Print Edition
Articles, notes, and symposia pieces published in CLR’s print volumes.
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.
Between 2020 and 2024, the Department of Education undertook two massive experiments on the student loan system. These were the “Biden Reforms.” These efforts were almost entirely the result of administrative interpretation of longstanding statutory law, with Congress playing at most a supporting role. The Biden Reforms, which engendered intense partisan opposition, were mostly stopped before they took effect. And the Trump administration has begun to use its own administrative interpretations (or executive ignoring of statutes) to tear up core parts of federal higher education finance. This Article explains how these initiatives came about, how the Biden Reforms were foiled, and how the conflicts around both have reshaped the law and politics of student loans moving forward. We argue that the federal student loan system enabled insider-driven politics that allowed for legislative compromise.
“Punishment” is an all-important category in criminal legal thought. Conventional scholarship adopts a narrow definition and focuses on justifying penal sanctions. Much critical work, in contrast, seeks to expand the category—defining more practices and institutions as “punishment.” In this Article, I argue that the focus on the purposes of punishment and on what constitutes punishment distracts from a larger theoretical and practical issue: Much of what the criminal system does probably isn’t punishment as such. Certainly, a carceral sentence is punishment. But what about a curfew requirement for a defendant awaiting trial? What about a restriction on gun ownership postconviction? What about a traffic stop? Each of these restrictions on liberty or interactions with the criminal system might be stigmatizing or cause great hardships. So, it might be tempting to categorize them as “punishment.” While I am skeptical of conventional formalist definitions of “punishment,” I argue that striving to define more acts or institutions as “punishment” actually doesn’t accomplish much—as a doctrinal matter, judges are reluctant to afford defendants increased substantive or procedural rights in this realm.
Where do—and should—future disabilities fit within the law? Disability civil rights laws expressly extend rights to individuals with present or past disabilities, but it remains unsettled how the prospect of acquiring a disability in the future should be understood within these laws. Resolving this question is crucial not only for continued refinement of disability civil rights doctrine, but the inquiry has broader civil rights and healthcare implications given racial disparities in exposures to potentially disabling circumstances and the negative health effects of racism itself. This Article is the first to provide a comprehensive taxonomy of how future disabilities can be understood within disability civil rights laws. I articulate two overarching frameworks for situating future disabilities in the law. The Article addresses a critical doctrinal gap by articulating and analyzing each framework. I conclude that only a narrower subset of claims within the anticipatory accommodations framework appears apt for resolution under disability civil rights laws, but claims under the preemptive disability stigma framework align with the laws’ scope and could meaningfully advance their nondiscrimination purpose. I then call for clarification of the proper application of disability civil rights laws to future disabilities through judicial interpretation and, to the extent needed, regulatory and statutory reform. Lastly, this Article sets the stage for further work evaluating potential interventions beyond civil rights law that can more directly target the ways that racial subordination disparately produces both future disabilities and negative health outcomes.
Nearly every Chapter 11 filing is “voluntary,” in that it’s initiated by the company’s managers. Yet the Bankruptcy Code also allows unsecured creditors to force a company to reorganize under an “involuntary Chapter 11.” Involuntary Chapter 11s are rare and largely ignored by scholars. That’s potentially because bankruptcy and corporate law largely defer to managers’ business judgment on how to maximize the company’s value, and investors have several contract and corporate law tools designed to discipline underperforming managers. So, what work can involuntary Chapter 11s do? This Article shows that an involuntary Chapter 11 can be the optimal solution for a company with going-concern value that simultaneously faces two kinds of distress: financial and managerial distress such. This Article makes three main contributions. First, it shows that involuntary Chapter 11s have an important, but underappreciated, role to play in salvaging firms that have going-concern value. Second, it reveals how the current involuntary Chapter 11 system isn’t geared to serve that role because it allows a narrow class of investors to throw a company into Chapter 11 without having to show that the company faces managerial distress. Third, it sketches a new involuntary Chapter 11 system that incentivizes a wide range of investors to file involuntary Chapter 11s against companies facing both kinds of distress, while penalizing them for filing such cases against companies that face only one or neither kind of distress.
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.
CLR Online
The web edition of the California Law Review.
The usefulness of contract law derives from establishing sufficiently clear expectations that enable parties to order their affairs without judicial intervention. To that end, a contract that requires litigation to perform one of its most important functions has already failed. Well-constructed liquidated damages provisions are useful tools for promoting contractual clarity by assigning a predetermined consequence for breach. Thus, they allow parties to properly evaluate the costs of nonperformance before a dispute occurs. This principle is central to the law-and-economics theory of efficient breach. While contract remedies can discourage nonperformance and protect the parties’ expectations, they also permit parties to redeploy resources to higher-value uses while requiring them to internalize the costs imposed on others. For that system to function effectively, the consequences of breach must be sufficiently predictable to serve as credible price signals. If the price of exit becomes uncertain, parties lose the ability to make informed ex ante decisions and are rationally incentivized to negotiate under the shadow of the law.
