UC Irvine Law Review

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This Article examines an important but little-noticed moment in the intellectual history of the Equal Protection Clause: the New York City draft riots of 1863. In mid-July of that year, New York was engulfed by a weeklong riot against the Union military draft, as mobs of predominantly working-class white men beat and murdered Black New Yorkers, looted and burned stores and government buildings, and battled the police in the streets. The scale and intensity of the violence foreshadowed the white supremacist terrorism that subsequently consumed the postwar South. In the wake of the draft riots, though, New York City embarked on a remarkable project of remediation, mobilizing a variety of legal processes as it prosecuted rioters, paid civil damages to riot victims, raised philanthropic funds to provide free legal aid, charged police officers with dereliction of duty, and published extensive volumes of witness testimony to build a record of the events. Those measures anticipated the wider legal efforts at racial redress that were made during Reconstruction, and they also resonate with urgent debates about civil rights protections, racial justice, and police accountability today.

Crucially, moreover, as this remedial process unfolded in New York, a powerful discourse of equality took shape, and it sheds new light on the meaning of the Equal Protection Clause. In particular, it demonstrates that the idea of equal protection in 1863 included affirmative duties for the government to protect its people against harms caused by private parties, which stands in sharp contrast to the limitations on equal protection law set by the modern state action doctrine. Republican leaders in New York City, for example, promised to “protect” Black New Yorkers’ “full and equal right[s]” and “call[ed] upon the proper authorities to take immediate steps to afford them such protection,” while the Board of Police Commissioners charged one of its own officers, Sergeant Jones, with failing to provide “protection for every class of citizens[,] black or white, rich or poor,” during the draft riots. Sergeant Jones’s trial was then covered in the press under the front-page headline “Equal Protection Under the Law,” directly linking the affirmative duty to guarantee “protection for every class of citizens” with the “Equal Protection” vocabulary that would be written into the Fourteenth Amendment just over two years later. Rereading the Fourteenth Amendment in the context of the New York City draft riots, this Article therefore argues that the state action doctrine is an anachronism and that a much broader vision of equality, equal rights, and antidiscrimination law resides within the Equal Protection Clause.

Incarcerated people create, lead, and participate in a variety of associations in prison. These associations educate and advocate for members, serve the broader prison population, cultivate social bonds, and promote the individual growth that happens in relationship with others. The associations do so in the face of byzantine regulations that burden their formation, membership, and operations. These rules go unchecked because the constitutional right of association is under protected in prisons. The deferential Turner v. Safley test for rights violations in prison prizes ease of prison administration over rights protection. Thus, though the right of association is a fundamental constitutional right, in prison it does not enjoy the level of protection of a fundamental right.

This Article builds a conceptual framework of associations in prison. It provides a typology of the organizations that exist in prisons today. Most of these operate as they would on the outside, as part of civil society, which fills gaps in government provision. The Article also explores the kinds of effects the associations have on members, which are democracyenhancing in nature as well as communitarian and liberal. The Article then maps the types of limitations imposed on the groups by regulations and rules. By examining the unique challenges produced by and faced by these associations, the Article shows that broader associational jurisprudence can better protect fundamental aspects of associations by grappling with issues that arise in the unique context of incarceration.

An insidious tactic threatens elections across the United States. Some refer to it as a “bait and switch.” Others recognize a form of “election sabotage.” While the labels vary, the pattern is the same. First, an election official or other figure of authority consents to an error at an early stage of the election process. The actor then waits to see how the election unfolds. If the election results are favorable, the error slides into irrelevance. If not, that same actor refers back to the earlier error, now with indignity, and insists that it requires a late-stage disruption of the election process. The aim of this maneuver—a maneuver this Article terms “electoral sandbagging”—is to install a favored candidate into office. An effect is to imperil the election process from within.

This Article, the first to identify and examine this pattern, connects it to another phenomenon: sandbagging in the courtroom. There, Justice Scalia defined the practice as “suggesting or permitting, for strategic reasons, that the trial court pursue a certain course, and later—if the outcome is unfavorable—claiming that the course followed was reversible error.” Unsurprisingly, judges have long recognized and denounced this tactic. Sandbagging in the election context warrants even stronger censure. Among other harms, electoral sandbagging fundamentally undermines the fairness of election proceedings and otherwise strikes at the heart of democratic governance. By exposing and contextualizing this growing phenomenon, this Article provides guidance for a path forward. In addition, by demonstrating how electoral sandbagging thrives in the shadows—its perpetuators dependent on dissembling and subterfuge—this Article helps to counteract its effects.

