California Law Review California Law Review

For more than a century, the United States has restricted Tribal governments’ powers over criminal law. It has diminished Tribal jurisdiction and imposed adversarial approaches on Tribal courts. But recently, some Tribal courts have begun to embrace Indigenous-based restorative justice models. UCLA School of Law Assistant Professor Lauren van Schilfgaarde discusses how these models are strengthening both Tribal courts and Tribal jurisdiction more broadly.

Author: Lauren van Schilfgaarde, Assistant Professor, UCLA School of Law
Host: Peter Mason (Volume 113 Podcast Editor)
Script: Peter Mason (Volume 113 Podcast Editor)
Technology Editors: Georgiana Soo (Volume 112 Podcast Editor), Sandeep Stanley (Volume 113 Senior Technology Editor), Emily C. Welsch (Volume 113 Technology Editor)
Soundtrack: Composed and performed by Carter Jansen (Volume 110 Technology Editor)

Each year, Child Protective Services investigates over one million families. Every investigation includes a room-by-room search of the family home, as well as the threat of the state’s coercive authority to remove children from their families. CUNY School of Law Professor Tarek Z. Ismail discusses how these investigations have evaded traditional Fourth Amendment scrutiny.

Author: Tarek Z. Ismail, Associate Professor, CUNY School of Law
Host: Georgiana Soo (Volume 112 Podcast Editor)
Script: Peter Mason (Volume 112 Associate Editor)
Technology Editors: Georgiana Soo (Volume 112 Podcast Editor, Al Malecha (Volume 112 Senior Technology Editor, Kiana Harkema (Volume 112 Technology Editor)
Soundtrack: Composed and performed by Carter Jansen (Volume 110 Technology Editor)

Americans have long persevered in the face of the national welfare system’s inadequacies. But when a new challenge in the form of climate change emerges, how can the United States adapt its welfare programs to assist Americans?

Author: Andrew Hammond, Professor of Law, Indiana University Maurer School of Law
Host: Georgiana Soo (Volume 112 Podcast Editor)
Technology Editors: Georgiana Soo (Volume 112 Podcast Editor, Al Malecha (Volume 112 Senior Technology Editor, Kiana Harkema (Volume 112 Technology Editor)
Soundtrack: Composed and performed by Carter Jansen (Volume 110 Technology Editor)

Note Abstract: In the United States, law condemns poor people to their fates in states. Where Americans live continues to dictate whether they can access cash, food, and medical assistance. What’s more, immigrants, territorial residents, and tribal members encounter deteriorated corners of the American welfare state. Nonetheless, despite repeated retrenchment efforts, this patchwork of programs has proven remarkably resilient. Yet, the ability of the United States to meet its people’s most basic needs now faces an unprecedented challenge: climate change. As extreme weather events like wildfires and hurricanes become more frequent and more intense, these climate-fueled disasters will displace and impoverish more people. How can the United States adapt its welfare programs to assist Americans in the face of this threat?

This Article maps that uncharted territory. It contextualizes the climate crisis in our scholarly understanding of the U.S. welfare state. It then canvasses the myriad disaster provisions in each major welfare program. Equipped with an understanding of the status quo, the Article proceeds to evaluate how federal law has fared amid the recent spate of fires and floods. The Article attends to the role of Congress, weakened as it is by increased polarization and diminished capacity, and how the resulting delays and distortions in emergency relief have hampered the governmental response. The Article then brings state government into focus, and in doing so, demonstrates how assistance often excludes the most vulnerable Americans. The Article also extracts lessons from the pandemic response and applies them to climate adaptation of public benefits. The Article concludes with an agenda for how to adapt welfare programs to meet the climate crisis. That agenda starts and ends with the federal government, but it includes policies states, territories, and Tribes could implement if Congress and federal agencies do nothing or not enough. The Article repurposes what we know about how the U.S. welfare state functions now to inform what government should do next.

Consumer law practitioners and scholars have long argued that credit scores perpetuate historical social discrimination along lines of race, class, and gender. But what happens when abusers weaponize this financial tool—and the structural inequities baked into it—and coerce debt from their partners? And what does a new California statute created to rectify such coercion actually do?

Author: Michaela Park, 3L at UC Berkeley School of Law
Host: Kevin Kallet (Volume 112 Associate Editor)
Technology Editors: Georgiana Soo (Volume 112 Podcast Editor), Al Malecha (Volume 112 Senior Technology Editor), Kiana Harkema (Volume 112 Technology Editor)
Soundtrack: Composed and performed by Carter Jansen (Volume 110 Technology Editor)

Note Abstract: A new form of domestic violence has emerged out of the modern proliferation of consumer lending: coerced debt. Although abusers use a wide range of tactics to coerce debt—from identity theft to forcing or tricking partners to sign loan documents—coerced debt invariably damages survivors’ credit scores, creating barriers to financial stability for which existing remedies provide little relief. This note examines California Family Code Section 6342.5, a new amendment that allows survivors to request an order stating they are not responsible for debts coerced by their abuser. Survivors will then be able to use this order in conjunction with state identity theft laws to protect themselves from creditors. This note argues that, while its passage signals lawmakers are making efforts to provide victims of coerced debt with corresponding relief, Family Code Section 6342.5 may ultimately be ineffectual in the face of modern credit granting and debt collection practices and California’s own identity theft laws. California legislators must pass further legislation that recognizes the role of the credit system itself in facilitating coerced debt. Ultimately, coerced debt puts into stark relief the growing consequences of our increasingly automated and depersonalized credit system for survivors of domestic violence.

