Articles, notes, and symposia pieces published in CLR’s print volumes.

Print Edition

Volume 114, August 2025, Natalie Jacewicz, Article California Law Review Volume 114, August 2025, Natalie Jacewicz, Article California Law Review

Crafting a New Conservationism

Environmental law has an animal problem. It lacks an account of whether and how animals’ interests matter. Case in point: The agencies tasked with protecting wild animals cannot stop killing them. The National Oceanic and Atmospheric Administration slays sea lions to reduce predation on endangered salmon. The Fish and Wildlife Service shoots barred owls to curb competition with northern spotted owls. These widespread “removals” reflect a tension between safeguarding ecological collectives, such as species and ecosystems, and protecting individual animals.

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Volume 114, August 2025, Christopher S. Havasy, Article California Law Review Volume 114, August 2025, Christopher S. Havasy, Article California Law Review

Social Justice Conflicts in Public Law

“Social justice” is everywhere in public law. Scholars and activists are calling for racial justice, climate justice, and health justice, among other claims. When commentators speak about multiple different social justice claims, it is often through an intersectional lens that views these claims as co-constitutive with one another, such as, “There is no climate justice without racial justice.” These justice claims are important and long overdue. But conflicts between different social justice claims—what this Article calls “justice conflicts”—are inevitable in policymaking. Justice conflicts occur when the multiple social justice claims involved in a policy issue point to opposing outcomes.

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Structural Indeterminacy and the Separation of Powers

Despite ongoing disagreement about how the Constitution allocates powers among the different branches, the two dominant schools of thought in American separation-of-powers debates—formalism and functionalism—agree on three premises: Certain powers inhere in certain government branches, some powers are vested exclusively in one or another branch, and the judiciary is the final arbiter of separation-of-powers disputes. Disagreement is largely about how powers should be parsed and which should be shared. Yet over the long lifespan of our constitutional tradition, momentous doctrinal upheavals are relatively commonplace. This Article describes four tectonic shifts in separation-of-powers doctrine: Founding-era debates about how to define and blend powers, nineteenth-century debates about the constitutionality of the nascent civil service, Lochner-era debates about legislatures’ authority to define and regulate public utilities, and mid-nineteenth-century debates about the sources of international law.

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Volume 114, August 2025, Jeanne C. Fromer, Mark P. McKenna, Article California Law Review Volume 114, August 2025, Jeanne C. Fromer, Mark P. McKenna, Article California Law Review

Amazon’s Quiet Overhaul of the Trademark System

Amazon’s dominance as a platform is widely documented. But one aspect of that dominance has not received sufficient attention—the Amazon Brand Registry’s sweeping influence on firm behavior, particularly in relation to the formal trademark system. Amazon’s Brand Registry serves as a shadow trademark system that dramatically affects businesses’ incentives to seek legal registration of their marks. The result has been a surge in the number of applications to register, which has swamped the U.S. Patent and Trademark Office (PTO) and created delays for all applicants, even those that previously would have registered their marks. And the increased value of federal registration has drawn in bad actors who fraudulently register marks that are in use by others on the Amazon platform and use those registrations to extort the true owners.

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Volume 114, August 2025, Faiza W. Sayed, Article California Law Review Volume 114, August 2025, Faiza W. Sayed, Article California Law Review

Reimagining Affirmative Asylum

In 2022, the Biden Administration finalized regulations that overhauled procedures for asylum claims for the first time since 1996. These regulations transferred the duty to decide asylum claims in expedited removal from immigration courts to the Asylum Office. While advocates criticized the proposal for its extreme procedural deficiencies, they supported its basic premise: Expanding the jurisdiction of the Asylum Office would be a positive development for asylum seekers. This Article argues the Asylum Office has failed policymakers’ original vision for the asylum system, asylum seekers, and its own asylum officers (AOs) and that any expansion of the office, in its current form, is unwise.

