White Papers
ABDICATION OF PUBLIC CORRUPTION ENFORCEMENT THREATENS DEMOCRATIC HEALTH (June 2026)
J.P. Cooney, Senior Fellow
Molly Gaston, Senior Fellow
Edley Center on Law & Democracy
The white paper details the kinds of cases that federal prosecutors used to pursue in states and their positive impact on the community; the Justice Department’s cessation of such work in the last year and a half; and the need, in the federal government’s absence, for state prosecutors to take up the important mantle of ensuring honest services for their communities.
UNITED STATES CITIZENSHIP AND NATIVE AMERICANS (April 2026)
Libby Washburn, Senior Fellow
Edley Center on Law & Democracy
This white paper explains and confirms that 102 years ago, Congress resolved the issue of Native American citizenship by establishing that Native Americans born within the United States are citizens. At the same time, they retain distinct identities, cultures, and legal rights as members of sovereign Tribal Nations. American democracy’s government of, by, and for the people benefits from Native Americans’ diverse perspectives to support accountable and inclusive governance.
FOLLOWING THE PAPER TRAIL: Meaningful Public Participation under the Paperwork Reduction Act (February 2026)
Seth Galanter, Senior Fellow
Edley Center on Law & Democracy
This white paper (1) describes the public participation requirements in the Paperwork Reduction Act, (2) details the Trump Administration’s systematic violation of these requirements in circumstances involving contested substantive policies, and (3) explains the democracy harm that follows from failure to ensure statutorily mandated public participation in federal government decision making. The white paper concludes that when agencies treat public participation as a procedural nuisance rather than a democratic necessity, they undermine both the legitimacy and effectiveness of federal information collections – and corrode the foundational principle that ours is a government of laws.
DEGREES OF FREEDOM: Measuring Democracy in the World and the United States (February 2026)
Melissa Hooper, Senior Fellow
Edley Center on Law & Democracy
This white paper explains the various indices used to assess the health of democracies globally as well as domestically, highlighting broad consensus regarding relevant measures for evaluating democracy health as well as the significant danger to American democracy today. This white paper shows that American democracy is declining more rapidly than other backsliding democracies– and the white paper notes that the United States has the resources and capability to stop this slide and produce a democratic “U-turn.”
THE PRESIDENT’S ECONOMY? The Law of Tariffs and Democracy (November 2025)
Matthew Hamilton, Ph.D. Student in Jurisprudence and Social Policy, Berkeley Law
J.D. Student at NYU School of Law
This white paper explains President Trump’s novel assertion of a power to impose expansive tariffs. It emphasizes the need for a comprehensive evaluation of the executive’s tariff authority in relation to core constitutional principles and democratic commitments. In particular, the analysis shows that ongoing legal decisions—which will allocate power to reshape America’s role in the international trading system—will necessarily have substantial ramifications for the future possibilities of effective democratic governance.
THE TRUTH ABOUT DEI: President Trump’s Aggressive Posturing against DEI Does Not Change Civil Rights Law, but Risks Increasing the Costs Associated with Legal Equity- Focused Activity (October 2025)
Catherine E. Lhamon, Executive Director
Seth M. Galanter, Senior Fellow
Edley Center on Law & Democracy
This white paper confirms that activities that promote diversity, equity, and inclusion are generally legal under federal law and explains that the Trump Administration’s repeated claim that federal law prohibits what it derides as DEI does not make it so. The white paper summarizes equity-focused activities that federal law permits and in addition describes options available to organizations interacting with the federal government regarding the Trump Administration’s incorrect view about equity activities.
COMMANDER-IN-THIEF: President Trump’s Withholding of Federal Funds from Universities Based on Alleged Discrimination Unlawfully Disregards the Procedures and Limits Adopted by Congress in the Civil Rights Statutes (August 2025)
Catherine E. Lhamon, Executive Director
Seth M. Galanter, Senior Fellow
Edley Center on Law & Democracy
This white paper examines the Trump administration’s unlawful exercise of authority to withhold federal funds from educational institutions, inconsistent with the statutory requirements in Title VI of the Civil Rights Act of 1964 and in Title IX of the Education Amendments of 1972. The white paper explains the genesis of federal authority to withhold funding based on alleged discriminatory practices, the statutory framework for such fund withholding, and the constitutional framework depriving the President of legal authority to act contrary to that process.
