Ellen M. Bublick, A Research Agenda for Tort Law (Ellen M. Bublick & John C.P. Goldberg eds., Edward Elgar 2026)

This Research Agenda indicates key directions for future investigation in tort law, with particular focus on the ways in which laws could and should assign responsibility for injury and regulate safety. Bringing together leading international experts, this book maps out key challenges of emerging developments in tort law and theory.

Drawing on perspectives from a wide range of common-law countries, the contributing authors investigate the extent to which societal, theoretical, organisational, doctrinal and technological change will transform the landscape in which tort law operates. They explore how tort law is continually reshaped by litigants, lawyers, judges and legislators in response to the changing cultural, economic and political conditions in which it operates. Amongst other key topics, chapters analyse the ways in which AI will affect the application and development of tort doctrines, how tort claims play out in real-world litigation and how tradeoffs between tort law and compensation systems can address the problem of accidental injury.

A Research Agenda for Tort Law is a vital resource for law students and emerging scholars looking to further their understanding of current debates in the field.

Charles Calleros et al., Legal Method and Writing: Foundations for the Study of Law (10th ed., Aspen 2026)

Analysis, synthesis, and writing — the foundational skills upon which students build their legal careers — are more important than ever against today’s dynamic landscape of law, technology, and legal practice. The Tenth Edition of Legal Method and Writing: Foundations for the Study of Law, reflects a skills-based approach that prepares students to handle any legal writing challenges they will encounter in practice.

With new co-authors Rebekah Hanley and Yan Slavinskiy bringing the wealth of their experience and expertise to this revision, the reorganized Tenth Edition closely tracks new developments in law school and practice. Balancing caution with enthusiasm, the authors address new technologies through candid discussion and exercises that shed light on both the promise and pitfalls of using GenAI in legal analysis, research, and writing.

Charles F. Capps, Are There Any Substantive Canons of Interpretation?, 175 University of Pennsylvania Law Review (forthcoming)

Since the late 1980s, scholars have distinguished between two kinds of canons of statutory interpretation: linguistic canons, which judges invoke on the ground that they track the legislature’s intended meaning, and substantive canons, which judges invoke on the ground that they advance policy objectives. There has been much discussion about whether there should be any substantive canons, with scholars debating whether such canons are compatible with textualism and whether they are prone to manipulation by judges to reach desired outcomes under a guise of neutrality. But participants in these debates rarely question whether there are any substantive canons at all.

Yet there are at least three powerful reasons to doubt the existence of substantive canons. First, judges purport to be seeking the legislature’s intended meaning when engaged in statutory interpretation, including in the very opinions in which they apply allegedly substantive canons. Second, judges purport to be following the law and explicitly acknowledge that the legislature’s intended meaning is the law, including in the very opinions in which they apply allegedly substantive canons. Third, judges overwhelmingly describe allegedly substantive canons in linguistic terms, as based on presumptions about what the legislature likely meant.

This Article argues that the introduction of the substantive-linguistic distinction into the scholarly discourse was a mistake. There are no substantive canons of statutory interpretation. If true, this thesis has implications for the classification of disputed-status canons such as the major-questions doctrine, the scope and strength of allegedly substantive canons more generally, the role of critical theory in recalibrating canons such as constitutional avoidance that are based on presumptions of legislative beneficence, and the role of law-and-economics analysis in understanding canons for the interpretation of private-law instruments such as wills and contracts.

Ann Ching, Navigating Federal and State Appellate Practice (Matthew Bender 2026)

Navigating Federal and State Appellate Practice provides a clear and systematic roadmap through each step of the appellate process, from preserving issues in the trial court through post decision proceedings. Created for litigators, appellate specialists, and judicial clerks, this treatise explains the full spectrum of appellate procedure in both federal and state courts in one unified resource.

The book covers jurisdiction and venue, notices of appeal, record preparation, briefing strategy, oral argument preparation, standards of review, appellate dispositions, and post decision motions and mandates. Detailed discussions highlight the differences between federal and state practice and offer guidance for developing stronger and more efficient advocacy.

Written by Professor Ann Ching, a respected legal educator and ethics authority with military and judicial experience, this treatise emphasizes practical skills that support real world appellate work. Readers learn how to frame issues effectively, build persuasive arguments, anticipate judicial concerns, and comply with evolving procedural rules.

The title also explores the growing role of technology in appellate practice, including e filing systems, legal analytics, and artificial intelligence. Practical tools such as checklists, templates, and appellate court structure charts help practitioners navigate deadlines and procedural requirements with confidence.

This resource is designed to strengthen appellate strategy, improve written and oral advocacy, and support compliant and efficient practice in both state and federal courts.

Adam Chodorow, Redemption! Valuing Closely Held Companies after Connelly, 29 Florida Tax Review 351 (2025)

In Connelly v. United States, the Supreme Court resolved a long-standing dispute over how to treat redemption obligations when valuing a decedent’s shares in a closely held company. The Court held that redemption obligations do not offset corporate-owned life insurance proceeds obtained to fund a redemption, upsetting a long-standing practice. While the Court undoubtedly reached the right conclusion, it (1) failed to address important arguments the parties and amici raised; (2) assumed away the effects of discounts, premiums and different valuation techniques, which would have complicated the analysis without changing the conclusion; and (3) muddied the water somewhat by leaving open the possibility of a different outcome where companies use operating assets to fund a redemption.

This Article lays out the various authorities that bear on this question, sets forth additional grounds supporting the Court’s conclusion, including the arguments the Court sidestepped, addresses the complexities avoided by using a simple hypothetical and explains why the reasoning applies equally to situations where operating assets are used to fund a redemption. Finally, the Article identifies different ways taxpayers can use insurance to fund redemptions while avoiding the results in Connelly.

Laura Coordes, Elite Bankruptcy, 51 BYU Law Review 701 (2026)

“The influence of bankruptcy lawyers over bankruptcy law seems almost inevitable.” —David Skeel

In Debt’s Dominion, David Skeel wrote that bankruptcy professionals have played a key role in shaping U.S. bankruptcy law. He predicted that these professionals would continue to shape the bankruptcy process long into the future. Today, we can see that Skeel’s prediction has come true. Although Congress has yet to overhaul the Bankruptcy Code, bankruptcy professionals have succeeded in their own form of overhaul by creating what this Essay calls “elite bankruptcy:” a type of bankruptcy accessible only to the rich and powerful. Elite bankruptcy is practiced only in pockets of the country and by a relatively small group of law firms and judges. Elite bankruptcy tackles some of the most complex issues of the day and allows lawyers and judges to exercise their creativity in addressing those issues. Elite bankruptcy has even provided bankruptcy professionals with the opportunity to influence other areas of law. This Essay explores how bankruptcy professionals created elite bankruptcy and analyzes the consequences of elite bankruptcy’s existence. Is elite bankruptcy a successful product of the bankruptcy system’s natural creativity and flexibility, or is it a failure of the system and its guardrails? This Essay seeks to unpack that question and, in doing so, it continues Skeel’s important work in understanding how bankruptcy professionals shape the law.

Laura Coordes & Eugenio Vaccari, Environmental Roulette: Insolvency, Asset Disclaimer, and the Externalisation of Cleanup Costs in England and the USA, 2 Journal of Business Law 143 (2026)

Companies’ actions increasingly have public impacts, yet the legal frameworks that govern their financial failure remain anchored in private, creditor- and shareholder-centric paradigms that often disregard broader environmental responsibilities. This article critically examines how the legal mechanisms of disclaimer (English law) and abandonment (United States (US) law) in insolvency law allow for the removal of environmentally burdensome assets from debtors’ estates, thereby externalising remediation costs. While these tools aim to maximise returns for creditors by shedding onerous or low-value assets, they may undermine environmental accountability and frustrate climate mitigation efforts. Using English and US laws as examples, the article explores how the power to disclaim or abandon assets interacts with environmental obligations, drawing on international environmental law principles such as the polluter pays principle. It argues that the current legal environment insufficiently constrains the use of these powers, enabling the avoidance of environmental cleanup duties and perpetuating perverse incentives that prioritise financial expediency over sustainability. The comparative analysis reveals the relative shortcomings of English law in ensuring environmental protection, and highlights limited, albeit inconsistently applied, safeguards within the US framework. The article concludes that meaningful reform—especially in the United Kingdom (UK)—requires thoughtful integration of climate policy considerations into insolvency proceedings to align economic and environmental objectives more coherently.

Laura Coordes, Bankruptcy Policy Yields to Sovereign Immunity (This Time), 28 Green Bag 255 (2025)

The U.S. Supreme Court recently decided United States v. Miller, a case addressing the interplay between sovereign immunity and a bankruptcy trustee’s avoiding powers. The Bankruptcy Code contains a sovereign immunity waiver, which the Court interpreted narrowly, allowing the U.S. government to raise the defense when a bankruptcy trustee sought to claw back a fraudulent transfer using state law. Though somewhat complex and technical, the Court’s decision has significant implications for the bankruptcy policy of equality of distribution among similarly situated creditors and therefore is a must-read for any bankruptcy practitioner.

Alyssa Dragnich & Ann Ching, How Modern is Your Writing?, 22 Scribes Journal of Legal Writing 109 (2025)

Lawyers make their living with words. Most of us are justifiably proud of our writing skills and may even enjoy a spirited debate about the Oxford comma. But language evolves, and as writers, we should strive to keep pace with modern trends in writing. In this essay, we offer some tips for contemporary legal writing, including a discussion of which grammar “rules” have become outdated, suggestions for using inclusive language, and a take on modern pronouns.

Aaron X. Fellmeth, The Territorial Independence of Intellectual Property Rights, 26 Chicago Journal of International Law 503 (2026)

The purpose of this article is to reassert the primacy of each state’s territorial jurisdiction as a fundamental basis for resolving international IP disputes. It identifies the principle that I have elsewhere termed the “territorial independence of IP laws” as specially relevant to the problems of parallel imports and cross-border IP infringement, and it explains how the proper application of the territorial independence principle resolves IP disputes in a manner that avoids running afoul of international law, maintains the integrity of basic U.S. principles of statutory construction, and remains consistent with the various federal statutes protecting IP rights. The territorial independence principle arises from the basic doctrine of international law that states have primary prescriptive jurisdiction with regard to their own territories, and this has important implications for how IP laws should be interpreted in multinational IP disputes.

Elissa Gentry & W. Kip Viscusi, Embryonic Personhood’s Threat to Conception, 25 Houston Journal of Health Law & Policy 1 (2026)

Embryonic personhood perversely threatens fertility patients’ chance at parenthood. The designation of personhood to genetic matter not only creates legal risks to fertility patients attempting to conceive but imposes artificial risk tradeoffs that undermine patients’ ability to balance medical risk with the chance at a viable pregnancy. As with any medical treatment, assisted reproductive technology (ART) involves risky tradeoffs. Participating in riskier techniques boosts the baseline likelihood of a viable pregnancy. Exploration of data on choices over fertility treatments demonstrates that patients routinely balance risks of embryo destruction and maternal side effects against the likelihood of a viable pregnancy in a reasonable manner. Current jurisprudence’s shift toward adopting embryonic personhood assumes a dominant role of embryo survival. This jurisprudence is a departure from how courts have balanced the right to pursue procreation with the right to avoid it.

This Article examines risk-risk tradeoffs that patients make in pursuing more aggressive forms of fertility treatments—such as multiple embryo transfers—that introduce a possibility of riskier multi-fetal pregnancies in exchange for higher likelihood of at least one viable pregnancy. Using national clinic-level data on patient choices over treatments with different risks, we exploit these revealed preferences to measure the relative willingness to accept such health risks in exchange for a viable pregnancy. The analysis reveals two results. First, the proportion of patients engaging in the riskier multiple embryo transfer is not different in states that have different professed policies limiting abortion access and establishing fetal personhood. The lack of different preferences over implanting multiple embryos for fertility patients based on symbolic (and not legally binding) laws suggests that such state laws do not reflect true preference differences for fertility patients and do not appear to have altered patients’ decisions. Second, patients’ behavior is inconsistent with a categorical approach to legal personhood. Patients evince a willingness to accept a riskier approach (implantation of multiple embryos) for a higher likelihood of one viable pregnancy based on their baseline conception rate (which declines with age). Their willingness to participate in this riskier procedure is statistically correlated with their baseline conception rate. This sensitivity of patient choice to baseline conception rate is consistent with patients making rational decisions within a risk-risk approach to fertility treatment. Fetal personhood laws that override patient preferences will change the number of successful pregnancies fertility patients are able to achieve and will change the way fertility treatment is administered.

Elissa Gentry et al., Authorizing Bespoke Therapies, Arizona State University Sandra Day O’Connor College of Law Paper No. 6471020 (February 8, 2026)

Novel medical treatments that skip or mask genetic mutations are capable of solving previously incurable ailments. Genetic mutations are individually rare but collectively common, affecting 30 million individuals in the US alone. Genetic interventions provide treatments that save lives, particularly those of children. These interventions are developed for as few as one patient, earning the moniker “N-of-1 precision medicine.”

Such ultra-individualized treatments pose challenges for the existing system of 1) premarket regulation, 2) pharmaceutical incentives, and 3) tort compensation. First, the goals of N-of-1 precision medicine create legitimate concerns over whether precision medicine constitutes drug development, over which the FDA has authority, or the “practice of medicine,” over which it does not. Moreover, the onerous and slow premarket approval process conflicts with the emergency circumstances in which N of-1 treatments are currently used. Second, N-of-1 precision medicine treatments target too few individuals to justify the cost of drug development under the traditional patent system. Finally, patients seeking tort compensation for injuries caused by such treatments face significant hurdles for both products liability and medical malpractice claims.

On top of these challenges, the structure of N-of-1 precision medicine creates a further complication. Each N-of-1 precision treatment uses shared modalities to deliver individualized treatments; this means that information created in one treatment’s development can benefit the development of another treatment. This unique feature both creates the potential for information-sharing that can reduce development costs and simultaneously undermines incentives to do so. Addressing this shared modality feature holds the key to regulating N-of-1 precision medicine.

Given the promise of N-of-1 precision medicine treatments and their uneasy fit within the existing framework for population-based drugs, this Article proposes a new paradigm. Drawing from the platform economics literature, the Article reframes the interconnected nature of N-of-1 precision therapies as a positive network externality, which can be well-managed in a multi-sided platform system. Onerous ex-ante premarket approval would be replaced by standards-based good practice review of pre-registration designs, similar to the regulatory structure currently governing laboratories. Rather than relying on the patent system to provide incentives to create, laboratories would be paid for sharing data from pre-registered studies. Data sharing potentially reduces costs of development and helps insurance markets price the risk of covering such treatments. Finally, the gaps left by products liability and medical malpractice claims would be filled by monitoring the pre-registered designs. N-of-1 precision medicine can cure illnesses that previously constituted death sentences, extending lifespans and improving quality of life. This potentiality, however, will never scale without the legal infrastructure to facilitate development and ensure quality care.

James G. Hodge, Jr., Dispelling Vaccine Legal Myths, 54 Journal of Law, Medicine & Ethics 111 (2026)

Major shifts underway in U.S. vaccine policies reflect widespread misinformation, notably including unproven claims of harms from vaccines. Vaccination misconceptions also include an array of falsities about the scope and extent of governmental powers and protections. Exposing these “legal myths” clarifies existing foundations of vaccine laws and policies, providing guidance on appropriate responses to quell vaccine hesitancy.

James G. Hodge, Jr., Supreme Court Impacts in Public Health Law: 2024-2025, 53 Journal of Law, Medicine & Ethics 589 (2025)

After dispensing major precedents affecting the public’s health in its prior three terms, SCOTUS 2024-2025 term was arguably less impactful amid several unanimous decisions preserving in part existing jurisprudence. This is an understatement. While the Court issued key decisions this term arguably favorable to communal health it also denied minors access to medical procedures sought by their doctors, diminished diversity, equity, and inclusion (DEI) initiatives in employment, allowed states to deny health providers access to Medicaid because they also provided abortions, disallowed rural hospitals from collecting specific costs for treating low-income patients, and provided a “script” of sorts for executive control of federal health advisory committees.

James G. Hodge, Jr., Taylor Brown & Kimberly Hartle, Insurrection Powers and the Public’s Health, Journal of Law, Medicine & Ethics (forthcoming)

President Trump and his administration have repeatedly threatened to invoke insurrection powers and unleash U.S. military and National Guard members in American cities in response to civil uprisings and alleged interferences with immigration officials’ actions. In so doing, they raise a specter of significant constitutional clashes over the use of these antiquated emergency authorities. To the extent Congress is unwilling to constrain Presidential discretion, the U.S. Supreme Court may be called on to clarify the scope and limits of Insurrection Act powers.

James G. Hodge, Jr. & Summer Ghaith, Exploring Constitutional Limits of Insurrection Powers, Arizona State Law Journal (forthcoming)

President Trump has repeatedly threatened to invoke extensive national powers under the Insurrection Acts to quell “rebellions” and other purported threats to public health and safety in response to repeated acts of civil unrest largely in response to immigration practices via federal Immigration and Customs Enforcement (ICE) across urban areas.  To date, President Trump has failed to actually unleash armed forces of the U.S. military. That U.S. Presidents can abate insurrections or rebellions is unquestionable. What distinguishes President Trump’s willingness to invoke these authorities is that his own administration’s aggressive actions through ICE agents are a primary source of civil unrest in Minneapolis and other cities hosting mass demonstrations. Wielding insurrection powers under these domestic circumstances is largely unprecedented and unlawful. Legislative and judicial approaches to Presidential invocations of insurrection authorities have largely been viewed as “hands off.” Even if Congress and SCOTUS defer extensively to Presidential discretion in the invocation of insurrection powers, historic and modern judgements from the Court suggest there are, in fact, constitutional restraints to execution of military powers against civil populations. The Constitution is not cast aside during rebellions or other strife. If anything, its principles take primacy to protect Americans from sheer acts of presidential despotism that perhaps only SCOTUS can prevent.

Rhett Larson, A National Obligation to Mexico in the Colorado River Basin, 57 Arizona State Law Journal 1403 (2026)

The law bankrupted the Colorado River from the beginning, promising more water than it could deliver. Among the most consequential of these promises is the “national obligation” the United States owes to Mexico under the 1944 Water Treaty and incorporated into domestic law by the Colorado River Basin Project Act of 1968. This article examines how that obligation has shaped, and continues to reshape, the Law of the River. It argues that the “national obligation” language represents a substantive reordering of water shortage risks within the basin and creates responsibilities and opportunities for the federal government to invest in water supply augmentation to meet its national obligation to Mexico.

Stacy Leeds et al., Proactive Solutions in Implementing Tribal Digital Sovereignty, 22 Journal of Community Informatics 82 (2026)

This article argues that Tribal Nations must move rapidly from ad hoc digital practices to comprehensive legal and governance frameworks that fully implement Tribal Digital Sovereignty. Drawing on lessons from Indian gaming and other economic sectors, it shows how vendor-driven arrangements, weak contracts, and incomplete jurisdictional assertions have historically created long-term vulnerabilities around data, infrastructure, and regulatory authority. The article reframes digital systems—cloud services, health information technologies, broadband and spectrum, AI tools, and data-intensive enterprises—as core sites of sovereignty rather than as technical back-office functions. It contends that delays in regulating these domains allow external actors to harden jurisdictional and economic advantages that are difficult to unwind.

To provide practical guidance, the article proposes four interlocking “buckets” of legal infrastructure: Tribal codes and regulations that assert digital jurisdiction; contracts and agreements that safeguard data ownership, limit sovereignty waivers, and require portability; easements and infrastructure arrangements that preserve Tribal authority over physical and virtual networks; and business registration systems that capture entities operating digitally in Tribal territories. It situates these tools within Indigenous Data Sovereignty frameworks such as the CARE Principles and emerging Tribal AI governance efforts, including early government policies that embed cultural values and guard against data exfiltration. The article further emphasizes workforce development, procurement strategies, and collaborative regional or inter-Tribal models as necessary conditions for sustained digital self-governance. Taken together, these approaches aim to ensure that Tribal sovereignty is exercised as powerfully in digital spaces as in the governance of land, resources, and institutions.

Gary Marchant, The Pacing Problem and Soft Law, 22 Ohio State Technology Law Journal 82 (2026)

Emerging technologies such as nanotechnology and artificial intelligence develop very quickly, creating challenges for governance to keep pace, a problem described as the “pacing problem.” Our traditional institutions of government oversights–Congress, regulatory agencies and the courts–face a series of structural and procedural impediments that prevent them from keeping pace with rapidly evolving technologies. This results in two problems–some technologies are regulated by existing regulation that has become outdated, and other technologies have no regulation. Soft law is the most effective strategy for addressing the pacing problem. Soft law programs can be adopted and revised more quickly than government regulation, and both scholarly and empirical research demonstrates that the flexibility and agility of soft law can indeed provide an important advantage for addressing the pacing problem. But soft law also has its limitations, one of which is the frequent criticism that soft law measures do not permit as much stakeholder participation as government regulation, where public participation is mandated. Several recent soft law programs have attempted to increase stakeholder participation, which may improve the credibility of such programs, but at the cost of restricting the flexibility and agility benefits of soft law. Designers of soft law programs must therefore be aware of and address the trade-off between the agility and participation attributes of soft law, which will depend on the circumstances and specifics of the individual case.

Gary Marchant & Jordan Buckwald, Private Standards as Liability Shields: A Pro-Innovation Artificial Intelligence Regulatory Approach for States, 27 Minnesota Journal of Law, Science & Technology 61 (2026)

States face a dilemma. The federal government is not regulating artificial intelligence (AI), and is threatening states that regulate the technology with preemption and funding restrictions. Moreover, piecemeal state regulation with different substantive requirements risks impeding AI innovation and harming our national interest and security. And yet, AI creates a whole host of problems relating to accuracy, safety, security, bias, transparency, privacy, and autonomy that needs to be governed. This Article presents a solution to this dilemma that can protect against AI risks without harming innovation and the national interest. The proposal is for states to provide a liability shield for AI systems that conform to recognized comprehensive risk management standards. After discussing the proposed solution, as well as drawbacks to the model, the analysis concludes that these liability shields are a simple, positive step that states can take to both promote AI innovation and protect their citizens from risks.

Ben McJunkin, Reckless Accomplices, 121 Northwestern University Law Review (forthcoming)

In recent years, criminal prosecutors have pursued homicide charges against the parents of teenaged school shooters. Two high-profile cases—one from Michigan and one from Georgia—provide paradigmatic examples.  In each case, the parents provided their children with weapons and ammunition despite obvious signs of their children’s dangerousness and instability. Criminal liability for such reckless conduct is appropriate. But homicide charges are not. This Article critiques this new trend in prosecutions as distorting the substantive criminal law to obtain an outcome that is otherwise unavailable without criminal code reform.

It is a long-held criminal law tenet that intentional wrongful conduct by one party—such as a school shooter—severs the chain of causation that might otherwise tie earlier wrongdoing—such as the provision of weapons—to prohibited results. In order to seek convictions against the parents of school shooters, prosecutors and judges have been discarding this foundational tenant of criminal causation and replacing it with a tort-like assessment of simple foreseeability. This distorts the substantive criminal law in dangerous ways, radically expanding the number of people and types of acts that can be said to have caused the deaths in question, misattributing blame, producing punishment out of proportion to culpability, and undermining the criminal law’s commitment to free will. Meanwhile, more appropriate theories of liability, such as accomplice liability, are foreclosed by strict mens rea requirements that do not reflect the parents’ wrongful acts in these cases. Prosecutors thus find themselves stuck between pursuing inappropriate charges or taking no action at all.

To forestall any further corruption of criminal law’s causation doctrine, and to more accurately sanction the parents’ problematic conduct at issue, this Article calls for the creation of a new class of accomplice liability: reckless accomplices. A reckless accomplice is one who is aware of a substantial and unjustified risk that their actions will materially facilitate another’s criminal wrongdoing. Importantly, unlike traditional accomplices, who share a criminal purpose with the perpetrator, reckless accomplices would not be liable for the crimes they facilitated. Rather, legislators should create a standalone crime with punishment statutorily cabined to reflect the accomplice’s individual contribution to the crime. In most cases, this would be a small fraction of the punishment authorized for the principal offender. Criminalizing reckless accomplices in this manner would provide a relief valve for our punitive instincts in the wake of sensational tragedies, without the overcriminalization and overpunishment that attends homicide prosecutions. And it may, more broadly, invite us to reconsider the derivative nature of accomplice liability generally, which holds accomplices responsible for harm that is more properly attributable to the acts of others.

Ben McJunkin, Exploring Unhoused Agency, Boston University Law Review (forthcoming)

Agency theory is typically cabined to feminist legal scholarship, particularly the work of sex crimes scholars. In that space, agency theory provides a persuasive account of constrained decision making: given pervasive inequality, individuals can nevertheless carve out space for self-direction, self-definition, and resistance to dominant power structures. The observations of agency theory then inform criminal law reform projects, many of which seek to center decision making in defining criminal wrongs.

