California Law Review

Violence in the Administrative State by California Law Review

People usually think that all tax agencies do is ensure tax laws are followed. But for decades, the IRS has regularly facilitated immigration raids. These raids target employees even as the IRS investigates their employers' potential tax violations. What can this state of affairs teach us about agency overreach? And what alternate paths could better align the IRS's efforts with its mission? In this episode, UC Davis School of Law Professor Shayak Sarkar discusses his research on the IRS's underappreciated role in immigration enforcement. Author: Shayak Sarkar, Professor of Law, UC Davis School of Law Host: Peter Mason (Volume 113 Podcast Editor) Script: Peter Mason (Volume 113 Podcast Editor) Interview: Peter Mason (Volume 113 Podcast Editor); Shivank Singh (Volume 113 Associate Editor) Transcript: 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)

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.

In the United States, many recently decarcerated individuals struggle to find housing. The coronavirus pandemic forced a national conversation about this issue and highlighted how essential the right to housing is to prison abolition efforts. Author: Norrinda Brown Hayat, Associate Professor of Law, Rutgers Law School 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 coronavirus pandemic revealed the need to advance the right to housing and abolition movements. The need for advancements in both spaces was no more painfully apparent than among the recently decarcerated population. Securing housing for the recently decarcerated is particularly difficult due to the “culture of exclusion” that has long pervaded subsidized housing policy, enabled by a patchwork of federal laws, including the Anti-Drug Abuse Act (ADA) of 1988 and the Supreme Court's ruling in HUD v. Rucker. The culture of exclusion is arbitrated by local housing authorities and works on three levels: eligibility, enforcement, and set asides. As a result, formerly incarcerated persons are often rejected outright during the application process. In addition, persons living in subsidized housing can be evicted for merely associating with the recently decarcerated. This Article seeks to motivate a pathway toward housing the decarcerated by ending the culture of exclusion. In Part I, the Article updates the status of the prison abolition and right to housing movements and argues why they are interdependent. Part II builds on the idea that stable housing for formerly incarcerated persons is essential to the prison abolition movement's success by reviewing pilot programs. Part III suggests that “one strike” policies have created a broader “culture of exclusion,” which the Supreme Court validated in Rucker, further burdening the reentry process for the recently decarcerated. Finally, Part IV prescribes policy changes that are essential to housing the decarcerated beyond repealing the ADA and overturning Rucker, including transcending the narrative of innocence, directing public housing authority discretion, and equalizing voucher holders through civil rights laws.

All first-year law students take contracts, where they learn about offer and acceptance and what makes a legally enforceable agreement. But what can contract theory tell us about police violence against black people in the United States? Author: Marissa Jackson Sow, Assistant Professor of Law, University of Richmond 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: There exists a substantial body of literature on racism and brutality in policing, police reform and abolition, the militarization of the police, and the relationship of the police to the State and its citizenry. Many theories abound with respect to the relationship between the police and Black people in the United States, and most of these theories rest upon the basic assumption—undergirded by constitutional, civil rights, and human rights law—that Black people in the United States are entitled to due process and equal protection when they are in contact with the police or other law enforcement officers. This Article uses critical contract theory and the theory of Whiteness as Contract to challenge that basic assumption and instead advance the claim that the mandate that police “protect and serve” does not apply to Black people, notwithstanding the provisions of constitutional and statutory law, because Black people are the objects of racial contracting rather than participants therein. The police are charged with protecting the racial contract and serving the contract's signatories; accordingly, they enforce the contract's terms, requiring them to specifically target Black people for surveillance, harassment, deprivation, and even death, lest the contract be subject to breach or other interference.