This Article argues that the widespread incorporation of religion across the federal government constitutes the executive establishment of religion in violation of the First Amendment because it favors certain religious tenets or beliefs over others. The structural and substantive restraints imposed on presidential power have been inadequate to prevent executive establishment, and, in some ways, they have facilitated it. The rise of the modern administrative state coincided with a time of doctrinal flux in Establishment Clause jurisprudence and the enactment of the Administrative Procedure Act (APA). The absence of a clear, workable constitutional standard invited presidential interpretations that strained the meaning of precedent. The APA facilitated uniform policymaking and left room for the adoption of substantive policy lenses that helped to streamline the incorporation of religious tenets across executive agencies and programs.

The executive establishment of religion entails the promotion of, or collaboration with, specific religious tenets or organizations across the administrative state. It began in earnest during the Reagan administration and is currently embedded throughout federal policies and programs in the form of faith-based initiatives and broad religious exemptions. Executive establishment is uniquely destabilizing to the body politic because it directly conflicts with the unifying purpose of the Establishment Clause by undermining political unity and fostering potential divisiveness on the basis of belief and ideology.

The first section of this Article outlines the structural and substantive limitations imposed on the President by both the U.S. Constitution and the APA. The second section details the evolution of executive establishment and explains how the confluence of shifting U.S. Supreme Court doctrine and the push for administrative uniformity created the perfect storm that led to the incorporation of particular religious tenets and organizations in federal policy and programs. The final section makes proposals for reform after examining the existing institutional safeguards, specifically executive forbearance, judicial review, and legislative oversight. A brief conclusion warns that the continued unchecked adoption of specific religious tenets and religiously motivated policies is inherently exclusionary and directly undermines the unifying spirit of the Establishment Clause.

Immigration law gets most things wrong and satisfies no one—not immigrants, not moderates, not restrictionists, and not abolitionists (the #AbolishICE crowd). It is bad law premised on skewed epistemic inputs—the fantasies of U.S. citizens—and enforced by a national agency with bloated resources tasked with solving a problem (illegal immigration) that causes no material harm. Migration law’s biggest failing is that it admits far fewer immigrants than our country has the capacity to take in, as the decades-long, peaceful, and productive presence of twelve million undocumented immigrants definitively proves. The bankruptcy of immigration law has been obvious for a few decades at least, yet comprehensive immigration reform has been impossible to enact over the same time frame. Now, with the death of the most promising legislative reform effort in a generation at the hands of the unelected Senate parliamentarian, it’s past time for a reassessment of immigration law and the ends and strategy of immigration reform.

In this Article, I argue that the reasons for the impasse on reform are structural and require a structural overhaul: a reconstruction of immigration law that destroys one-size-fitsall, national control and places chunks of the immigration power back in local precincts in metro areas, counties, or towns. This decentralized approach can increase our immigrant carrying capacity by allowing places that want and need immigrants to invite and attend to as many as they like. With time, some pro-immigrant locales might even cultivate an abolitionist, open-borders immigration politics from the bottom up. It wouldn’t be the first time. The abolition of slavery and the gay rights movements were both nurtured in sub-national jurisdictions with special cultures and characteristics. Only after consciousness raising and proof of concept were secured were these radically new norms and modes of being scaled up.

A local immigration law may also better sate the needs of American reactionaries. Social scientists teach that many of us are dyed-in-the-wool authoritarians triggered by social and racial pluralism. This personality type can only be soothed with a restoration of a sense of “oneness or sameness.” Locating debates about racial and social pluralism—i.e., the immigration debate—at the national level constantly and unnecessarily triggers authoritarians. Many authoritarians live in places that are racially and socially homogenous. A more local immigration power would allow this group to sate their thirst for homogeneity without imperiling the benefits of immigration for the rest of us: the majority of Americans that enjoy and thrive in a pluralist, multiracial order.

The Panama Papers, the Paradise Papers, and the Pandora Papers have exposed how tax advisors, lawyers, financial institutions, and other intermediaries have helped the world’s economic elites hold their wealth through corporations and trusts organized in tax havens. These professional enablers are frequently located in a country other than that of the relevant taxpayers. This means that the tax avoidance enablers are often out of the reach of the victim governments.

How can a government counter the activities of professional enablers located in other countries? This has proven to be a formidable challenge. This Article proposes a novel solution: a new international reporting standard, referred to as Global Mandatory Disclosure Rules (GMDR), which will impose reporting obligations on intermediaries assisting taxpayers with designing and implementing cross-border tax schemes.

