarian Difficulty

This article is a part of the 2020 Jorde Symposium. The other three pieces are linked below: The New Pro-Majoritarian Powers Countering the Real Countermajoritarian Difficulty The Real Enemies of Democracy     Introduction The “countermajoritarian difficulty” was a central preoccupation for twentieth-century constitutional law scholars.[1] Alexander Bickel, who coined the phrase in The Least […]

Misgendering

Pronouns are en vogue. Not long ago, introductions were limited to exchanges of names. Today, however, they are increasingly enhanced with a recitation of the speaker’s appropriate gendered forms of address: he/him/his, she/her/hers, they/them/theirs, or neopronouns like zie/zir/zirs, xe/xem/xirs, or sie/hir/hirs. This development—like every other dimension of progress for LGBTQ+ people—has been met with fierce […]

Copyright and Disability

A vast array of copyrighted works—books, video programming, software, podcasts, video games, and more—remain inaccessible to people with disabilities. International efforts to adopt limitations and exceptions to copyright law that permit third parties to create and distribute accessible versions of books for people with print disabilities have drawn some attention to the role that copyright […]

The False Promise of Peña-Rodriguez

In Peña-Rodriguez v. Colorado, the Supreme Court recognized that racial bias influencing jury deliberations violates the Sixth Amendment’s impartial jury guarantee and is incompatible with the Fourteenth Amendment’s anti-discrimination principles. The Court therefore created a racial bias exception to the centuries-old no-impeachment rule, claiming the decision reflected “progress” in the effort to overcome race-based discrimination […]

Voting for Welfare

For over a century, the Supreme Court has characterized the franchise as instrumental—a right that is preservative of all other rights. Statistics confirm that federal protection of the right to vote has produced higher levels of minority electoral participation and greater shares of minority politicians over the past half century. To voting rights advocates, indicators […]

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Eyes Wide Shut: Using Accreditation Regulation to Address the “Pass-the-Harasser” Problem in Higher Education

The #MeToo Movement cast a spotlight on sexual harassment in various sectors, including higher education. Studies reveal alarming percentages of students reporting that they have been sexually harassed by faculty and administrators. Despite annually devoting hundreds of millions of dollars to addressing sexual harassment and misconduct, nationwide university officials largely take an ostrich approach when […]

A Pathway to Health Care Citizenship for DACA Beneficiaries

Since 2012, beneficiaries of Deferred Action for Childhood Arrivals (DACA) have enjoyed a certain normalization, however tenuous, of their status in the United States: they can legally work, their removal proceedings are deferred, and they cease to accrue unlawful presence. Regarding subsidized health coverage, however, DACA beneficiaries remain on the outside looking in. Although other […]

The Discounted Labor of BIPOC Students & Faculty

Black Law Students experienced a different COVID-19 pandemic than their majority counterparts due in part to the emotional and physical toll caused by the violent, public mistreatment of Black persons at the hands of law enforcement. While some law faculty at some institutions were proactive in identifying the struggles that their Black students were facing, […]

#BlackLivesMatter—Getting from Contemporary Social Movements to Structural Change

This piece is part of the Reckoning and Reformation symposium, which brings together scholars writing broadly about the law, justice, race, and inequality. The California Law Review published two other pieces as part of this joint effort with other law reviews: The Racial Reckoning of Public Interest Law Racial Justice for Street Vendors     Introduction […]

Racial Justice for Street Vendors

This piece is part of the Reckoning and Reformation symposium, which brings together scholars writing broadly about the law, justice, race, and inequality. The California Law Review published two other pieces as part of this joint effort with other law reviews: The Racial Reckoning of Public Interest Law #BlackLivesMatter—Getting from Contemporary Social Movements to Structural Change […]

The Racial Reckoning of Public Interest Law

This piece is part of the Reckoning and Reformation symposium, which brings together scholars writing broadly about the law, justice, race, and inequality. The California Law Review published two other pieces as part of this joint effort with other law reviews: Racial Justice for Street Vendors #BlackLivesMatter—Getting from Contemporary Social Movements to Structural Change     […]

Homegrown Discrimination

When foreign labor recruiters, acting on foreign soil as agents of domestic growers, intentionally prefer young, non-disabled men as temporary agricultural workers in the United States, federal antidiscrimination law traditionally has offered no recourse because of the presumption against extraterritorial application of domestic statutes.  Accordingly, prospective migrant workers face discrimination abroad by American employers’ agents […]

Regulating Your Face

No one likes being told what to do. It’s the reason that philanthropists prefer to contribute to the charitable causes of their choosing, rather than paying more in taxes. It’s the reason that courts have equated enforcing a contract with imposing involuntary servitude. It’s the reason for viewing government as a “necessary evil,” rather than […]

Business Interruption Coverage in the Age of Covid-19

The coronavirus pandemic has surfaced many new and interesting legal issues. Among them: What legal recourse is available to a business that lost significant profits after a governmental order forced it to close? In March 2020, for example, the Bay Area enacted a shelter in place mandate and ordered all non-essential businesses[1] to either close […]

The Aftermath of California’s Proposition 22

Uber, Lyft, DoorDash, and other gig companies who authored and advertised Proposition 22 spent a record $200 million on the ballot initiative to persuade Californians to vote it into law. In the weeks leading up to the 2020 general election, Uber and Lyft bombarded its riders and drivers with endless messaging through its apps and […]