This Article extends agency theory into new terrain: the experiences of unhoused individuals. With homelessness at a record high in the United States, and unsheltered homelessness an increasing portion of that, more Americans than ever before are living in public spaces under extreme constraints. Yet many of the everyday acts of existing in public are criminalized by governments hoping to banish the unhoused from public view. Meanwhile, the existing legal literature on homelessness rarely engages with the necessary, daily, life-defining decisions of the unhoused, often focusing instead on the power of the government to combat homelessness.

Viewed through the lens of agency theory, many common experiences of unsheltered individuals take on new meaning. Resistance to shelter and services is sometimes rational and self-interested. Begging or panhandling can be effective techniques for obtaining food, money, or work. Self-medication through drug use and alcohol consumption is often a necessary survival strategy. And the construction of encampments stakes a normative claim to the legitimate uses of public property that pushes back against unjust distributive rules. These observations invite homeless advocates to reconsider and reframe the legal doctrines that influence agentic decision making. To that end, this Article offers a suite of law reforms and litigation strategies-covering property law, tort law, constitutional law, and criminal law-designed to surface and elevate the agency of unhoused individuals as a pushback against expansive (and expanding) criminalization.

Antonia Miceli, Accommodating Justice: The Fragmented Path to Legal Licensure for Students with Disabilities, Arizona State University Sandra Day O’Connor College of Law Paper No. 6438298 (March 18, 2026)

On the path to legal licensure, disability is not accommodated – it is constantly re-litigated. While twenty percent of first-year law students report having a disability, only 3.06% of law-firm lawyers and only 5.4% of ABA members do. That delta is not about talent; it is about a licensure pipeline that makes access non-portable. At each gate, from LSAT to law school to the MPRE, and finally to the bar exam, students must re-prove their impairments with increasing documentation requirements and shorter appeal windows, some of which are measured in days. The result is predictable: increased costs, added stress and delay, chilled disclosure, and selective attrition. Fragmentation also manufactures stigma: by forcing serial proof of “deservedness,” it entrenches ableist assumptions about special treatment and drives silence even among candidates who have long relied on accommodations. The NextGen UBE arrives heralding uniform content, administration, scoring, and portability, yet leaves accommodations to individual jurisdictions, undermining the exam’s promised validity and reliability. The hidden costs are profession-wide: clients with disabilities face deeper justice gaps, employers lose proven talent, and the public loses confidence in a bar that filters by access rather than ability. This Article maps the fragmentation, shows how it erodes score meaning and equity, and offers concrete fixes: portable accommodations to match portable scores, shared documentation and evaluator standards, early bar-exam accommodations windows, and transparent reporting. It also highlights emerging portfolio and apprenticeship pathways that build access in from the start. The choice is simple: keep a pipeline that tests endurance – or build one that measures lawyering.

Caitlin Millat, Parents as Regulators, 74 UCLA Law Review (forthcoming 2027)

The Supreme Court held last term in Mahmoud v. Taylor that public schools must permit parents to opt their children out of curricular content if they object on religious grounds. The decision, of course, generated considerable conversation and controversy largely centered on a single line of inquiry: should parents have this guarantee, at all? But this debate obscures a deeper, more thorny legal problem. Courts, scholars, and commentators have focused on who holds such an opt-out right. What they have largely ignored is what the exercise of that right does to the public educational institution—and the rights of everyone else within it.

American law defines parental authority by a single organizing principle: parents have the right to make decisions for their children, and the state may not interfere absent extraordinary circumstances. This framework is legible in the private domain, where parental choices control the family alone. But it offers no framework for a mechanism such as the opt-out. When a parent opts a child out of a lesson, the consequences radiate. There are administrative burdens, as teachers must restructure lesson plans, accommodate relocating opting-out students, and create alternative materials. There are stigmatizing harms, as opting-out signals exclusion and ‘other’s those whose identities are subject to the opt-out. And there are chilling effects, as school authorities will increasingly choose “noncontroversial” materials, erasing some identities entirely. These are not the byproducts of private choice. They are instead the hallmarks of regulation.

Drawing on administrative law, rights and democratic theory, education law, and family law, this Article argues that when parental choice causes these externalities, it is no longer “private”: instead, it operates as de facto regulation, governing the educational environment for others. And, if it is regulatory, it must be subject to regulatory and governance norms. This Article repositions this type of choice as a regulatory form itself, proposing a process-based governance framework to evaluate opt-outs in ways the law currently cannot.

Robert Miller & Adam Crepelle, Reservation Capitalism: Economic Development in Indian Country (2nd ed., Bloomsbury 2025)

Reservation Capitalism: Economic Development in Indian Country supplies the true history, present-day circumstances, and potential future of Native American communities and economics.

In this new edition, Robert J. Miller, author of the first edition, teams with fellow Indigenous Peoples law and property expert Adam Crepelle to offer a meticulously edited and thoroughly updated text that addresses newly salient issues such as the fast-growing tribal cannabis industry, the significant developments within reservation-based Community Development Financial Institutions, and similarly significant developments with low-income tax credits. This edition also includes two new chapters on emerging opportunities in the clean energy sector and e-commerce, respectively.

Ultimately, these additions shows how, after Covid-19, tribal communities are moving beyond their formerly vulnerable economies predicated almost exclusively on gaming foster sustainable economic development on reservations in order to improve standards of living and sustain their self-sufficiency and self-determination.

Michael Saks, Don’t Blink, 50 Law and Human Behavior 5 (2026)

Law and Human Behavior is part of a global institution that makes unique contributions to knowledge. Notable psychology–law researcher concerns of the era of my editorship included trying to move beyond undergraduate students as research participants, the ethics of expert witnessing, and the dilemmas of data sharing. An advantage of being editor during Law and Human Behavior’s youth was that the journal was publishing some of the earliest studies of a variety of phenomena and addressing topics still new to psychology–law: broad inquiries about law through psychological lenses, court processes, clinical forensics, eyewitnesses, experts and their knowledge, jury-relevant research; other justice system decision making. I conclude with a discussion of editorial due process and some lessons of an infamous editorial.

Jennifer Selin & Pamela J. Clouser McCann, The First Branch: How Congress Manipulates Judicial Review of Administrative Action, 111 Iowa Law Review 1123 (2026)

The text of the U.S. Constitution is a result of a political compromise that granted Congress the authority to define the jurisdiction of all inferior federal courts and the appellate jurisdiction of the Supreme Court. Although important scholarship has explored the parameters under which Congress may exercise this authority, few studies have examined congressional use of federal jurisdiction-stripping provisions as part of a larger statutory framework designed to control the administrative state.

This Article provides a theoretical and empirical account of the circumstances that motivate Congress to restrict the jurisdiction of federal courts to review administrative action. Notably, Congress engages in jurisdiction stripping in this context to accommodate uncertainty regarding how legislative delegation to the executive branch will result in real-world outcomes.

Using empirical data on the jurisdiction-stripping provisions included in all significant legislation enacted after the passage of the Administrative Procedure Act through 2016, this Article demonstrates that Congress constructs judicial review based on three things: political influence, political uncertainty, and ideology. Specifically, Congress is more likely to strip federal courts of their ability to review the final administrative actions of the same agencies that are protected by statute from political review. These findings have profound implications for those who consider the constitutional context in which the administrative state operates.

Gregory Shill et al., Examination of Driver License Renewal Policies and Older Driver Crash and Injury Rates by Rurality, 96 Journal of Safety Research 357 (2026)

Background: Among adults aged 65 and older, motor vehicle crashes are the second leading cause of injury-related death—following falls. State driver license renewal laws commonly have provisions targeting older drivers, but limited evidence exists on their effectiveness in reducing crash and injury rates and how this may vary by rurality. This study aimed to investigate the impact of state driver license renewal policies on older driver crash and injury outcomes, by rurality.

Methods: Crash data, license renewal policies, and other relevant state policies were drawn from 13 U.S. states for the years 2000 to 2019. The primary exposures analyzed included the length of the license renewal cycle (in years) and the frequency of in-person renewal. Key outcomes included crash and driver injury rates, stratified by rurality.

Results: The study population included 15.6 million crash-involved drivers aged 40 and older. State license renewal laws generally became less restrictive during the study period. Among drivers 75 and older, crash rates in urban areas were higher in states where renewal periods and in-person renewal became less restrictive compared to states with no law change (RR = 1.30, 95% CI: 1.14-1.49). Among drivers aged 65 and older, injury rates were elevated in urban areas as renewal laws became less restrictive (RR65-74 =1.23, 95% CI: 1.02-1.47; RR75+ = 1.32, 95% CI: 1.12-1.57).

Discussion: The observed relaxation of driver license renewal policies was correlated with higher crash and injury rates among drivers aged 75 and older in urban areas. Restrictive license renewal policies that rely on age and time cut points should be weighed carefully against possible negative effects from premature license removal. Movement toward a performance-based licensing system and away from arbitrary age and time cut points may more effectively keep unfit drivers off the road, while retaining those who remain fit to drive.

Gregory Shill et al., Schrödinger’s Crosswalk, Arizona State University Sandra Day O’Connor College of Law Paper No. 6474460 (March 26, 2026)

Crosswalks carve out a refuge where motorists must yield to people outside the vehicle. But crosswalks are creatures not just of engineering, but of law. Although the law everywhere protects pedestrians on foot in crosswalks, that category is narrower than many likely expect. This Article shows that crosswalk protections vary widely and sometimes contradict the ordinary expectations of road users. Far from a safe harbor, the result is a form of jeopardy by law—a physical and legal space this Article calls Schrödinger’s crosswalk.

This Article presents the first comprehensive study of crosswalk right-of-way law across all 50 U.S. states. Drawing on a systematic review of state statutes, administrative codes, and judicial decisions, it maps drivers’ legal obligations toward different categories of crosswalk users, including pedestrians on foot, wheelchair users, babies in strollers, bicyclists (conventional and electric), and e-scooter riders. In some states, drivers must yield to a person crossing in a wheelchair but not to a baby in a stroller; in others, the same crossing offers only ambiguous legal protection. A recent 70% surge in pedestrian fatalities makes strengthening these protections urgent.

The Article follows its comprehensive study with a recommendation as bold as it is straightforward: states should amend statutory language governing crosswalks to map onto the intuitive concept of a pedestrian as someone unprotected by a vehicle. Like the cat in Erwin Schrödinger’s famous thought experiment—simultaneously alive and dead until observed—a non-motorist today may be legally required to use a crosswalk and yet not legally protected in it. As the population ages, transportation technology evolves, and SUVs and trucks grow further in popularity, this protection must be clarified and fortified.

Justin Weinstein-Tull & Cathy Hwang, Contract Law and Civil Justice in Local Courts, 2026 Wisconsin Law Review 1 (2026)

Most American contract law disputes take place in the shadows, unnoticed by commentators, scholars, and casebooks. These disputes–often heard by lay judges in local courts that do not publish their opinions–account for more than 80 percent of total contract disputes. Using state-level filing data and original interviews with local court judges, this Article unearths, for the first time, this vitally important yet understudied world. Our findings provide a blueprint for new research on local courts and contract law, with wide-ranging implications for theory and practice.

This Article makes three contributions to the literature. First, we identify what we call “values-driven adjudication.” Through interviews, we find that local court judges know relatively little about legal concepts like unconscionability, parol evidence, and canons of construction–principles that scholars, lawyers, and students have always believed form the basis of contract law adjudication. Instead, local court judges rely on broader values of fairness, commitment to mediation, fidelity to law (as they understand the law to be), and community norms. Second, while values-driven adjudication might cause concern at first glance, we find that many of the broader ideas local judges instinctively rely on vindicate contract law’s underlying values. Local judges may not know the contours of the doctrine of unconscionability, for example, but they do care that contracts are fair. They may not know that efficiency motivates some contract law doctrines, but they do attempt to mediate contract law disputes in ways that avoid appeals. Finally, we consider the wide-ranging implications of these findings for contract theory, contract design, civil justice, and judicial education, and we call for more research on this shrouded but vitally important world of local courts.

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Kenneth W. Abbott & Benjamin Faude, Does the System Work? Transnational Crises and the Resilience of Global Governance, 27 International Studies Review 1 (2025)

In recent decades, global governance has faced significant transnational crises characterized by threat, urgency, and uncertainty, from the Global Financial Crisis to the COVID-19 pandemic. Simultaneously, heterogeneous infra-state, public–private, and private governance institutions have proliferated alongside incumbent inter-state institutions. As a result, contemporary global governance takes place through institutional configurations that we call Hybrid Institutional Complexes (HICs). How effectively can HICs respond to the stresses of transnational crises? Drawing on the concept of resilience, we prepare the conceptual and theoretical ground for analyzing the crisis responses of HICs-based governance. To that end, we first identify three dimensions along which the resilience of governance arrangements must be assessed. We then derive two theoretical conjectures as to the conditions under which a HIC will be (more or less) resilient. The first, institutional diversity, is structural; the second, the presence of intellectual and entrepreneurial leaders and bricoleurs, is agentic. To probe the analytical utility of our approach, we assess the performance of the global finance HIC in response to the Global Financial Crisis and compare the performance of the global health HIC in responding to COVID-19.

Khaled A. Beydoun, Playing Politics: Social Media, Censorship, and Speech Gamification, 75 Emory Law Journal 59 (2025)

Forty percent of Americans self-censor their speech online. While staggering, the hidden phenomenon beneath this figure reveals a more dystopic outlook for the future of free speech. The powerful predictive technologies driving social media platforms, which the Supreme Court dubbed “the most important spaces for the exchange of views,” control the terms of modern speech and the scope of political discourse. The Supreme Court’s laissez-faire posture toward online speech moderation has only empowered digital dominion over modern expression and citizenship to the detriment of free speech principles.

As such, the primary threat to free speech today is not the state but Big Tech intermediaries. Tech giants like Meta, this Article’s focal case study, not only regulate political expression and identity but also reshape them in line with ever-changing interests. Through facially neutral speech policies, enforced by content moderation regimes steered by private—instead of liberty—interests, Meta digital platforms: (1) gamify speech by reducing expression into a system of conditioned patterns and scorable outcomes; (2) reward conformist speech and punish dissident speech within a controlled platform of shifting private political interests; (3) suppress the visibility of speech and accounts of dissident users and elevate the visibility of speech and accounts of obedient users; and (4) exact hidden infractions on online expression and identity, which blur into First Amendment harms in traditional public forums.

In one year, Meta enacted moderation policies that categorically suppressed “political content” then shifted to a “more speech” standard announced on January 7, 2025. The reform reveals private opportunism and the perils it poses to modern speech and citizenship. While legal scholars examine the regulatory tension between the state and digital platforms, scarce attention is paid to the bound subjects in between: the people. This Article sounds that alarm and centers harms suffered by individuals, crafting original theory and analysis interrogating how Meta’s gamification of modern expression exacts unseen and enduring infractions on speech, citizenship, and identity.

Dan Bodansky & Nicolás E. Esguerra, Rockets, Satellites, and Stratospheric Aerosol Injection: Regulating Human Impacts on Stratospheric Aerosols Under the Ozone Regime, 67 Environment: Science and Policy for Sustainable Development 9 (2025)

A half-century ago, Sherry Rowland and Mario Molina suggested that halogen compounds such as chlorofluorocarbons (CFCs) pose a threat to the stratospheric ozone layer. To address this threat, the international community adopted the Vienna Convention and the Montreal Protocol, which, together with the amendments, adjustments, and decisions adopted pursuant to these instruments, comprise the ozone regime. Today, the stratospheric ozone layer faces another threat, this time from changes in the amount and composition of stratospheric aerosols due to rocket launches, space debris, stratospheric aerosol injection (SAI), and other anthropogenic sources. These human influences are projected to increase massively in coming years.

Dan Bodansky et al., The Trump Administration Steps Back from International Environmental Cooperation, 119 American Journal of International Law 767 (2025)

As in other areas of international law, the Trump administration has questioned the degree to which U.S. participation in international environmental regimes and agreements furthers its “America First” agenda. Thus far, the administration has focused primarily on rolling back—and potentially ending—U.S. participation in the UN climate change regime. But it has also slashed U.S. support for international environmental conservation programs, terminated environmental justice initiatives, and placed in doubt U.S. engagement in international environmental issues more generally. Moreover, the continuing pattern of U.S. positions flipping with every change of administration undermines confidence in the United States as a reliable negotiating partner.

Diana Bowman, The governance evolution of nanotechnology from controversy to consensus, 20 Nature Nanotechnology 1540 (2025)

The lively debate on nanotechnology that started 20 years ago spurred a collaborative effort between the private and public sectors that developed as the field was growing, leading to the creation of a regulatory framework that underpins today’s successful implementation of nanotechnology. Emerging technologies such as artificial intelligence should take notice.

Diana Bowman et al., Ethical analysis of community-based dementia screening for unhoused older adults, 32 Nursing Ethics 2551 (2025)

Screening for dementia and mild cognitive impairment (MCI) in community-based settings helps connect vulnerable older adults to medical and social support services promoting well-being. Referencing a universal screening program for unhoused older adults seeking emergency shelter services as a case example, this paper calls attention to alignment of programmatic features with the four principles of biomedical ethics, beneficence, nonmaleficence, autonomy, and justice. Regarding beneficence, homeless services workers gain insight into clients’ needs and can facilitate engagement with resources to aid in their successful exiting of homelessness. Using assessment findings to promote safety in shelter environments incorporates nonmaleficence. Concerning autonomy, by choosing to share screening results with healthcare providers and other human service stakeholders such as public safety officials and social service professionals, older adults are empowered to take charge of their care. Justice is embodied by the ability to influence policy changes related to homelessness prevention and equitable distribution of health resources.

Charles F. Capps, Does the Law Ever Run Out?, 100 Notre Dame Law Review 983 (2025)

Although laypeople commonly believe that a judge’s job is to decide every case as the law requires, a broad consensus exists among legal scholars that the law not infrequently “runs out,” leaving the judge to decide the case on extralegal grounds. This Article subjects that consensus to critical scrutiny. Tentatively, the Article concludes that none of the alleged sources of indeterminacy in the law—including permissive rules, balancing tests, vagueness, ambiguity, silence, contradictions, and uncertainty—actually causes the law to run out. More confidently, the Article maintains that the extent to which the law runs out, if it does at all, depends on difficult issues in the philosophy of law, language, and value—issues that parties to the consensus that the law runs out in a significant range of cases do not appear to have worked through to resolution. Casting doubt on the notion that the law runs out has important implications for judicial ethics, the scope of Auer deference and other legal doctrines, and adjacent scholarly debates such as the debate over the interpretation-construction distinction.

Laura Coordes, Bankruptcy’s Guardian Gaps, 99 American Bankruptcy Law Journal 471 (2025)

Chapter 11 practice has evolved significantly since the Bankruptcy Code’s enactment in 1978. Many cases move faster and not always towards plan confirmation. The key players around the chapter 11 negotiating table and the complexity of the issues also have changed. Professor Coordes examines these changes and identifies what she terms a “bankruptcy guardian gap.” Read this article to learn more about that oversight gap and Professor Coordes’ proposed solution.

Aaron X. Fellmeth, Personal Self-Defense Under International Law: A Case Study of an Inferred Human Right, 47 Human Rights Quarterly 338 (2025)

Against conventional wisdom, this article argues that personal self-defense is a human right under international law on three separate grounds. After defining self-defense and its requirements, it shows how the right to self-defense is a human right as an application of general principles of law, as a treaty right, and under customary international law. Specifically, it argues that, although a human right to self-defense may not be a general principle of law per se, it is a specific application of two general principles of law, equity and necessity. It then argues that, although self-defense is not listed as a human right in any treaty, it qualifies as a second-order human right integral to the human rights to life and personal security. In the course of this argument, it advances a new theory of implicit human rights. Finally, it contends that there probably is sufficient evidence to recognize a human right to self-defense as customary international law. It concludes by syncretizing these arguments into an analysis of the extent and limitations of the right.

James G. Hodge, Jr., Dispelling Vaccine Legal Myths, Journal of Law, Medicine & Ethics (forthcoming 2026)

Major shifts underway in U.S. vaccine policies reflect widespread misinformation, notably including unproven claims of harms from vaccines. Vaccination misconceptions also include an array of falsities about the scope and extent of governmental powers and protections. Exposing these “legal myths” clarifies existing foundations of vaccine laws and policies, providing guidance on appropriate responses to quell vaccine hesitancy.

Rhett Larson, Water Markets: Tools for Management and Diplomacy in The Routledge Handbook of Water Diplomacy (Shafiqul Islam et al. eds., Routledge 2025)

Various jurisdictions around the world have implemented water markets as a means of mitigating or avoiding water conflict, adapting to changing water supplies and demands, and improving water valuation. Water markets are sets of policies to allow the sale or trading of ownership interests in raw water resources between interested parties. Efforts to implement water markets have achieved various levels of success, while confronting obstacles and generating their own set of problems. Policymakers may struggle to implement efficient and effective water markets for a variety of reasons, including the sociocultural and ecologic values of water that may not be captured by markets, human rights and anti-commodification concerns, inter-generational impacts, and the administrative and practical complexities of regulating exchanges of such a critical and variable resource. Despite these challenges and risks, policymakers may still find markets a useful tool under appropriate conditions, including recognizing clearly delineated legal rights in water, appropriate use prioritization to protect nature and vital human needs, and reasonably predictable irrigation seasons and reliable models and data.

Gary Marchant, Soft Law Governance of Artificial Intelligence in Healthcare, 58 Akron Law Review 717 (2025)

Artificial Intelligence (AI) and healthcare are each other’s top influencer. AI experts believe that healthcare is one of the most important and impactful applications of AI. Conversely, healthcare leaders rate AI as the most important and impactful factor affecting healthcare today. Given this strong reciprocal relationship between AI and healthcare, this relationship must be carefully and properly managed and governed.

AI is contributing to healthcare in many different ways. It is saving costs and time in payments and reimbursement, assisting with appointments and patient communication, automating medical record creation, helping to diagnose and treat diseases, being used to discover new drugs, and has numerous other applications in the health field. But in addition to these beneficial aspects of AI in healthcare, AI presents a number of risks to healthcare, including inaccuracy, unreliability, bias, and privacy concerns.

The U.S. Food and Drug Administration (FDA) has primary regulatory responsibility for health technology, including AI. The agency has been quite proactive in developing new approaches to address some of the novel concerns raised by AI in healthcare while supporting the beneficial applications of AI. But the FDA oversight of AI has two types of gaps. First, there are some areas where the FDA is statutorily prohibited from regulation. Second, even where the FDA does regulate, its regulation is often incomplete, and some additional governance may be needed to supplement the FDA regulation.

These gaps in FDA regulation of healthcare AI can and are being addressed using soft law initiatives. “Soft law” is defined as any measure or program that imposes substantive expectations that are not directly enforceable by government. Soft law comes in a variety of forms, including codes of conduct, principles, private standards, ethical codes, best practices, certification requirements, government non-binding guidance and public-private partnerships. Soft law offers a variety of advantages such as its agility and flexibility to be adopted and modified more quickly than traditional regulation. It is also not limited by agency delegated powers or political jurisdictions, and so has plenary scope that can be applied to any aspect of a problem. Soft law also has its disadvantages though, such as lack of enforceability, public distrust, and limits on participation in developing and implementing the soft law measures.

This article describes and evaluates the role of soft law in governing AI in healthcare. Part I summarizes the current applications of AI in healthcare, as well as some of the problems that have been encountered in using AI in the healthcare sector. Part II analyzes the FDA’s regulatory efforts in governing the use of AI in healthcare, and the governance gaps in the FDA’s regulation. Finally, Part III describes and evaluates current and future soft law initiatives to govern AI in healthcare and discusses possible means to strengthen these soft law programs.

Gary Marchant et al., Mental Health App Governance: International Landscape, Gaps, and Soft Law Recommendations, 65 Jurimetrics 97 (2025)

Over the past decade, mental health applications (apps) have surged in popularity. While some of these apps may be beneficial, as a category, they present three major challenges: privacy and security, safety and efficacy, and integration into the traditional model of care. While there are legislative and regulatory efforts that aim to address these challenges at the U.S. federal and state level and through international standards, these challenges persist. To better understand the mental health app governance landscape, especially as it relates to these three challenges in the United States, we examined all U.S. federal and state legislative and regulatory efforts related to mental health apps and four international standard-setting body’s mental health app-related standards, the IEEE, ISO/IEC, ITU, and ETSI (as of April 2023). Our findings revealed that the governance landscape studied predominantly addresses the privacy and security challenge, particularly around consumer data, whereas the other two challenges are almost entirely forgotten. As these apps’ popularity continues surging, more and more health care professionals will encounter patients who use and rely on these apps for their mental health care. Consumers will unknowingly download and use mental health apps that may or may not have been tested, based on scientific evidence or follow international standards. To address consumer and health care professionals’ inability to distinguish between properly tested, evidence-based, and rule compliant apps from those that are not, we recommend a suite of interrelated soft law proposals: (1) to develop and implement a code of conduct that captures and addresses each of the three mental health app governance challenges; (2) to create a corresponding certification program and certification mark to demonstrate compliance with this standard; (3) to develop a label or ranking site so that consumers and providers can easily discern the evidence supporting an app; and (4) to include all certified mental health apps on an online public registry. This certification mark or label can be added to mental health apps’ home screens or app store information pages and possibly be required for app store listing. It would signal to consumers and health care professionals that the certified app has addressed the major mental health app governance challenges, particularly that it was rigorously tested against its target population.