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Volume 113, June 2025, Manisha Padi, Grace Choi, Article California Law Review Volume 113, June 2025, Manisha Padi, Grace Choi, Article California Law Review

Inclusive Occupational Licensing

Occupational licensing has been under attack from across the political spectrum. Economists argue that it is inefficient and costly; policymakers argue that it limits employment opportunities and hurts consumers; and antitrust regulators argue that it limits competition and creates cartels. Politicians, regulators, and courts have come to a rare consensus that licensing regimes must be restricted or repealed. This Article reimagines licensing in the twenty-first century as a source of opportunity rather than a pure barrier to entry.

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Money Moves: Taxing the Wealthy at the State Level

It’s widely understood today that inequality is a major social problem that in turn contributes to other crises. By most accounts, tax systems are supposed to be our engines of equality. Yet in today’s United States, state and local tax systems mostly do the opposite: They take a greater percentage of the resources of the poor and middle class than of the rich. This Article argues that a truly progressive state tax system is possible and outlines how it could operate.

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Volume 113, June 2025, Kate Weisburd, Article California Law Review Volume 113, June 2025, Kate Weisburd, Article California Law Review

Criminal Procedure Without Consent

Scholars and advocates have long argued that a person’s consent to a warrantless police search is often so inherently coerced, uninformed, and shaped by race, class, gender, citizenship status, and disability that to call it a “choice” is fiction. This critique is not limited to police searches based on consent. Waiving rights and consenting to otherwise unconstitutional state action permeates criminal procedure. Given these concerns, this Article asks: What would happen if consent were eliminated from criminal procedure doctrines?

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Volume 113, April 2025, Tejas N. Narechania, Article California Law Review Volume 113, April 2025, Tejas N. Narechania, Article California Law Review

Which Splits?—Certiorari in Conflicts Cases

The Supreme Court is well-known to favor granting review in cases implicating circuit splits. When, for example, two federal appeals courts disagree over the meaning of a federal statute, the Supreme Court is likely to step in and resolve the confusion to ensure uniformity in federal law.

But the Court is also increasingly likely to let such splits languish for longer. It is taking fewer and fewer cases, year after year. And the Court dedicates much of the limited space on its docket to cases that do not involve circuit splits—cases that, say, present an opportunity to overrule precedent or that implicate patent matters.

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Volume 113, April 2025, Scott Dodson, Article California Law Review Volume 113, April 2025, Scott Dodson, Article California Law Review

The Complexities of Consent to Personal Jurisdiction

Mallory v. Norfolk Southern Railway Co., decided in June 2023, held that consent remains a method of establishing personal jurisdiction independent of the “minimum contacts” test established by International Shoe Co. v. Washington. To many, the decision resolved ambiguity in personal jurisdiction doctrine and represented a straightforward way of establishing personal jurisdiction. But Mallory failed to consider the many complexities underlying consent.

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The New Homelessness

For the over half-million people currently homeless in the United States, the U.S. Constitution has historically provided little help. In 2018, this changed. A series of Ninth Circuit Court of Appeals decisions gave homeless individuals a right to occupy public spaces with some of their belongings. The surprising source of the right was the Eighth Amendment. The courts held that for people with no way of complying with laws banning public sleeping, punishing them for doing so constituted cruel and unusual punishment.

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Volume 113, April 2025, William Ortman, Article California Law Review Volume 113, April 2025, William Ortman, Article California Law Review

Confession and Confrontation

The constitutional law of confessions has a critical blind spot. In theory, the law serves two interests. First, it protects the autonomy of suspects by stipulating that they can be questioned while in custody only with their consent. Second, it restrains official misconduct by forbidding interrogation methods that overbear a suspect’s will. Even if the law adequately safeguards those interests, something is missing: reliability.

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Volume 113, February 2025, L. Alexander Walker III, Article California Law Review Volume 113, February 2025, L. Alexander Walker III, Article California Law Review

Black English for Lawyers: A Primer

Lawyers do not know as much about Black English as they should, and people’s freedom hangs in the balance. Differences between language varieties in sounds and grammar can change and have changed the outcome of cases: “He at work” and “He be at work” mean two completely different things. To reduce misinterpretation and therefore wrongful outcomes, this Article provides a primer on the sounds, words, grammar, and social context of Black English targeted directly at legal practitioners. It begins by explaining key concepts in linguistics and making the case for why lawyers must foreground accurate description over normative prescription when facing nonstandard language.