“What does it mean to be a lawyer committed to justice when the law seemingly facilitates injustice? And how do you teach students to reckon with this question?”

Author: Etienne C. Toussaint, Assistant Professor of Law, University of South Carolina School of Law
Host: Kevin Kallet (Volume 112 Associate Editor)
Technology Editors: Hiep Nguyen (Volume 111 Senior Technology Editor), Taylor Graham (Volume 111 Podcast Editor), Benji Martinez (Volume 111 Technology Editor)
Soundtrack: Composed and performed by Carter Jansen (Volume 110 Technology Editor)

Article Abstract: When President Donald Trump launched an assault on diversity training, critical race theory, and The 1619 Project in September 2020 as “divisive, un-American propaganda,” many law students were presumably confused. After all, law school has historically been doctrinally neutral, racially homogenous, and socially hierarchical. In most core law school courses, colorblindness and objectivity trump critical legal discourse on issues of race, gender, or sexuality. Yet, such disorientation reflects a longstanding debate over the fundamental purpose of law school. As U.S. law schools develop anti-racist curricula and expand their experiential learning programs to produce so-called practice-ready lawyers for the crises exposed by the COVID-19 pandemic, scholars continue to question whether and how, if at all, the purpose of law school converges with societal efforts to reckon with America’s legacy of White supremacy.

This Article argues that the anti-racist, democratic, and movement lawyering principles advocated by progressive legal scholars should not be viewed merely as aspirational ideals for social justice law courses. Rather, querying whether legal systems and political institutions further racism, economic oppression, or social injustice must be viewed as endemic to the fundamental purpose of legal education. In so doing, this Article makes three important contributions to the literature on legal education and philosophical legal ethics. First, it clarifies how two ideologies—functionalism and neoliberalism—have threatened to drift law school’s historic public purpose away from the democratic norms of public citizenship, inflicting law students, law faculty, and the legal academy with an existential identity crisis. Second, it explores historical mechanisms of institutional change within law schools that reveal diverse notions of law school’s purpose as historically contingent. Such perspectives are shaped by the behaviors, cultural attitudes, and ideological beliefs of law faculty operating within particular social, political, and economic contexts. Third, and finally, it demonstrates the urgency of moving beyond liberal legalism in legal education by integrating critical legal theories and movement law principles throughout the entire law school curriculum.

“What does it mean to be a lawyer committed to justice when the law seemingly facilitates injustice? And how do you teach students to reckon with this question?”

Author: Etienne C. Toussaint, Assistant Professor of Law, University of South Carolina School of Law
Host: Kevin Kallet (Volume 112 Associate Editor)
Technology Editors: Hiep Nguyen (Volume 111 Senior Technology Editor), Taylor Graham (Volume 111 Podcast Editor), Benji Martinez (Volume 111 Technology Editor)
Soundtrack: Composed and performed by Carter Jansen (Volume 110 Technology Editor)

Article Abstract: When President Donald Trump launched an assault on diversity training, critical race theory, and The 1619 Project in September 2020 as “divisive, un-American propaganda,” many law students were presumably confused. After all, law school has historically been doctrinally neutral, racially homogenous, and socially hierarchical. In most core law school courses, colorblindness and objectivity trump critical legal discourse on issues of race, gender, or sexuality. Yet, such disorientation reflects a longstanding debate over the fundamental purpose of law school. As U.S. law schools develop anti-racist curricula and expand their experiential learning programs to produce so-called practice-ready lawyers for the crises exposed by the COVID-19 pandemic, scholars continue to question whether and how, if at all, the purpose of law school converges with societal efforts to reckon with America’s legacy of White supremacy.

This Article argues that the anti-racist, democratic, and movement lawyering principles advocated by progressive legal scholars should not be viewed merely as aspirational ideals for social justice law courses. Rather, querying whether legal systems and political institutions further racism, economic oppression, or social injustice must be viewed as endemic to the fundamental purpose of legal education. In so doing, this Article makes three important contributions to the literature on legal education and philosophical legal ethics. First, it clarifies how two ideologies—functionalism and neoliberalism—have threatened to drift law school’s historic public purpose away from the democratic norms of public citizenship, inflicting law students, law faculty, and the legal academy with an existential identity crisis. Second, it explores historical mechanisms of institutional change within law schools that reveal diverse notions of law school’s purpose as historically contingent. Such perspectives are shaped by the behaviors, cultural attitudes, and ideological beliefs of law faculty operating within particular social, political, and economic contexts. Third, and finally, it demonstrates the urgency of moving beyond liberal legalism in legal education by integrating critical legal theories and movement law principles throughout the entire law school curriculum.