Ben McJunkin, Harm and Wrongdoing in the Law of Rape, 35 Widener Commonwealth Law Review 1 (2026)

Part I of this Essay makes the case that consent or nonconsent should be understood as informing the harm of rape, rather than as the primary source of wrongdoing in rape. It does so by distinguishing between harm and wrongdoing in cases of so-called “secretive” consent, highlighting how a legal commitment to subjective consent masks other forms of wrongdoing that play a causal role in sexual relations. Part II of this Essay draws attention to two largely underexamined attacks on the very concept of sexual autonomy or (women’s) sexual choice. These attacks mirror rape law’s focus on consent, providing some hope that a change in the structure of rape law can disrupt the social discourses that enable such attacks. Part III concludes by reimagining rape as a result crime and examines the recent revisions to the Model Penal Code’s sexual assault provisions as an example of precisely how this can be done. Although I have elsewhere advocated for a rape law that is broader than the new Model Penal Code, these provisions, in many cases, at least reflect a promising structure for turning our attention from harm to wrongdoing.

Troy Rule, Rural Solar Rights, 51 BYU Law Review 447 (2025)

Utility-scale solar projects on private land—the fastest growing form of energy development in the United States today—generate low-cost, carbon-free electricity and can invigorate rural economies. However, they are also attracting unprecedented local opposition as local governments across the country adopt ordinances prohibiting or severely restricting solar farm development within their jurisdictions. Fortunately, state legislatures have multiple means of preventing municipal governments from unreasonably restricting solar energy. Among other things, states can legislatively preempt excessive local solar siting restrictions, manage more solar project permitting at the state government level, or statutorily require municipalities to classify solar farms as a “permitted use” within certain land-use zoning districts. Such legislative strategies comprise a new generation of “solar rights” laws analogous to decades-old statutes in some states that prohibit cities and homeowner associations from unreasonably restricting rooftop solar installations. As federal support for utility-scale solar softens under the new Trump administration and local roadblocks to these projects become more commonplace, the need for a new generation of state solar rights statutes is greater now than ever. This Article describes and analyzes the growing local opposition to rural solar energy and ultimately argues for a wave of new state legislation designed to strengthen rural landowners’ rights to develop utility-scale solar projects on their land.

Gregory Shill et al., Examination of Driver License Renewal Policies and Older Driver Crash and Injury Rates by Rurality, Journal of Safety Research (forthcoming 2026)

Background: Among adults aged 65 and older, motor vehicle crashes are the second leading cause of injury-related death—following falls. State driver license renewal laws commonly have provisions targeting older drivers, but limited evidence exists on their effectiveness in reducing crash and injury rates and how this may vary by rurality. This study aimed to investigate the impact of state driver license renewal policies on older driver crash and injury outcomes, by rurality.

Methods: Crash data, license renewal policies, and other relevant state policies were drawn from 13 U.S. states for the years 2000 to 2019. The primary exposures analyzed included the length of the license renewal cycle (in years) and the frequency of in-person renewal. Key outcomes included crash and driver injury rates, stratified by rurality.

Results: The study population included 15.6 million crash-involved drivers aged 40 and older. State license renewal laws generally became less restrictive during the study period. Among drivers 75 and older, crash rates in urban areas were higher in states where renewal periods and in-person renewal became less restrictive compared to states with no law change (RR = 1.30, 95% CI: 1.14-1.49). Among drivers aged 65 and older, injury rates were elevated in urban areas as renewal laws became less restrictive (RR65-74 =1.23, 95% CI: 1.02-1.47; RR75+ = 1.32, 95% CI: 1.12-1.57).

Discussion: The observed relaxation of driver license renewal policies was correlated with higher crash and injury rates among drivers aged 75 and older in urban areas. Restrictive license renewal policies that rely on age and time cut points should be weighed carefully against possible negative effects from premature license removal. Movement toward a performance-based licensing system and away from arbitrary age and time cut points may more effectively keep unfit drivers off the road, while retaining those who remain fit to drive.

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Kenneth W. Abbott & Benjamin Faude, Does the System Work? Transnational Crises and the Resilience of Global Governance, International Studies Review (forthcoming)

In recent decades, global governance has faced significant transnational crises characterized by threat, urgency, and uncertainty, from the Global Financial Crisis to the COVID-19 pandemic. Simultaneously, heterogeneous infra-state, public–private, and private governance institutions have proliferated alongside incumbent inter-state institutions. As a result, contemporary global governance takes place through institutional configurations that we call Hybrid Institutional Complexes (HICs). How effectively can HICs respond to the stresses of transnational crises? Drawing on the concept of resilience, we prepare the conceptual and theoretical ground for analyzing the crisis responses of HICs-based governance. To that end, we first identify three dimensions along which the resilience of governance arrangements must be assessed. We then derive two theoretical conjectures as to the conditions under which a HIC will be (more or less) resilient. The first, institutional diversity, is structural; the second, the presence of intellectual and entrepreneurial leaders and bricoleurs, is agentic. To probe the analytical utility of our approach, we assess the performance of the global finance HIC in response to the Global Financial Crisis and compare the performance of the global health HIC in responding to COVID-19.

Dan Bodansky et al., Trump Administration Steps Back from International Environmental Cooperation, American Journal of International Law (forthcoming)

As part of a series of short articles in the American Journal of International Law on the effects of the Trump administration on international law, this article describes its effect on international environmental law. Thus far, the administration has focused primarily on rolling back—and potentially ending—U.S. participation in the UN climate change regime. But it has also slashed U.S. support for international environmental conservation programs, terminated environmental justice initiatives, and placed in doubt U.S. engagement in international environmental issues more generally. Although the disengagement of the Trump administration from international environmental cooperation may be reversed by later administrations, its long-term consequences for environmental health and human well-being will not be as easily reversed or remedied.

Karen Bradshaw, Wildlife as Property Owners in Elgar Concise Encyclopedia of Animal Law (Joan E. Schaffner ed., Edward Elgar 2025)

Wildlife as property owners is a legal approach that extends the right to own property to the more-than-human world, including plants and animals. Wildlife property ownership is grounded in the observation that humans share the Earth with a rich array of other living creatures excluded from the human-created system of property law. Many cultures throughout time and history (including the present) understand animals, plants, and natural objects as co-equal participants in systems of law, government, and culture. Contemporary Western understandings of property ownership, however, traditionally recognized only humans as the owners of land, resources, chattel, and intellectual property—excluding the interests of nonhumans. Through colonization, Westernized exclusion of the more-than-human world from legal institutions and markets became widespread. Wildlife as property owners attempt to re-integrate the rights of plants and animals to use and own property, with a particularized—although not exclusive—focus on the land they live on and resources they rely on to survive. Wildlife property ownership is predicted to preserve natural habitats for the more-than-human world and thus slow biodiversity loss.

Charles F. Capps, What Interpretation Just Is and Why It Matters (forthcoming)

Scholars often claim that judges must defend their choice of interpretive method based on its consequences. But analysis of the nature of interpretation reveals that to interpret something is just to form a judgment about its communicative content. And judgment is essentially aimed at truth, not consequences. A person who defends her approach to forming a “judgment” on a given matter on the ground that the approach leads to desirable consequences, not the truth of the matter, does not count as forming a judgment at all—any more than someone who adopts a method of “addition” on the ground that it leads to desirable consequences, not accurate sums, counts as doing addition.

The most obvious upshot of this conclusion is that it forces defenders of consequentialist and other “normative” approaches to constitutional and statutory adjudication to confront the fact that what they are advocating is not interpretation at all, casting doubt on whether it is consistent with respect for the authority of the Constitution and Congress. But interpretation’s nature as a judgment about communicative content has other implications, too. It supports an unorthodox version of originalism whose justification and doctrinal implications contrast sharply with popular versions of the theory. And it requires retheorizing so-called “substantive” canons of construction as linguistic canons, with ramifications for the canons’ strength and scope, the role of critical theory in assessing courts’ use of the canons, and the relevance of law-and-economics analysis to the interpretation of private-law instruments such as wills and contracts.

Ann Ching, Depictions of War Crimes in Film in Law and War in Popular Culture (Stefan Machura ed., Nomos 2024)

The depiction of law and war in popular legal culture forms the focus of this book. The authors are from a variety of academic fields of expertise, such as film studies, musicology, law, sociology of law and criminology. They analyse works of popular culture, place them into their context at the time of origin and discuss their meaning for today’s audiences. Law and war in film, television series, opera and pop music are investigated in the ten chapters of the book. Special emphasis lies on the role of the state in the context of law and war.

Laura Coordes, Back to Bankruptcy Basics with a Trade Secret Case, 45 Bankruptcy Law Letter 1 (August 2025)

When I am trying to convince my students to take a bankruptcy class, I’ll often mention the possibility (threat?) that bankruptcy law will one day intrude into their lives, even if they don’t choose bankruptcy practice as a career. Although I hope that none of my students experience personal bankruptcy, I stress that someday, a client, vendor, partner, or even a loved one may file for bankruptcy. If that happens, our future lawyer will need a basic understanding of how bankruptcy will change their business or personal relationship.

This same argument holds for students wanting to pursue a career on the bench: knowledge of bankruptcy, and its impact on non-bankruptcy law and practice, are equally important to these students. A recent trade-secret misappropriation case illustrates this well.

The plaintiff in the case had allegedly purchased trade secrets and related claims as part of a bankruptcy asset sale. However, the debtor had failed to list those trade secrets and claims on its bankruptcy schedules. When the plaintiff-purchaser later sued the defendant for trade-secret misappropriation, the defendant argued that the plaintiff-purchaser should be judicially estopped from asserting the claim because of the debtor-seller’s failure to disclose the claim on its bankruptcy schedules.

This Bankruptcy Law Letter takes a close look at this case, along with a couple of related decisions from the D.C. Court of Appeals. Although these cases were all decided by non-bankruptcy courts sitting in Washington, D.C., they deal directly with the intersection of bankruptcy and non-bankruptcy law. The trade-secret misappropriation case at the heart of this Law Letter appears to have settled; however, prior to settlement, the trial court issued a number of important decisions that, if applied by other courts, raise important questions about the treatment of unscheduled claims, the purposes of judicial estoppel in bankruptcy, and the finality of § 363 sales. If nothing else, these cases also serve as a good vehicle by which to revisit and reinforce basic bankruptcy principles, such as what constitutes property of the estate, in a way that is meaningful for scholars and practitioners of bankruptcy and non-bankruptcy law alike.

Elissa Gentry et al., Embryonic Option-hood, 79 Southern Methodist University Law Review (forthcoming 2026)

A frozen embryo does not merely represent a potential for human life; it represents a deferred decision to trigger this potential. Parties value this decision deferral because it allows them to retain the option to attempt conception after any uncertainty about future events or desires has resolved. Failing to recognize this “option value” of embryos has resulted in confusion over the best approach to allocating ownership of embryos and calculating damages for reproductive harms. This Article provides a novel paradigm showing that embryos should be treated as neither persons nor mere property; instead, a significant portion of their value is in their ability to preserve and defer decisions over implantation. When such embryonic option-hood is overlooked, society risks improperly allocating disposition rights and undercompensating patients who were deprived of this option. Given this insight, this Article makes two significant contributions. First, this Article proposes a modified approach to embryo disposition that validates—rather than undermines—the option value of embryos. In the absence of a valid contract, most courts balance party interests at the time of conflict. Because this approach is not focused on party expectations at the time of embryo creation, reliance on the traditional balancing test can essentially destroy the option value of embryos. This Article adds an intermediate step before resorting to balancing which requires the court to make a fact-intensive determination into whether there was an agreed-upon disposition at the time of embryo creation. In the absence of evidence of original intent, the Article proposes a modified version of the traditional balancing test courts have used. Second, acknowledging the option value of embryos sheds light on how to calculate damages in different contexts. This Article establishes a methodology for determining both the standard of care/regulatory standards necessary to protect embryos as well as damages for compensating patients for negligence resulting in embryo loss and for intentional interference with embryos. The Article concludes by cautioning that state interference newly allowed by Dobbs can eviscerate the option value of embryos, with upstream effects for embryo creation and fertility care access.

Elissa Gentry & W. Kip Viscusi, Embryonic Personhood’s Threat to Conception, Houston Journal of Health Law & Policy (forthcoming 2025)

Embryonic personhood perversely threatens fertility patients’ chance at parenthood. The designation of personhood to genetic matter not only creates legal risks to fertility patients attempting to conceive but imposes artificial risk tradeoffs that undermine patients’ ability to balance medical risk with the chance at a viable pregnancy. As with any medical treatment, assisted reproductive technology (ART) involves risky tradeoffs. Participating in riskier techniques boosts the baseline likelihood of a viable pregnancy. Exploration of data on choices over fertility treatments demonstrates that patients routinely balance risks of embryo destruction and maternal side effects against the likelihood of a viable pregnancy in a reasonable manner. Current jurisprudence’s shift toward adopting embryonic personhood assumes a dominant role of embryo survival. This jurisprudence is a departure from how courts have balanced the right to pursue procreation with the right to avoid it.

Jonathan Green, Tradition and Discretion, 77 Florida Law Review (forthcoming 2025)

Prof. Girgis’s Dunwody Lecture argues that today’s originalists face a choice between two irreconcilable goals—constraining judges’ moral or policy-making discretion and adhering to the Constitution’s original meaning. In the academy, they’ve generally opted to sacrifice judicial constraint for the sake of fidelity to original law. But the Supreme Court’s originalists are far less comfortable with that move. Where the Constitution’s original meaning is underdetermined, or seems to invite discretionary judgment calls, they’ve looked for other, non-originalist tools to tie their hands. According to Girgis, that explains why the Court is increasingly using “tradition,” rather than normative balancing tests, to define the scope of constitutional rights.

But can “tradition” actually constrain judges? Or is it just an invitation for the judge to project her own values onto the past? In this brief Essay, I suggest that traditionalism isn’t necessarily interest-balancing in historical garb. It’s possible, in my view, for a judge to determine whether a modern law fits within an inherited legal tradition without falling back onto her own views about what the tradition should permit as a policy matter. In other words, tying the scope of constitutional rights to tradition doesn’t necessarily vest the judge with moral discretion. Equally, however, reasoning coherently from tradition requires the ability to intuit and articulate what’s essential to a tradition, and what’s not. It demands an exercise of aesthetic judgment. And the capacity to form such judgments may have been lost to our legal culture.

Art Hinshaw, Discussions in Dispute Resolution: The Coming of Age (2000-2009) (Art Hinshaw et al. eds., Oxford University Press 2025)

The U.S. judicial system is not merely a system of trials but a system of alternative means to resolution. Highlighting dispute resolution scholarship emphasizes the diverse ways of thinking available for resolving conflicts beyond traditional trials. In their first volume, Discussions in Dispute Resolution: The Foundational Articles (OUP 2021), the authors celebrated the field’s foundational writings and reflected on what makes those pieces so significant. In this second volume, Discussions in Dispute Resolution: The Coming of Age (2000-2009), they focus on the 16 most significant and influential articles on U.S. dispute resolution during its golden age of extraordinary growth. These articles shaped legal thinking about how the judicial system outsources the resolution of civil claims.

The heart of the book consists of short excerpts from these significant pieces, distilling them to their core ideas: the concepts, phrases, or findings that made them noteworthy. Four leading dispute resolution scholars (sometimes including the original author) then engage with different aspects of the articles’ ideas, recognizing their prescience and critiquing them where appropriate to answer the question: Why is this a significant work in the field?

By highlighting these influential works, the authors bring a fresh perspective, challenge them with the benefit of hindsight, engage with themes discussed in the first volume (such as disputant autonomy, access to justice, equal justice, changing views of legal and legalistic processes, and systemic impacts on processes and disputants), and compare the challenges of this era to those of the founding era.

James G. Hodge, Jr., Legal Strategies Countering Federal Public Health Data Purges, 53 Journal of Law, Medicine & Ethics 327 (2025)

Ongoing efforts among federal agencies to expunge public health data from websites and other media in line with Trump administration directives on “gender ideology” and other themes has led to widespread confusion, angst, and concern among health officials, medical practitioners, and patients. It has also generated legal claims seeking to reverse and stop public health data purges. Framed within statutory or constitutional limits, legal strategies countering these data policies help assure access to core public health information essential to specific services, care, and outcomes.

James G. Hodge, Jr., “Everything is Tuberculosis” – Except the Law?, 53 Journal of Law, Medicine & Ethics 475 (2025)

In “Everything is Tuberculosis,” author John Green assesses the intricacies of the communicable condition, TB, as a source of significant morbidity and mortality globally over centuries. Despite available vaccines, treatments, and protocols, tens of millions are infected and over a million persons will die from TB in 2025 alone. In searching for answers to mitigate this global scourge, however, Green looks past a key factor — specifically the role of law — as a primary tool for prevention and control.

Kimberly Holst & Rosa Kim, International Legal Developments Year in Review: 2024, 59 The Year in Review 1 (2025)

This publication, International Legal Developments – The Year in Review: 2024, presents a survey of important legal and political developments in international law that occurred during 2024. The volume consists of articles from twenty-six committees of the American Bar Association Section of International Law, whose members live around the world and whose committees report on a diverse range of issues and topics that have arisen in international law over the past year. Not every development in international law can be included in this volume, and the omission of a particular development should not be construed as an indication of insignificance. The Section of International Law committees draft their articles under extremely strict guidelines that limit the number of words that each committee has: approximately 7,000 words, including footnotes. Within these guidelines, committee members contribute submissions that describe the most significant developments in their substantive practice area or geographic region. In some cases, non-section members who have specialized knowledge or expertise in an area may also be contributing authors.

Rhett Larson, The Private Sector’s Role in Arizona’s Water Future, 44 Stanford Environmental Law Journal 243 (2025)

Professor Buzz Thompson’s book Liquid Asset explores the critical partnership between the public and private sectors in water management. Water management has taken center stage in Arizona, where Colorado River shortages, groundwater depletion, and persistent water rights litigation has placed national media attention on the state. The principles set out in Professor Thompson’s book can guide Arizona’s engagement with the private sector to address its water challenges. This essay identifies four areas for private sector engagement in Arizona – innovation in cooling technology, water rights markets, water infrastructure financing, and water data access. This essay then suggests how partnering between the state of Arizona and businesses can advance water security in these four areas.

David Lopez, The Quest for Algorithmic Justice in the Workplace: The Equal Employment Opportunity Commission and Other Federal Responses to AI, Technology, and Enhanced Dangers of Employment Discrimination, 49 Seton Hall Journal of Legislation and Public Policy 683 (2025)

The potential uses and misuses of artificial intelligence (AI) and other emerging technologies have been the subject of much discussion within and between academia, state and federal enforcement agencies, the advocacy community, and the business/human resource community.

Many scholars prospect these technologies could produce fairer, less discriminatory workplace policies and practices. At the same time, several scholars and civil rights advocates have raised concerns that the rapidly accelerating sophistication of these technologies has heightened dangers for abuse, including concerns about increased workplace discrimination, which is often hidden and difficult to detect.

Perhaps most notably, since at least 2016, the Equal Employment Opportunity Commission (EEOC), the federal agency charged with investigating and enforcing the federal workplace anti-discrimination laws, using a range of tools (e.g. education, policy, and enforcement) at its disposal, has been at the vanguard in examining the impact of these new technologies on workplace opportunity and its enforcement mandate.

This paper will be divided into three parts. First, I will survey the EEOC’s efforts, including those in coordination with other government agencies, to address the impact of these rapidly emerging technologies on workplace opportunity using three interrelated tools: (1) fact-finding, (2) policy and guidance, and (3) enforcement. 

Second, I will discuss three, sometimes intersecting, obstacles hampering the agency’s admirable efforts, regardless of the administration: (1) the unique challenges ferreting out hiring discrimination, especially in view of the doctrinal limitations of disparate impact law, (2) unique challenges enforcing the Americans with Disabilities Act; and (3) the obstacles presented by trade secrets and confidentiality in discovery.

Finally, I will conclude with some final thoughts on whether these challenges facing the agency with respect to emerging technology in the workplace call for a re-imagining of new regulatory approaches, especially those mandating self-audits, disclosure, and notice to those discriminatorily harmed by the technology.

Gary Marchant & Susan M. Wolf et al., Genetic Counselor Liability and Licensure in the Genomics Era in The Oxford Handbook of Genetic Counseling (Robin E. Grubs et al. eds., Oxford University Press 2025)

Genetic counseling is one of the fastest growing fields across clinical care, medical research, and health-related industries. This growth is driven by advancements in genetic knowledge, the expansion of genetic tests and sequencing tools, industry demands for new testing modalities, and a public interest in direct-to-consumer genetic testing.

As the field continues to expand and diversify, The Oxford Handbook of Genetic Counseling is the most comprehensive and authoritative resource designed to meet the demands of a growing workforce. The volume contains thirty-six chapters that cover historic developments, application in clinical practice, research and industry, and genetic and genomic testing. The book also discusses ethical and social issues and provides an outlook on the future of the field.

Bringing together an interdisciplinary team that includes genetic counselors, clinical geneticists, medical researchers, bioethicists, legal and policy experts, and other healthcare professionals, this volume is an invaluable resource for professionals in the field. It appeals to genetic counselors, genetic counseling students, teachers, scholars, and bioethicists. Given its scope and diversity of topics, it is also an important resource for clinical faculty, health researchers, and healthcare providers who are increasingly encountering genetics and genomics in their respective fields.

Gary Marchant, Swords and Shields: Impact of Private Standards for Liability Determinations of Autonomous Vehicles, 18 Journal of Tort Law 311 (2025)

Private voluntary standards are playing an ever increasing role in the governance of many emerging technologies, including autonomous vehicles (AVs). Government regulation of AVs and other emerging technologies has lagged due to the “pacing problem” in which technology moves faster than government regulation, and regulators lack the first-hand information that is mostly in the hands of industry and other experts in the field who often participate in standard-setting activities. Consequently, private standards have moved beyond historical tasks such as inter-operability and definitions to now produce quasi-governmental policy specifications that address the risk management, governance, safety and privacy risks of emerging technologies. As the federal government has prudently concluded that promulgating government standards for AVs would be premature at this time and may do more harm than good, private standards have become the primary governance tool for these vehicles. A number of standard-setting organizations, including the SAE, ISO, UL and IEEE have stepped forward to adopt a series of inter-locking private standards that collectively govern AV safety. While these private standards were not developed with litigation in mind, they could provide a useful benchmark for judges and juries to use in evaluating the safety of AVs and whether compensatory and punitive damages are appropriate after an injury-causing accident involving an AV. This application of private standards would help solve two problems: (i) the lack of incentives for AV manufacturers to commit to conformance with the existing private standards for AV safety, and (ii) the concerns and uncertainty of AV manufacturers about potential liability standards (especially punitive damages) when their vehicles are inevitably involved in crashes resulting in injury or death. Drawing on several decades of relevant case law, this paper argues that a manufacturer’s conformance with private standards for AV safety should be a partial shield against liability, whereas failure to conform to such standards should be a partial sword used by plaintiffs to argue lack of due care.

Robert Miller & Adam Crepelle, Reservation Capitalism: Economic Development in Indian Country (2nd ed., Bloomsbury) (forthcoming 2025)

Reservation Capitalism: Economic Development in Indian Country supplies the true history, present-day circumstances, and potential future of Native American communities and economics.

In this new edition, Robert J. Miller, author of the first edition, teams with fellow Indigenous Peoples law and property expert Adam Crepelle to offer a meticulously edited and thoroughly updated text that addresses newly salient issues such as the fast-growing tribal cannabis industry, the significant developments within reservation-based Community Development Financial Institutions, and similarly significant developments with low-income tax credits. This edition also includes two new chapters on emerging opportunities in the clean energy sector and e-commerce, respectively.

Ultimately, these additions shows how, after Covid-19, tribal communities are moving beyond their formerly vulnerable economies predicated almost exclusively on gaming foster sustainable economic development on reservations in order to improve standards of living and sustain their self-sufficiency and self-determination.

Robert Miller, The Indian Law Bombshell: McGirt v. Oklahoma (2020), 166 Proceedings of the American Philosophical Society 50 (2025)

In McGirt v. Oklahoma, the US Supreme Court held in a 5-4 decision that the 1866 Muscogee (Creek) Nation Reservation still exists. Thus, one million Oklahomans found out that they live on the 3,250,000-acre Creek Nation reservation, including 400,000 people in the City of Tulsa. The Court partially relied on a long-standing Supreme Court test to determine whether the Creek Reservation had been diminished or disestablished by Acts of Congress in the late 1890s and early 1900s. Justice Gorsuch, writing for the majority, held that Congress never expressly stated an intention to diminish or disestablish the reservation. Consequently, under Supreme Court precedent, the reservation borders are still in place today and the entire 3,250,000 acre reservation is “Indian Country,” under 18 U.S.C. sec. 1151(a).

