UCLR Online
In National Pork Producers Council v. Ross, the Supreme Court upheld California’s Proposition 12, which forbids the sale of pork from pigs that were “confined in a cruel manner.” Given that California imports most of the pork consumed within the state, the plaintiffs contended that the law violated the dormant Commerce Clause. While the bulk of Justice Gorsuch’s opinion fleshed out the dormant Commerce Clause doctrine, it made passing reference to a considerably more obscure constitutional provision: the Import-Export Clause.
The California Age-Appropriate Design Code Act (CAADCA) regulates the collection, storage, and processing of personal data of individuals under 18 and requires covered websites to estimate the age of users and create notices that they may be tracked. NetChoice argues that the law—ostensibly aimed at protecting children and their data online—will hobble free speech on the internet. This Case Note examines the stakes of this litigation, explores the constitutional viability of the CAADCA, and argues for legislative amendments that could allow the law (or others in the same vein) to better weather future legal challenges.
In 2022, San Jose became the first U.S. jurisdiction to require gun owners to carry liability insurance. Such mandates have been subject to Second Amendment challenges, which have been affected by the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen. This Essay examines how district courts have applied the Bruen test to liability insurance mandates and, using this case study, discusses how Bruen inhibits governments from creating novel solutions—such as insurance regimes—to reduce gun violence.
Should progressive movement lawyers avoid making textualist arguments? This Essay suggests that the answer is no. While there may be good reasons for movement lawyers to eschew arguments associated with their ideological opponents, none of those reasons apply to the embrace of textualist arguments by progressive movements today. Indeed, the time may be especially ripe for progressive social movements to make increased use of textualist legal arguments.
Liberal political and legal theory posit a world of autonomous individuals, each pursuing their own chosen ends, linked to each other by one or more agreements. But this is not how most of us experience most of our lives. This Essay seeks to open a conversation about resources in our legal history and culture that work from different assumptions—and might perhaps be a source of inspiration—by pointing to one such resource: admiralty.
In the late nineteenth century, James Bradley Thayer urged that an act of Congress should not be struck down unless the constitutional violation “is so clear as to leave no room for reasonable doubt.” Thayer’s beyond-a-reasonable-doubt test helped define constitutional understandings for more than a half-century; Oliver Wendell Holmes, Louis Brandeis, Learned Hand, Benjamin Cardozo, and Felix Frankfurter were practicing Thayerians. Thayerism provided crucial orientation for Alexander Bickel’s conception of judicial review and his embrace of “the passive virtues,” and also for John Hart Ely’s democracy-reinforcing approach to constitutional law. But Thayerism seems to have dropped out of contemporary constitutional law.
Professor Jonathan Choi’s Measuring Clarity in Legal Text adds to a growing literature in empirical legal interpretation, which uses corpus linguistics and survey-experiments to inform legal interpretation. Measuring Clarity offers two intriguing theses, one positive and one critical. On the “positive” reading, the article defends its word embedding approach as a useful method of first-order legal interpretation. On a “critical” reading, the article employs word embeddings as a new tool to assess textualism’s fundamental linguistic assumptions, concluding that there is a fundamental problem with textualism, or at least its current practice.
To understand criminal justice, education, and family law, we lawyers typically look to social scientists, and their external expertise does teach us much. But we often neglect lived experience. Occasionally, we should toggle from the dry regressions and clinical detachment of social science to the internal perspective and expertise of those who live through family breakup, foster care, disrupted schooling, drugs, and crime. And that is what Rob Henderson’s breakout memoir, Troubled, gives us: a window on troubled youth.
In 1999, Professor Richard Helmholz published Magna Carta and the Ius Commune, in which he argued that some of the ideas and language found in Magna Carta provide evidence that the early common law was engaging with the ius commune, the ancestor of modern civil law traditions. This Essay argues that Magna Carta does not provide conclusive evidence whether contemporaries were thinking about Roman and canon law when reforming the common law.
This Essay argues that Gomez v. Commissioner of Correction provides an appropriate, holistic framework for determining when defense counsel should be precluded from raising Napue arguments in post-conviction proceedings.
In Sackett v. EPA, under the guise of judicial interpretation of the Clean Water Act, the Court effectively reduced the Act’s coverage of the nation’s streams by as much as 80%, and of the nation’s wetlands by at least 50%. Contrary to the majority’s proffered reasoning, nothing in the relevant statutory language compelled such an unprovoked hit job on the nation’s ability to protect its waters from harmful pollution.
The problem of caste discrimination has come into sharp focus in the United States. In the last few years, there have been several high-profile allegations and cases of caste discrimination in employment and educational settings. As a result, organizations—including governmental entities—are taking action, including by updating their rules and regulations to explicitly prohibit discrimination based on caste and initiating enforcement actions against alleged caste discrimination.