Author: Hiep Nguyen is a third-year student at 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)

Professor Khiara Bridges explores environmental injustice and disability-based abortion bans in the “dysgenic state,” where communities of color are exposed to environmental toxins that impair fetal health while being forced to give birth to health-impaired fetuses. Author: Khiara Bridges is a Professor of Law at 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: Disability-selective abortion bans are laws that prohibit individuals from terminating a pregnancy because the fetus has been diagnosed with a health impairment. Many environmental toxins—to which low-income people and people of color disproportionately are exposed—are known to cause impairments in fetuses. When the fact of environmental injustice is read together with disability-selective abortion bans, we see that in one moment, the state fails to protect its citizens from toxins that impair fetal health, while in another moment, that same government compels its citizens to give birth to health-impaired fetuses. This Article identifies these two moments as the dysgenic state. Whereas the eugenic state of the early twentieth century sought to remove impairments from the population, the dysgenic state of the early twenty-first century seems committed to producing an impaired citizenry. This Article makes two important interventions into the existing literature. First, the Article intervenes simply to identify the dysgenic state—to call out the processes that harm the health of fetuses and then compel pregnant people to carry these pregnancies to term. Second, the Article intervenes to analyze the racial stakes of the dysgenic state. What is the significance of the empirically documented fact that people of color are disproportionately exposed to environmental toxins? What does it mean that because people of color also disproportionately bear the burdens of poverty, they are the least able to avoid the constraints of abortion regulations like disability-selective abortion bans? What does it mean, then, that the state produces impairments not in its citizenry generally, but in its nonwhite citizenry specifically? This is the puzzle that this Article sets out to describe and then analyze.

In her note, Isabel argues that “otherizing” climate change allows the state to ignore and evade their responsibility to address domestic impacts of climate change on poor, rural, and immigrant communities & communities of color. Author: Isabel Tahir is a J.D. candidate at 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: In the United States, climate change discourse often focuses on international communities, island nations, and poor global citizens. While the focus on international communities is important, it places the impact of climate change in remote and distant locations. This Note argues that associating climate change with people outside the United States creates an “otherization” of climate change and evades the responsibility to look internally and address domestic climate impact. The importance of addressing domestic climate impact is particularly important given that the effects of climate change in the United States often disproportionately harm poor, rural, and immigrant communities, as well as communities of color. This Note is an intervention in the current academic discourse on climate change. The Note challenges the current focus on global citizens who are or will be displaced due to climate change. I make the proposition that internal U.S.-based displacement warrants as much attention. This Note is not a call to abandon the focus on international citizens who will suffer disproportionately and to focus only on the United States. The purpose of the Note, rather, is to fill a gap currently missing in academia—a gap focused on marginalized communities in the United States who, in many ways, share the same challenges as international communities most impacted by climate change. Drawing from the Principles of Environmental Justice and from the United Nations framework of Internally Displaced People, the Note demonstrates that addressing the domestic climate crisis and domestic climate displacement can be accomplished in a comprehensive and innovative framework. Ultimately, when communities within the United States receive their share of attention, we will see that climate change is not so distant, and that it is our neighbors, our friends, or maybe even us who will be impacted by the climate crisis that we often associate with island nations and poor global citizens. A focus on the domestic climate crisis will demonstrate that climate change is happening now, and it is affecting communities in the United States directly and indirectly.

