Articles, notes, and symposia pieces published in CLR’s print volumes.
Print Edition
“Systemic Breakdown”: Obscuring Crisis in Speedy Trial Right Analysis
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.
Speaking Freedom: Black Liberation, Abolitionism, and Substantive Justice
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.
Leisure Justice
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.
Civilized Enough to Tax: Natives as Federal Income Taxpayers
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.
Financial Assimilation
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.
Beyond District Lines: Rethinking the California Voting Rights Act’s Promise of Fair Representation
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.
The Student Debt Reset
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.
The Limits of “Punishment”
“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.
Anticipating Disability
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.
Reorganization By Force
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.
Twiqbal: Past, Present, and Future
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.
Conclusory Pleading on the U.S. Courts of Appeals After Iqbal: An Empirical Study
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.
An Alternative to Iqbal: A Commitment Not to Settle
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.
Codifying Plausibility Discovery: A Proposal to Amend Rule 12
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.
Iqbal & The Evolution of Procedural Scholarship
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.
Gold Mining Sustainability in Colombia: Prioritizing a Mercury-Focused Approach
Gold has intrinsic and cultural value, as well as technological utility, which underpin its steadfast demand on the global market. However, supplying gold comes at a substantial cost. Up to 20 percent of the world’s gold comes from artisanal and small-scale gold mining (ASGM), which is conducted by individuals and small enterprises with limited capital. Modern-day ASGM practices contribute to significant human health and environmental harms in disadvantaged communities and critical habitats. In particular, the use of mercury in gold mining gives rise to potent toxin poisoning in humans and contributes considerably to biodiversity and ecosystem degradation. Using Colombia as a case study, this Note analyzes the challenges in legally formalizing the small-scale gold mining industry and instituting protective regulation. It argues that continued emphasis on mercury elimination could still yet catalyze the adoption of sustainable gold mining practices. A mercury-mitigating approach in ASGM should be prioritized for two key reasons. Moving forward, to better mitigate mercury use in ASGM for countries like Colombia, policymakers should prioritize improving the efficiency of litigation and adjudication pathways for mining law violations, with an emphasis on protecting environmental defenders and other advocates.
Hey You, Get Out of My Cloud Data!: A Property-Based Approach to Reverse Search Warrants
Currently, there exists a “Grand Canyon” of judicial disagreement between the Fourth and Fifth Circuits on whether reverse search warrants (1) are searches under the Fourth Amendment and (2) are constitutional. This issue, on which state supreme courts are also divided, is now before the U.S. Supreme Court and awaiting decision as a question of Fourth Amendment jurisprudence. This Note proposes a different way of bringing clarity to this judicial disagreement. Instead of falling back on the “reasonable expectation of privacy” approach, courts should follow a property-based approach when it comes to questions of user data stored on the servers of internet companies. The property conception would provide a different path to resolve the disagreement by concluding that users have property-like protections in the data that reverse search warrants target and that this data qualifies as a “paper” under the Fourth Amendment, and thus the government must get a warrant to obtain this data.
Bankruptcy v. Multidistrict Litigation for Mass Torts
A recent spate of major mass tort bankruptcies has renewed interest in Chapter 11 as a tool for resolving mass torts. Mass tort bankruptcy proponents argue that even highly solvent defendants should be able to take advantage of bankruptcy because it is a better procedural system for resolving mass tort controversies than multidistrict litigation (MDL). Bankruptcy has tools for delivering closure that MDL lacks, and closure in mass tort litigation creates value. Of course, mass tort defendants have no right to closure, but if the resulting surplus is shared, it can leave defendants and plaintiffs better off. This Article accepts the premise that bankruptcy can be an appropriate vehicle for resolving mass torts so long as it leaves tort victims no worse off than they would have been outside of bankruptcy. But it shows that when there is enough money to go around, tort claimants are unlikely to do better in bankruptcy than in MDL for two reasons. First, contrary to some claims, MDL has proven highly successful at resolving mass tort controversies. Second, if tort claimants are going to share in any surplus created by the move to bankruptcy, they need leverage to bargain for it. MDL enables tort claimants and their lawyers to aggregate on their own terms, while bankruptcy empowers the defendant to impose aggregate resolution unilaterally. As a result, bankruptcy is not an appropriate forum for resolving mass torts when the defendant is not in financial distress.
Closed Universe Searches
A genetic genealogy search for a match to a crime scene profile identifies eight relatives, one of whom is almost certain to be the perpetrator. A geofence warrant returns an anonymized list of four cell phones present at a series of bank robberies. A facial-recognition software analysis of a surveillance video generates fifteen persons of interest. By now, these scenarios are commonplace. Equally as commonplace are the two strands of case law and scholarship that have unfurled around them. What is missing, however, is an account of the middle. All too overlooked is a third tapestry, woven from both of these threads. Specifically, technological searches have dramatically increased both the frequency with which law enforcement confronts a closed universe of suspects rather than a single suspicious target, as well as the probability that the true perpetrator of a crime can be found by engaging in invasive technological searches within that closed universe. This Article is the first to identify and define closed universe searches as (1) searches of a small pool of persons connected by happenstance to a crime; (2) one of whom is almost certainly the perpetrator, but the rest of whom are equally certainly innocent; (3) using new technological tools that can identify the perpetrator from within the pool with certainty or near certainty. Applying this new concept, it then considers how Fourth Amendment doctrine has or might resolve closed-universe-search questions—questions like how intrusively police can investigate the suspects in that closed universe; how transparent investigative actions must be; and how accountable police are to rules designed to prevent abuse, misuse, or excess.
Environmental Repair in the Energy Transition
For nearly a century, American laws have required mines, oil and gas companies, and other potentially hazardous industries to restore land affected by their activities to a safe condition when they are done with it. These laws represent a grand bargain—they allow operators to make profitable but damaging use of land today in exchange for the promise of expensive remediation tomorrow. However, this bargain has proven hard to enforce. This Article offers the first comprehensive account of this century-old doctrine: the law of environmental repair. In doing so, it documents a regime in crisis and identifies a new systemic risk to environmental repair law: the global transition to renewable energy. The energy transition threatens to destroy the fossil fuel companies liable for environmental repair obligations while simultaneously undermining the legal tools that enforce those companies’ environmental promises. In response to this threat, and to the long-standing failures of environmental repair law, this Article proposes a new model of environmental law, the “environmental earnout.” Environmental earnouts are conceptually simple: They hold back part of the profits from damaging land uses until environmental repair is complete. While simple, environmental earnouts offer a new and sophisticated tool to reshape the fundamental bargain of environmental repair and protect the public from the environmental harm caused by abandoned fossil fuel infrastructure.