This proposal builds on the legal mechanisms currently deployed in several countries. Mandatory disclosure rules (MDRs), which require that intermediaries report their clients’ tax schemes, were introduced in the United States in the 1980s. Since then, MDRs have been adopted in several countries as domestic measures targeting local tax avoidance enablers and their clients. In recent years, the European Union and the Organization for Economic Cooperation and Development have introduced multilateral MDRs that focus on certain crossborder arrangements. Drawing upon these reporting regimes, this Article proposes GMDR as a comprehensive standard.

GMDR is a missing piece in the global tax transparency framework which could close gaps in other international tax reporting standards. This Article explains the need for GMDR, explores the relevant design options, and proposes an implementation strategy. As GMDR could be an indispensable tool in the international effort to curb cross-border tax abuse, this proposal deserves serious consideration.

Due process requires the government to provide notice and a hearing before depriving individuals of protected rights. This right—the right to an individualized hearing—is powerful. It gives individuals the ability to know why the government is taking action that affects them; and it lets them oppose the government’s plans, often by presenting facts and arguments to a neutral decision-maker. As a result, the right to an individualized hearing can help shape the government’s substantive aims—and it even can prevent the government from acting at all. But, despite its importance, there is a longstanding exception to the right to an individualized hearing. Individualized procedures normally are not required when the government acts on more than a few people at the same time. Although the right to an individualized hearing and its exception are fundamental to due process doctrine, scholars disagree about this right’s origin, and courts have struggled to delineate its contours.

This Article offers a new explanation for the scope of the right to an individualized hearing: it is a living relic of the once-pervasive “class legislation” doctrine. At one time, class legislation doctrine was a robust constitutional mechanism used both to prevent the elevation of one “class” of society at the expense of another and to minimize arbitrary distinctions between groups. Accordingly, class legislation doctrine helped courts enforce the key rule of law value of generality. Although class legislation doctrine has faded from its prominent place in constitutional law, shades of it survive in the right to an individualized hearing. Indeed, courts sorting out the contours of the right to an individualized hearing often invoke class legislation concepts that have been discarded from other areas of the law. Reconnecting the right to an individualized hearing with its class legislation origin sheds light on this mysterious but fundamental corner of due process doctrine. It also can help courts apply the right to an individualized hearing in ways that emphasize its crucial role in protecting the rule of law.

In July of 2022, the Supreme Court of the United States overturned decades of precedent by holding that certain substantive rights, including the right to choose to have an abortion in the first trimester of pregnancy, no longer exist. The Court’s decision impacted the quality and availability of reproductive care in numerous states across America and forced healthcare providers to prioritize arbitrary, confusing regulations over the health and well-being of pregnant patients. Tensions between liberal and conservative states are rising as state representatives respond to the Supreme Court’s decision with overt, sweeping legislation. In order to emerge from this era intact, the United States should look to other nations with similar political and social structures that have successfully modernized their abortion laws. This Note makes three contributions. First, it describes the issues in a post-Dobbs America. Second, the Note explains how both Ireland and South Africa, two religious nations with deep political divisions, were able to revise policy that restricted abortion access and devise policy that protected and expanded abortion access. Third, it proposes a few different strategies that activists and lawmakers in the United States may employ to modernize abortion laws domestically.

Social media platforms have become influential in shaping public discourse. These digital platforms have established new modes of communication that enable individuals from different ethnic, political, and racial backgrounds to come together and discuss contentious issues in online public forums. Yet, as these platforms continue to grow, their unfettered control over online speech increases. Legal scholars and Supreme Court Justices have examined these platforms’ control over speech, putting forth various legal theories to combat censorial practices, but have not agreed upon a solution.

To provide a legal framework for legal scholars and courts to consider, this Note will look deeper into the issue of censorship on social media, adopting a focused lens. Specifically, it will explore the feasibility of imposing common carrier responsibilities on one of the leading social media platforms, Twitter. It will assess the functionalities of the platform and how these mechanisms contribute to the indiscriminate regulation of user speech. Additionally, it will historically examine the common carrier doctrine, scrutinizing alternative common carrier theories that arose from the doctrine while advocating, adopting, and applying Eugene Volokh’s compelled hosting doctrine to Twitter. This Note concludes by assessing privatized regulation through an analysis of Elon Musk’s acquisition of Twitter.