By Andrew Cohen
Having devoted so much of his professional life to California, David A. Carrillo’s latest leadership role hardly comes as a surprise. Elected chair of the California Law Revision Commission for 2023, he now heads the agency that studies problem areas in the state’s law and proposes reforms.
As the founding executive director of Berkeley Law’s California Constitution Center and a lecturer in residence at the school, Carrillo guides the development of scholarship concerning the state’s constitution and supreme court. He teaches courses on both topics, publishes articles about them, and is co-author of a casebook on California constitutional law and editor-in-chief of a blog about the state’s high court.
The recipient of three Berkeley Law degrees (J.D. ’95, LL.M. ’07, J.S.D. ’11), Carrillo spent 16 years in active practice before starting his academic career. With the commission, he brings vast experience in both the public sector as a prosecutor and the private sector as a commercial litigation associate. He also volunteers extensively for state and local organizations, serving on the boards of groups that are focused on constitutional rights, judicial appointments, bar association work, government, democracy, and legal services.
Created in 1953, the California Law Revision Commission is currently engaged in studies of antitrust law, environmental reforms, and the Equal Rights Amendment. After making preliminary decisions on how to reform a law, it issues a tentative proposal, solicits public comment, considers that input, and typically makes a final published recommendation to the legislature and governor. Historically, over 90% of the commission’s recommendations have been enacted into law, affecting more than 22,500 sections of California statutory codes.
Appointed to the seven-member commission in 2019, Carrillo served as vice-chair last year before being elected chair. Below, he describes some of the rewards — and challenges — of his new position.
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Q: What sparked your interest in joining the commission?
Carrillo: The Law Revision Commission’s mission to propose positive changes to the state’s statutory and constitutional law coincides with my purpose at the California Constitution Center, so I view the commission as a unique nexus of a public service opportunity and my interest in bringing value to California law. I hope my center’s expertise benefits the commission in its work.
Q: What are the current main problem areas in California law, and what do you think are the commission’s biggest long-range and immediate priorities?
Carrillo: California faces an array of systemic challenges, such as climate change, homelessness and a housing shortage, and a budget tied to highly variable personal income tax receipts. Those require broad policy solutions, which is the hard part; adapting the law to implement those solutions is comparatively easier given the one-party majority in state government and California’s robust initiative process.
The commission’s short- and long-range priorities are primarily set by the legislature. By law, the commission may only work on topics authorized by statute or concurrent resolution. In 2022, the legislature assigned the commission two very large topics: a comprehensive study of antitrust law preparatory to recommending reforms to California’s antitrust statute, and a study to recommend reforms that would achieve the results of the Equal Rights Amendment in California.
Q: How often does the commission meet, and what’s the process for how it goes about its work and proposes reforms to the governor and legislature?
Carrillo: During the COVID pandemic, executive orders made it possible for the commission to meet entirely on Zoom. During that period, we held monthly half-day meetings. When we eventually return to in-person meetings, the commission might resume its pre-pandemic practice of holding full-day meetings every two months.
The commission has a dedicated full-time legal staff, who prepare memoranda for consideration at the commission’s public meetings. Those memos provide background research and law-and-policy analysis. The commission uses those memos to conduct public deliberations, in which they decide what reforms might be warranted. Once the commission has addressed the legal and policy issues in a study, it prepares a tentative recommendation explaining its findings and presenting proposed legislation. This is circulated for public review and comment, after which the commission considers revisions to its proposal. It then issues a final recommendation with proposed bill language. The commission’s staff identifies a legislator willing to introduce the bill and provides support through the legislative process.
Q: How much does public input factor into the commission’s suggestions, and how does the commission solicit that input?
Carrillo: Public comment is a critical part of the commission’s study process — as a generalist body the commission relies on practitioners, academics, and others to provide expert information and practical experience. At the outset of a study, the commission solicits input from interested stakeholder groups. This often includes the relevant section of the California Lawyers Association, judges and courts, affected state entities, and trade and professional organizations. Those groups are invited to provide input at every stage of the commission’s process, and anyone else has the same opportunity to participate.
Q: What do you see as the commission’s top achievements since you joined it in 2019?
Carrillo: It was impressive and gratifying to see everyone involved in the commission’s work invent solutions and adapt on the fly to the practical challenges imposed by the pandemic. To me, the fact that the commission’s work never slowed showed dedication to a public duty, and the staff and commissioners who served through that together deserve a merit badge.
Q: How has the experience changed since you’ve become chair, and what are your new duties in that role?
Carrillo: The chair’s primary task is to move the discussion. But I have it easy, because the previous three chairs were all very experienced, and they had to make the hard decisions during the worst of the pandemic. All I need to do now is follow the example they set as I watched and tried to learn from them. And the current vice-chair is another very experienced law reformer, so this is a low-wire act with a big safety net. Having spent the past several years in the fire with this group we know and respect each other well, so a commission meeting is mainly an interesting substantive discussion among informed, invested colleagues.
Q: How much has your well-rounded experience in the public sector, private sector, and academia helped in guiding the commission’s work?
Carrillo: That describes all the other commissioners too! They all have stacks of titles, honors, and achievements, and have been around enough to acquire the broad perspective and sense of the political environment that’s key to seeing an achievable solution. That breadth of experience among the whole group means there’s always at least two or three commissioners who have relevant experience on an issue. The key perspective we all share is that any proposal we make has to be politically feasible, it must make a positive change to the law, and there’s always a risk of unforeseen consequences. I’m grateful for the opportunity to learn from my colleagues.