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Is the United States at risk of democratic backsliding? And would the Constitution prevent such decay? To many, the 2016 election campaign and the conduct of President Donald Trump may be the immediate catalyst for these questions. But structural changes to the socio-economic environment and geopolitical shifts are what make the question a truly pressing one. This article develops a taxonomy of...

In recent years, the use of economic sanctions—statutory fines, surcharges, administrative fees, and restitution—has exploded in courts across the country. Economic sanctions are imposed for violations as minor as jaywalking and as serious as homicide. Inability to pay the sanctions often leads to perpetual debt. This article posits that the Eighth Amendment’s Excessive Fines Clause may help...

This Article offers a defense of outsider, legal-political intervention and community triage in inner-city anti-poverty campaigns under circumstances of widespread urban social disorganization, public and private sector neglect, and nonprofit resource scarcity. In mounting this defense, the Article revisits the roles of lawyers, nonprofit legal services organizations, and university-housed law...

As immigration reform initiatives driven by established advocacy organizations in Washington, D.C., were successively defeated in the late mid to late 2000s, movement-centered organizations and newly created formations of undocumented youth mobilized against the federal-local immigration enforcement regime of the Bush and Obama administrations. Drawing on media, scholarly, and first person...

This Article explains how a particular area of Fourth Amendment law—stop-and-frisk jurisprudence—facilitates police violence against African Americans. The Article challenges the standard account of Terry v. Ohio— the case that constitutionalized stop-and-frisk—and argues that, in addition to eroding the probable cause standard on which Fourth Amendment law has historically rested, the...

In one of the most striking developments in American legal scholarship over the past quarter century, social movements have become central to the study of law. Why has this happened? To answer the question, this article provides an original account of progressive legal theory that reveals how the rise of social movements is a current response to an age-old problem: harnessing law as a force for...

Obergefell’s national mandate for marriage equality became possible because marriage equality advocates set out to change social and constitutional meanings by winning over moveable middle voters in ballot question elections. Thus, a new variation on popular constitutionalism was born. The article argues that the same-sex marriage campaign is likely to foreshadow sophisticated social change...

Did backlash to judicial decisions play a destructive role in debates over same-sex marriage, as was so often claimed? The article argues that the Supreme Court’s decision in Obergefell was possible not simply because public opinion changed, but also because struggle over the courts helped change public opinion and forge new constitutional understandings. The debate over same-sex marriage...

How should lawyers connect their preexisting advocacy with a broader social movement? Must lawyers be relegated to the background, or might they assume an active role that enhances the leadership of grassroots community members within the movement? What are concrete tools lawyers might deploy in advancing the struggle? Through a case study of challenging traffic court debt in South Los Angeles...

This Article explores courts’ ability to restrict occupational licensing regulations at the state and local level. In recent years, governments have extended licensing requirements well beyond their traditional boundaries. The literature criticizes these requirements as protectionist measures that stifle new entry, entrench inequality, and threaten the emerging sharing economy. The harder...

The limited capacity of juveniles to make good decisions on their own—based on centuries of common sense and empirically supported in recent decades by abundant scientific research—informs almost every field of legal doctrine. Recent criminal justice reforms have grounded enhanced protections for youth at punishment and as criminal suspects on their limited cognitive abilities and heightened...

Because of a commitment to the concept of individual culpability, holding someone responsible for the wrongdoing of another is a relatively rare occurrence in American jurisprudence. However, this Article reveals a significant, yet largely unacknowledged, source of such liability: conjugal liability. Conjugal liability occurs when one spouse or intimate partner is held legally responsible, either...

Within the past decade, the Internet has played an increasingly central role in social dialogue and popular culture. Through the promulgation of “like” and “heart” features on online platforms such as Facebook and Instagram, individuals are encouraged to affirmatively engage with content posted by other users to share and debate their opinions in a public forum. Consequently, many consumers...

Copyright law has a framing problem. The problem is pervasive, unresolved, and often unnoticed, and it significantly impacts the nature and scope of copyright protection. Copyrighted works are complex: Books consist of chapters, newspapers consist of articles, and so on. Courts often need to decide whether to frame the work as one comprehensive whole, an approach we call “zooming out,” or to...