Mullin v. Doe is notable for the logical contortions that the Court performed to deny what was right in front of its face. It also raises stark questions about this Court’s ability to detect and condemn anti-Black racism. President Trump’s stigmatizing statements about Haitian immigrants should have easily sufficed to show racial animus when the administration terminated Temporary Protected Status (TPS) status for Haitian immigrants. This brief essay describes and dissects the various arguments that Justice Alito’s majority opinion unfurled to avoid that conclusion. It then concludes by linking the opinion to a broader cultural phenomenon of “performative politics,” and shows that it extends to the right wing. The majority worked hard to launder the Trump administration’s virulent racism. The Court’s initial method was to bury the comments—to refuse to print them in the U.S. reports. As Justice Kagan pointed out in dissent, Justice Alito declined to recount the actual statements by President Trump and former Department of Homeland Security Secretary Kristi Noem that gave rise to the respondents’ claim of racial animus. This is extremely unusual and suspect. How can a court analyze statements if it can’t bear to face them?
For those of us who are both Supreme Court watchers and World Cup fans, there was an odd convergence of worlds with the hand-down of Trump v. Barbara on June 30, 2026, the last day of the Supreme Court’s annual Term, and the United States Men’s National Soccer Team’s trials and tribulations that took place during the following week. With a red card suspension slated to sideline the U.S. Team’s star forward Folarin Balogun from their Round of 16 World Cup match against Belgium, President Donald Trump picked up the phone to call his friend Gianni Infantino, head of FIFA, the World Cup organizer. By President Trump’s own telling, he urged Infantino to set aside Balogun’s suspension and let him play. Hours later, that is precisely what happened. The President then posted on Truth Social, “Thank you to FIFA for doing what was right, and reversing a great injustice!” The irony was more than a little rich. Balogun was born in New York City in 2001 when his mother traveled there to visit her sister and was then refused boarding on her return flight due to her advanced pregnancy. But under Executive Order 14160, which President Trump issued as his first act in office of his second White House term on January 20, 2025, the circumstances of Balogun’s birth would render him ineligible for United States citizenship.
In a stunning expansion of presidential powers, the Supreme Court in Trump v. Slaughter overruled a ninety-year-old precedent and held that Congress cannot limit the President’s power to remove heads of federal agencies. This is a major lessening of checks and balances and again shows the six conservative justices’ disregard for even long-standing precedents. In this essay, I initially summarize Humphrey’s Executor, which was overruled in Trump v. Slaughter, and its progeny, before examining the consequences of its overruling in Slaughter, particularly as it relates to presidential power.
Pretextualism—the use of formalistic legal logic to mask unstated motives under a misleading cover story—has a long, troubling pedigree in American jurisprudence. Louisiana v. Callais exemplifies its modern revival. Justice Samuel Alito, writing for a six-justice majority, deployed this deceptive methodology to dismantle the final remnants of the nation’s most consequential civil rights law. Pretextualism has been baked into Supreme Court decision-making from the institution’s earliest days to its more recent controversies. While history is full of examples, pretextualism is especially salient today because the Trump administration deploys it so rampantly. The Supreme Court’s historical reliance on pretext, combined with its recent reluctance to confront executive deception, paved the way for the Court’s revival of pretextualism in Louisiana v. Callais.
Brokering Safety identifies a failure of privacy law: the tendency to allocate responsibility to individuals through opt-out and deletion rights, even as informational harm is generated by distributed systems capable of reconstructing, predicting, and targeting individuals over time. Privacy self-management fails, the Article shows, because the law has assigned them a task that the architecture of the data broker ecosystem made impossible. By grounding its critique in system design, Brokering Safety reframes the problem at the right level of analysis and points toward a corresponding solution: redistribution of responsibility from individuals to the institutional actors who generate exposure at scale. This comment builds on a mechanism in the Brokering Safety analysis. That mechanism is inference: the capacity of distributed systems to generate reliable, actionable knowledge about individuals by aggregating and recombining incomplete, loosely related data. This mechanism strengthens the centralized obscurity proposal by clarifying that the inadequacy of existing regimes reflects a category error: regulating transactions in data rather than the production of knowledge.
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.
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.
Immigration adjudications regularly use information from the criminal legal system to justify a discretionary denial of relief or benefits, even when charges have been dismissed. This practice faces little scrutiny due to the assumption that adjudicators are merely importing facts already found by the criminal system. But what if this practice actually constitutes “hidden factfinding”? Sarah Vendzules, a Senior Staff Attorney at the Office of the Appellate Defender in New York City, uncovers this hidden factfinding and offers a framework that could rein it in.