In “Opportunity Zones, 1031 Exchanges, and Universal Housing Vouchers,” Professor Brandon M. Weiss argues that eliminating the Opportunity Zone program and § 1031 exchanges could fund a significant expansion in the Housing Choice Voucher program. Author: Brandon M. Weiss is an Associate Professor of Law at American University Washington College of Law. Host: Carter Jansen Technology Editors: NoahLani Litwinsella (Volume 110 Senior Technology Editor), Carter Jansen (Volume 110 Technology Editor), Hiep Nguyen (Volume 111 Senior Technology Editor), Taylor Graham (Volume 111 Technology Editor), Benji Martinez (Volume 111 Technology Editor) Other Editors: Ximena Velazquez-Arenas (Volume 111 Senior Diversity Editor), Jacob Binder (Volume 111 Associate Editor), Michaela Park (Volume 111 Associate Editor), Kat King (Volume 111 Publishing Editor) Soundtrack: Composed and performed by Carter Jansen Article Abstract: The Tax Cuts and Jobs Act of 2017 contained former President Trump's signature economic development initiative: the Opportunity Zone program. Allowing a deferral of capital gains tax for certain qualifying investments in low-income areas, the Opportunity Zone program aims to spur economic development by steering capital into economically distressed neighborhoods. The program is the latest iteration of an overly simplistic market-based approach to community development—an approach that transcends political party—based on a flawed yet enduring notion that mere proximity of capital will solve deeply entrenched issues of poverty and racial inequity. In reality, the legacy of Opportunity Zones is likely to be one of accelerated neighborhood gentrification left in the wake of wealthy taxpayer windfalls. Opportunity Zones are more akin to a classic tax shelter than an effective anti-poverty strategy. They share a fundamental DNA with a much older real estate-related tax break, § 1031 like-kind exchanges, which allow for the nonrecognition of gains for certain qualifying transactions that involve trading one piece of real estate for another. Section 1031 is one of the largest corporate tax expenditures in the U.S. tax code. Yet, as examined in this Article, the four primary theoretical bases upon which § 1031 rests—measurement, administrability, liquidity, and economic stimulus—have eroded over time and are ultimately unpersuasive. Redirecting the value of the Opportunity Zone program and § 1031 exchanges to the Housing Choice Voucher program could roughly double the number of housing vouchers available to extremely low-income households in the United States. I argue that this sort of intervention would have far greater impact in addressing the ills of poverty and racial inequality in the United States than the Opportunity Zone program. This argument is timely in light of President Biden's recent support for reforming Opportunity Zones, limiting § 1031, and expanding the Housing Choice Voucher program.

In "Dosing Discrimination: Regulating PDMP Risk Scores," Professor Jennifer D. Oliva explores how risk scores from Prescription Drug Monitoring Programs can deter treatment for patients who are deemed to be at high risk of drug misuse, exacerbating discrimination against certain marginalized populations. Author: Jennifer D. Oliva is the Associate Dean for Faculty Research and Development, Professor of Law, and Director of the Center for Health & Pharmaceutical Law at Seton Hall University School of Law. Host: Carter Jansen Technology Editors: NoahLani Litwinsella (Volume 110 Senior Technology Editor), Carter Jansen (Volume 110 Technology Editor), Hiep Nguyen (Volume 111 Senior Technology Editor), Taylor Graham (Volume 111 Technology Editor), Benji Martinez (Volume 111 Technology Editor) Other Editors: Ximena Velazquez-Arenas (Volume 111 Senior Diversity Editor), Jacob Binder (Volume 111 Associate Editor), Michaela Park (Volume 111 Associate Editor), Kat King (Volume 111 Publishing Editor) Soundtrack: Composed and performed by Carter Jansen Article Abstract: Prescription drug monitoring program (PDMP) predictive surveillance platforms were designed for—and funded by—law enforcement agencies. PDMPs use proprietary algorithms to determine a patient's risk for prescription drug misuse, diversion, and overdose. The proxies that PDMPs utilize to calculate patient risk scores likely produce artificially inflated scores for marginalized patients, including women and racial minorities with complex, pain-related conditions; poor, uninsured, under-insured, and rural individuals; and patients with co-morbid disabilities or diseases, including substance use disorder and mental health conditions. Law enforcement conducts dragnet sweeps of PDMP data to target providers that the platform characterizes as “overprescribers” and patients that it deems as high risk of drug diversion, misuse, and overdose. Research demonstrates that PDMP risk scoring coerces clinicians to force medication tapering, discontinue prescriptions, and even abandon patients without regard for the catastrophic collateral consequences that attend to those treatment decisions. PDMPs, therefore, have the potential to exacerbate discrimination against patients with complex and stigmatized medical conditions by generating flawed, short-cut assessment tools that incentivize providers to deny these patients indicated treatment. The Federal Food and Drug Administration (FDA) is authorized to regulate PDMP predictive diagnostic software platforms as medical devices, and the agency recently issued guidance that provides a framework for such oversight. Thus far, however, the FDA has failed to regulate PDMP platforms. This Article contends that the FDA should exercise its regulatory authority over PDMP risk scoring software to ensure that such predictive diagnostic tools are safe and effective for patients.