In this talk at the April 2024 meeting of the American Philosophical Society, Professor Miller explains the Court’s analysis and briefly forecasts the significant ramifications that will ensue for the Muscogee (Creek) Nation, Oklahoma, and the United States. In fact, McGirt has already created political, legal, and societal changes for the Creek Nation and Oklahoma. The case also portends substantial adjustments in many different areas of law, politics, governance, life, and business in the decades ahead for the Muscogee (Creek) Nation, for Oklahoma, for other states and Indian nations, and for the United States. As one example of these changes, Oklahoma will now have to deal with the issue of Muscogee (Creek) Nation jurisdiction over an enormously larger expanse of land and population than had been previously assumed.

Robert Miller, American Indian Influence on the U.S. Constitution in Encyclopedia Virginia (Patricia Miller et al. eds., Virginia Humanities) (forthcoming 2026)

Robert Miller, Supreme Court Errors in Lyng v. Northwest Indian Cemetery Protective Association in Native American Religions: Teaching and Learning on Stolen Land (Routledge) (forthcoming 2026)

Michael Saks & Ira Ellman et al., Why Explaining the Impact of Excluding Preexisting Conditions From a Health Insurance Policy Is So Difficult: Experimental Evidence and Policy Implications, 120 Northwestern University Law Review Online 59 (2025)

The shocking reaction to the recent murder of a major health insurance CEO has heightened awareness of widespread discontent with coverage restrictions, among them the exclusion of preexisting conditions. Yet it is expected that the new Trump administration will roll back some consumer protections under the Affordable Care Act (ACA). One such measure would permit greater availability of short-term health insurance policies that are exempt from ACA mandates, including the requirement that policies cover preexisting conditions. Allowing their sale is justified by the belief that consumers should be able to choose a lower-cost policy with restricted coverage, in preference to a higher-cost, ACA-compliant policy. That belief depends on consumers’ understanding of the policies’ coverage differences. Federal rules therefore require sellers of exempt policies to disclose the exemption. However, the effectiveness of such disclosures is untested. This Article presents findings from a controlled experiment, showing that neither the disclosure current regulations require, nor a stronger and more complete one devised for this study, fully succeed in communicating the impact of the preexisting-condition exclusion. We conclude that the problem is in part an intractable difficulty in formulating the exclusion in clear language that also serves the exclusion’s actuarial purpose of controlling the insurer’s risk exposure. Because disclosure that reasonably ensures consumer understanding may not in fact be possible, policymakers should consider either barring the exclusion or requiring it be framed in more specific terms, even though that framing may not fully achieve the exclusion’s actuarial purpose.

Jennifer Selin & Lauren Mattioli, Independent Justice? U.S. Attorneys as a Case Study of Political Appointments, 58 University of Michigan Journal of Law Reform 675 (2025)

Concerns over presidential use of federal prosecution as a political weapon and the overall independence of the Department of Justice have increased in recent years. While most scholarship exploring the potential for political prosecution has focused on the legal and political forces that influence prosecutorial discretion, few studies have identified the varying ways that federal prosecutors obtain their jobs or how those processes affect who serves as U.S. Attorney. This is a consequential oversight, as U.S. Attorney appointments provide an informative case study of the legal frameworks, historical conventions, and politics that influence presidential appointments more generally.

In this Article, we illustrate how historical battles across different branches of government for control of federal prosecution have resulted in legal frameworks that provide for at least seven different U.S. Attorney appointment mechanisms. We then provide both qualitative examples and quantitative analysis of U.S. Attorney appointments from 1970 to 2022 to evaluate whether U.S. Attorneys appointed through the “traditional” presidential nomination and Senate confirmation process have different backgrounds and careers than U.S. Attorneys who obtain office through “non-traditional” methods, including appointment by federal district courts.

We find that, like with other political appointees, U.S. Attorneys are increasingly likely to obtain their jobs through “non-traditional” methods. In addition, U.S. Attorneys appointed through these methods differ from their presidentially-nominated and Senate-confirmed counterparts in important ways, including their background experience and what they go on to do after serving in office. While these findings may raise alarm bells for those who worry that presidents increasingly circumvent Senate confirmation of political appointments to further executive control of government, this Article illustrates that “non-traditional” appointments are the result of over two centuries worth of bargaining between the branches over the power of appointment in an effort to prioritize expertise over politics.

Michael Selmi, DEI and the Private Workplace, Arizona State University Sandra Day O’Connor College of Law Paper No. 5406970 (September 11, 2025)

In 2023, the Supreme Court invalidated the use of race in the admissions practices of Harvard University and the University of North Carolina in a case known as Students for Fair Admissions v. Harvard. Immediately following that decision, dozens of cases and inquiries were filed challenging the employment practices of private employers under the notion that the Supreme Court’s decision had effectively prohibited any efforts to diversify a workforce. But these recent challenges ignore the long history of workplace affirmative action which differs significantly from the educational setting where a diverse student body was seen as essential to creating an intellectual community. Private employers have long had substantial leeway to engage in practices to create and maintain a diverse workforce, now done primarily under the rubric of Diversity, Equity and Inclusion better known as DEI as opposed to affirmative action. This Essay will explore the older Supreme Court cases, how those cases have been interpreted over the years by lower courts, the move from affirmative action to DEI, and the limited effect the recent Supreme Court case should have on workplace diversity. Finally, I will discuss the recent cases and show that most of the cases resemble older cases alleging reverse discrimination and that most of the challenges to date have failed, leaving private employers with freedom to continue with their DEI practices.

Michael Selmi & Roberto L. Corrada et al., Employment Discrimination Law, Cases and Materials on Equality in the Workplace (11th ed., West Academic 2025)

This book examines the federal statutory protection against employment discrimination, highlighting the themes of workplace equality that are embodied in the civil rights laws. This edition has undergone a significant reorganization to better reflect how many instructors prefer to cover the material. Like prior editions, this edition incorporates many new cases, such as Groff v. DeJoy, Muldrow v. City of St. Louis, and many new cases from the Courts of Appeals. The book also includes diverse contemporary scholarship drawn from critical race theory, feminist legal theory, history, social science, and law and economics, among other disciplines. The authors’ extensive materials framing the cases are designed to prepare students thoroughly for practice in this rapidly changing field of law.

Michael Selmi & Marion G. Crain et al., Work Law: Cases and Materials (5th ed., Carolina Academic Press 2025)

The law of work has evolved as a patchwork of legal interventions in the labor market, sometimes by statute, and sometimes through the common law of judicial decisions. Most law school curricula divide the law of work into three topical areas—Labor Law, Employment Law, and Employment Discrimination—and offer separate courses in each area. Labor law in the United States is understood to encompass the study of the National Labor Relations Act, the law governing union organizing and collective bargaining. It is the law of collective rights at work. Employment law refers to the statutes and common law governing individual rights at work. It ranges from minimum standards legislation to judicially created doctrines based in tort and contract law. Employment discrimination law deals with the statutes and interpretative case law advancing the antidiscrimination norm in the workplace. These statutes address the problem of status discrimination at work (e.g., discrimination on the basis of race, sex, national origin, ethnicity, religion, disability, or sexual orientation).

This book offers a comprehensive view of the law governing the work relationship by touching on all three topical areas. The book treats individual employment rights in depth, and is most appropriate for an Employment Law course or a broad survey course. The book also adverts to Labor Law principles at a number of points, at a policy level rather than a doctrinal level, as a way of introducing and evaluating an alternative model of employee representation; the book does not assume any knowledge of Labor Law on the part of teacher or student and makes no effort to provide a satisfactory substitute for a Labor Law text. The book offers some detail in the law of Employment Discrimination but does so primarily with an eye toward surveying the field and assessing antidiscrimination regulation as a response to an increasingly diverse workforce, rather than providing an in-depth study of Employment Discrimination principles.

Gregory Shill & Jonathan Levine, Transportation for the Abundant Society, Arizona State University Sandra Day O’Connor College of Law Paper No. 5383031 (August 7, 2025)

The abundance movement has rapidly gained traction as voices across the political spectrum seek to overcome artificial scarcity in housing, energy, and infrastructure. In all these areas, transportation policy is a binding constraint —yet with limited exceptions, it’s one the movement has overlooked. This Article seeks to fill that gap by showing that abundance cannot succeed without rethinking transportation policy from the ground up. While this suggests a big lift, it offers big rewards: once reconfigured, transportation policy can be a powerful accelerant of abundance.

At present, the signature goal of abundance advocates—amping up housing production—stands to collide with a key driver of scarcity: development restrictions fueled by traffic concerns. Building more housing in auto-dependent regions without reconfiguring transportation will reinforce the very logic of those restrictions. A mechanical application of the prime abundance directive—build more—would thus miss the mark: outside the exceptional case of high-speed rail, “more” is often the problem. (See urban renewal.) But “less” isn’t helpful either. What’s needed is a new approach.

Drawing on original interviews with leading transportation officials and scholarship in local government law and planning, this Article makes two key contributions. First, it proposes a theory of transportation for abundance. Abundance suggests that more is better, but its canonical accounts falter when defining the desirable “more” and what’s needed to support it. This Article intervenes with a concrete and scalable framework from urban planning: transportation access, which measures system performance by the ability of users to reach destinations. Though seemingly uncontroversial, anchoring policy in this objective would mark a revolutionary departure from a century of transportation planning.

The Article’s second contribution is to show that transportation reform is essential—not ancillary—to abundance, particularly for housing affordability, climate goals, and social equality. Transportation can’t stay in the backseat if abundance is the destination.

Terry Skolnik et al., The Law of Racial Profiling, 58 Osgoode Hall Law Journal (forthcoming 2025)

Racial profiling is one of the most enduring problems in policing. Yet it remains largely under-theorized, which generates important theoretical and practical implications. Racial profiling tends to be construed as an arbitrary detention rather than a form of unconstitutional discrimination. For this reason, the section 15 Charter right to equality plays little to no role in most leading cases on racial profiling. The legal framework that governs racial profiling lacks clarity and can be applied inconsistently. And the remedial landscape associated with racial profiling claims has evolved minimally. This article advances a novel approach to racial profiling that addresses these shortfalls. It demonstrates why racial profiling is wrongful primarily because it embodies discrimination that violates the section 15 Charter right to equality, and secondarily, infringes liberty or privacy interests, and in so doing, breaches other constitutional rights. It offers a simplified legal framework for how courts can better approach racial profiling in constitutional criminal procedure. Drawing on the republican theory of freedom (or republicanism), it shows why racial profiling results in domination-meaning vulnerability to unchecked threats of interference that courts fail to control. In doing so, it deepens our theoretical understanding of racial profiling and its connection to equality and liberty. The concluding parts of this article contend that courts can incorporate two innovative remedies that can better prevent and address racial profiling: structural injunctions and constitutional settlement agreements. Ultimately, this article offers a new path forward for how racial profiling can be approached in a manner that better safeguards individuals’ fundamental rights and interests.

Terry Skolnik et al., Racial Profiling and the Rule of Law: A Reply, 58 Osgoode Hall Law Journal (forthcoming 2025)

This is a reply to Professor François Tanguay-Renaud’s article titled “Doing away with Racial Profiling without Doing away with the Rule of Law” in the Osgoode Hall Law Journal. It explores our respective agreements and disagreements. Although we disagree with many of Professor Tanguay-Renaud’s premises, arguments, and conclusions, we agree on certain important points. More specifically, we concur that section 15 of the Charter should play a larger role in criminal law and procedure, and that it captures the distinct harms and wrongs of racial profiling in ways that section 9 of the Charter cannot. We share the view that courts should embrace broader structural remedies—such as constitutional class action lawsuits and structural injunctions—that seek to counteract racial profiling more effectively than traditional remedies. Despite our significant disagreements—and notwithstanding the very different ways that we analyze racial profiling—we agree that current theoretical and remedial approaches to racial profiling can (and should) be improved. We disagree on three main points: (1) that section 9 of the Charter’s underlying purpose is to advance the rule of law; (2) that the section 9 racial profiling test framework is overbroad in the ways Professor Tanguay-Renaud suggests; and (3) that the legal framework for racial profiling normatively entrenches the under-policing of racialized persons. This reply will focus primarily on where—and why—we part ways.

The post New Faculty Publications – Fall 2025 appeared first on Ross-Blakley Law Library Blog.

Khaled A. Beydoun, The World Cup as a Racial Rebuilt Project, 2025 Utah Law Review 805 (2025)

Scholars, particularly Critical Race Theorists, have written trenchantly about the law’s role in racial formation. Yet, while instrumental in this process, the law does not stand alone as a conduit of making race. Particularly for misrepresented groups, like Arabs, who struggle to find existential self-determination between imperial identity impositions, ethnic cleansing, and clashing racial ascriptions, the law fails to create racial categories that reflect their lived realities.

Beyond the asymmetrical landscape of legal ordering, sport stands as a powerful site of racial formation. Sport is where racialization can unfold indigenously, rebelliously, and “from the bottom.” Particularly soccer, a game of unrivaled global resonance, especially within Arab societies where the “beautiful game” provides a venue for protest, possibility, and redefinition. This was on full display at the 2022 World Cup in Qatar when the host nation and the historic performance of the Moroccan National Team rebuilt a transnational Arabism that contested colonial divides and contemporary legal designations, ultimately unveiling the sport’s capacity to remake race.

This Article centers the World Cup as a counter-narrative that reconstructed Arabism in the native image of the host nation, Palestine, and the Moroccan team, and against the stigmatized racialization ascribed by Western laws. The 2022 World Cup did so by: (1) demystifying imperial and War on Terror constructions of Arab identity; (2) reconstructing an indigenous modality of transnational Arabism in its stead; (3) curating a generative setting for a “mosaic racialization” that harmonized the diversity of a peoples who found common existential ties as Arabs; and (4) providing a template for rebuilding Arab identity within the shifting contours of American racial ordering and racial demonization.

Khaled A. Beydoun, Telling War Stories: Innocence, Indictment, and (En)gendered Terror, 114 Georgetown Law Journal (forthcoming 2026)

The law is replete with dominant narratives endorsed by its letter and amplified by connected and conspiring levers of power. This Article centers the discursive power of law, and specifically, the War on Terror’s grand narrative of “masculine Arab and Muslim terrorism.” By gendering terror threat, this dominant wartime narrative marks Arab and Muslim men and boys as a terrorist bloc that justifies pre-crime indictment, collective punishment, and hegemony.

By focusing on law and its discursive echoes that brands Arab and Muslim men as presumptive terrorists, this Article: (1) Theorizes the gendered dimensions of Arab and Muslim threat, building upon formative frameworks of othering and racialization within and beyond the legal literature, (2) Develops the concept of masculine terror indictment assigned collectively to Arab and Muslim men and boys, (3) Interrogates War on Terror law as the forceful conduit of the dominant metanarrative of masculine Arab and Muslim terrorism, which brands anybody fitting that profile as a justifiable target of extrajudicial violence; and (4) Centers the counter-stories of men in Gaza, who repurposed new media to challenge the War on Terror narrative of masculine terrorism that erases their individual identities from legal, scholarly and popular view.

As an emanation of law itself, legal scholarship contributes to the power struggle of whose stories are told and untold, highlighting the urgency of this Article and the unheard voices within it. Through its criticism of dominant law and lore, this Article challenges the gendered War on Terror narrative. By introducing the stories from men in Gaza, it contributes the first counter-narratives of this kind to legal scholarship and writes the humanity of Arab and Muslim men into its pages. While legal scholars have examined the distinct plight of Arab and Muslim women, this Article asks: “What about the men?” and stands as the first to reconstruct their humanity through legal counter-storytelling and intimate profiles of the men themselves.

Khaled A. Beydoun, Playing Politics: Social Media, Censorship, and Speech Gamification, 74 Emory Law Journal (forthcoming 2026)

40% of Americans self-censor their speech online. While staggering, the hidden phenomenon beneath this figure reveals a more dystopic outlook for the future of free speech. The powerful predictive technologies driving social media platforms, which the Supreme Court dubbed “the most important spaces for the exchange of views,” control the terms of modern speech and the scope of political discourse. The Supreme Court’s laissez faire posture toward online speech moderation has only empowered digital dominion over modern expression and citizenship to the detriment of free speech principles.

As such, the primary threat to free speech today is not the state but Big Tech intermediaries. Tech giants like Meta, this Article’s focal case study, not only regulate political expression and identity, but reshape them in line with everchanging interests. Through facially neutral speech policies enforced by content moderation regimes steered by private instead of liberty interests, Meta digital platforms: (1) Gamify speech by reducing expression into a system of conditioned patterns and scorable outcomes, (2) Reward conformist speech and punish dissident speech within a controlled platform of shifting private political interests, (3) Suppress visibility of speech and accounts of dissident users, and elevate visibility of speech and accounts of obedient users; and, (4) Exact hidden infractions on online expression and identity, which blur into First Amendment harms within traditional public forums.

In one year, Meta enacted moderation policies that categorically suppressed “political content” then shifted to a “more speech” standard announced on January 7, 2025. The reform reveals private opportunism and the perils it poses to modern speech and citizenship. While legal scholars examine the regulatory tension between the state and digital platforms, scarce attention is paid to bound subjects in between: the people. This Article sounds that alarm and centers harms suffered by individuals – crafting original theory and analysis interrogating how Meta’s gamification of modern expression exacts unseen and enduring infractions on speech, citizenship, and identity.

Dan Bodansky & Harlan Grant Cohen, Close Relations: International Legal Realism and Cognitive-Behavioral Studies in International Legal Theory and the Cognitive Turn (Anne van Aaken & Moshe Hirsch eds., Oxford University Press 2025)

Legal realism and cognitive-behavioral studies share an interest in studying empirically how individuals think and behave. For both, focusing on the actual people who practice, argue about, interpret, and implement international law is essential to explaining how international law works. The two approaches can thus mutually enrich one another; marrying legal realism’s empiricism and pragmatism with cognitive-behavioral studies’ rigor can be powerful and seductive. But in sharpening each other’s focus, legal realism and cognitive-behavioral studies may also amplify each other’s blind spots. Considering related critiques of both legal realist and cognitive scientific approaches to international law that emphasize instrumentalism at the expense of normativity, this chapter reaffirms the importance of legal realism’s characteristic pluralism, openness, and capacity for self-critique. Those values, the chapter argues, can provide a path forward for a partnership between legal realism and cognitive-behavioral studies that remains true to the objectives and values of each.

Karen Bradshaw, Depolarized: How Nature Can Save America (Columbia University Press) (forthcoming 2026)

Drawing on more than a decade of academic and government research, the book examines the promise and limitations of stakeholder collaboration as a tool for governance. Aimed at a broad readership, it translates complex research into accessible insights that shed light on how collaborative approaches can shape federal environmental policy—particularly in addressing some of the nation’s most divisive issues.

Ellen Bublick et al., Design for Destruction: Designing Products, and Products Liability Law, for the Natural History of Products (forthcoming)

In the United States, products liability design defect law in many states focuses on the existence of a reasonable alternative product design; in other words, whether a reasonable alternative product design could have reduced or eliminated foreseeable risks posed by the product. Yet surprisingly few common law authorities or state statutes have considered the term of product life over which a product’s risks and alternative designs should be evaluated. In this article, a torts treatise writer, a distinguished sustainability law student, and an award-winning product designer, argue that reasonable alternative design should be based on the foreseeable risks and benefits of the design over the product’s expected natural history, not merely during the product’s initial intended use. When the existence of a reasonable alternative design is evaluated through this lens, the test can weigh true risks and benefits of products as disparate as batteries, stents, and ships. Requiring product designs to prevent excess dangers posed by the product, to the extent foreseeable and reasonable, aligns product designers’ interests with the interests of society as a whole.

Ellen Bublick & Gregory C. Keating, Complex and International Litigation and Empirical Litigation Studies: Festschrift in Honor of Professor Deborah Hensler, 17 Journal of Tort Law 93 (2024)

Professors Ellen Bublick and Gregory Keating, Co-Editors of the Journal of Tort Law, introduce Complex and International Litigation and Empirical Litigation Studies, a Festschrift in Honor of Professor Deborah Hensler, Judge John W. Ford Professor of Dispute Resolution at Stanford Law School.

Charles Calleros & Louis Schulze, Law School and Exams: Preparing and Writing to Win (4th ed., Aspen 2025)

Law School and Exams: Preparing and Writing to Win, Fourth Edition is the fourth edition of a popular book whose first edition Bryan Garner reviewed and judged to be “the best on the market.” It combines:

1. Clear and comprehensive explanations of study and exam techniques

2. Numerous illustrative samples that are truly instructive

3. Twenty in-class exercises or take-home assignments on everything from case briefs to essay and multiple-choice exam questions.

Comprehensive and self-contained, the Fourth Edition is suitable for use as the textbook for a sophisticated Prelaw course, 1L Orientation, or a 1L Academic Success course. Alternatively, incoming freshmen can work through it independently over the summer to be optimally prepared for law school in the fall.

Susan Chesler & Elizabeth Porter, Contracting for the Company’s Culture, 19 Ohio State Business Law Journal 1 (2024)

Company culture is not a new phenomenon. It refers generally to a set of beliefs and behaviors that guide how a company’s management and employees interact with each other and how they handle external business transactions. A company’s culture has always been relevant to employee retention and financial success, but recently its importance cannot be understated. Companies are not immune from the culture wars that divide the United States and countries across the globe. Increasingly, companies have become participants – willingly or not – in a wide range of social and political controversies. A company’s stakeholders in these ongoing culture wars include their employees, investors, and consumers. And those stakeholders make choices about which companies they want to work for, invest in, purchase from, and even boycott, based in part on a company’s beliefs and behaviors surrounding a variety of social issues like gender equality, diversity, LGBTQ+ rights, sustainability, human health, abortion rights, and so on.

These stakeholders are growing more critical of companies’ performative attempts to pacify them and often characterize such attempts as greenwashing or blackwashing. They expect more than just a rainbow flag during Pride month and a Black Lives Matter t-shirt featured in an advertisement. They expect companies to embrace these issues and incorporate their values into the way the company operates, both internally and externally. Companies have a vested interest in developing and nurturing a company culture that aligns with their stakeholders’ values, and also in telling the story of their company culture to as many stakeholders as possible.

While contract drafting is rarely seen as an avenue for developing and communicating company culture, let alone as a vehicle for social change, in this article we propose that contract drafting can be used to achieve both goals. By incorporating narrative techniques and impactful language, companies can use their contracts to tell the stories of the company culture that has become so important to their success. Because employment relationships embody such a vital role in so many individuals’ lives, this article focuses specifically on how companies can draft their employment contracts to better define and implement their company culture and thus improve their employee recruitment and retention, productivity, and financial success.

Beyond having an immediate impact on the transacting parties and even a company’s workforce, contract drafting can also be used as a vehicle for broader societal change. This is true for several reasons. First, private contracts necessarily have an impact on third parties. Second, while a single individual may lack sufficient bargaining power to seek favorable contract language, groups of individuals may yield great power if they work in tandem. Additionally, if a significant number of individual, unrelated contracts are drafted similarly to address key social issues, there may be a resulting culture shift. The use of the same or similar contract drafting language in numerous unrelated contracts can have a significant impact across an industry, or even more broadly. What may have started as a single company’s culture of promoting social good may eventually lead to a societal shift. Contract language also provides the benefit of incentivizing the transacting parties to act in accordance with their expressed intent, while also equipping the parties with the force of legal enforcement and tangible remedies.

This article begins by defining company culture and exploring its rising relevance. It will then address the value of incorporating storytelling and narrative techniques in contract drafting, highlighting four techniques that can assist drafters in crafting employment contracts that serve as a tool to develop and embed company culture. These techniques are character and voice; stock stories and counterstories; plot and alternative plot lines; and expressive language. By way of illustration, this article showcases how companies can embed a company culture of empowering women and preventing workplace sexual harassment into their employment contracts. It then explores ways in which companies can leverage their employment agreements to develop a company culture around Environmental, Social, and Governance (“ESG”) issues. ESG has emerged as a key factor in engaging today’s workforce, with one in three employees preferring to work for companies that are responsible to all stakeholders, not just investors and shareholders. Millennial and Gen Z employees are heavily influenced by employers’ ethical values in choosing where they work, and a recent study has shown that ESG values are among the most significant. Employers outside of the U.S. have already begun to find ways to develop a strong ESG culture as a means of attracting and retaining employees. This article explores ways that contract drafting techniques and language can effectively be used to develop and implement an ESG company culture to benefit the employer-employee relationship, the broader workforce, and beyond.

Ann Ching & David B. Gass, Contemporary Appellate Advocacy (Carolina Academic Press 2025)

Discover the art and science of appellate advocacy with Contemporary Appellate Advocacy, a comprehensive textbook for law students and lawyers. Moving beyond the basics, this book explores the realities of modern appellate practice.