CONTINUITY, CHANGE AND CONTESTATION: Executive Power at the Start of the Second Trump Administration (August 2025)
Matthew Hamilton, Ph.D. Student in Jurisprudence and Social Policy, Berkeley Law
J.D. Student at NYU School of Law
This white paper examines executive authority as asserted during the first months of the Trump administration, situating the assertions in historical legal context and identifying their implications for American democracy.
Recent Faculty Scholarship
Selected recent publications by Berkeley Law faculty relating to democracy.
Kathryn Abrams, Open Hand, Closed Fist: Practices of Undocumented Organizing in a Hostile State (2022).
Kathryn Abrams, Democratic Change, Fast and Slow: Navigating Tensions in Pro-Abortion Organizing, 102 Wash. U. L. Rev.1927 (2025).
Catherine Albiston, Democracy, Civil Society, and Public Interest Law, 2018 Wisc. L. Rev. 187.
Abhay Aneja, Representation Reduces Minority Criminal Victimization: Evidence from Scheduled Castes in India, 38 J. Law Econ. Org. 675 (2022).
Abhay Aneja, Can Political Parties Improve Minority Wellbeing? Evidence from India’s “Silent Revolution,” 158 Dev. Econ. (2022).
Ty Alper et al., Holding the Line on Academic Freedom in Law Clinics, J. Leg. Ed. (2026) (forthcoming).
Ken Bamburger, AI and the Administrative State, Theoretical Inquiries in Law (2027) (symposium editor with Cohen and Haim).
Khiara Bridges, Originalism Without History, 135 Yale L.J. 3036 (2026).
David Carrillo, California’s Recall is Not Overpowered, 62 Santa Clara L. Rev. 481 (2022)
Elena Chachko and Katerina Linos, Emergency Powers for Good, Wm. & Mary L. Rev. (2024).
Elena Chachko, The Executive Order, UCLA L. Rev. (2027) (forthcoming).
Elena Chachko, The New Emergency Law, G.W. L. Rev. (2027) (forthcoming).
Erwin Chemerinsky, Can Law Schools Help Save Democracy?, in Beyond Imagination (Mark Alexander ed. 2022).
Erwin Chemerinsky, No Democracy Lasts Forever: How the Constitution Threatens the United States (2024).
Erwin Chemerinsky, Chill, 104 Tex. L. Rev. 439 (2026).
Catherine Crump, Reforming Policing from the White House: The Challenges of Implementing Police Reform Through Executive Order, in Research Handbook on Penal Policy (Corda, Alessandro ed., 2025)
Seth Davis, Does the Major Questions Doctrine Apply to the Federal Courts?, 93 Fordham L. Rev. 1951 (2025) (with Coenen).
Daniel Farber, An Age of Statutes or an Age of Executive Orders? Conflicting Judicial and Presidential Visions of Policymaking, 77 UC L. Rev. 134 (2025).
Daniel Farber, The Imperious Presidency: Brazen Power Plays and Executive Overreach, 53 Pepp. L. Rev. 409 (2026).
Daniel Farber and Neil Siegel, United States Constitutional Law (2nd ed. 2024).
Catherine Fisk, Democracy and a Nonpartisan Civil Service, 67 Ariz. L. Rev. 629 (2025).
Ofer Eldar and Gabriel Rauterberg, Is Corporate Law Partisan?, 2023 Wisc. L. Rev. 177 (2022).
Jeremy Fogel, Judicial Decision-making and Civic Education, 105 Judicature 21 (2021).
Rebecca Goldstein et al., Political Underrepresentation Among Public Benefits Recipients: Evidence from Linked Administrative Data, 59 Urban Aff. Rev. (2023).
Jonathan Gould and Gregory Elinson, The Politics of Deference, 75 Vand. L. Rev. 475 (2022).
Jonathan Gould and David Pozen, Structural Biases in Structural Constitutional Law, 97 NYU L. Rev. 59 (2022).
Jonathan Gould and Rory Van Loo, Legislating for the Future, 94 U. Chi. L. Rev. (2025)
David Grewal, Oligarchy Ancient and Modern, in Capital in Classical Antiquity (2022).