In “People over Profit: The Case for Abolishing the Prison Financial System,” Sean Kolkey discusses a form of prison economic exploitation, typified by fee-laden debit release cards and exorbitant money transfer fees. He argues that the prison financial system must be abolished and proposes a community-centered alternative to the existing system that centers economic power within the communities mass incarceration disproportionately impacts. Author: Sean Kolkey is a J.D. candidate at the University of California, Berkeley, School of Law. Host: Carter Jansen Technology Editors: NoahLani Litwinsella (Volume 110 Senior Technology Editor), Carter Jansen (Volume 110 Technology Editor), Hiep Nguyen (Volume 111 Senior Technology Editor), Taylor Graham (Volume 111 Technology Editor), Benji Martinez (Volume 111 Technology Editor) Other Editors: Ximena Velazquez-Arenas (Volume 111 Senior Diversity Editor), Jacob Binder (Volume 111 Associate Editor), Michaela Park (Volume 111 Associate Editor), Kat King (Volume 111 Publishing Editor) Soundtrack: Composed and performed by Carter Jansen Article Abstract: The term “mass incarceration” is used to describe a crisis that, to many, is both abstract and distant. But for Black, Latinx, Indigenous, low-income, and other communities whose lives are disproportionately affected by the criminal legal system, the reality of carceral exploitation is as unavoidable as it is harmful. Incarceration has always had economic ramifications, but the modern prison has become an amalgamation of public and private interests that increasingly treat incarcerated individuals and their communities as a source of profit. In a matter of decades, prison finance has become a billion-dollar industry concentrated in the hands of powerful corporate interests, and it overwhelmingly preys on historically marginalized and low-income communities. The advent of the digital economy has opened a new dimension of economic exploitation, typified by fee-laden debit release cards and exorbitant money transfer fees. In light of these increasingly exploitative practices, documenting the full extent of financial exploitation within the prison system is an immensely difficult task. Ending it is even harder. Despite persistent efforts to reform prison finance through litigation and regulation, the problem is getting worse—not better. This Note argues that the prison financial system is beyond repair and that it must be abolished. To that end, this Note proposes a community-centered alternative to the existing prison financial system that reclaims the economic power seized by the carceral state and relocates it within the communities that mass incarceration has disproportionately impacted. Though it is only one part of the broader project of prison abolition, the proposed alternative addresses an aspect of the criminal legal system that is often overlooked. Doing so represents a concrete step towards the eventual dismantling of the prison industrial complex. A Note About Language: The words that we use to describe people who have come in contact with the criminal legal system play a foundational role in our own conception and, by extension, our society's treatment of these individuals. While terms like “inmate,” “ex-convict,” and “prisoner” are widely used and recognized, they carry an inseparable connection to physical spaces that many people view with fear and contempt. Though linguistically convenient, this connotation reinforces harmful ideas and attitudes towards some of the most marginalized members of our communities. As such, this Article identifies people who have come in contact with the criminal legal system by their names when possible and in other instances refers to them as “incarcerated” or “formerly incarcerated” individuals. (For a more thorough discussion, see Victoria Law & Rachel Roth, Names Do Hurt: The Case Against Using Derogatory Language to Describe People in Prison, Rewire News Grp. (Apr. 20, 2015).

