Judges are beginning to use large language models like ChatGPT to interpret legal texts. This Note examines whether they should do so. Prior studies testing LLMs as legal interpreters use survey responses as benchmarks for performance. I offer the first study comparing LLM interpretations to real-world judicial decisions. Across eight Ninth Circuit cases, I test whether GPT-4 Turbo (a model of ChatGPT) correctly identifies legal text as ambiguous or unambiguous. I find that ChatGPT’s assessments diverged from the court’s determinations 50% of the time. I then advance a novel argument: judicial reliance on LLMs may constitute improper ex parte communication under current judicial ethics rules.
Broken Records: Evidentiary Failures in Expedited Removal and Credible Fear Reviews
Expedited removal, a process allowing for the swift deportation of noncitizens without a full hearing, has become a central mechanism in U.S. immigration enforcement. Although the process was designed to expedite removals, it is riddled with evidentiary and procedural deficiencies that undermine asylum seekers’ rights. This Note examines how systemic flaws in record development during initial “credible fear” screenings—such as officer misconduct, language barriers, and trauma—skew credible fear determinations, leading to erroneous deportations. It further critiques the limited reviewability of negative credible fear findings, highlighting inconsistencies among immigration judges regarding the admission of new evidence, credibility assessments, and access to counsel. Additionally, it argues that the “entry fiction” doctrine, which purports to justify the lack of due process protections in expedited removal, is fundamentally incompatible with U.S. asylum law, due process, and non-refoulement obligations. To address these deficiencies, this Note proposes key reforms to credible fear review: (1) requiring immigration judges to allow new evidence and testimony; (2) utilizing a framework adopted by the Seventh Circuit in Jimenez Ferreira v. Lynch for assessing credibility; and (3) guaranteeing a right to counsel during review proceedings. These changes are necessary to align expedited removal with U.S. asylum law, safeguard due process, and prevent the wrongful deportation of bona fide asylum seekers.
Can States Force ICE to Take Off the Masks?
As the federal government has pursued President Donald Trump’s aggressive immigration policy, images of masked Immigration and Customs Enforcement agents seizing people off of the streets have become a potent symbol of the administration’s disregard for democratic and legal norms. While government officials claim that ICE agents must mask to protect themselves from violence and harassment,1Michael Sainato, ICE Chief Says He Will Continue to Allow Agents to Wear Masks During Arrest Raids, The Guardian (July 20, 2025), https://www.theguardian.com/us-news/2025/jul/20/ice-agents-masks [https://perma.cc/9FEV-DXHS]. critics maintain that the practice helps immigration officials dodge accountability and actually makes them less safe.2NOTUS, Democrats Say Masked ICE Agents Could Create Bigger Safety Issues, San José Spotlight (July 15, 2025), https://sanjosespotlight.com/democrats-say-masked-ice-agents-could-create-bigger-safety-issues [https://perma.cc/V774-JSY7]; Walter Olson, ICE Agents Routinely Mask Up When Seizing People—That’s Wrong, Cato Inst. (May 12, 2025), https://www.cato.org/blog/ice-agents-seizing-people-now-routinely-wear-masks-thats-wrong [https://perma.cc/X6J8-49SQ]. Responding to these concerns, lawmakers across the country have introduced legislation intended to prevent ICE agents from covering their faces while on duty.