David Grewal, A World-Historical Gamble: The Failure of Neoliberal Globalization, American Affairs (2022).
David Hausman, Daniel Ho. Mark Krass, and Anne McDonough, Executive Control of Agency Adjudication: Capacity, Selection and Precedential Rulemaking, 39 J. L. Econ. & Org. 682 (2023).
Kinch Hoekstra, The Absolute Democracy of Jean Bodin and Thomas Hobbes, in The Cambridge History of Democracy, Volume 2 Cambridge History of Democracy, vol. 2, ed. (Peltonen, Markku; Smith, Sophie eds., 2026) (forthcoming)
Sharon Jacobs, The Challenges of Participatory Energy Administration, 58 U.C. Davis L. Rev. (2024).
Sharon Jacobs, Energy Emergencies and Energy Federalism, 174 U. Pa. L. Rev. 157 (2025) (with Milcamps).
Sonia Katyal, Erick Stallman, and Aniket Kesari, Open Data/Open Government: The Tensions between Public Accessibility and Private (Re)use (forthcoming 2023).
Christopher Kutz, The Improvisational Public (2023).
Christopher Kutz, Publics in Action: The Self-Making of Civic Life (2025).
Katerina Linos, Interviews as a Method for Rule of Law Measurement, Am. J. Int’l L. Unbound (2026) (with Jeli) (forthcoming)
Joy Milligan, The Constitution of Racial Repair: A Reconstructed History, Iowa L. Rev. (2027) (forthcoming).
Frank Partnoy, Negative Trading in Congress, 100 Ind. L.J. 1115 (2025) (with Molk).
John Powell, Overcoming Toxic Polarization: Lessons in Effective Bridging, 40 Law. & Ineq. (2022).
Russell Robinson, The Fall of Civil Rights and Rise of Anti-White Discrimination, Mich. L. Rev. (2026) (forthcoming).
Bertrall Ross, Artificial Intelligence and Democracy’s Information Problem, 86 U. Pitt. L. Rev. 871(2025).
Robert Inman and Daniel Rubinfeld, Democratic Federalism: The Economics, Politics, and Law of Federal Governance (paperback ed. 2023).
Ayelet Shachar, The Inversion Paradox: Majorities Taking on the Minority Label, in Constitutional Democracy in Crisis? (Graber, Mark; Tushnet, Mark;Levinson, Sanford; Barragia, Antonia Barragia eds., 2026) (forthcoming).
Paul M. Schwartz, The President’s Authority Over Cross-Border Data Flows, 173 U. Penn. L. Rev. (2024).
Rachel Stern, Agency and Aspiration: How Twenty-First Century China Complicates our Understanding of Authoritarian Law, 114 Droit et Société 289 (2023).
Christopher Tomlins, The State Before the State: A Critique of New Democracy: The Creation of the Modern American State, by William J. Novak, 62 Am. J. Legal Hist. 262 (2022).
Christopher Tomlins, The Progressive Imaginaire: A Critique of The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy, by Joseph Fishkin and William Forbath, J. L. & Pol. Econ. (2024).
Amanda Tyler, Judicial Review in Times of Emergency: From the Founding Through the COVID-19 Pandemic, Va. L. Rev. (2022).
Amanda Tyler, The Imperial Presidency and Executive Detention, in Dialogues on Constitutional Law (Mayali and Shen eds. 2022).
Amanda Tyler, A Loyal American: The Untold Story of How a Heroic Young Woman and a Fearless Lawyer Closed the World War II Japanese American Mass Incarceration Camps (forthcoming 2027).
Molly Van Houweling, Securing the Public Domain, in Proceedings of the Cambridge University Conference on Private Law and Intellectual Property (2026) (forthcoming)
John Yoo, Rational Non-Delegation, 47 Harv. J.L. & Pub. Pol’y (2024).
John Yoo, Natural Rights, the Common Good, and the American Revolution (2025) (edited with Levin and White).
Emily Zhang et al., Accessing the Right to Vote Among System-Impacted People, Punishment and Society (2024).
Emily Zhang, Section 2 of the Voting Rights Act and Native Representation, J. Leg. Analysis (2026) (forthcoming).