This article argues that it is a mistake to fixate on courts as the core safeguard in the modern administrative state. The article surveys federal agencies that regulate us in many ways that either evade judicial review entirely or are at least substantially insulated from such review.
After President Trump withdrew the United States from the Paris Climate Accord, California announced its continued commitment to the cause by entering into agreements to control global temperature increases with other subnational governments from around the world. This comment analyzes possible dormant foreign affairs preemption challenges posed by such agreements.
This comment considers the ways in which modern qualified immunity implicates or undermines the Fourteenth Amendment’s Equal Protection Clause. It argues that qualified immunity often deprives victims of police brutality of their only viable remedy. As such, in the context of excessive force claims, qualified immunity violates the Equal Protection Clause and should be overruled.
An introduction to this issue dedicated to the topic of the 2018 UCLA Law Review Symposium, "The Safeguards of Our Constitutional Republic."
The article calls attention to the latent instability of constitutional norms and theorizes the structure of constitutional norm change. It argues that, under certain conditions, it will be more worrisome when norms are subtly revised than when they are openly flouted. Thus, President Trump’s flagrant defiance of norms may not be as big a threat to our constitutional democracy as the more complex...
Scholars, judges, and policymakers have observed that American constitutional democracy depends on far more than the constraints imposed by judicially-interpreted formal legal arrangements. Drawing on judicial doctrine, political science, and the history of American institutions since the end of World War II, this article explores what it means to take seriously a more expansive, less court...
Long before there was a U.S. Constitution for the American republic, there were treaties among Indian Nations and between Indian Nations and colonial governments reflecting ideals of consultation and negotiation among self-determining peoples. Using negotiations between the United States and the states a point of comparison, this article works through what it might mean to think about...
Populism is primarily defined in our public discussions by the loudest self-identifying populists active in democratic politics at the moment. Populism has therefore often been treated as a concept merging not just antiestablishment sentiments, but also authoritarian and xenophobic sentiments. The article argues the antiestablishment part of populism can be empirically and logically unbundled...
The article contemplates how constitutional designers should address the problem of apex criminality, or criminal actions by those elected or appointed to high positions in a national government.
This Article accomplishes two key goals. First, it offers a novel lens through which to reconsider how best to promote meaningful choice in family form. Second, this Article draws on nonmarital parentage law, as well as the almost entirely overlooked body of what I call “interstitial marriage cases,” to demonstrate that courts are capable of applying more capacious rules that give effect to...
Forum selection clauses are ubiquitous. Historically, the judiciary was hostile to contracts limiting a plaintiff’s venue options. The tide has since turned. Today, lower courts routinely enforce such clauses. This Article challenges this reflexive response in the special context of ERISA cases.
Concerns over bot speech have led prominent figures in the world of technology to call for regulations in response to the unique threats bots pose. This work is the first to consider how efforts to regulate bots might run afoul of the First Amendment.
Nearly 90 percent of the opinions issued by the federal courts of appeal are unpublished and lack precedential effect, and where these cases lay out new legal rules, this phenomenon cannot be reconciled with the Supreme Court’s settled retroactivity jurisprudence. This article highlights this inconsistency and proposes use of the “new rule” construct as a mechanism for differentiating those...
The article focuses in on the experiences of policing faced by Somali Muslims within a larger Black Muslim community. It examines how federal “Countering Violent Extremism” program has been used against this group of Black Muslims and puts it in the broader historical context of Black Muslims in America, revealing inherent racialization of religion, and the antiblack origins of American...