California Law Review

Traffic courts resolve over half of the cases in the U.S. legal system. These cases are easy for some defendants to handle by paying a fine, but they can have devastating effects for those with fewer means. And despite the key role these courts play in funding state judicial branches and other state and local programs, they have not been comprehensively studied in decades. What’s going on in traffic courts? And what can they teach us about the legal system more broadly? In this episode, Arizona State University Sandra Day O’Connor College of Law Professor Justin Weinstein-Tull explains his research on traffic courts.

Author: Justin Weinstein-Tull, Professor of Law, Arizona State University Sandra Day O’Connor College of Law

Host: Peter Mason (Volume 113 Podcast Editor)

Script: Peter Mason (Volume 113 Podcast Editor)

Transcript: Shivank Singh (Volume 113 Associate Editor); Peter Mason (Volume 113 Podcast Editor)

Technology Editors: 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)

The U.S. carceral system disproportionately harms racial minorities and people living in poverty. Penal abolitionist frameworks have helpfully reframed the conversation to foreground those harmful social consequences. But how do those consequences affect our understanding of work, and particularly work that is both criminalized and undertaken in order to survive? In this episode, Indiana University Maurer School of Law Professor Yvette Butler explains her concept of survival labor and why it should be included in our general understanding of work.

Author: Yvette Butler, Associate Professor of Law, Indiana University Maurer School of Law

Host: Peter Mason (Volume 113 Podcast Editor)

Script: Peter Mason (Volume 113 Podcast Editor)

Technology Editors: 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)

Immigration adjudications regularly use information from the criminal legal system to justify a discretionary denial of relief or benefits, even when charges have been dismissed. This practice faces little scrutiny due to the assumption that adjudicators are merely importing facts already found by the criminal system. But what if this practice actually constitutes “hidden factfinding”? Sarah Vendzules, a Senior Staff Attorney at the Office of the Appellate Defender in New York City, uncovers this hidden factfinding and offers a framework that could rein it in.

Author: Sarah Vendzules, Senior Staff Attorney, Office of the Appellate Defender

Host: Peter Mason (Volume 113 Podcast Editor)

Script: Peter Mason (Volume 113 Podcast Editor)

Technology Editors: 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)

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.

Although the Twenty Fourth Amendment has received little attention since its ratification, the Amendment may provide a basis for combatting unconstitutional voter reenfranchisement schemes that condition the right to vote on money payments to the government.

Author: Elizabeth Heckmann, 2022 Graduate of the University of California, Berkeley, School of Law

Host: Taylor Graham

Technology Editors: Hiep Nguyen (Volume 111 Senior Technology Editor), Taylor Graham (Volume 111 Technology Editor), Benji Martinez (Volume 111 Technology Editor)

Soundtrack: Composed and performed by Carter Jansen (Volume 110 Technology Editor)

Article Abstract: The Twenty-Fourth Amendment to the United States Constitution has received little attention from federal courts since its ratification. The Amendment’s language is broad and far-ranging, prohibiting conditioning the right to vote on payment of poll taxes or “any other” tax. Although the Amendment’s text, its legislative history, and early Supreme Court decisions strongly indicate that the law’s drafters intended to eliminate any and all wealth-based qualifications on voting, many states continue to require people convicted of felonies to pay money to the government before regaining their right to vote. Some litigators have used the Amendment to combat felon re-enfranchisement schemes that unconstitutionally condition access to the ballot box on payment of legal financial obligations (LFOs) associated with the person’s criminal sentence. Most recently, the Eleventh Circuit addressed Florida voters’ challenge to the Florida Senate’s interpretation of Amendment 4, which automatically re-enfranchised people convicted of felonies when they completed “all terms of [their] sentence,” including LFOs. This Note explores the lower court’s and Eleventh Circuit’s analyses of the Twenty-Fourth Amendment, as well as challenges and solutions to using the Amendment in the future to combat unconstitutional re-enfranchisement schemes conditioning the right to vote on a money payment to the government.

Part I discusses the history of felon disenfranchisement and the Twenty-Fourth Amendment, as well as major Supreme Court decisions applying the Amendment to voting laws. Part II analyzes the line of Federal District Court and Eleventh Circuit decisions addressing Florida’s Amendment 4 and whether requiring people convicted of felonies to pay all LFOs before regaining the right to vote violates the Twenty-Fourth Amendment. Part III explores why the Eleventh Circuit’s ruling is not in line with the Amendment’s text and history, nor with the Supreme Court’s Twenty-Fourth Amendment or tax jurisprudence.

When employers commit wage violations against their low-wage employees, recovery of those funds through a lawsuit or the administrative process is difficult and time consuming. No matter the outcome of the litigation, the result is a transfer of wealth from the victims of wage theft to the perpetrators. But what if there was a to ensure employees were paid up front for their lost wages?

Author: Elizabeth Ford, Visiting Professor, Seattle University School of Law

Host: Taylor Graham

Technology Editors: Hiep Nguyen (Volume 111 Senior Technology Editor), Taylor Graham (Volume 111 Technology Editor), Benji Martinez (Volume 111 Technology Editor)

Soundtrack: Composed and performed by Carter Jansen (Volume 110 Technology Editor)

Article Abstract: Wage theft is rampant in the United States. It occurs so frequently because employers have much more power than workers. Worse, our main tool for preventing and remedying wage theft—charging government agencies with enforcing the law—has largely failed to mitigate this power differential. Enforcement agencies, overburdened by the magnitude of the wage theft crisis, often settle cases for nothing more than wages owed. The agency, acting as broker for the payment of the wages owed, voluntarily foregoes both interest and statutory penalties.

This is a bad deal for workers, but not just because they do not get the benefit of the interest or penalties. Instead of making workers who have experienced wage theft whole, the enforcement agencies systematically broker no-interest loans from low-wage workers to their employers. The system, as it functions now, essentially transfers wealth from low wage workers to their employers. This is not the result of malicious intent: when forced to choose between recovering wages-only or waiting another six months for a still-uncertain recovery, workers themselves will choose the former.

This Article proposes an elegant solution that will shift this paradigm: Wage Recovery Funds (WRFs). A WRF is a pool of funds housed at a government agency or community organization. Employees who are victims of wage theft could approach the WRF; if the WRF accepts the case, it would make the worker whole upfront—before the employer has paid—and then take assignment of the worker’s claim. The WRF would then pursue wages, interest, and penalties through administrative enforcement proceedings. Money recovered from employers would then be returned to the fund to support the next case. Beyond aggregating interest and penalties for support of future workers, a Wage Recovery Fund would change the risk paradigm, placing the risk of delayed recovery on an entity that can more easily afford it, and eliminating the workers’ immediate need for lost wages as a source of employer leverage in settlement.