Written by experienced authors Professor Ann Ching and Judge David B. Gass, this textbook demystifies the appellate process, offering both practical advice and theoretical foundations. It emphasizes ethics and professionalism while integrating psychology and social science to teach effective persuasion techniques. The book also adopts a modern approach to writing style and discusses the significant impact of technology on appellate practice.

Ideal for various audiences, Contemporary Appellate Advocacy serves as a primary textbook for appellate advocacy courses, a supplemental resource for moot court programs or clerkships, and a reference guide for practicing lawyers. The book is structured into five parts, covering an appellate practice overview, appellate brief drafting, persuasive writing guidance, oral argument strategies, and special considerations, including the integration of legal technology.

With Contemporary Appellate Advocacy, you’ll become a more effective, persuasive, and knowledgeable advocate. The authors’ real-world expertise and practical wisdom make this textbook an invaluable resource for students and practitioners alike.

Adam Chodorow, Saban, Pope, and the Benefits Theory of Taxation, 57 Arizona State Law Journal 171 (2025)

As a condition for receiving federal highway funding, Congress requires states to spend the revenues they raise from road users on the roads.  Congress justified this condition, in part, because wanted federal money to supplement—not replace—state money and, in part, on fairness grounds, essentially endorsing the benefits theory of taxation, under which taxes can be justified based on the benefits taxpayers receive.  To safeguard these federal funds and prevent legislatures from using road use revenues for other purposes, most states added anti-diversion provisions to their constitutions.  A majority specifically identified the taxes their anti-diversion provisions would cover.  However, a few—including Ohio and Arizona—adopted broad language providing that revenues from “fees, excises, or license taxes relating to registration, operation, or use of vehicles on the public highways or streets” be spent on the roads.

Despite the broad language found in Arizona’s provision, Arizona’s Supreme Court—relying in part on Ohio’s jurisprudence—narrowly construed the state’s anti-diversion provision to apply only to a narrow class of taxes.  This article considers Arizona’s jurisprudence—and in particular cases considering the rental car taxes used to fund Cardinal stadium and a rental car facility at Phoenix’s Sky Harbor airport—to show how the courts have gone astray, drifting further and further away from the provision’s underlying purpose, shortchanging drivers whose money is being spent for non-road purposes, and potentially putting Arizona’s federal highway dollars at risk.

Adam Chodorow, Judeo-Christian Theories of Taxation: The Jewish Perspective in Christian Perspectives on the Role of the State, Justice, and Taxation (Robert F. van Brederode ed., Springer 2025)

Tax scholars have traditionally looked to economic theory when considering questions of tax equity and distributive justice. However, these questions are moral in nature, and some scholars have begun to look to Judeo-Christian texts and teaching when considering how best to design tax systems. However, it is not clear that Jewish and Christian thinkers understand their shared texts the same way. The goal of this book chapter is (1) to explain briefly how tax policy experts, including those arguing from religious principles, generally approach questions of tax equity, (2) provide readers with a basic understanding of the structure of Jewish law, and (3) set forth how Jewish religious thinkers understood the shared religious texts and practices that arguably speak to the question of how best to design a secular tax system. The Bible and Talmud contain a number of biblical tax or tax-like practices, including (1) the temple tax, (2) agricultural tithing, and (3) maaser kesafim, also referred to as non-agricultural tithing, and two secular practices, including (4) the taxes imposed by the kings and other leaders of Israel and (5) discussions in the Talmud of how best to allocate the costs of communal expenditures. While it might be tempting to assume that such systems present the best evidence of a divinely inspired or sanctioned tax system, the religious nature of these practices and the purposes they served render them poor models of tax fairness. Similarly, the more general obligation to care for the poor provides little guidance regarding modern tax design. Instead, those seeking to rely on Biblical tax practices or Judeo-Christian values are left to argue by analogy and inference, leaving the door open to disagreements about what Judeo-Christian values require of a modern, secular tax system.

Laura Coordes, Bankruptcy and the Public-Private Divide, 43 Yale Law & Policy Review 418 (2025)

The Bankruptcy Code draws a firm line between “municipalities” and other entities. In reality, numerous entities exist that could be categorized somewhere between a purely public municipality and a private entity. This incongruence between theory and practice creates two primary sets of problems. First, when a “blended entity” seeks to file for bankruptcy, the relief it receives from the bankruptcy system, if any, may be practically inappropriate or constitutionally suspect. Second, blended entities’ use of the bankruptcy system creates uncertainty, which parties and courts can capitalize on to exploit gaps in the law.

This Article is the first to take an in-depth look at blended entities and the problems that ensue when they attempt to use a bankruptcy system that does not contemplate their existence. In doing so, it contributes to the larger debate about the usefulness of the current Bankruptcy Code in light of manipulation of the bankruptcy laws, and it exposes a core weakness arising from the Code’s inability to recognize the blended nature of many of the entities that form the backbone of the U.S. economy and provide services the public has come to rely on in everyday life.

Laura Coordes, Chapter 11 Mediation, 41 Emory Bankruptcy Developments Journal 153 (2025)

Mediation has become an increasingly popular and powerful tool in chapter 11 reorganizations, especially in large cases. Despite its widespread and growing use, mediation in chapter 11 is under-studied. This Article begins to fill this gap in the literature by critically assessing mediation, a form of largely private dealmaking, in the context of a bankruptcy process that is supposed to be largely public. The Article begins by discussing mediation’s popularity within the bankruptcy process before turning to a review of issues that have arisen in recent cases, providing a critical assessment of mediation’s promise and perils. In particular, the Article examines the role mediation can play in providing—or, in some cases, denying—different groups equitable access to bankruptcy dealmaking. The Article then offers suggestions for ways that courts can provide more guidance as to the use of mediation practice and the choice of mediators and concludes with some thoughts on how this private dealmaking process must evolve to better coexist with the public nature of a bankruptcy proceeding.

Elissa Gentry, Disrupting the Risk Ratchets, 104 Oregon Law Review (forthcoming)

The “ratchet” effect—a phenomenon in which stopping or reversing course becomes impossible—has been largely ignored by the doctrine of informed consent. Health contexts like fertility treatment are particularly vulnerable to such effects: patients may temporarily be willing to accept increasing risks and costs when focusing on the risks and costs already incurred.

Not all changes in preferences are concerning: new information about the efficacy of treatment or about a patient’s own medical condition may better reveal a patient’s true preferences over treatment. Instead, the problem occurs when patients focus on the cumulative costs of, or risks associated with, past failed treatments in deciding whether to pursue additional treatment. This focus risks temporarily ratcheting up the acceptable cost or risk for an additional chance at a positive outcome, raising it above the cost or risk a patient would find otherwise acceptable. This predictable reaction ends up harming patients both physically and financially.

Given the broad range of reasonable preferences over acceptable risks and costs to achieve a viable pregnancy, the law should be very careful to protect patient autonomy in this context. The traditional tool for disclosing medical information that a patient would need to make their own individualized choice—informed consent—currently does not make any allowance for a risk ratchet effect.

This Article proposes a soft intervention that balances respect for patient’s preferences with nudges against incremental ratcheting of acceptable risks and costs. This informational intervention in the form of a patient decision aid (“Preference Tracker”) records initial preferences and requires a discussion when those preferences change. Patients are free to change their minds, but providers have the obligation to discuss this decision. This intervention is entirely feasible at various government levels and does not fall prey to the underenforcement that plagues litigation-based informed consent. This more fulsome implementation of informed consent can apply to other emotionally charged contexts and is necessary for the continued success of ART services.

James G. Hodge, Jr., Legal Underpinnings of the Great Vaccine Debate of 2025, 53 Journal of Law, Medicine & Ethics 171 (2025)

Multiple factors aligning in 2025 implicate challenges to vaccines as a primary public health tool. Anti-vaccine proponents seek to recast immunization policies in promotion of perceived individual liberties. Recalibrating national vaccine approaches, however, runs counter to long-standing public health laws and policies grounded in a core truth: safe and effective vaccines save lives. As discussed herein, the significant possibility of a national vaccine overhaul led by the federal government necessitates manifold legal arguments, maneuvers, and options to obviate predictable reductions in life expectancies and rises in morbidity.

James G. Hodge, Jr., On The Efficacy and Legality of Vaccine Mandates, 115 American Journal of Public Health 985 (2025)

Time and again, federal, state, tribal, and local public health officials, legislators, and policymakers have turned to vaccine mandates to promote the public’s health, safety, and security. With rare exceptions, such mandates are adjudged constitutionally—and otherwise legally—sound.

James G. Hodge, Jr., “Everything is Tuberculosis” – Except the Law?, Journal of Law, Medicine & Ethics (forthcoming)

In “EVERYTHING IS TUBERCULOSIS,” author John Green assesses the intricacies of the communicable condition, TB, as a source of significant morbidity and mortality globally over centuries. Despite available vaccines, treatments, and protocols, tens of millions are infected and over a million persons will die from TB in 2025 alone. Searching for answers to mitigate this global scourge, however, Green looks past a key factor – namely the role of law – as a primary tool for prevention and control.

James G. Hodge, Jr., Supreme Court Impacts in Public Health Law: 2024-2025, Journal of Law, Medicine & Ethics (forthcoming)

After dispensing major precedents affecting the public’s health in its prior three terms, SCOTUS 2024-2025 term was arguably less impactful amid several unanimous decisions  preserving in part existing jurisprudence. This is an understatement. While the Court issued key decisions this term arguably favorable to communal health it also denied minors access to medical procedures sought by their doctors, diminished diversity, equity, and inclusion (DEI) initiatives in employment, allowed states to deny health providers access to Medicaid because they also provided abortions, disallowed rural hospitals from collecting specific costs for treating low-income patients, and provided a “script” of sorts for executive control of federal health advisory committees.

Kimberly Holst, Assessing Legal Writing Skills in the NextGen & AI World, 5 Proceedings: An Online Journal of Legal Writing Conference Presentations 23 (2025)

Given the convergence of rapidly developing generative artificial intelligence tools and the looming implementation of the NextGen Bar, it may be time to rethink whether the gold standard of assessment and feedback used by most legal writing professors is sufficient in assessing student skills. Or, rather, whether other means of assessment can serve a beneficial function in teaching legal writing.

First, this essay examines the rapidly changing state of legal practice. A major impetus for this change is the advent and accessibility of generative AI tools. Ignoring AI is not an option. Assessment in light of AI may require changes to our well-worn practices. Second, this essay takes into account that the way applicants are assessed to determine whether they should be admitted to the bar is changing. The NextGen Bar proposes to move away from an emphasis on memorization and towards an assessment of skills relevant to legal practice. While current assessment methods likely prepare students for practice, other forms of assessment may provide greater preparation for the newly formatted bar exam. Finally, this essay evaluates our current assessment practices and offers suggestions for how additional assessment may be incorporated.

Esther Hong, The Carceral State(s), 30 Michigan Journal of Race and Law 1 (2025)

The carceral state is everywhere. Legal and social science scholars are increasingly using the carceral state concept to criticize various aspects, or even the entirety, of the United States. But despite how popular and common this term has become in writings about mass incarceration, criminal processes and punishments, and other forms of social control, the definition, conceptualization, and theorization of the carceral state are far from settled. This Article analyzes and contributes to this discussion by highlighting the diversity and fluidity of ideas surrounding the carceral state.

Although the term often appears without an express definition, the limited ones that do exist vary in their construction. There are also multiple perspectives on the carceral state’s characteristics, including its composition, relationship with the prison-industrial complex, its age, size, and form. Also, while many prominent scholars agree that its discriminatory actions and effects are defining features of the carceral state, notable differences remain in how this discrimination is framed.

This decentralized and varied understanding impacts both the theoretical development and practical applications of the carceral state concept. Rather than converging into a single, cohesive theory, multiple interpretations of the carceral state persist and will likely continue to do so. While this diversity of perspectives offers advantages, it also presents challenges in achieving the necessary consensus to dismantle the carceral state and build a noncarceral one.

Stacy Leeds & Rebecca Tsosie et al., American Indian Law: Native Nations and the Federal System (8th ed., Carolina Academic Press 2025)

Now in its eighth edition, American Indian Law: Native Nations and the Federal System reflects the deep and thorough treatment of Federal Indian law that has been the hallmark of this book since its first edition in 1973, as the first casebook on this topic. The volume fosters a comprehensive understanding of the political relationship between American Indian and Alaska Native Nations and the United States.

The volume also includes a discussion of the Indigenous histories and voices that inform the broader understanding of “Indigenous rights,” including a discussion of Indigenous human rights and the rights of Native Hawaiian people. The Indigenous co-author team has created an accessible volume that synthesizes the treatise-like material from the last edition and modernizes the approach to a complex field of law.

Through the cases and materials, the book explains the historical and current context of federal, state, and tribal relations and provides a thorough foundation to understand the rights of tribal Nations, including rights to land, water, natural resources, and cultural resources.

Stacy Leeds & Laura Hines, Strategic Litigation in Pursuit of Indigenous Justice, 73 Kansas Law Review 747 (2025)

Advocacy for Indigenous Nations in the United States is a long game. It can take years of coordinated efforts, combined with spontaneous opportunities, to move the Federal Indian Law needle forward. Advances have required that a variety of lawyering skills and strategies be deployed across tribal, state and federal judiciaries. Where litigation is ineffective, or where the calculus of risks suggests other strategies, parties rely on non-litigation strategies such as intergovernmental agreements and diplomacy, political and administrative advocacy and increasingly, public education and media engagement.

The 2025 Kansas Law Review Symposium focused on the theme “Strategic Litigation in Pursuit of Indigenous Justice,” and addressed a wide range of advocacy approaches. As we envisioned and designed this symposium, we invited tribal leaders, scholars, and practitioners in order to represent the breadth of strategic litigation and non-litigation strategies. Symposium panelists included all the directors of the Tribal Law and Government Center since its inception more than twenty-five years ago. Systemic change sometimes comes from successful complex federal class action claims with carefully curated claimants. At other times, major victories with far-reaching implications for the field of Federal Indian Law flow from seemingly low-stakes challenges to governmental authority brought by otherwise powerless individuals. And yet other major shifts in power dynamics can come from the deliberate choice to avoid judicial adjudication of untested rights altogether, in favor of other strategies.

The following three papers address several of the themes explored throughout the symposium panels, including tribal, state, and federal litigation and alternative non-litigation strategies. In Rosalind’s Refund: The Woman, the Lawyers, and the Time that Created McClanahan v. Arizona, Professor Bethany Berger shares the story of how a small-scale income tax protest became a pivotal reset of Federal Indian Law to its foundational roots. In McClanahan, the U.S. Supreme Court unanimously rejected state regulatory authority over Indians inside of Indian country. The case’s impact reached far beyond the subject matter of income taxation and highlights the important work of legal service attorneys.

Professor Sarah Deer explores tribal jurisprudence in Sexual Assault in Tribal Appellate Courts. Strategic litigation in Indian law involves the judiciaries of three distinct sovereigns, and at times, jurisdiction overlaps in a web of concurrent jurisdiction. Tribal nations have inherent sovereignty and jurisdiction over local sexual violence cases, but that jurisdiction has been limited by colonial interventions in ways that disrupt tribal responses to violence. Centering the work going on in tribal courts is a critical part of the strategic litigation dialogue, as tribal courts are often the front-line forum for seeking redress, either through sovereign or private causes of action.

In Advancing Tribal Co-Management: Lessons Learned from International Comparisons, Matthew J. McGrath and Dean Elizabeth Kronk Warner highlight how tribes may address power imbalances with the federal government through avenues outside the courts. Co-management arrangements for stewardship of lands and natural resources are a common practical approach as a first step toward regaining tribal autonomy and self-determination. In these scenarios, tribal decision-making authority is strengthened, particularly in situations where lands are otherwise under the exclusive jurisdiction of the United States with federal administrative agencies otherwise in control. For instance, in the protection of sacred sites and in situations where tribes seek more meaningful consultation from federal agencies, strategic non-litigation often includes practical approaches to shared governmental authority arrangements and other government-to-government approaches.

Gary E. Marchant & Diana Bowman et al., Learning From Emerging Technology Governance for Guiding Quantum Technology, 31 Richmond Journal of Law and Technology 266 (2025)

Quantum technology is often described as the “next big thing.” But the past few decades have brought us a series of next-big-things in technology, and we have accumulated enough experience now to extract some lessons and recommendations from our recent history of technology governance. That is what this article seeks to do. This article first explains what quantum governance is and why people expect it to be such a big deal. The article then describes the existing limited regulations for quantum technologies and then discusses some key governance challenges that quantum technologies are expected to present. Then, the article provides three case studies of other recent “next big thing” emerging technologies–biotechnology, nanotechnology, and artificial intelligence. While each technology presents unique governance issues and challenges, the case studies extract fifteen lessons that may be relevant for quantum governance. The article next examines seven types of governance frameworks proposed for emerging technologies by leading international and national organizations, with each type of framework providing a different emphasis that focuses on governance that is anticipatory, agile/adaptive, equitable, sustainable, soft law, coordinated, and international. Finally, drawing from three technology case studies and the seven types of governance frameworks, the article identifies and discusses eight governance pillars common to each emerging technology that collectively provide the foundation for effective governance and projects how these eight pillars will apply to quantum technology. These analyses provide a comprehensive roadmap, lessons, and recommendations for the coming challenges of quantum technology governance.

Ben McJunkin, Grants Pass and the Pathology of the Criminal Law, 102 Washington University Law Review 1583 (2025)

Last Term, the Supreme Court held that cities may, consistent with the Eighth Amendment, criminalize sleeping in public, even for people who have no other alternatives. That decision, Grants Pass v. Johnson, ostensibly rests on a formalistic distinction between criminalizing status, such as the status of homelessness, and criminalizing conduct, such as sleeping in public. This distinction fatally undermines the Eighth Amendment’s “status crimes” doctrine. The majority opinion has been decried by homeless advocates as inhumane and counterproductive, and the case produced a pointed dissent that has been lauded by court watchers.

As this Essay explains, however, the outcome in Grants Pass was necessitated not by the merits of a thin status–conduct distinction, but by judicial deference to an ever-expanding criminal law. The dissent’s preferred interpretation of the Eighth Amendment (in which the laws at issue impermissibly punish the “status” of homelessness) arguably implicates three distinct constitutional claims: one about the wrongfulness of punishing status, one about the wrongfulness of punishing involuntary conduct, and one about the wrongfulness of punishing in the absence of culpability. Once disaggregated, each of those claims proves to be in tension with contemporary criminal practices—neither status, nor involuntariness, nor lack of culpability currently prevents the infliction of criminal punishment. In other words, the dissent’s preferred interpretation would have unsettled a considerable amount of criminal law. Grants Pass can therefore best be understood as revealing the Supreme Court’s reticence to check states’ expansive—and expanding—approach to criminal liability.

So understood, the Grants Pass case provides an important supplement to the literature on criminal law’s political pathology, demonstrating that a federal constitutional solution is likely out of reach under the current court. Just as legislatures and prosecutors drive expansive criminalization, expansive criminalization narrows the range of constitutional remedies, even for obvious injustices such as punishing the unhoused for sleeping. Prescriptively, the Essay calls for homeless advocates to step away from the Eighth Amendment and toward doctrines—particularly under state constitutions—that more explicitly engage with the agency of unhoused individuals.

Troy Rule, Electricity Affordability in Context, 16 San Diego Journal of Climate & Energy Law 1 (2025)

Recent residential electricity price increases in California have caused some to suggest the state is experiencing an electricity affordability crisis. Although the typical household in California and across the country spends less than three percent of its income on electricity, California’s soaring electricity rates can impose substantial burdens on some of the state’s lowest-income households. Why have retail electricity prices rapidly risen in California over the past decade while remaining relatively stable in others? What are the potential downsides of overly fixating on electricity affordability concerns in the context of energy policymaking? And what principles should guide policymakers in California and beyond as they confront electricity affordability challenges in the energy transition? This Article highlights the structural and contextual drivers of California’s growing electricity affordability problems and applies basic microeconomics concepts to analyze them and identify appropriate strategies for addressing them. Among other things, policymakers should resist the temptation to use retail electricity rate structures to redistribute wealth among ratepayers as a means of improving energy affordability. They should also ensure that electricity affordability policies preserve customers’ incentives to conserve power and to invest in energy efficiency improvements. And policymakers should resist calls to promote electricity affordability through reforms that discourage distributed solar energy development. California’s recent electricity price spikes are not harbingers of some looming nationwide energy affordability crisis, and electricity affordability objectives need not hinder the country’s important decarbonization efforts. With thoughtful and innovative planning, energy policymakers can continue to advance progress toward an age when all Americans have electricity service that is both affordable and environmentally sustainable.

Michael J. Saks, Does Research Funding Affect Research Findings?, 74 DePaul Law Review 619 (2025)

Does research produce different findings depending on who is sponsoring (funding) the research? If so, that is a serious problem for society as well as for science. This Article reviews some of the empirical evidence on that question, illuminates some of the mechanisms through which sponsor influence might operate, and explores current and suggested strategies for mitigating the problem.

Terry Skolnik, Homelessness, Liberty and Property (Cambridge University Press 2025)

In Homelessness, Liberty and Property, Terry Skolnik establishes a novel theory about the government’s duties to end homelessness, maintain public property’s value, and legitimize laws that regulate public space. In doing so, Skolnik provides new insight into how the property law system and the regulation of public space limit unhoused persons’ freedom and political equality. The book deepens our understanding of how various areas of law, such as constitutional law, legal philosophy, criminal law, and property law, approach the reality of homelessness and advances original arguments to provide new justifications for the right to housing. Skolnik concludes by offering a set of concrete proposals for how the government can reduce the incidence of homelessness and treat unhoused persons with greater concern and respect.

Terry Skolnik, Criminal Justice and the Erosion of Constitutional Rights, 66 Boston College Law Review 1679 (2025)

In the context of criminal justice, many constitutional rights have eroded for reasons that are largely ignored. Beginning in the 1960s, the criminal procedure revolution sought to expand rights and remedies, encourage front-line justice system actors to respect defendants’ rights, and counteract discrimination. Yet many of these rights and remedies have progressively weakened. Prosecutors and police officers can easily evade constitutional norms. And defendants have little recourse against routine forms of discrimination that pervade the criminal justice system. How did this happen? And why?

This Article argues that four overlooked phenomena explain why certain constitutional rights weaken within the criminal justice system. First, constitutional rights can impose administrative burdens on justice system actors, which encourages under-investigation, under-litigation, and assembly-line guilty pleas. Second, constitutional rights may result in subtractability, meaning that each defendant’s legal claims can lower the quality of justice for others. The realities of administrative burdens and subtractability, in turn, elucidate how defendants who exercise their constitutional rights can impose negative externalities (or unaccounted-for costs) onto others that decrease the quality of criminal justice. Third, in response to expansive interpretations of rights, justice system actors can bypass these rights through different means: funding cuts, penalties, gamesmanship, and overregulation. Lastly, although courts initially interpret rights and remedies expansively, subsequent judicial decisions may deflate these rights and remedies over time. These four phenomena demonstrate how some constitutional rights can be self-defeating or can produce systemic adverse effects that are hiding in plain sight.

Ultimately, this Article provides a novel and comprehensive theory of how constitutional rights can deteriorate in the criminal justice system, and offers a starting point to better comprehend the erosion of constitutional rights more generally.

Terry Skolnik, The Tragedy of the Criminal Justice Commons, 58 U.C. Davis Law Review 2475 (2025)

One of the criminal justice system’s most overlooked features is that it is vulnerable to a tragedy of the commons: a collective action problem that destroys open-access resources. A tragedy of the commons occurs when too many users over-exploit an open-access resource, which results in its demise. Over-fishing, deforestation, and over-grazing are examples of this collective action problem. Two features of open-access resources expose them to tragedy: limited excludability — meaning a restricted power to exclude others — and subtractability — where one person’s use of a resource lowers its quality for others.

This Article argues that the criminal justice system operates like a commons that is prone to tragedy. A tragedy of the criminal justice commons occurs when too many defendants enter the justice system and attempt to exploit its scarce resources, which lowers the overall quality of justice. Wrongful convictions, miscarriages of justice, excessive sentences, and assembly line guilty pleas all exemplify a tragedy of the criminal justice commons.

But why does a tragedy of the criminal justice commons occur? And what can be done about it? This Article shows how the justice system constitutes an open-access resource for defendants; one that is characterized by limited excludability and subtractability. Statutory and constitutional rights restrict the State’s power to exclude defendants from using the justice system’s resources to defend themselves. And each defendant’s legal claims can impose unaccounted-for costs onto other defendants, such as delays, decreased scrutiny of individual cases, and stronger incentives to plead guilty. This Article elucidates how overcriminalization and the criminal procedure revolution laid the foundation for a tragedy of the criminal justice commons because they exacerbated the effects of limited excludability and subtractability. In response to greater resource pressures, the justice system embraced two mechanisms that encourage defendants to plead guilty and self-exclude from the criminal justice commons: coercive plea bargains and underfunding. The concluding parts of this Article offer concrete proposals that address the effects of overcriminalization and underfunding, and ultimately, aim to prevent a tragedy of the criminal justice commons: hard prosecutorial screening, misdemeanor decriminalization, and defense salary and caseload parity.