In “Virtual Reality Data and Its Privacy Regulatory Challenges: A Call to Move Beyond Text-Based Informed Consent,” Yeji Kim explains how virtual reality collects data from users and argues for more meaningful and customizable methods of gaining informed consent from users than traditional text-based methods. Author: Yeji Kim is a J.D. candidate at the University of California, Berkeley, School of Law. Host: Carter Jansen Technology Editors: NoahLani Litwinsella (Volume 110 Senior Technology Editor), Carter Jansen (Volume 110 Technology Editor), Hiep Nguyen (Volume 111 Senior Technology Editor), Taylor Graham (Volume 111 Technology Editor), Benji Martinez (Volume 111 Technology Editor) Other Editors: Ximena Velazquez-Arenas (Volume 111 Senior Diversity Editor), Jacob Binder (Volume 111 Associate Editor), Michaela Park (Volume 111 Associate Editor), Kat King (Volume 111 Publishing Editor) Soundtrack: Composed and performed by Carter Jansen Article Abstract: Oculus, a virtual reality company, recently announced that it will require all its users to have a personal Facebook account to access its full service. The announcement infuriated users around the world, who feared increased privacy risks from virtual reality, a computer-generated technology that creates a simulated world. The goal of virtual reality is to offer an immersive experience that appears as real as possible to its users. Providing such an experience necessitates collection, processing, and use of extensive user data, which begets corresponding privacy risks. But how extensive are the risks? This Note examines the unique capacities and purpose of virtual reality and analyzes whether virtual reality data presents fundamentally greater privacy risks than data from other internet-connected devices, such as the Internet of Things (IoT), and if so, whether it poses any special challenges to data privacy regulation regimes, namely the European Union's General Data Protection Regulation (GDPR), the world's most stringent and influential data privacy law. Currently, one of the key criticisms of the GDPR is its low and ambiguous standard for obtaining users' “informed consent,” or the process by which a fully informed user participates in decisions about their personal data. For example, a user who checks off a simple box after reading a privacy policy gives informed consent under the GDPR. This Note argues that virtual reality exposes a more fundamental problem of the GDPR: the futility of text-based informed consent in the context of virtual reality. This Note supports this claim by analyzing how virtual reality widens the gap between the users' understanding of the implications of their consent and the actual implications. It first illustrates how virtual reality service providers must collect and process x-ray-like data from each user, such as physiological data like eye movements and gait, to provide customizations necessary to create an immersive experience. Based on this data, the service providers can know more about each user than what each user knows about themselves. Yet, this knowledge shift is not obvious to users. For virtual reality service to provide an immersive experience, customizations based on user data must be unnoticeable to users to avoid distractions. Using Oculus's recent privacy policy as a case study, this Note shows how this hidden knowledge shift transforms the meaning of ordinary privacy policy phrases like “an experience unique and relevant to you.” What Oculus finds to be “relevant” to the user could be beyond what the user themselves would imagine to be “relevant.” As a result, the text becomes an obsolete medium to communicate privacy risks to virtual reality users. This Note instead proposes other solutions—such as customizable privacy settings and visualization of privacy risks—for users to more closely understand and consciously weigh the benefits and the risks of using virtual reality.

