The Title IX Paradox

When Christine Blasey Ford explained to the Senate Judiciary Committee why she had not reported her sexual assault at age fifteen, she captured the struggle of many children who must decide whether to make such reports: “For a very long time, I was too afraid and ashamed to tell anyone the details.” Thousands of sexual […]

Theories of Prosecution

For decades, legal commentators sounded the alarm about the tremendous power wielded by prosecutors. Scholars went so far as to identify uncurbed prosecutorial discretion as the primary source of the criminal justice system’s many flaws. Over the past two years, however, the conversation shifted. With the emergence of a new wave of “progressive prosecutors,” scholars […]

The Conscience Defense to Malpractice

This Article presents the first empirical study of state conscience laws that establish explicit procedural protections for medical providers who refuse to participate in providing reproductive health services, including abortion, sterilization, contraception, and emergency contraception. Scholarship and public debate about law’s role in protecting health care providers’ conscience rights typically focus on who should be […]

Fleeing for Their Lives: Domestic Violence Asylum and Matter of A-B-

This Note argues that it is a mistake to classify domestic violence as a primarily “private” crime given its widespread and gendered nature. Further, in some cases, the infliction of domestic violence is ignored—if not condoned—by state actors, casting doubt upon Attorney General Jeff Sessions’s claim in Matter of A-B-that such violence does not involve […]

The Law of Rescue

Diverse areas of law regulate acts of rescue, often inconsistently. For example, maritime law mandates rescue, immigrant harboring law prohibits it, and tort law generally permits it but does not require it. Modern legal scholarship has focused principally on mandatory and permissive forms of rescue. With humanitarian actors facing prosecution for saving migrants’ lives in […]

The Institutional Design of Community Control

A growing set of social movements has in recent years revived interest in “community control,” the idea that local residents should exercise power over services like the police, infrastructure, and schools. These range from a call from the Partnership for Working Families, a grassroots coalition, to build community control through the direct democratic governance of […]

Bankruptcy Hardball

On the eve of the financial crisis, a series of Delaware court decisions resulted in a radical change in law: creditors would no longer have the kind of common law protections from opportunism that helped protect their bargains for the better part of two centuries. In this Article, we argue that Delaware’s shift materially altered […]

Revisiting and Confronting the Federal Judiciary Capacity “Crisis”: Charting a Path for Federal Judiciary Reform

The modern federal judiciary was established well over a century ago by the Judiciary Act of 1891. Over the next seventy years, the structure and core functioning of the judiciary largely remained unchanged apart from gradual increases in judicial slots. By the mid-1960s, jurists, scholars, practitioners, and policy-makers had voiced grave concerns about the capacity […]

Foreword: BJI/CLR Symposium on Charting a Path for Federal Judiciary Reform

A principal mission of the Berkeley Judicial Institute (BJI), which I am privileged to serve as Executive Director, is to “fill a long-standing need to establish an effective bridge between the legal academy and the judiciary.” This mission statement reflects a common perception among both legal scholars and judges that the two institutions often talk […]

The Current Challenge of Federal Court Reform

Keynoter? What a daunting assignment before this gathering! I’m reminded of President John F. Kennedy’s remark at a dinner honoring Nobel Prize winners: “This is the most extraordinary collection of talent . . . that has ever been gathered together at the White House, with the possible exception of when Thomas Jefferson dined alone.”[1] As I survey this […]