Terry Skolnik, Cruel and Unusual Punishments as Legislative Gross Negligence, 19 Criminal Law and Philosophy 61 (2025)

Many jurisdictions confer a constitutional right to be protected against cruel and unusual punishments. This right is typically justified by three considerations. First, cruel and unusual punishments undermine human dignity. Second, such punishments shock the community’s conscience or violate evolving standards of decency. Third, grossly excessive sanctions violate proportionality constraints. This article advances an additional justification for the prohibition against cruel and unusual punishments. Drawing on Kantian theories of public authority, republicanism, and fiduciary theories of legal authority, it argues that cruel and unusual punishments are objectionable because they constitute a form of legislative gross negligence that the Constitution prohibits. The core arguments of this article demonstrate why lawmakers have a fiduciary duty to ensure that the punishments they enact do not inflict needless harm and suffering—an obligation that requires them to enact sanctions that respect proportionality constraints. Lawmakers engage in legislative gross negligence when they enact cruel and unusual sanctions that are either indifferent to individuals’ interests to avoid unnecessary harm or depart significantly from the applicable standard of care. Ultimately, the right to be protected against cruel and unusual sanctions safeguards individuals against legislative gross negligence that results in grossly excessive punishments.

Roselle Wissler & Art Hinshaw, Participant Actions and Intermediate Outcomes in Initial Joint Sessions and Initial Caucuses, 2025 Journal of Dispute Resolution 43 (2025)

Historically, the initial mediation session usually was a joint session where the mediator and the disputants met together to exchange information and discuss the substance of the dispute. Accordingly, the main components of the initial mediation session and the informational and communication benefits they were thought to provide were discussed in the context of the disputants being together and speaking directly. Today, however, many actions that traditionally took place during the initial joint session, including the discussion of substantive matters and exchanges between the parties, are less likely to occur during initial joint sessions than they did historically and are more likely to take place during initial separate caucuses. These changes lead to questions about whether the actions historically discussed as contributing to mediation outcomes (a) still show these relationships in initial joint sessions today and (b) have the same benefits when they take place during initial caucuses instead of during initial joint sessions.

Roselle Wissler & Art Hinshaw, The Role Different Factors Play in the Use of Initial Joint Sessions or Initial Caucuses, 31 Dispute Resolution Magazine 16 (2025)

For the past decade or two, mediators, lawyers, and frequent mediation users have been debating whether the first formal mediation session should begin in joint session or separate caucuses. Although some argue that one structure generally has greater benefits than the other, many say that the best practice is tailoring the initial session to the individual case rather than using a “one-size-fits-all” approach. Analysis of the online survey responses of 1,065 civil and family mediators who mediate in state and federal court programs and private settings in eight states across the country showed that, notwithstanding this advice, most mediators begin the initial mediation session in the same way in most or all their cases. Moreover, how mediation begins in an individual case appears to be influenced more by local mediation or legal culture and norms, as well as by the general preferences of the mediator and their usual case referral source, than by the characteristics of the dispute and the disputants’ goals. By being mindful of the influence that general customs and preferences can have on the decision about whether to begin the initial mediation session in joint session or separate caucuses, mediators and mediation participants can try to make a more considered decision about the structure of the initial mediation session by taking into account the characteristics and disputant goals in the instant case.

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Angela Banks, Constructing Effective Civic Education for Noncitizen Students, 153 Daedalus 302 (2024)

Primary and secondary education is essential because it not only provides students with critical literacy and numeracy skills, but also, for many students, it begins their civic education. The goals of civic education vary by country, but a consistent goal is to provide students with the knowledge and skills necessary to be productive members of society. Globally, approximately thirty-six million children are living outside of their country of nationality. With the growing number of migrant children, states are facing two challenges to effective civic education. The first is access to schools, and the second is creating a civic education curriculum that effectively prepares all students to participate in society in ways that align with democratic principles and goals. This essay focuses on unauthorized migrant children’s access to public schools and argues for civic education to incorporate the exploration of membership boundaries so that students, citizen and noncitizen alike, can study unauthorized migrants’ participation in society within the context of membership status. This exploration offers students the opportunity to consider how to better align unauthorized migrants’ lived realities with their legal status-and to better realize democracy’s promise.

Diana Bowman & Alisa Squires et al., Ethical analysis of community-based dementia screening for unhoused older adults, Nursing Ethics (forthcoming)

Screening for dementia and mild cognitive impairment (MCI) in community-based settings helps connect vulnerable older adults to medical and social support services promoting well-being. Referencing a universal screening program for unhoused older adults seeking emergency shelter services as a case example, this paper calls attention to alignment of programmatic features with the four principles of biomedical ethics, beneficence, nonmaleficence, autonomy, and justice. Regarding beneficence, homeless services workers gain insight into clients’ needs and can facilitate engagement with resources to aid in their successful exiting of homelessness. Using assessment findings to promote safety in shelter environments incorporates nonmaleficence. Concerning autonomy, by choosing to share screening results with healthcare providers and other human service stakeholders such as public safety officials and social service professionals, older adults are empowered to take charge of their care. Justice is embodied by the ability to influence policy changes related to homelessness prevention and equitable distribution of health resources.

Ellen Bublick & Jane R. Bambauer, Should Tort Law Care About Police Officers?, 134 Yale Law Journal Forum 765 (2025)

Should police officers be able to file tort lawsuits for injuries that they suffer while on duty? In this Essay, written in response to Professor Sarah L. Swan’s The Plaintiff Police, Professors Ellen M. Bublick and Jane R. Bambauer contend that the common law has expanded, and should continue to expand, the civil legal rights of wrongfully injured people, including people wrongfully injured while employed as police officers. Beginning with a review of recent appellate opinions in suits filed by police, Bublick and Bambauer outline the types of actions that would be eliminated by a proposed ban on police officer injury suits. They next examine police suits through the popular, if inaccurate, frame that civilians can obtain virtually no civil remedies based on police misconduct. From the baseline of actual suits, Bublick and Bambauer argue that civil enforcement is valuable to hold both civilians and officers accountable for the unjustified harms that they cause to each other.

Charles Calleros, Admissions and Access to Higher Education After SFFA v. Harvard, 50 Journal of College and University Law 1 (2025)

In 2023, the Supreme Court sent a seismic shock wave through higher education with its decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. This decision replaced decades of precedent that had permitted race-conscious admissions with a new requirement of race neutrality. Some universities might overreact to this development, avoiding consideration of any attributes that have their roots in racial diversity or that could contribute to a diverse student body. But the majority opinion describes a race-neutral approach based on individual assessment of valued character traits, even if based on that applicant’s experiences inextricably tied to the applicant’s race. Coupled with other efforts and policies designed to broaden access to higher education, universities should follow the Supreme Court’s race-neutral path, while implementing procedures that require and document decision-making that stays within the new constitutional lines.

Charles F. Capps, The Holistic Theory of Precedent, 93 University of Chicago Law Review (forthcoming)

Standard theories of precedent limit the legal effect of a precedent to cases that fall within the scope of its holding. Yet the widespread use of analogies to precedent in legal reasoning presupposes that precedents have legal implications for cases that fall outside the scope of their holdings. This Article suggests that arguments from analogy to precedent have the currency they do in our legal system because respect for a precedent requires more than treating the precedent’s holding as true: it also requires the judge, for purposes of deciding the case, to update her other beliefs around the assumption that the precedent’s holding is true. The Article employs the framework of Bayesian epistemology to develop this idea and demonstrate its fit with judicial practice. Recognizing the full breadth of precedent’s legal effect has significant scholarly and doctrinal payouts related to, inter alia, the workings of the Marks rule, the soundness of the Erie doctrine, the degree of indeterminacy in how far precedents extend, the extent to which it is legally proper for a judge to consult her priors when deciding whether to distinguish a precedent, and the way to solve the “problem of the second best” as applied to precedent.

Adam Chodorow, Redemption! Valuing Closely Held Companies after Connelly, Florida Tax Review (forthcoming 2025)

In Connelly v. U.S., the Supreme Court resolved a longstanding dispute over how to treat redemption obligations when valuing a decedent’s shares in a closely held company. The Court held that redemption obligations do not offset corporate-owned life insurance proceeds obtained to fund a redemption, upsetting a long-standing practice. While the Court undoubtedly reached the right conclusion, it (1) failed to address important arguments the parties and amici raised, (2) assumed away the effects of discounts, premia, and different valuation techniques, which would have complicated the analysis without changing the conclusion, and (3) muddied the water somewhat by leaving open the possibility of a different outcome where companies use operating assets to fund a redemption.

This Article lays out the various authorities that bear on this question, sets forth additional grounds supporting the Court’s conclusion, including the arguments the court sidestepped, addresses the complexities avoided by using a simple hypothetical, and explains why the reasoning applies equally to situations where operating assets are used to find a redemption. Finally, the article identifies different ways taxpayers can use insurance to fund redemptions while avoiding the results in Connelly.

Laura Coordes & Eugenio Vaccari et al., Municipalities in Financial Distress: An Environmental, Social and Governance Critique (Edward Elgar 2025)

This timely book argues that long-term recovery and sustainability for municipalities in financial distress requires a modularly tailored decision-making process, incorporating environmental, social, and governance (ESG) considerations.

Expert authors provide an in-depth comparison of the legal approaches to municipal distress in the United Kingdom, the United States and South Africa, documenting the effectiveness of diverse strategies in different legal and cultural contexts. Examining the extent to which local governments in these jurisdictions are accountable for their financial decisions, the authors analyse the responsibilities of locally elected officials to the public and future generations. They identify and interrogate legal frameworks and mechanisms, drawing on their extensive experience, relevant policy frameworks, and key judicial decisions. Chapters provide a critical assessment of ESG factors in the context of the management and the restructuring of municipalities and outline recommendations for local decision makers, policymakers and regulators worldwide.

This book is beneficial to scholars and students of insolvency law and administrative law and provides a multifaceted view of municipal financial distress. It is also of interest to foreign policymakers, professionals, think-tanks and civil servants seeking a comparative overview of the key features of different approaches to restructuring local entities in distress.

Laura Coordes, Whose Problem Is It, Anyway? Some Thoughts on § 541(b)(7)’s Hanging Paragraph, 45 Bankruptcy Law Letter 1 (February 2025)

Recently, my third grader has become interested in grammar. She has been learning sentence diagramming and grammar rules in school, and sometimes, she’ll quiz me at dinner to see if I can correctly identify various parts of a sentence. Her interest in this subject (and her fixation on getting the rules down pat) gives me hope for her generation, which one day will occupy seats in Congress.

By contrast, whenever I read § 541(b)(7) of the Bankruptcy Code, I find myself dismayed at a previous Congress’ poor drafting. Section 541(b)(7) is home to an infamous hanging paragraph, one that has bedeviled courts since its placement into the Bankruptcy Code in 2005. Hanging paragraphs are often confusing. This hanging paragraph, in particular, seems like very poor drafting. Recently, I had occasion to revisit this hanging paragraph upon reading the Ninth Circuit’s recent decision in In re Saldana. However, it appears that the Ninth Circuit majority has no problem with the hanging paragraph. In Saldana, the court held that § 541(b)’s hanging paragraph “unambiguously excludes voluntary contributions from a debtor’s disposable income in a Chapter 13 case.”

This holding is not as inevitable as it seems, however. Notably, with Saldana, the Ninth Circuit created a circuit split with respect to whether voluntary contributions to employer-managed retirement plans are disposable income in a chapter 13 bankruptcy. But what struck me about the Ninth Circuit’s decision in particular is the ease with which the majority concluded that the hanging paragraph was plain and unambiguous.

Commentators have already written about how bad Congress’ drafting was in this particular instance, and this Bankruptcy Law Letter is not going to rehash all of those criticisms. Instead, I will walk through the hanging paragraph problem and explain why I think the result in Saldana has the potential to direct attention away from the very entity that could solve this problem. Because Saldana has created a circuit split, the Supreme Court may now be more interested in granting certiorari and seeking to clarify this issue. Nevertheless, it is Congress’ poor drafting that has created the problem of numerous, conflicting interpretations of the hanging paragraph. The Supreme Court’s resources are not put to their best use if the Court is asked to puzzle through which of those interpretations should govern. Instead, Congress should act to resolve the problem that it created: Congress can and should clarify its meaning through an amendment to the Bankruptcy Code.

Laura Coordes, The Messiness of Midlantic, 34 Norton Journal of Bankruptcy Law and Practice 1 (February 2025)

Nearly 40 years ago, the United States Supreme Court decided Midlantic National Bank v. New Jersey Department of Environmental Protection (“Midlantic”). In Midlantic, a narrow (5-4) majority of the justices held that a trustee in bankruptcy may not abandon property in contravention of state laws or regulations reasonably designed to protect the public’s health and safety. In effect, the justices read a public-interest exception into the Bankruptcy Code provision governing abandonment of property, an exception that the four dissenting justices characterized as “ill-defined and uncertain.”

In the years since Midlantic, the lower courts have sought to give this exception definition and clarity. However, much uncertainty remains as to the scope and applicability of the Midlantic exception. To avoid this uncertainty, debtors in bankruptcy have devised creative ways to construct settlements and trusts such that outright abandonment of property occurs less frequently than might be expected.

Like many of the Supreme Court’s bankruptcy opinions, the Midlantic opinion sticks closely to addressing the issue before the Court. Consequently, in the years since the Court’s decision, questions have arisen about when, whether, and how a trustee in bankruptcy (or debtor-in-possession) may abandon environmentally contaminated or hazardous property. This article considers several of these questions in light of the developing case law and also asks whether Midlantic would be decided the same way today should the issue again reach the Court.

The article proceeds as follows. Part II provides some background on the Bankruptcy Code’s abandonment provision and on the Court’s reading of that provision in Midlantic. Part III discusses how Midlantic has generated confusion, creativity, and in some cases, consensus among practitioners and the lower courts. Part IV analyzes questions that remain unresolved as the Midlantic decision approaches its 40th birthday, while Part V provides a brief conclusion.

David Franklyn & David A. Hyman et al., Influencer Marketing on Instagram and TikTok: Entertainment or Deception?, 22 Virginia Sports and Entertainment Law Journal 154 (2024)

Influencers routinely promote goods and services to their followers on Instagram and TikTok. Federal law requires influencers to “clearly and conspicuously” label content for which they are paid, but the social media environment deliberately blurs the lines between paid and unpaid content. We study whether Instagram and TikTok users can identify paid influencer marketing content from six different influencers. On average, 29% of respondents believed paid marketing content from six different influencers were not paid ads and 8% were unsure, with significant variation by influencer. The labeling used by influencers to identify influencer marketing content is not consistent – let alone clear and conspicuous. There is also considerable heterogeneity in how respondents interpreted the labels that are being used by influencers. We also find evidence of two-way blurring; on average, 29% of respondents thought unpaid influencer content on Instagram and TikTok were paid ads, and 9% were unsure, with significant variation by influencer. Influencer marketing on Instagram and TikTok involves a significant risk of deception that is not adequately addressed by current policies.

David Gartner, Preventive Care and Health Equity: The Educational Divide, 50 American Journal of Law & Medicine 121 (2024)

The preventive services at the center of Braidwood Management, Inc. v. Becerra contribute to reducing inequities in life expectancy in the United States. Critical preventive are currently fully covered by insurance as preventive care under the Affordable Care Act. Reducing affordable access to such screenings and medicines is most likely to impact those with lower incomes and less education, and contribute to widening existing inequities in health outcomes.

Recent research has identified a large and growing mortality gap between those with and without college degrees. On average, individuals without college degrees are likely to die about 8.5 years earlier than those with such degrees. In recent decades, cancer death rates fell nearly two times faster among the college educated. Mortality from heart disease fell by nearly two-thirds among those with college degrees but by less than one-third for all others.

Disparities in life expectancy in the United States reflect the uneven progress against the leading causes of death among different populations. The Braidwood decision, if upheld, will raise the costs to patients for interventions that have contributed to recent gains in life expectancy. This Article analyzes the impact of Braidwood on preventive health interventions in the context of growing life expectancy gaps within the United States.

Jonathan Green, Some Traditional Questions About “History and Tradition”, Arizona State University Sandra Day O’Connor College of Law Paper No. 5170253 (March 7, 2025)

Recently, in Vidal and Rahimi, the Supreme Court reaffirmed that “history and tradition” are probative of, and in some cases dispositive of, the outer bounds of constitutionally enumerated rights. But for the Court’s originalists, that move is puzzling. If the Constitution’s legal content resides in the original meaning of its terms, how might a tradition of political practice that arose long after a constitutional provision’s adoption be legally relevant?

Eighteenth-century English jurists had an answer to that question. By 1791, it was well-established that where a written source of law codified a preexisting, common law right—like the freedom of speech (at issue in Vidal), or the right to keep and bear arms (at issue in Rahimi)—the scope of that right would continue to be defined, as before, by custom. The codification of an unwritten right in written law did not alter its status as a customary right, whose limits were set by a tradition that preceded and succeeded the text’s enactment. So, if the provisions at issue in Vidal and Rahimi codified preexisting unwritten rights into our Constitution, then under Founding-era interpretive rules, the original meaning of First and Second Amendments would just direct contemporary judges to look beyond their words, to pre- and post-enactment tradition. From the eighteenth century looking forward, the Court’s turn to “history and tradition” is entirely reconcilable to originalism, and may be required by it.

At the same time, excavating how tradition delimited the outer bounds of fundamental rights in the decades before ratification throws up a number of interpretive puzzles. Whose tradition, exactly? What is tradition, anyway: how did past jurists conceptualize it? And where an unwritten right had been codified into written law, to what extent could later practice reshape its original scope? These questions vexed English jurists across the eighteenth century, and were unsettled when our Constitution was adopted. If classical English constitutionalism offers a way to square originalism to “history and tradition,” it also highlights the challenges of using tradition to define the scope of rights today. Under the surface, eighteenth-century jurists had questions about “history and tradition” too.

Betsy Grey, Removing Torts, 62 Harvard Journal on Legislation 135 (2024)

The common law torts system generally governs the way private harms are addressed throughout the United States. But there is a notable exception when governments decide to oust or limit common law tort remedies for certain kinds of conduct. Examples are many, including state and federal legislation proposed or implemented during the COVID-19 pandemic to shield industries from liability; federal legislation shielding airlines from liability arising from the 9/11 attacks; federal legislation shielding gun manufacturers from claims stemming from violent crime; federal legislation granting immunity to social media platforms for harm from materials posted by third parties; and state workers’ compensation programs shielding employers from liability for harms in the workplace.

This article does not specifically question the power of governments to override or preempt private law obligations; it assumes that the power exists. Instead, drawing from the examples above, the article explores from a policy perspective the competing interests involved in the exercise of that power—both the interests served and disserved by granting liability immunity. Given the important consequences of how this balance is struck, this article proposes a roadmap of factors and findings that governments should weigh before granting immunity to private industry. Without a general framework, the governmental process may appear to be—and may in fact be—arbitrary or the result of political favoritism and regulatory capture. When torts are removed, the significant values promoted by the common law, such as deterrence, redress, and exposure of substandard behavior, may be undermined and citizens may lose their confidence in the government’s ability to protect them from harm. To justify that result, the interests advanced by granting immunity should be sufficiently compelling. Consequently, the decision-making framework includes four main areas of inquiry: 1) identifying the public interest served by protecting the industry from tort liability; 2) determining the reasonably anticipated threats to the industry from liability exposure, including the likelihood of successful lawsuits; 3) examining the likely impact of immunity on tort policies, particularly with regard to the accountability, deterrence, and compensation functions traditionally provided by torts; and 4) assuming that some immunity is warranted, tailoring immunity to minimize interference with tort policies.

Zach Gubler, The “Section 122 Revolution” in Delaware Corporate Law and What to Do About It, 110 Cornell Law Review Online 31 (2025)

Recently, the Delaware General Assembly amended Delaware’s corporate code to allow boards to delegate their decision-making powers to stockholders via contract. These amendments are significant because they effectively overturn a recent Delaware Chancery opinion. They’re also problematic, for two reasons: (1) because they are out of step with the best reading of Delaware corporate law—what I have referred to elsewhere as “the perpetual entity model” of the corporation and (2) because they are inconsistent with Delaware law’s tendency to eschew monetary penalties in favor of a system built on informal reputation-based sanctions and norm internalization, all of which assumes that the board is at the helm. These problems could be largely addressed by limiting the amendments’ application to contracts with stockholders that either exercise control or are themselves members of the board. Otherwise, the law as written threatens to destabilize what we know about what corporations are and how corporate law works.

James G. Hodge, Jr. & Maxwell Lauzon, Diminution of Public Health Agency Authorities Post-Loper, 52 Journal of Law, Medicine & Ethics 936 (2025)

In a new era of regulatory oversight, the U.S. Supreme Court upended traditional Chevron deference to agency interpretations of ambiguous Congressional provisions in Loper in June 2024. Federal courts were instructed to make their own assessments of statutory authorities amid an onslaught of public health agency challenges surfacing nationally. Even so SCOTUS may be eying further limits on agency powers despite clear and substantial repercussions for the health of the nation.

James G. Hodge, Jr., Legal Underpinnings of the Great Vaccine Debate of 2025, Journal of Law, Medicine & Ethics (forthcoming 2025)

Multiple factors aligning in 2025 implicate challenges to vaccines as a primary public health tool. Anti-vaccine proponents seek to recast immunization policies in promotion of perceived individual liberties. Recalibrating national vaccine approaches, however, runs counter to long-standing public health laws and policies grounded in a core truth: safe and effective vaccines save lives. As discussed herein, the significant possibility of a national vaccine overhaul led by the federal government necessitates manifold legal arguments, maneuvers, and options to obviate predictable reductions in life expectancies and rises in morbidity.

James G. Hodge, Jr., Legal Strategies Countering Federal Public Health Data Purges, Journal of Law, Medicine & Ethics (forthcoming)

Ongoing efforts among federal agencies to expunge public health data from websites and other media in line with Trump administration directives on “gender ideology” and other themes has led to widespread confusion, angst, and concern among health officials, medical practitioners, and patients. It has also generated legal claims seeking to reverse and stop public health data purges. Framed within statutory or constitutional limits, legal strategies countering these data policies help assure access to core public health information essential to specific services, care, and outcomes.

Orde F. Kittrie & Claire Finkelstein, Evolving the Civilian Harm Mitigation and Response Action Plan to Support Precision Lethality and Effective U.S. Military Operations, Center for Ethics and the Rule of Law Briefing Paper (March 14, 2025)

U.S. Combatant Commands and other operational commands around the world have identified lessons and developed important tools to protect civilians and to counter efforts by adversaries to put civilians at risk. DoD’s CHMR program is responsible for identifying and institutionalizing these lessons for warfighters and helping them apply these tools in exercises and operations.  One of the most challenging aspects of its mission is to help develop capabilities and procedures to address the illegal use of human shields by adversaries, including in urban environments and future LSCO. DoD’s efforts, therefore, would benefit from being re-tooled with a stronger focus on helping America’s military counter the efforts of its adversaries, particularly with regard to techniques like human shielding that place civilians at grave risk, ensuring that guidance actually enhances precision lethality, and equipping combatant commanders with data science tools and objective metrics needed to counter manipulation of the information environment.

The focus on civilian harm mitigation is critical for the mission effectiveness and precision lethality of U.S. forces. A retooled CHMR program could help the United States further hone its warfighting skills, enhance precision lethality, learn from the experience of our allies such as Israel who have been grappling with the problem of minimizing civilian casualties when fighting an enemy that uses civilians as human shields, and develop new technologies that will both assist with mitigating civilian harm in war and enhance lethality in both counter-terrorism operations and ultimately in large-scale combat operations.

Rhett Larson, Day Zero: How Cities Run Out of Water (Cambridge University Press) (forthcoming 2026)

This book is a comparative legal analysis of the water crises faced in recent years by Cape Town, Chennai, and Mexico City, and draws water policy lessons from those crises for other cities.

Stacy Leeds & Rebecca Tsosie et al., American Indian Law: Native Nations and the Federal System (8th ed., Carolina Academic Press) (forthcoming 2025)

Now in its eighth edition, American Indian Law: Native Nations and the Federal System reflects the deep and thorough treatment of Federal Indian law that has been the hallmark of this book since its first edition in 1973, as the first casebook on this topic. The volume fosters a comprehensive understanding of the political relationship between American Indian and Alaska Native Nations and the United States.

The volume also includes a discussion of the Indigenous histories and voices that inform the broader understanding of “Indigenous rights,” including a discussion of Indigenous human rights and the rights of Native Hawaiian people. The Indigenous co-author team has created an accessible volume that synthesizes the treatise-like material from the last edition and modernizes the approach to a complex field of law.

Through the cases and materials, the book explains the historical and current context of federal, state, and tribal relations and provides a thorough foundation to understand the rights of tribal Nations, including rights to land, water, natural resources, and cultural resources.