Four of these bills, introduced by congressional Democrats,3Immigration Enforcement Identification Safety Act of 2025, S. 2594, 119th Cong. (2025); VISIBLE Act, S. 2212, 119th Cong. (2025); No Secret Police Act of 2025, H.R. 4176, 119th Cong. (2025); No Anonymity in Immigration Enforcement Act of 2025, H.R. 4004, 119th Cong. (2025). are unlikely to advance through a Republican-controlled Congress. Indeed, some congressional Republicans are attempting to provide ICE agents with greater anonymity.4See Protecting Law Enforcement from Doxxing Act, S. 1952, 119th Cong. § 2 (2025) (making it a felony to share the name of an ICE agent with the intent of obstructing an immigration enforcement operation). For a discussion of why the Protecting Law Enforcement from Doxxing Act would violate the First Amendment, see Noah C. Chauvin, The Unconstitutional Attempt to Criminalize Naming ICE Agents, 73 UCLA L. Rev. Discourse (forthcoming 2026) (manuscript at 5–11) (on file with author). Legislative efforts in several Democrat-controlled states and localities, however, are much more likely to bear fruit (one such bill has already been signed into law5Soumya Karlamangla, California Bars ICE Agents From Wearing Masks in the State, N.Y. Times (Sep. 20, 2025), https://www.nytimes.com/2025/09/20/us/california-ice-agents-masks-law.html [https://perma.cc/3FG8-L64B].)—but could be quickly struck down by the courts as violations of the Constitution’s Supremacy Clause.6U.S. Const. art. VI, cl. 2. But that does not mean that states are entirely powerless to confront this problem.
This essay proceeds in four parts. Part I provides a brief summary of the Supremacy Clause and the ways in which it has been used to strike down state laws purporting to regulate federal activity. Next, Part II details the efforts by state lawmakers to prohibit federal law enforcement officers from masking and explains why those bills, if enacted, would be unconstitutional. Part III outlines five alternative steps state and local officials can take to discourage ICE from masking. Finally, Part IV provides best practices for state and local lawmakers seeking to legislate in this area.
Towards Defensible Judge-Made Democratic Process
What is the function of judicial review? By the stated lights of Article III (“cases” and “controversies”),1U.S. Const. art. III, § 2. to individual judges resolving cases, and to litigants asserting they have suffered an injustice, courts must fairly resolve particular disputes. Yet thanks to the wide-ranging consequences of common law decision-making and the hunger of ambitious law professors to advance novel and transformative scholarly claims, doctrine tends to be evaluated by its purported systemic effects. In election law—which explicitly bears on terms of collective participation—this contrast is especially sharp. Yet contemporary election law scholarship so thoroughly emphasizes systemic accounts that it neglects the foundation of legitimate collective self-governance: the participation and consent of individuals in politics.
The Law of Freedom aspires to return attention to this foundation. Professor Yunsieg Kim’s wonderfully insightful review draws out this point while clearing the path for the challenging but urgent analysis that future jurisprudence and scholarship must undertake. Reconciling judge-made law and constituent autonomy is an endeavor of intimidating analytic and normative complexity. An “operationally useful framework”2Yunsieg P. Kim, Liberty Before Party: The Courts as Transpartisan Defenders of Freedom, 98 S. Cal. L. Rev. Postscript 74, 92 (2025). will require courts to engage with how personal autonomy is translated into valid collective action through representation, all while diligently respecting the norms of rule of law that ameliorate the counterpopular dilemma.
The Care Act: A System of Coercion Masquerading as One of Compassion
Against the bleak backdrop of a cold November afternoon in San Francisco, Erica Stone faces a heart-wrenching dilemma. Her twenty-eight-year-old daughter, Monica, has been battling schizophrenia-induced psychosis since she was sixteen. Homeless and living just north of Market Street, Monica adamantly rejects her mother’s offers of psychiatric hospitalization, as she has done on many past occasions. Gripped with anxiety over her daughter’s safety, Monica’s refusal to seek treatment weighs heavily on her mind.
In years past, Erica would have been forced to return home after leaving Monica food and a sleeping bag, heart heavy with her daughter’s continued refusal to accept treatment, yet without any available recourse. However, a recent development in California’s mental health legislation has reshaped this narrative. As of December 1, 2023, the Community Assistance, Recovery, and Empowerment (“CARE”) Act grants Erica the ability to petition Monica into court-ordered treatment.1Community Assistance, Recovery, and Empowerment (CARE) Act, ch. 319, 2022 Cal. Legis. Serv. 1 (West 2024) (codified as amended at Cal. Welf. & Inst. Code §§ 5970–5987 (West 2024)). Now fully implemented across all fifty-eight California counties, the Act establishes a network of civil CARE Courts that can order those suffering from schizophrenia and related psychotic disorders into treatment programs at the community level.2Mary Kekatos, California’s CARE Court Program to Tackle Mental Illness Starts Next Month. What You Need to Know, ABC News (Sept. 25, 2023, 11:10 AM), https://abcnews.go.com/Health/californias-care-court-program-tackle-mental-illness-starts/story?id=103461370 [https://perma.cc/5DTX-8VTP].