In "Viral Injustice," Professors Brandon L. Garrett and Lee Kovarsky explore how the COVID-19 pandemic exposed the institutional flaws in our legal detention systems and how the pandemic has posed unique legal challenges for prisoner litigation. Author: Brandon L. Garrett is the L. Neil Williams, Jr. Professor of Law and Director of the Wilson Center for Science and Justice at Duke University School of Law. Author: Lee Kovarsky is the Bryant Smith Chair in Law and Co-Director of the Capital Punishment Center at the University of Texas School of Law. Host: Taylor Graham Technology Editors: NoahLani Litwinsella (Volume 110 Senior Technology Editor), Carter Jansen (Volume 110 Technology Editor), Hiep Nguyen (Volume 111 Senior Technology Editor), Taylor Graham (Volume 111 Technology Editor), Benjamin Martinez (Volume 111 Technology Editor) Other Editors: Ximena Velazquez-Arenas (Volume 111 Senior Diversity Editor), Jacob Binder (Volume 111 Associate Editor), Michaela Park (Volume 111 Associate Editor), Kat King (Volume 111 Publishing Editor) Soundtrack: Composed and performed by Carter Jansen Article Abstract: The COVID-19 pandemic blighted all aspects of American life, but people in jails, prisons, and other detention sites experienced singular harm and neglect. Housing vulnerable detainee populations with elevated medical needs, these facilities were ticking time bombs. They were overcrowded, underfunded, unsanitary, insufficiently ventilated, and failed to meet even minimum health-and-safety standards. Every unit of national and sub-national government failed to prevent detainee communities from becoming pandemic epicenters, and judges were no exception. This Article takes a comprehensive look at the decisional law growing out of COVID-19 detainee litigation and situates the judicial response as part of a comprehensive institutional failure. We read hundreds of COVID-19 custody cases, and our analysis classifies the decision-making by reference to three attributes: the form of detention at issue, the substantive right asserted, and the remedy sought. Several patterns emerged. Judges avoided constitutional holdings whenever they could, rejected requests for ongoing supervision, and resisted collective discharge—limiting such relief to vulnerable subpopulations. The most successful litigants were detainees in custody pending immigration proceedings, and the least successful were those convicted of crimes. We draw three conclusions that bear on subsequent pandemic responses, including vaccination efforts, and on incarceration more generally. First, courts avoided robust relief by recalibrating rights and remedies, particularly those relating to the Eighth and Fourteenth Amendments. Second, court intervention was especially limited by the behavior of bureaucracies responsible for the detention function. Third, the judicial activity reflected entrenched assumptions about the danger and moral worth of prisoners that are widespread but difficult to defend. Before the judiciary can effectively respond to the dangers posed by a pandemic, nonjudicial institutions will have to tolerate large-scale, exigency-driven releases from custody, and judges will have to overcome their empirically dubious resistance to decarceration.

In "Courts and the Abolition Movement," Professor Matthew Clair and Director Amanda Woog discuss how criminal courts perpetuate mass criminalization and injustice, and the advantages of replacing these courts using abolitionist principles. Author: Matthew Clair is an Assistant Professor of Sociology and (by courtesy) Law at Stanford University. Author: Amanda Woog is the Executive Director of the Texas Fair Defense Project. Host: Ximena Velazquez-Arenas Technology Editors: NoahLani Litwinsella (Volume 110 Senior Technology Editor), Carter Jansen (Volume 110 Technology Editor), Hiep Nguyen (Volume 111 Senior Technology Editor), Taylor Graham (Volume 111 Technology Editor), Benjamin Martinez (Volume 111 Technology Editor) Other Editors: Ximena Velazquez-Arenas (Volume 111 Senior Diversity Editor), Jacob Binder (Volume 111 Associate Editor), Michaela Park (Volume 111 Associate Editor), Kat King (Volume 111 Publishing Editor) Soundtrack: Composed and performed by Carter Jansen Article Abstract: This Article theorizes and reimagines the place of courts in the contemporary struggle for the abolition of racialized punitive systems of legal control and exploitation. In the spring and summer of 2020, the killings of George Floyd, Breonna Taylor, and many other Black and Indigenous people sparked continuous protests against racist police violence and other forms of oppression. Meanwhile, abolitionist organizers and scholars have long critiqued the prison-industrial complex, or the constellation of corporations, media entities, governmental actors, and racist and capitalist ideologies that have driven mass incarceration. But between the police and the prison cell sits the criminal court. Criminal courts are the legal pathway from an arrest to a prison sentence, with myriad systems of control in between, including ones branded as “off-ramps.” We cannot understand the present crisis without understanding how the criminal courts not only function to legitimate police and funnel people into carceral spaces but also contribute their own unique forms of violence, social control, and exploitation. These mechanisms reveal the machinations of mass criminalization and the injustices operating between the police encounter and the prison cell. Our central argument is that courts—with a focus here on criminal trial courts and the group of actors within them—function as an unjust social institution. We should therefore work toward abolishing criminal courts and replacing them with other institutions that do not inherently legitimate police, rely on jails and prisons, or operate as tools of racial and economic oppression.

Free speech continues to dominate our nation's discourse, with the Berkeley campus often at the center of heated debate. We sat down with Charles Robinson, general counsel for the University of California, to discuss how his office approaches evaluating, fostering, or regulating speech on campus.