Stacy Leeds & Lauren van Schilfgaarde et al., Tribal Nations and Abortion Access: A Path Forward reprinted in Gender and the Law (Aníbal Rosario Lebrón et al. eds., Thomson Reuters 2024)

In the wake of Dobbs and its upending the constitutional right to abortion care, commentators have explored the possibility of an abortion “safe harbor” in Indian country. These narratives largely contemplate co-opting tribal sovereignty to provide safety from state criminal and civil liability for non-Native people seeking abortion care. It does not consider the complicated legal and practical considerations that would face Tribes pursuing this strategy, nor the risk to providers and patients. Moreover, Indigenous people are already less likely to receive abortion care. Native reproductive care has long been the target of assimilationist and even genocidal policies, while also being greatly underfunded and neglected, resulting in a population with devastating rates of violence and maternal mortality, and with extremely limited access to abortion care.

However, despite numerous legal hurdles, and a historical context steeped in restricted reproductive health, Tribes, as sovereign nations, may be a position to fill a part of the enormous health care gap to serve their citizens and communities. Tribes have numerous reasons to be unsatisfied with the prospect of delegating their regulatory authority regarding reproductive care to the states. Native authority generally is under increasing threat from state encroachment and federal disestablishment, including in the most recent U.S. Supreme Court holding in Indian law, Oklahoma v. Castro-Huerta. But more fundamentally, Tribes have sovereign obligations to their Indigenous citizenry that include robustly asserting Native reproductive well-being as a human right, and zealously defending that right.

This article outlines the legal realities of providing abortion care in Indian country, particularly in the context of avoiding state prohibitions. Abortion care is a fundamental human right of Indigenous people. The ability to safely end a pregnancy is consistent with Tribal conceptions of autonomy, privacy, and individual self-determination.

Erik Luna & Weldon Angelos, Proposed Clemency Criteria for Federal Marijuana Convictions, Academy for Justice and Drug Enforcement and Policy Center White Paper (March 2025)

Marijuana laws in the United States vary by state, with some states allowing recreational use and others only allowing medical use. At the federal level, marijuana is still illegal, however, banned as a Schedule 1 substance under the Controlled Substance Act. The disconnect between state laws and federal laws is growing. As of December 2024, 39 states allow for medical use of marijuana and 24 states allow for recreational use, while a proposed change in federal rules would reschedule marijuana from Schedule 1 to Schedule 3. With the laws constantly evolving, and calls for legalization at the federal level growing louder and louder, what happens to the people still affected by the federal war on marijuana at the twilight of national prohibition? This white paper proposes clemency criteria for non-violent, federal marijuana convictions. It concludes by offering next steps for both executive and legislative action. With the President’s leadership, this Administration and Congress can assure that individuals haunted by marijuana arrests and convictions will finally have the clean slate they deserve.

Gary E. Marchant et al., Governing New Technologies that Stop Biological Time: Preparing for Prolonged Biopreservation of Human Organs in Transplantation, 25 American Journal of Transplantation 269 (2025)

Time limits on organ viability from retrieval to implantation shape the US system for human organ transplantation. Preclinical research has demonstrated that emerging biopreservation technologies can prolong organ viability, perhaps indefinitely. These technologies could transform transplantation into a scheduled procedure without geographic or time constraints, permitting organ assessment and potential preconditioning of the recipients. However, the safety and efficacy of advanced biopreservation with prolonged storage of vascularized organs followed by reanimation will require new regulatory oversight, as clinicians and transplant centers are not trained in the engineering techniques involved or equipped to assess the manipulated organs. Although the Food and Drug Administration is best situated to provide that process oversight, the agency has until now declined to oversee organ quality and has excluded vascularized organs from the oversight framework of HCT/Ps. Integration of advanced biopreservation technologies will require new facilities for organ preservation, storage, and reanimation plus ethical guidance on immediate organ use versus preservation, national allocation, and governance of centralized organ banks. Realization of the long-term benefit of advanced biopreservation requires anticipation of the necessary legal and ethical oversight tools and that process should begin now.

Ben McJunkin, Consent & Causation, 112 Virginia Law Review (forthcoming 2026)

In criminal law, the doctrines surrounding sexual consent and proximate causation are both thought to reflect conclusions about individual autonomy. But these doctrines diverge in striking ways. In rape law, the choice to consent to sex is deemed sufficiently autonomous even when made in response to threats or coercion, when induced by fraudulent misrepresentations, or when produced by mental impairment. By contrast, the doctrine of proximate causation holds that choices made in response to force, coercion, fraud, or mental impairment are insufficiently autonomous, and therefore an individual is not morally responsible for any resulting consequences. This divergence invites a crucial question: Does the law of proximate causation capture something important about individual autonomy that has been overlooked in the law of sexual consent? After all, sexual consent frequently plays a causal role in normatively desirable sexual encounters. Yet the structure of U.S. rape law elides any inquiry into causation. Might rape law be improved—might it better protect individual autonomy—by demanding that sexual consent be a proximate cause of sex itself?

This Article is the first to raise this question and undertake this inquiry. By juxtaposing consent and causation in criminal jurisprudence, it reveals an inconsistency in the understandings of autonomy that motivate those doctrines, shedding new light on longstanding criticisms of rape law. This Article then makes a preliminary case for reforming rape law by recasting sexual consent as a matter of proximate causation. It offers three grounds for doing so: First, philosophical accounts of sexual autonomy require an individual to be able to control the character and circumstances of sexual contact, a requirement that is only vindicated when consent causally contributes to sexual activity. Second, the best understanding of consent’s exonerating role in sex is that consent alters another person’s reasons for acting, a function that can only occur when consent causally motivates sexual behavior. Lastly, the leading accounts of when sex is normatively desirable rest on a conception of mutuality—that is, responsiveness to the other person’s active consent. In short, this Article advances the novel claim that sexual activity is normatively desirable when it occurs because it is consented to, not merely whenever it is consented to.

The Article concludes by considering how rape laws may be reformed to leverage the normative insights just uncovered. It first examines the recent revisions to the sexual assault provisions of the Model Penal Code adopted by the American Law Institute in 2022. Those revisions, for the first time, included both requirements of causation and requirements of nonconsent. But the Model Penal Code’s revisions hew too closely to traditional rape laws, ultimately failing to capture the broad spectrum of normatively undesirable sex that warrants criminalization. The Article instead reconfigures rape as primarily a result crime, prohibiting specific wrongful means of causing sexual intercourse and exonerating sex when consent is the proximate cause. A rape law structured around the causes of sexual intercourse may best capture our normative intuitions about why and when consent matters.

Caitlin Millat, Education as a Democratic Prism: Warnings and Wisdom from America’s Schools, 73 Cleveland State Law Review 353 (2025)

Seventy years after the passage of Brown v. Board of Education, many believe that we remain far from achieving Brown’s lofty promises of educational equity. In an increasingly polarized political environment rife with disinformation and discontent, we seem particularly far from Brown’s belief that public education should work to shore up democratic health. Instead, public education is underfunded, underresourced, and profoundly unequal, and American democracy remains under threat.

This Symposium contribution suggests that by taking a closer examination at the state of America’s schools, we can gain insight into both democratic deficiencies and bright spots for the future of American democracy. In doing so, it takes seriously the idea that the schoolhouse acts as a microcosm for and window into the nation’s democratic health. And, more broadly, it seeks to begin to move past partisan lines in an attempt to harness interest in public education to achieve broad-base reforms that could benefit all students – and democracy as a whole.

Trevor Reed, Cohen’s Handbook of Federal Indian Law (Nell Jessup Newton & Kevin K. Washburn et al. eds., LexisNexis 2024)

Cohen’s Handbook of Federal Indian Law is an encyclopedic treatise written by experts in the field, and provides general overviews to relevant information as well as in-depth study of specific areas within this complex area of federal law. This is an updated and revised edition of what has been referred to as the bible of federal Indian law. This publication focuses on the relationship between tribes, the states and the federal government within the context of civil and criminal jurisdiction, as well as areas of resource management and government structure.

For this edition, Nell Jessup Newton continues in her editorial role as co-editor-in-chief, along with Dean Kevin K. Washburn, who has contributed to the project since the 2005 edition, in addition to a roster of new and returning contributing authors – all experts in their respective fields.

In the 2024 Edition of the Handbook, the authors have relied on the excellent treatment of many areas of federal Indian law in the 1982 edition and also continued practices tracing back to the first edition, such as by providing a full treatment of the federal programs and services available to Indians and Indian tribes. New for the 2024 edition are many updates and a full chapter on administrative policymaking.

Troy Rule, Rural Solar Rights, 51 BYU Law Review (forthcoming 2025)

Utility-scale solar projects on private land – the fastest-growing form of energy development in the United States today – generate low-cost, carbon-free electricity and can invigorate rural economies. However, they are also attracting unprecedented local opposition as municipal governments across the country adopt ordinances prohibiting or severely restricting solar farm development within their jurisdictions. Fortunately, state legislatures have multiple means of preventing municipal governments from unreasonably restricting solar energy. Among other things, states can legislatively preempt excessive local solar siting restrictions, manage more solar project permitting at the state government level, or statutorily require municipalities to classify solar farms as a “permitted use” within certain land use zoning districts. Such legislative strategies comprise a new generation of “solar rights” laws analogous to decades-old statutes in some states that prohibit cities and homeowner associations from unreasonably restricting rooftop solar installations. As federal support for utility-scale solar softens under the new Trump administration and local roadblocks to these projects become more commonplace, the need for a new generation of state solar rights statutes is greater now than ever. This Article describes and analyzes the growing local opposition to rural solar energy and ultimately argues for a wave of new state legislation designed to strengthen rural landowners’ rights to develop utility-scale solar projects on their land.

Michael J. Saks, The Continuing Risk of Forensic Error and Fraud, 49 Seton Hall Journal of Legislation and Public Policy 135 (2025)

Evidence generated by the proper practice of forensic science disciplines can aid greatly in exonerating the innocent, as it did, for example, in the cases of Kevin Baker and Sean Washington, detailed in the Introduction to this symposium. However, poor products of forensic science can still be generated and can contribute to miscarriages of justice, as was the case with the bitemark testimony in the 1995 conviction of New Jersey exoneree Gerard Richardson. Lawyers and the courts that evaluate the tenability of such claims would benefit from knowing what to look for in evaluating such claims.

The problems range from poor science (some techniques that are invalid and others that have not been validated as they should have and could have been) to the failure to install the kinds of methodological protections against error that are routine in settings dominated by normal science, to the all-too-human tendency to want to help one’s team win its case, even if that sometimes means distorting the (good, bad, or indifferent) science to make it appear more incriminating than it actually is, to skipping over science altogether (i.e., “drylabbing”). Instances of error and fraud in forensic expert reports and testimony can be uncovered, if at all, with difficulty. Consequently, legal “barriers to the convicted innocent” compound an already great challenge.

In what follows, I try to illustrate those risks, and argue that improvements in any and all phases of the legal process, including postconviction processes, can improve the courts’ ability to detect and correct errors.

Jennifer Selin & Pamela J. Clouser McCann, Constraining the Executive Branch: Delegation, Agency Independence, and Congressional Design of Judicial Review, 119 Northwestern University Law Review 1273 (2025)

While scholarship examining the relationship between Congress, federal agencies, and the judiciary reveals variation in the statutory details that affects administrative and judicial decision-making, few studies explore the extent to which congressional delegation decisions balance both the substantive and procedural independence of agencies against the possibility of the federal judiciary’s review of administrative action.

This Article enhances scholarly understanding of delegation by providing a qualitative, theoretical, and empirical account of the circumstances under which Congress manipulates federal agency exposure to the federal judiciary. Ironically, combined with statutory provisions dictating agency independence, increasing an agency’s exposure to unelected federal judges can increase administrative responsiveness to elected legislators.

Using a motivational case study of federal energy policy from the 93rd to 110th Congresses, this Article highlights how, during the legislative process, Congress’s members’ delegation decisions account for agency independence and administrative exposure to the courts. Based on the findings of this case study, the Article develops a new theoretical account of legislative choices over Executive Branch exposure to the federal judiciary. This Article then presents an empirical examination of significant legislation from the passage of the Administrative Procedure Act through 2016 to assess the factors influencing legislative choices regarding delegation, agency independence, and Executive Branch exposure to the judiciary.

In doing so, this Article makes several important contributions. First, by broadening scholarly discussions of agency design, delegation, and administrative responsiveness to elected officials, the Article illustrates how underappreciated factors—including political volatility, technical uncertainty, and administrative structure—influence the parameters under which Congress delegates. Along with agency independence, political coalitions strategically adjust the availability of judicial review to account for the practical realities of governance. Specifically, political coalitions increase administrative exposure to the courts as political volatility and the autonomy of agency leadership increase. Political coalitions decrease agency exposure to the courts as the complexity of the administrative policy arena increases and the availability of political review decreases.

Considered in its entirety, this Article suggests that legislative decisions regarding judicial exposure can enhance or diminish the effectiveness of other statutory and constitutional tools of democratic accountability, such as administrative procedures or oversight. Simply put, the level of administrative exposure to the judiciary has profound implications for the American separation of powers system of governance.

Jennifer Selin & Lauren Mattioli, Independent Justice? U.S. Attorneys as a Case Study of Political Appointments, University of Michigan Journal of Law Reform (forthcoming 2025)

Concerns over presidential use of federal prosecution as a political weapon and the overall independence of the Department of Justice have increased in recent years.  While most scholarship exploring this possibility has focused on the legal and political forces that influence prosecutorial discretion, few studies have identified the varying ways that federal prosecutors obtain their jobs or how those processes affect who serves in the role of U.S. attorney.  This is a consequential oversight, as U.S. attorney appointments provide an informative case study of the legal frameworks, historical conventions, and politics that influence presidential appointments more generally.

In this Article, we illustrate how historical battles across different branches for control of federal prosecution has resulted in current legal frameworks that provide for at least seven different U.S. attorney appointment mechanisms.  We then provide both qualitative examples and quantitative analysis of U.S. attorney appointments from 1970 to 2022 to evaluate whether U.S. attorneys appointed through the “traditional” presidential nomination and Senate confirmation process have different backgrounds and careers than U.S. attorneys who obtain office through “non-traditional” methods, including appointment by federal district courts. 

We find that, like with other political appointees, U.S. attorneys are increasingly likely to obtain their jobs through “non-traditional” methods.  In addition, U.S. attorneys appointed through these methods differ from their presidentially nominated and Senate confirmed counterparts in important ways.  While these findings may raise alarm bells for those who worry that presidents increasingly circumvent Senate confirmation of political appointments to further executive control of government, this Article illustrates that “non-traditional” appointments are the result of over two centuries worth of bargaining between the branches over the power of appointment.

Jennifer Selin & Pamela J. Clouser McCann, The First Branch: How Congress Manipulates Judicial Review of Administrative Action, 111 Iowa Law Review (forthcoming)

The text of the U.S. Constitution is a result of a political compromise that granted Congress the authority to define the jurisdiction of all inferior federal courts and the appellate jurisdiction of the Supreme Court.  While important scholarship has explored the parameters under which Congress may exercise this authority, few studies have examined congressional use of federal jurisdiction-stripping provisions as part of a larger statutory framework designed to control the administrative state.

This Article fills this gap by providing a novel theoretical and empirical account of the circumstances that motivate Congress to restrict the jurisdiction of federal courts to review administrative action.  Notably, Congress engages in jurisdiction-stripping in this context to accommodate uncertainty regarding how legislative delegation to the executive branch will result in real world outcomes.

Using empirical data on the jurisdiction-stripping provisions included in all significant legislation enacted after the passage of the Administrative Procedure Act through 2019, this Article  demonstrates Congress constructs judicial review based on the legislature’s assessment of the extent to which elected officials are able to exert influence over final agency actions; volatility in the political world; and the ideological makeup of all three branches of government.  Notably, Congress is more likely to strip federal courts of their ability to review the final administrative actions of the same agencies that are protected by statute from political review.  These findings have profound implications for those who consider the constitutional context in which the administrative state operates.

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Angela Banks, A Human Rights Approach to Membership and Belonging in Nordic Perspectives on Human Rights Education (Audrey Osler & Beate Goldschmidt-Gjerløw eds., Routledge 2024)

One fundamental task that all states must address is who are the members of the state. State membership dictates what rights an individual has vis-à-vis the state and what responsibilities an individual has to the state. The traditional approach to conceptualizing state membership is citizenship. States enact rules dictating who is eligible for citizenship, the process for obtaining citizenship, what rights attach to citizenship, and what responsibilities citizens have. Yet a gap often exists between people who have significant connections with the state through social, political, and economic engagement and people who are eligible for citizenship. This gap causes the citizenship approach to membership to be under-inclusive, and to deny important rights to state residents. International human rights provide an alternative approach to membership—one based on personhood. This approach to membership offers an opportunity to reshape national identity around a set of connections and engagement with the state that is broader than bloodlines and place of birth.

The citizen/non-citizen distinction is often viewed as a legitimate means of determining who is deserving or underserving of rights, protection, and opportunity. A human rights approach to membership challenges the distribution of power resulting from a citizenship approach to membership. As many chapters in this volume illustrate there is often an asymmetry between human rights rhetoric and human rights implementation. For example, schools committed to human rights education may provide instruction about key human rights, but the lessons about human rights violations focus on events abroad and there is silence about human rights violations at home. One strategy to minimize this asymmetry is to increase the legal literacy of teachers and students. Increased human rights literacy offers an opportunity to not only expand education about human rights, but education through human rights and for human rights. This tripartite approach to human rights education can enable teachers and students to expand their conceptions of membership and belonging in democratic societies.

Dan Bodansky, Nitpicking Justice, 38 Temple International & Comparative Law Journal 141 (2024)

When legal niceties get in the way of justice, which should give? The answer might seem obvious: how could it be appropriate to insist on upholding legal technicalities when justice is at stake? But legal “technicalities” such as jurisdiction and standing are at least part of what makes law a distinctive enterprise, separate from morality. So, if we think the legal enterprise has value, then to what extent are legalisms worth upholding, even when they lead to injustice in an individual case?

These familiar questions about the relationship of law and equity, procedure and substance, occurred to me as I read Philippe Sands’ beautifully written new book, The Last Colony. The book movingly describes the grave injustice done to the people of the Chagos Archipelago by Great Britain, which forcibly removed them from their homes in the late 1960s and early 1970s and–shamefully– continues to deny them the right to return. In Sands’ inimitable, highly personal style, he tells the story of the quest to use international law to remedy this injustice–a story in which he himself played a key role.

Karen Bradshaw et al., Living the Good Life in the Anthropocene, 54 Environmental Law Reporter 10857 (2024)

The Stockholm Resilience Centre has concluded that the number of “planetary boundaries” we are crossing has increased from three in 2009, when the Centre’s researchers first introduced the concept, to six in 2023. Crossing these boundaries means humans are changing basic attributes of planetary systems to the point of risking the future of civilization. And the distinction between “safe” and “just” planetary boundaries raises questions regarding how to conceptualize the “good life.” In this latest in a biannual series of essays, members of the Environmental Law Collaborative explore conceptions of the “good” as well as the various elements necessary to a good life in the Anthropocene, from choice to respect to requirements like freshwater to amenities like outdoor recreation.

Ellen Bublick, Duty of Care Factors: Principle and Policy Decisions in the United States in Torts on Three Continents (Kylie Burns et al. eds., Oxford University Press 2024)

The story of duty of care in tort law is a story of substantive values. This chapter examines both substantive factors at work in recent US duty-of-care decisions, and doctrinal tests employed to frame those choices. It finds that the 50 state systems employ a wide range of tests, yet have a deep structure that pervades. The chapter also addresses some of the substantive factors salient in US decisions. In negligence cases, US courts are much more concerned with protecting against physical harm than against economic loss. Within the physical injury realm, harm-prevention rationales are particularly important to US explanations and holdings. One critical area to fostering the physical security of persons arises in the context of people who do not have previously recognized special relationships with each other—duties to strangers. In this area, although US state supreme courts are hesitant to embrace a ‘duty to the world,’ they increasingly recognize a duty within ‘webs of relationship’—for example, in supply chains or shared work environments. Another area of increased substantive attention is equality of persons.

Laura Coordes, Harrington v. Purdue Pharma: As We (Don’t) Forgive Our (Non) Debtors, 27 Green Bag 291 (2024)

Bankruptcy cases don’t always make the mainstream news, but the Supreme Court’s decision in Harrington v. Purdue Pharma made a splash this summer. Purdue involved the opioid epidemic, a wealthy and mysterious family, and that family’s response to mass tort litigation that threatened to drain their wealth.

In Purdue, the Supreme Court held that the Bankruptcy Code does not authorize the use of non-consensual non-debtor releases, essentially saying that bankruptcy law does not permit a release of and injunction against claims directed toward a non-debtor without the claimants’ consent.

Laura Coordes, Can a Bankruptcy Trustee Avoid a Transaction if No Creditor Could Have Done So Outside of Bankruptcy?, 52 Preview of United States Supreme Court Cases 8 (2024)

Prior to bankruptcy, debtor All Resort Group paid its principals’ federal tax debts to the Internal Revenue Service. The bankruptcy trustee subsequently sought to avoid those transfers using a Bankruptcy Code provision that allows the trustee to avoid a transfer that is voidable under state law by an actual creditor. The United States objected, arguing that because sovereign immunity would have precluded relief under state law, the trustee could not obtain a different result in bankruptcy.

Aaron X. Fellmeth, Introduction to International Business Transactions (2nd ed., Edward Elgar 2024)

This updated textbook explains the legal concepts, regimes and actors that regulate international business transactions. The book guides readers through the major aspects of international business law using state-of-the-art teaching techniques and offers comprehensive coverage on key treaties, legal aspects of international commerce and the regulation of global trade and investment.

James G. Hodge, Jr., Public Health Law in a Nutshell (5th ed., West Academic 2025)

Public Health Law in a Nutshell, 5th Edition provides a core assessment of the critical role of law in America to protect communal health. As examined throughout the text, the field of public health law encompasses constitutional powers, legislative authorities, and extensive regulations in promotion of public health and safety. It also features legally-supported efforts contravening these objectives, leading to underlying tensions and difficult balances. The 5th Edition of the Nutshell addresses public health law issues, broadly defined, within a modern framework undergirding law as a premier tool for improving health outcomes. Updated to reflect key developments through July 2024, the Nutshell’s 12 chapters and 150+ graphics, illustrations, and figures examine definitive legal issues and core public health powers to prevent and control communicable and chronic conditions, as well as limit avoidable injuries and deaths. Legal routes and options countering other public health threats, including tobacco and alcohol use, guns, vehicles, and defective products, are also explored. Later chapters of the Nutshell focus on key legal issues related to public health information surveillance and privacy, commercial speech regulation, the built environment, and emergency legal preparedness and response. Chapter 12 centers on the dynamic legal and policy issues implicated during the multi-year COVID-19 pandemic. A “nutshell like no other,” this edition is a go-to resource for legal or public health practitioners, law- and policy-makers, regulators, judges, and college or graduate students in schools of law, public health, medicine, or other disciplines seeking to comprehend these issues as part of their coursework or research interests.

James G. Hodge, Jr., Jennifer L. Piatt & Erica N. White et al., Supreme Court Impacts in Public Health Law: 2023-2024, 52 Journal of Law, Medicine & Ethics 484 (2024)

In a “mixed bag” 2023-2024 session, the U.S. Supreme Court issued a series of decisions both favorable and antithetical to public health and safety. Taking on tough constitutional issues implicating gun control, misinformation, and homelessness, the Court also avoided substantive reviews in favor of procedural dismissals in key cases involving reproductive rights and government censorship.

James G. Hodge, Jr., Legal Resource Guide, Western Regional Alliance for Pediatric Emergency Management (2024)

A guide outlining legal and policy issues related to public health emergency declarations and healthcare response to disaster. Included are legal considerations from the recent disasters, licensing, credentialing, and privileging, telehealth, indemnification, family reunification, data, etc.

James G. Hodge, Jr. & Maxwell Lauzon, Diminution of Public Health Agency Authorities Post-Loper, Journal of Law, Medicine & Ethics (forthcoming 2025)

In a new era of regulatory oversight, the U.S. Supreme Court upended traditional Chevron deference to agency interpretations of ambiguous Congressional provisions in Loper in June 2024. Federal courts were instructed to make their own assessments of statutory authorities amid an onslaught of public health agency challenges surfacing nationally. Even so SCOTUS may be eying further limits on agency powers despite clear and substantial repercussions for the health of the nation.

Gary E. Marchant, AI in Robes: Courts, Judges, and Artificial Intelligence, 50 Ohio Northern University Law Review 473 (2024)

The legal system, courts, and judges in particular, are often criticized for being slow to address new technologies. That has not been the case with artificial intelligence (“AI”), especially since the public release of generative AI programs such as ChatGPT. In the last couple of years, the court systems and individual courts have proactively taken steps to anticipate and prepare to deal with issues created by AI. These actions include both steps to allow courts to take advantage of the benefits offered by AI, and to be prepared to identify and mitigate the risks created by AI. This rare technological activism by the courts reflects an understanding of the profound impacts that AI is likely to have on the legal system and society.