Once Erica submits a petition on Monica’s behalf, affirming her eligibility for the CARE program as an individual with untreated schizophrenia, the petition undergoes evaluation by a CARE Court.3Id. For Monica to qualify for assistance through the CARE Act, the court must find that Monica is unlikely to survive safely in the community without supervision or that she is a threat to herself or others without support.4Manuela Tobias & Jocelyn Wiener, California Lawmakers Approved CARE Court. What Comes Next?, CalMatters (Sept. 14, 2022), https://calmatters.org/housing/2022/09/california-lawmakers-approved-care-court-what-comes-next [https://perma.cc/Q2RN-P5Y9]. If the court finds either of these to be true, the Act empowers the court to create a “Care Plan” for Monica that lasts up to twelve months, with the possibility to extend the plan for an additional year.5Id. This Plan may include provisions necessitating Monica’s relocation to emergency housing, mandatory participation in behavioral health treatment, and court-ordered stabilization medications.6Jocelyn Wiener & Manuela Tobias, CARE Court: Can California Counties Make It Work?, CalMatters (July 14, 2022), https://calmatters.org/health/2022/07/care-court-california [https://perma.cc/9ZPG-FSBY].
Created with the goal of connecting Californians suffering with schizophrenia and other related psychotic mental illnesses with treatment “before they end up cycling through prison, emergency rooms, or homeless encampments,” the CARE Act promises to advance upstream diversion from more restrictive conservatorships or incarceration.7Governor Newsom Statement on Introduction of CARE Court Legislation, Governor Gavin Newsom (Apr. 7, 2022), https://www.gov.ca.gov/2022/04/07/governor-newsom-statement-on-introduction-of-care-court-legislation [https://perma.cc/YQ3H-REB6]. However, if Monica fails to comply with her CARE program, she may be referred to conservatorship proceedings with a new factual presumption that no suitable alternatives to conservatorship are available.8Cal. Welf. & Inst. Code § 5979(a)(3) (West 2024) (“[T]he fact that the respondent failed to successfully complete their CARE plan . . . shall create a presumption at that hearing that the respondent needs additional intervention beyond the supports and services provided by the CARE plan.”).
This Note explores the implications of the CARE Act on California’s existing mental health landscape, while also pointing out certain deficiencies in the Act as it exists today. Part I of this Note explores the inner workings of the CARE Court framework, as well as the grounds for challenging a law as “vague” under the Due Process Clause of the Fourteenth Amendment. Part II argues that the CARE Act’s current eligibility criteria are unconstitutionally vague and are thus likely to result in arbitrary and discriminatory court enforcement. Part III goes on to propose possible amendments to the CARE Court framework that aim to protect against these potentially speculative and arbitrary judicial determinations. Part IV acknowledges the inherent limitations of these proposed amendments within the broader context of systemic change while underscoring the short-term necessity of these amendments in defending individuals’ due process rights.
Reviving Public Nuisance as a Vehicle for Reducing Gun Violence
This Note defends the viability of state public nuisance statutes that seek to hold gun industry members liable for gun violence. This goal is based on a least cost avoider theory: gun industry members are in the best position to avoid the significant costs of gun violence; thus, subjecting them to liability is the best chance we have to effectively mitigate the problem (short of an outright ban, which, under the Court’s Second Amendment jurisprudence, is unconstitutional).
Public Nuisance Firearm Laws (“PNFLs”) face both a statutory and a constitutional challenge. The statutory challenge comes from the Protection of Lawful Commerce in Arms Act (“PLCAA”), which shields gun industry members from most “general” tort claims. However, the PLCAA expressly provides an exception for “predicate statutes”—that is, state statutes creating a cause of action that specifically targets gun industry members for the purpose of reducing gun violence. I argue that PNFLs count as predicate statutes under this exception, and thus they avoid the statutory challenge.
