This Article makes one simple, novel claim: crime is labor when it generates income, allows individuals to pursue self-sufficiency, or allows them to fulfill societal expectations of providing for or caring for dependents. When individuals engage in survival crimes, instead of seeing them as criminals, we should see them as workers engaged in survival labor.

Jurists and scholars have long debated (and often decried) the practice of forum shopping. Such debates have overlooked the effects of forum shopping on an important constituency: litigants who have little choice over forum. When forum shopping causes a sudden influx of cases—when, that is, it crowds a forum—what happens to other cases that have nowhere else to go?

Redistricting litigation has entered a new era. In 2020, for the first time, state legislatures completed post-census redistricting without preclearance under Section 5 of the Voting Rights Act (VRA). After Shelby County v. Holder, plaintiffs challenging unlawful maps must rely upon private litigation alone. Meanwhile, the Supreme Court has resuscitated the Purcell Principle, an equitable election law doctrine that prohibits federal courts from changing election rules on the eve of a political contest.

Many equal protection challenges to the recent onslaught of anti-transgender legislation ask courts to determine the constitutional limits of the state’s ability to define sex. The canonical cases addressed the state’s ability to treat men differently from women—not the state’s ability to define “men” and “women.” This difference between the canonical cases and what this Article calls “sex-defining” cases does not necessitate any monumental shifts in equal protection doctrine, but it does require courts to tweak their intermediate scrutiny analyses.

Courts should recognize a presumption of exclusive Tribal regulatory authority over all on-reservation water resources. This approach safeguards Tribal health and welfare while providing sorely needed predictability to Tribal-state regulatory disputes over water. States can be confident that their interests will be adequately accounted for because Tribes have a proven track record of equitably regulating water resources, and there are plentiful opportunities for state-Tribal cooperation.

This Article explores the role of lawyers in democratic backsliding—the degradation of democratic institutions and practices using law rather than violence. The Article’s central aim is to set an agenda and outline an approach to studying the professional paradox at the center of backsliding: why and how lawyers attack the rule of law. It thus seeks to shift the scholarly lens from the conventional view of lawyers as defenders of democracy to investigate lawyers as authors of autocracy.

This Note proposes a novel way of applying the Anderson-Burdick balancing test, using the court response to tort claims based on phobia of and misinformation surrounding HIV/AIDS in the 1980s and ‘90s. When considering state regulatory interests, courts should not ask if the state interest is reasonable, but if the state interest should be reasonable.

In recent decades, the U.S. labor market has shifted to more contingent work or work disguised as entrepreneurship. These attenuated relations between worker and firm reflect the “fissuring” of work. Some firms now go beyond fissuring work: they treat the workers themselves as consumers by offering them services and credit products. And when firms expand employment contracts to extend services and credit products to workers, workers are entitled to consumer law protections.

Like all U.S. jurisdictions, California’s criminal legal system is largely administered via plea bargains. Although courts characterize plea bargains as fair and necessary, these characterizations do not enjoy strong empirical support. This Note concludes that plea bargaining practices likely violate California’s unconstitutional conditions doctrine and urges state actors to implement reforms.

Past efforts by the Advisory Committee on Civil Rules to substantially reform Rule 23 have been met with such controversy that more recently, the Advisory Committee has elected to pursue more modest reforms. The new criteria have been widely understood as introducing modest changes and have even been argued by some to have done nothing more than codify existing circuit practice. However, two circuits have sharply diverged in their interpretation of what the new Rule 23(e)(2) requires, calling into question whether the changes are so self-evidently modest and dashing the goal of unifying circuit practice.

For more than a century, the United States has sought to restrict Tribal governments’ powers over criminal law. Tribes are increasingly embracing Indigenous-based restorative justice models, which have regenerated Tribal jurisdiction and enhanced the well-being of Tribal members.

In his 1989 essay The Embarrassing Second Amendment, Sanford Levinson suggested that left-leaning scholars avoid studying the Second Amendment because they are embarrassed that its text might mean what gun-rights proponents claim it means—an individual right to bear arms. Levinson urged such scholars to better engage the text, both to model intellectual integrity and to avoid unnecessarily ceding the terms of a critical constitutional debate. This Article makes a similar argument with respect to the right to counsel granted by the Sixth Amendment.