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Volume 113, February 2025, Brian DeLay, Article California Law Review Volume 113, February 2025, Brian DeLay, Article California Law Review

The Myth of Continuity in American Gun Culture

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen elevated history, text, and tradition as the sole criteria for assessing the constitutionality of firearms restrictions. Gun rights advocates have responded to Bruen with a wave of Second Amendment challenges, most employing a three-part argument: (1) X firearms-related issue has existed since the Founding; (2) the Founders did little or nothing about it; and, therefore, (3) we cannot do anything about it, either. Legal scholars are engaged in critical work on parts (2) and (3) of that argument. As a professional historian involved in several ongoing Second Amendment cases, I have the disciplinary expertise to offer a critique of part (1). This Article explains why the argument for continuity in American gun culture is largely a myth and offers a case study of the role that historical research can play in Second Amendment cases in the Bruen era.

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Volume 113, Genevieve Lakier, Evelyn Douek, February 2025, Article California Law Review Volume 113, Genevieve Lakier, Evelyn Douek, February 2025, Article California Law Review

The First Amendment Problem of Stalking: Counterman, Stevens, and the Limits of History and Tradition

In Counterman v. Colorado, the Supreme Court decided an imaginary case. It held that Billy Ray Counterman’s conviction could not stand because it did not meet the First Amendment requirements for prosecutions based on threats. But, in fact, Counterman was not convicted for making threats. He was convicted of stalking, under a law that does not require that the defendant threaten anyone to be guilty of the crime. This Article argues that the Supreme Court’s confusion about the most basic facts of the Counterman case was not an aberration but instead reflects broader pathologies in First Amendment jurisprudence.

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Volume 113, February 2025, Justin Simard, Article California Law Review Volume 113, February 2025, Justin Simard, Article California Law Review

Slavery, Self-Help, and Secured Transactions

Section 9-609 of the Uniform Commercial Code, which has been enacted in every U.S. state, authorizes a secured lender to seize the property of a debtor in default without judicial process. The only limit to this power is that the lender cannot “breach the peace” in the process of repossession. This expansive right of self-help has spawned a $1.7 billion “asset recovery” industry in the United States that undertakes hundreds of thousands of repossessions every year. Many of these repossessions lead to violence. Lawyers, judges, and scholars justify the powerful right of self-help by pointing to its roots in the ancient common law right of recaption. The early cases they rely on, however, share little in common with the modern world of self-help repossession. This analysis also leaves out a more relevant history—the history of American slavery.

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Volume 112, December 2024, Kate Redburn, Article California Law Review Volume 112, December 2024, Kate Redburn, Article California Law Review

The Equal Right to Exclude: Religious Speech and the Road to 303 Creative LLC v. Elenis

This Article explains how speech became the constitutional vehicle for the right to discriminate on religious grounds in places of public accommodation. It argues that cause lawyers for the New Christian Right cobbled together a right to exclude from a surprising doctrinal source: the egalitarian tendencies within the First Amendment.

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Volume 112, December 2024, Emily R. Chertoff, Article California Law Review Volume 112, December 2024, Emily R. Chertoff, Article California Law Review

Violence in the Administrative State

Drawing on an original, interview-based case study of Immigration and Customs Enforcement (ICE) and a synthesis of six decades of social science literature, this Article offers a theory of physical violence in the administrative state that challenges foundational assumptions about administrative law.

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Volume 112, December 2024, Robyn M. Powell, Article California Law Review Volume 112, December 2024, Robyn M. Powell, Article California Law Review

Under the Watchful Eye of All: Disabled Parents and the Family Policing System’s Web of Surveillance

The child welfare system, more accurately referred to as the family policing system, employs extensive surveillance that disproportionately targets marginalized families and subjects them to relentless oversight. This Article provides a nuanced and novel analysis of the family policing system and its extensive surveillance targeted at disabled parents and their children.

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