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, Lawyers on the Post-Dobbs Landscape: The Case of the Ballot Initiative, 113 Calif. Law Rev. 921 (2025)
Abhay Aneja and Guo Xu, Strengthening State Capacity: Civil Service Reform and Public Sector Performance during the Gilded Age, 114 Amer. Econ. Rev. 2352 (2024)
Kenneth Bamburger and Deidre Mulligan, Recentering Public Values in AI Governance, Berkeley Tech. L.J. (forthcoming 2026)
Elena Chachko and Katerina Linos, Emergency Powers for Good, Wm. & Mary L. Rev. (2024)
Elena Chachko and Katerina Linos, Emergency Powers Beyond National Security: A Response to Americans for Prosperity, Yale J. on Reg. Notice & Comment (Nov. 2024)
Erwin Chemerinsky, No Democracy Lasts Forever: How the Constitution Threatens the United States (2024)
Lauren B. Edelman, Allen Micheal Wright, Calvin Morrill, Karolyn Tyson, and Richard Arum. The Power of the Accused: Rights Mobilization and Gender Inequality in School Workplaces, 58 Law & Soc. Rev. (2024)
Daniel Farber and Neil Siegel, United States Constitutional Law (2nd ed. 2024)
Daniel Farber, The Imperious Presidency: Brazen Power Plays and Executive Overreach (Forthcoming)
Catherine Fisk, Democracy and a Nonpartisan Civil Service, Ariz. L. Rev. (2025)
Jonah Gelbach, Nora Freeman, and David Marcus, How a Rule 23(b)(2) Class Action Could Save Law Firms From Trump, Stan. L. Rev. Online (2025)
Rebecca Goldstein et al., Political Underrepresentation Among Public Benefits Recipients: Evidence from Linked Administrative Data, 59 Urban Aff. Rev. (2023)
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)
Sharon Jacobs, The Challenges of Participatory Energy Administration, 58 U.C. Davis L. Rev. (2024)
Erik Stallman and Aniket Kesari, Federal Open Data as Artificial Intelligence Resource (forthcoming, George Washington Journal of Law & Technology, 2025)
Christopher Kutz, The Improvisational Public (2024)
Joy Milligan, Beyond Equity: The Counterfactual Administrative State, 22 Geo. J. L. & Pub. Pol’y 425 (2024)
john powell and Rachelle Galloway-Popotas, The Power of Bridging: How to Build a World Where We All Belong (2024)
Robert Inman and Daniel Rubinfeld, Democratic Federalism: The Economics, Politics, and Law of Federal Governance (paperback ed. 2023)
Bertrall Ross, Artificial Intelligence and Democracyʼs Information Problem, 86 U. Pitt. L. Rev. (2025)
Bertrall Ross, Polarization, Populism, and the Crisis of American Democracy, 20 Ann. Rev. Law & Soc. Sci. 293 (2024)
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 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 of the Legislative Power in the Roberts Court, 48 Harv. J.L. & Pub. Pol’y 125 (2025)
Amanda Tyler, Levels of Generality, the Limits of Originalism, and the Supreme Court’s Second Amendment Jurisprudence, 78 SMU L. Rev. 265 (2025)
Amanda Tyler, Judicial Review in Times of Emergency: From the Founding Through the COVID-19 Pandemic, Va. L. Rev. (2022)
Amanda Tyler, Justice, Justice Thou Shalt Pursue: A Life’s Work Fighting for a More Perfect Union, with the Honorable Ruth Bader Ginsburg (paperback ed. 2023)
Amanda Tyler, Constitutional Conversations with the Past, Present, and Future, in The Responsibility of a Constitution for the Future (Arnold, Rainer; Fickentscher, Toni eds., 2024)
John Yoo, Rational Non-Delegation, 47 Harv. J.L. & Pub. Pol’y (2024)
Emily Zhang et al., Accessing the Right to Vote Among System-Impacted People, Punishment and Society (2024)