The second challenge is the Second Amendment, which, under the most recent Supreme Court decision in Bruen, requires states attempting to regulate firearms to show an analogue for their regulation in the historical tradition of American gun regulation. I make two arguments that PNFLs can withstand Second Amendment scrutiny. First and most importantly, the Supreme Court has unequivocally held that the Second Amendment protects an individual’s right to keep and bear arms for purposes of self-defense, not any rights of gun industry members. Thus, at least under the current jurisprudence, the Second Amendment does not directly apply to PNFLs. My second argument is that, regardless of whether the Second Amendment applies, PNFLs can pass the historical analogue test because there is a long tradition of using public nuisance against the use, sale, and storage of firearms and firearm-related materials.
Liberty Before Party: The Courts as Transpartisan Defenders of Freedom
Like many legislative acts in the United States, election laws are subject to judicial review, often by unelected judges with life tenure. This precipitates what Jacob Eisler calls the counterpopular dilemma. If the laws governing self-rule are dictated by courts that are unaccountable to the people—in the case of Article III judges, by design—they intrude upon democratic autonomy. But without arbiters who are resistant to popular pressure, elections can end up facilitating a mob rule or a tyranny in democratic disguise by enabling elites to manipulate democratic procedures for their own political gain. How, then, can judicial review of election laws be reconciled with democratic self-government?
Eisler’s book, The Law of Freedom: The Supreme Court and Democracy, provides a novel understanding of, and solution to, the counterpopular dilemma. According to Eisler, the counterpopular dilemma “is intractable” if the judicial role in elections is understood in conventional terms: “uniquely positioned outside typical political struggles, and thus especially well-suited to guarantee fair elections.” Instead of limiting freedom, courts should be viewed as advancing freedom, in two conflicting forms. The egalitarian view of freedom “seeks to afford all constituents equal opportunity to freely participate in self-rule.” Thus, the egalitarian view “demands some ‘levelling’ of inequities” that influence elections by, for example, limiting campaign spending. The libertarian view “prioritizes protecting individuals from state intrusion.” Thus, the libertarian view is that “state regulation of campaign finance . . . interfere[s] with personal liberty.” By casting the Supreme Court’s election law jurisprudence as a debate over how best to advance constituent freedom, Eisler provides a much-needed understanding of the Court as an institution in service of a common good—at a time when voters see it as motivated by political expediency, and rising public contempt is becoming an existential threat to judicial authority. I argue that, for Eisler’s theoretically illuminating perspective to become an operationally useful framework for delineating the courts’ role in elections, it must provide an objectively discernible standard for what constitutes a “minimal,” and thus tolerable, counterpopular intrusion into electoral design.
(Un)Safe and (In)Effective: Preemption, Deference, the FDA, and the Opioid Crisis
The Food and Drug Administration (“FDA”) is tasked with keeping prescription drugs safe and effective for the American people. The FDA has long enjoyed deference in its decision-making because of the ambiguity in its organic statute, the Federal Food, Drug, and Cosmetic Act (“FDCA”). Gaining FDA approval for prescription drugs, however, is not a rubber stamp that frees a drug manufacturer from liability. Prescription drug manufacturers, such as opioid manufacturers, have been unsuccessful in convincing courts to use the concept of federal preemption and deference—specifically FDA approval and therefore judicial deference to that approval—to shield them from liability from state law claims against the distribution of these drugs. With the fall of Chevron deference in June 2024, it is unclear if the FDA will still enjoy the deference it has received, potentially leading to the promulgation of litigation against the FDA for (un)safe and (in)effective drugs. This Note examines the evolution of litigation against prescription drug manufacturers, specifically opioid manufacturers, by analyzing the difficult-to-meet standard of federal preemption under the FDCA. It then examines the history of deference to the FDA under Chevron by using the FDA approval and regulation of opioids as a case study. Lastly, it predicts how the overruling of Chevron by Loper Bright Enterprises v. Raimondo will impact the prescription drug landscape—ranging from circuit splits, to changes in the FDA structure, to even a floodgate of ligation against the FDA itself.
