The New Supreme Court

[…] For conservatives, what I have described is an occasion for great celebration. They have succeeded in their goal of a very conservative Court. For liberals, like me, the challenge is enormous. No longer can we imagine the Court as a possibility for progressive change. We must look to state courts and the political process for that, while fearing how the Court will strike down progressive federal, state, and local laws. We also must consider reforms of the Supreme Court—such as increasing its size—if we want an alternative to a far-right Supreme Court for a long time to come.

What We Can All Learn from Ruth Bader Ginsburg

Tracing the arc of someone’s life and examining their choices, relationships, education, and career path are our usual reactions to the death of someone notable. In RBG’s case, the results of such study are almost overwhelming, but I focus in this essay on five lessons I learned from her. […]

Unjustified Punishment: The Eighth Amendment and Death Sentences in States that Fail to Execute

Individuals incarcerated in states that have enacted death penalty moratoria do not have their death sentences carried out in a timely and expeditious manner; instead, these incarcerated individuals sit on death row until they are either exonerated or die of natural causes. Individuals on death row in these states sit on death row for over two decades on average. This Article argues that capital sentencing in states that fail to execute individuals on death row, particularly in states with moratoria on the death penalty, violates the Eighth Amendment to the U.S. Constitution.

U.S. Settler Colonialism, White Supremacy, and the Racially Disparate Impacts of COVID-19

This Essay will connect the persistent strategies, logics, and identities created by settler colonialism to the disparate health impacts of COVID-19 in Indigenous, Black, and immigrant of color communities in the United States. By offering a framework that uncovers the root causes of ongoing patterns of systemic oppression, this Essay hopes to inspire reform efforts that seek to alter such patterns by advancing reform efforts that are grounded in truth, justice, and reconciliation. […]

Negotiating Trauma & the Law: Maybe We Won’t “Shake It Off”

But, in 2020, lawyers cannot afford to buy the myth that trauma is an aberration in the profession of otherwise Teflon-coated lawyering machines. Negotiating trauma is perhaps as old as the profession, even though we may have never given that emotional labor nomenclature or visibility, to our detriment. […]

Masking Up: A COVID-19 Face-off between Anti-Mask Laws and Mandatory Mask Orders for Black Americans

Anti-mask laws ban the wearing of masks in public. Popularly understood to prevent Klan activity, these laws are often vague, with a history of selective enforcement. They also clash with the exhortations to wear personal protective equipment to prevent the spread of COVID-19, which by summer of 2020 was encouraged by all states and required by many. […]

Abandoning Centrality: Multidistrict Litigation After COVID-19

Courts around the country have adapted to the reality of socially distanced litigation, allowing virtual hearings and even trials to take place over the Internet. This infrastructure will outlast COVID-19 and will minimize the burden of traveling for litigation. In the face of these changes, the JPML should accordingly limit the importance of geographic centrality when choosing a forum for multidistrict litigation.

Textualism and the Duck-Rabbit Illusion

But in other cases, textualists proceed as if legal texts have an ordinary meaning even when they do not. Judges see a rabbit, or a duck, when other reasonable readers see a duck, or a rabbit. Such judges are “seeing as.” Nonetheless, they insist that they are “seeing that.” They do not think, do not know, and might not even believe, that “someone else could have said of [them]: ‘He is seeing the figure as a picture-rabbit.’” […]

The Case for Affirmative Action

Proposition 16 would undo Proposition 209. Its passage would not create racial quota systems, which the Supreme Court, in University of California v. Bakke, deemed unconstitutional, but would make it possible for state offices to consider applicants’ identities when making decisions about where resources are allocated and access is granted. […]

The Counter-Majoritarian Difficulty of a Minoritarian Judiciary

Popular selection of judges offers a partial answer to the charge that the judiciary has usurped the role of the People in constitutional governance. Particularly in today’s intensely polarized environment, whether judges are selected through a process that actually reflects popular preferences is thus of critical importance to the democratic legitimacy of the constitutional order. One of the best online law schools in California - www.alu.edu […]