This Article reviews the actions that courts have taken to address AI. Part I examines the role of the courts in policing the inappropriate use of AI by attorneys. Part II describes the courts’ utilization of AI in their operations, both in administrative applications and in researching and drafting judicial opinions and orders. In both supervising attorneys’ and their own use of AI, courts have acted surprisingly proactively, spurred on by the rapid speed and powerful capabilities of emerging AI tools.

Ben McJunkin, Grants Pass And The Pathology Of The Criminal Law, 102 Washington University Law Review (forthcoming 2025)

Last Term, the Supreme Court held that cities may, consistent with the Eighth Amendment, criminalize sleeping in public, even for people who have no other alternatives. That decision, Grants Pass v. Johnson, ostensibly rests on a formalistic distinction between criminalizing status, such as the status of homelessness, and criminalizing conduct, such as sleeping in public. This distinction fatally undermines the Eighth Amendment’s “status crimes” doctrine. The majority opinion has been decried by homeless advocates as inhumane and counterproductive, and the case produced a pointed dissent that has been lauded by court watchers.

As this Essay explains, however, the outcome in Grants Pass was necessitated not by the merits of a thin status–conduct distinction, but by judicial deference to an ever-expanding criminal law. The dissent’s preferred interpretation of the Eighth Amendment (in which the laws at issue impermissibly punish the “status” of homelessness) arguably implicates three distinct constitutional claims: one about the wrongfulness of punishing status, one about the wrongfulness of punishing involuntary conduct, and one about the wrongfulness of punishing in the absence of culpability. Once disaggregated, each of those claims proves to be in tension with contemporary criminal practices—neither status, nor involuntariness, nor lack of culpability currently prevents the infliction of criminal punishment. In other words, the dissent’s preferred interpretation would have unsettled a considerable amount of criminal law. Grants Pass can therefore best be understood as revealing the Supreme Court’s reticence to check states’ expansive—and expanding—approach to criminal liability.

So understood, the Grants Pass case provides an important supplement to the literature on criminal law’s political pathology, demonstrating that a federal constitutional solution is likely out of reach under the current court. Just as legislatures and prosecutors drive expansive criminalization, expansive criminalization narrows the range of constitutional remedies, even for obvious injustices such as punishing the unhoused for sleeping. Prescriptively, the Essay calls for homeless advocates to step away from the Eighth Amendment and toward doctrines—particularly under state constitutions—that more explicitly engage with the agency of unhoused individuals.

Caitlin Millat, Race, Religion, and the Antiparallel, 4 American Journal of Law and Equality 254 (2024)

The Supreme Court last Term issued its monumental decision in Students for Fair Admissions v. Harvard, which struck down a pair of race-conscious admissions policies as unconstitutional, upending a half-century of affirmative-action precedent. But importantly, SFFA did more than simply outlaw the universities’ schemes. Rather, it reshaped entirely the doctrine and narrative set forth in the Court’s earlier affirmative-action cases, offering a diametrically opposite view on the role of race – and racial discrimination – in modern America. On SFFA’s telling, an explicit consideration of race in schooling, even one meant to benefit racial minorities, was itself discrimination, an impermissible violation of the Equal Protection Clause’s mandate of total “colorblindness.” In this way, the Court told a story of a new, post-racial America, one in which racial classification may be more pernicious than racial remedy.

Critically, though, this sea change has not been the only such shift in the Court’s recent education jurisprudence. Across the same period, the Court also has transformed its approach to evaluating the role of religion in schooling, from religious exercise in educational institutions to state funding of religious activity. Indeed, for the better part of the 20th century, the Court consistently deployed the First Amendment’s Religion Clauses to enforce a “wall of separation” between church and state – or, church and public school. With the advent of the Roberts Court, however, this view changed, as the Court inverted its Religion Clause jurisprudence in the religious-schools context. Over this time, for example, the Court would issue a series of decisions that, bit by bit, permitted religion to creep into the public educational space: upholding voucher programs that siphoned funds to religious schools; permitting public funds to flow directly to sectarian institutions; and requiring districts to allow state officials to engage in public prayer.

But these race and religion shifts in the Court’s education jurisprudence have not occurred in isolation. As I argue in this reflection, one cannot properly consider the impact of Students for Fair Admissions, and the post-racial change it portends, without taking account of the Court’s increasing allegiance to and protection of religious – primarily Christian evangelical – interests. Instead, examining these movements together reveals that while these changes have taken place in chronological parallel, they have moved in opposite, or antiparallel, substantive directions. Put differently: on one hand, the Court has used its religious-schools shift to carve out increasing protections for religious exercise, crafting a narrative that the true minority in American life is the religious observer. On the other, the Court has used its race-consciousness jurisprudence to shrink protections for racial minorities, crafting a counter-narrative that attempts to erase “race” entirely.

Robert Miller, The International Law of Colonialism: Johnson v. M’Intosh and the Doctrine of Discovery Applied Worldwide, 23 Tribal Law Journal 43 (2024)

The United States Supreme Court’s first Indian law case, Johnson v. M’Intosh, was decided in 1823. In that case, the Court summarized and then applied four hundred years of international law and colonization to the Indigenous nations and peoples within the United States. Johnson is still the law in the United States today and has also influenced the jurisprudence and histories of other settler colonial countries around the world. Johnson has been cited scores of times by courts in New Zealand, Australia, and Canada, as well as by the British Privy Council. The elements or factors that make up this international law have been used by European colonizer countries since the early 1400s to establish empires around the world. These elements are plainly visible in the histories and policies of both former colonizer and formally colonized countries, as well as in these countries’ contemporary laws. For example, the elements are still present in the laws and policies of the United States, Chile, and Brazil.

Troy Rule, Electricity Affordability in Context, San Diego Journal of Climate & Energy Law (forthcoming 2025)

Recent residential electricity price increases in California have caused some to suggest the state is experiencing an electricity affordability crisis. Although the typical household in California and across the country spends less than three percent of its income on electricity, California’s soaring electricity rates can impose substantial burdens on some of the state’s lowest-income households. Why have retail electricity prices rapidly risen in California over the past decade while remaining relatively stable in others? What are the potential downsides of overly fixating on electricity affordability concerns in the context of energy policymaking? And what principles should guide policymakers in California and beyond as they confront electricity affordability challenges in the energy transition? This Article highlights the structural and contextual drivers of California’s growing electricity affordability problems and applies basic microeconomics concepts to analyze them and identify appropriate strategies for addressing them. Among other things, policymakers should resist the temptation to use retail electricity rate structures to redistribute wealth among ratepayers as a means of improving energy affordability. They should also ensure that electricity affordability policies preserve customers’ incentives to conserve power and to invest in energy efficiency improvements. And policymakers should resist calls to promote electricity affordability through reforms that discourage distributed solar energy development. California’s recent electricity price spikes are not harbingers of some looming nationwide energy affordability crisis, and electricity affordability objectives need not hinder the country’s important decarbonization efforts. With thoughtful and innovative planning, energy policymakers can continue to advance progress toward an age when all Americans have electricity service that is both affordable and environmentally sustainable.

Michael J. Saks, Can a U.S. Supreme Court Holding Die Without the Court Itself Administering the Coup de Grace?, 14 British Journal of American Legal Studies 1 (2025)

Can a holding by the U.S. Supreme Court interpreting a provision of the U.S. Constitution—which holding the Court never reversed or qualified—ever be treated as a nullity by lower courts? Suppose the reasoning on which that holding stands has come to be recognized as so unsound, so contradicted by every interpretive theory one could deploy on its behalf, that the holding stands on thin air, with nothing to support it. Could such a holding properly be ignored by lower courts as having no force? Can a lower court act contrary to the holding, or must it continue to enforce the holding unless and until the Supreme Court explicitly repudiates it? This article explores that question through the vehicle of a case that squarely illustrates the issue.

Jennifer Selin & Jordan M. Butcher, How Free is Information? Transparency in State Government, 26 NYU Journal of Legislation & Public Policy 985 (2024)

How transparent are state governments in the United States? This Article explores the functioning of important, but often underappreciated, actors in the American constitutional system – state administrative agencies – and examines variation in the existence and implementation of transparency regimes across and within all 50 states.

This Article first highlights differences that exist among state freedom of information (“FOI”) laws, focusing on three components: who can submit requests; the requirements for and exemptions to public release; and the process for appeal of agency decisions not to disclose information. Because FOI laws require the public to request access to information and permit state agencies to refuse release of records, these laws constitute “passive” transparency and have little effect without a strong administrative apparatus to facilitate implementation. Simply, FOI laws rely on administrators to interpret statutory language in ways that provide access to government information.

Because passive transparency regimes like state FOI laws require high-quality administration in order to be effective, this Article presents a novel exploratory field experiment of administrative performance across all 50 states. Specifically, this Article evaluates state implementation of FOI laws using an original empirical study of 248 state agencies’ fulfillment of the same FOI request. This study illustrates that agency-level factors such as administrative function, policy mission, and leadership influence information disclosure.

As a whole, this Article suggests the stringency of transparency law in the states only partially explains government provision of information to the public. Instead, how administrators react to internal and external pressures as they utilize their discretion to fill FOI requests constitutes a key aspect of open government.

Justin Weinstein-Tull, Traffic Courts, 112 California Law Review 1183 (2024)

Traffic courts are deeply important, but we know almost nothing about what goes on inside them. This is a problem for at least three reasons. First, traffic courts resolve over half of all cases brought into our justice system each year. Understanding how traffic courts work is thus crucial for understanding how courts themselves work. Second, traffic courts profoundly affect people’s lives. Monetary penalties from traffic court can cause people to go into debt sometimes so severe that it can take years to recover financially. Suspended driver’s licenses—another potential penalty—also have catastrophic effects on people’s livelihoods. Third, traffic courts occupy a key role in the justice system: they both sit atop our system of traffic policing and also fund state judicial branches and other state and local programs. Traffic courts enable a massive transfer of capital from motorists—disproportionately Black and Latino motorists—to the government. In short, if you care about courts, humans, or justice, you should care about traffic courts.

This Article provides the first comprehensive study of traffic courts. It makes four principal observations about their inner workings. First, traffic courts are diverse institutions—they vary by state—but some generalizations can be made. Second, traffic courts tend to be informal, lawyerless places that do not engage closely with procedural rules or other traditional indicia of legality. Third, traffic judges—often non-lawyers themselves—wield extraordinary discretion during proceedings. Fourth, traffic courts show us that our justice system is far less consistent and far more varied than we might imagine. Case outcomes rest more on lay notions of fairness than on legalistic guidance—a feature that carries the benefit of incorporating community norms into the legal system but also the risk of violating litigants’ rights.

Traffic courts also encourage us to think differently about the nature of the justice system. In particular, traffic courts present new categorical distinctions that we have not historically used to evaluate courts: between precedential and nonprecedential courts, and between more judicial and more administrative courts. This Article argues that these distinctions suggest novel ways to reform and oversee both traffic courts and the justice system more broadly.

Justin Weinstein-Tull, Voting Under Federal Election Laws in The Oxford Handbook of American Election Law (Eugene D. Mazo ed., Oxford University Press 2024)

Although states and local governments administer elections in the United States, the federal government has also occasionally enacted laws that regulate election administration. Most prominent among these laws are the National Voter Registration Act, the Uniformed and Overseas Citizens Absentee Voting Act, and the Help America Vote Act. With its recent attempt to enact the For the People Act, Congress has demonstrated an interest in more aggressively regulating election administration. This chapter discusses both the promise and the challenges of federal election laws, with an emphasis on federal election administration laws (and excluding the Voting Rights Act). It discusses the good that these laws can accomplish, but also the difficulties enforcing them. It explains how federal election administration laws fit into voting rights scholarship, and suggests avenues for future research. Building on these insights, it concludes by suggesting novel ways that the federal government could effectively administer elections while retaining the benefits of local election administration.

Justin Weinstein-Tull, Finding Equality in Local Government, 4 American Journal of Law and Equality 525 (2024)

The Fight to Save the Town: Reimagining Discarded America, by Michelle Wilde Anderson, is an extraordinary work of scholarship, journalism, and storytelling. It describes four locations around the United States, each of which has experienced what Anderson calls “citywide poverty”–poverty so widespread that it is the norm, rather than the exception. Focusing on these four places, Anderson describes the activists, advocates, organizers, politicians, government officials, and others who work to improve their cities even in the face of desperate circumstances.

The Fight to Save the Town provides insights into the relationships among social and racial inequality, government action, and human activism. Broadly, it illustrates the connections between equality and governmental structures. More specifically, I argue that the book provides a vision of equality as a product of collaboration between local governments and their residents rather than judicial decision-making. That vision, which effectively links equality with local government and structure, provides a more capacious view of equality than the traditional view that links equality with legal rights.

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Dan Bodansky, Four Treaties in One: The Biodiversity Beyond National Jurisdiction Agreement, 118 American Journal of International Law 299 (2024)

Combine and conquer. That was the strategy of those seeking to develop an international regime to address marine biological diversity found in areas beyond national jurisdiction—areas that constitute half of the world’s surface and a much greater proportion of its habitable volume. States had quite different visions for the regime. On the one hand, the European Union and other developed countries such as Australia and New Zealand wanted a conservation-oriented regime providing for the establishment of marine protected areas and setting rules for environmental impact assessments; on the other hand, developing countries wanted a resource-oriented regime that would allow them to get what they consider their fair share of the benefits of marine genetic resources and would assist them with capacity building and technology transfer. Only by combining these disparate topics in a single package was agreement possible.

Charles F. Capps, Does the Law Ever Run Out?, 100 Notre Dame Law Review (forthcoming 2025)

Although laypeople commonly believe that the job of a judge is to decide every case as the law requires, a broad consensus exists among legal scholars that the law not infrequently “runs out,” leaving the judge with no choice but to settle the parties’ dispute on extralegal grounds. That consensus is difficult to square with the plausible claim that deciding even close cases by coin toss is not only morally but legally objectionable. If following all the procedures prescribed by law for deciding a case fails to lead the judge to an outcome, then it is hard to see why the judge violates her legal duties if she settles the dispute by flipping a coin.

This Article offers a tentative defense of the popular idea that the judge’s job in every case is to follow the law to an outcome. The Article examines the features of the law that allegedly cause it to run out, including permissive rules, balancing tests, vagueness, ambiguity, silence, contradictions, and uncertainty. Tentatively, the Article concludes that none of these features causes the law to run out. More confidently, it maintains that the extent, if any, to which the law runs out depends on difficult issues in the philosophy of law, language, and value—issues that parties to the consensus that the law runs out in a significant range of cases do not appear to have worked through to resolution.

When, if ever, the law runs out has several important implications: for judicial ethics, for the proper scope of Auer deference and other legal doctrines, and for adjacent scholarly debates such as the debate over the interpretation-construction distinction.

Susan Chesler & Elizabeth Porter, Contracting for the Company’s Culture, Arizona State University Sandra Day O’Connor College of Law Paper No. 4928148 (August 30, 2024)

Company culture is not a new phenomenon. A company’s culture has always been relevant to employee retention and financial success, but recently its importance cannot be understated. Companies are not immune from the culture wars that divide the United States and countries across the globe. Increasingly, companies have become participants-willingly or not-in a wide range of social and political controversies. A company’s stakeholders in these ongoing culture wars include their employees, investors, and consumers. And those stakeholders make choices about which companies they want to work for, invest in, purchase from, and even boycott, based in part on a company’s beliefs and behaviors surrounding a variety of social issues like gender equality, diversity, and sustainability. These stakeholders are growing more critical of companies’ performative attempts to pacify them and often characterize such attempts as greenwashing or blackwashing. They expect companies to embrace these issues and incorporate their values into the way the company operates, both internally and externally. While contract drafting is rarely seen as an avenue for developing and communicating company culture, let alone as a vehicle for social change, in this article we propose that contract drafting can be used to achieve both goals. By incorporating narrative techniques and impactful language, companies can use their contracts to tell the stories of the company culture that has become so important to their success, which can in turn lead to broader social change.

Adam Chodorow, Saban, Pope, and the Benefits Theory of Taxation, Arizona State University Sandra Day O’Connor College of Law Paper No. 4932869 (September 20, 2024)

As a condition for receiving federal highway funding, Congress requires states to spend the revenues they raise from road users on the roads.  Congress justified this condition, in part, because wanted federal money to supplement—not replace—state money and, in part, on fairness grounds, essentially endorsing the benefits theory of taxation, under which taxes can be justified based on the benefits taxpayers receive.  To safeguard these federal funds and prevent legislatures from using road use revenues for other purposes, most states added anti-diversion provisions to their constitutions.  A majority specifically identified the taxes their anti-diversion provisions would cover.  However, a few—including Ohio and Arizona—adopted broad language providing that revenues from “fees, excises, or license taxes relating to registration, operation, or use of vehicles on the public highways or streets” be spent on the roads.

Despite the broad language found in Arizona’s provision, Arizona’s Supreme Court—relying in part on Ohio’s jurisprudence—narrowly construed the state’s anti-diversion provision to apply only to a narrow class of taxes.  This article considers Arizona’s jurisprudence—and in particular cases considering the rental car taxes used to fund Cardinal stadium and a rental car facility at Phoenix’s Sky Harbor airport—to show how the courts have gone astray, drifting further and further away from the provision’s underlying purpose, shortchanging drivers whose money is being spent for non-road purposes, and potentially putting Arizona’s federal highway dollars at risk.

Laura Coordes, Bankruptcy and the Public-Private Divide, Arizona State University Sandra Day O’Connor College of Law Paper No. 4920184 (September 11, 2024)

The Bankruptcy Code draws a firm line between “municipalities” and other entities. In reality, numerous entities exist that could be categorized as falling somewhere between a purely public municipality and a private entity. This incongruence between theory and practice creates two primary sets of problems. First, when a “blended entity” seeks to file for bankruptcy, the relief it receives from the bankruptcy system, if any, may be practically inappropriate or constitutionally suspect. Second, blended entities’ use of the bankruptcy system creates uncertainty, which parties and courts can capitalize on to manipulate the system. The result is incoherent bankruptcy law, which in turn spurs more uncertainty. This cycle of uncertainty, manipulation, and incoherence parallels that which is occurring in larger bankruptcy cases involving business debtors. This Article is the first to take an in-depth look at blended entities and the problems that ensue when they attempt to use a bankruptcy system that does not contemplate their existence. In doing so, it contributes to the larger debate about the usefulness of the current Bankruptcy Code in light of manipulation of the bankruptcy laws and exposes a core weakness in the Code’s inability to recognize the blended nature of many of the entities that form the backbone of the U.S. economy, providing the services the public has come to rely on in everyday life.

Laura Coordes, The Anti-Modification Rules’ Application to Mixed Property: “It depends on what the meaning of the word ‘is’ is”, 44 Bankruptcy Law Letter 1 (September 2024)

Last May, in Lee v. U.S. Bank, the Eleventh Circuit split with the First and Third Circuits on the question of when real property is subject to the Bankruptcy Code’s anti-modification rules. Circuit splits sometimes receive a great deal of attention; this particular split, however, did not seem to generate quite so much commentary, at least initially. This may be due to the highly technical nature of courts’ analysis of the anti-modification provisions; after all, much of the majority and dissent’s disagreement in the Eleventh Circuit rested on conflicting interpretations of the word “is.” Or, it may be due to the fact that the Eleventh Circuit’s decision was the first at the circuit-level to address this anti-modification question in some time; the First and Third Circuits’ decisions date back 28 and 18 years, respectively.

Despite the relative lack of commentary on the Eleventh Circuit’s decision, this Bankruptcy Law Letter posits that the decision, and the potential trend it represents, raise issues worth exploring. I will begin by walking through the state of the anti-modification analysis prior to Lee, examining the statutory anti-modification rules, their legislative history, and the case law interpreting them. I’ll then examine and critique the Eleventh Circuit’s ruling in Lee and provide some thoughts about where anti-modification analysis ought to go from here. The issues surrounding the Code’s anti-modification provisions speak to the desirability of chapter 11 and chapter 13 bankruptcy for debtors, and their resolution will impact the Code’s ultimate balance between debtors and creditors.

Laura Coordes, Exploring the Reach of Redwater, 43 American Bankruptcy Institute Journal 22 (2024)

In 2019, the treatment of environmental remediation costs in Canadian insolvency proceedings shifted significantly when the Supreme Court of Canada (SCC) decided Orphan Well Ass’n v. Grant Thornton Ltd. (Redwater). The SCC’s Redwater decision gave significant support to the “polluter pays” principle, holding, in essence, that environmental clean-up orders were duties owed to the public that must be fulfilled, rather than unsecured claims that could be given low priority in a bankruptcy. Redwater is so significant that it has been covered twice before in this publication.

More than five years have passed since the SCC decided Redwater, and courts, practitioners and parties to insolvency proceedings in Canada have been both adapting to the decision’s impacts and testing its reach. This article explores two recent cases interpreting this decision, showing that Canadian case law still has many issues to tackle when it comes to Redwater’s reach.

Sandra Erickson et al., Navigating Your Legal Master’s Program: A Roadmap for Success (West Academic 2024)

The legal master’s is one of the nation’s fastest-growing degree programs, and Navigating Your Legal Master’s Program: A Roadmap for Success is the first comprehensive preparation guide to help students succeed in their chosen program – whether on-ground or online – and beyond. Written by four legal master’s degree administrators with over forty years of collective experience directing and teaching in legal master’s programs offered from prestigious law schools, this book answers the following questions for students:

1. What is a legal master’s degree and why is it beneficial?

2. What should I know about the law before entering the program?

3. What can I expect to experience in a law school classroom and how can I best prepare for it?

4. Whether I am part-time, full-time, online, or on campus, how can I connect with the law school community and what are the benefits of doing so?

In addition to delivering guidance from the authors and program administrators, the book offers valuable insights from twenty legal master’s alumni, providing a roadmap for success from those who have succeeded. Navigating Your Legal Master’s Program: A Roadmap for Success will prepare you to experience profound personal growth and act as a driving force for your professional success through your legal master’s program.

James G. Hodge, Jr. & Jennifer L. Piatt, Emergency Legal Preparedness & Response: U.S. Supreme Court Impacts, Arizona State University Sandra Day O’Connor College of Law Paper No. 4908863 (August 23, 2024)

U.S. Supreme Court (SCOTUS) opinions from the inception of the COVID-19 pandemic to date are reshaping national and regional abilities to respond to public health emergencies (PHEs). Substantial impacts in emergency legal preparedness and response include the Court’s: (1) recalibrating federal executive and administrative agency emergency authorities; (2) altering base-level rights and access to emergency care; (3) elevating First Amendment religious principles visa -vis social distancing; (4) restricting vaccination and other public health interventions; (5) asserting race-based limitations applicable in public health resource allocations; (6) addressing misinformation; (7) approaching gun violence as a public health threat; and (8) clarifying the scope of liability during and after emergencies. Against this backdrop an array of legal options and critical take-aways may help mitigate SCOTUS’ impacts to advance effective emergency responses ahead.

Rhett Larson, Quantifying Winters Rights, 48 William & Mary Environmental Law and Policy Review 659 (2024)

All reservations of federal land, including Native American reservations and national forests, have water rights. These rights are referred to as “Winters rights” after the seminal U.S. Supreme Court case. That case recognized such rights’ existence, but it did not quantify the amount of water of those rights. Federal courts have applied various approaches to quantifying Winters rights. Recent decisions in Arizona state courts have taken new and different approaches to quantification of both tribal and non-tribal Winters rights. These state court decisions have important implications for federal water rights throughout the United States. This Article examines these new approaches to quantifying Winters rights, evaluates them for their impact on equitable and sustainable water policy, and proposes reforms to better adapt the adjudication of Winters rights to responding to water variability caused by climate change.

Stacy Leeds & Angelique Wambdi EagleWoman, Mastering Native American Law (3rd ed., Carolina Academic Press 2024)

Mastering Native American Law is designed to provide readers with an overview of the field and serve as a useful supplement to classroom instruction covering Tribal nations governance and law, federal Indian law, and Tribal Nation-state government relations. In ten chapters, the book provides the reader with a foundational understanding of core concepts stemming from American Indian and Alaska Native Tribal Nations.

This third edition keeps pace with Tribal Nation legal developments in relation to policy, federal law, and court decisions, while it continues to fill a unique niche as a primary and secondary text for courses in the field. Updates are provided for key developments such as the recent U.S. Supreme Court decisions on the extent of criminal prosecutorial authority in Indian Country and the federal legislative authority for the Indian Child Welfare Act. The text also serves as a practical guide for Tribal law practitioners and lawyers that are looking to expand their knowledge of Native American law.

Gary E. Marchant & Diana Bowman et al., Learning From Emerging Technology Governance for Guiding Quantum Technology, Arizona State University Sandra Day O’Connor College of Law Paper No. 4923230 (September 13, 2024)

Quantum technology is often described as the “next big thing.”  But the past few decades have brought us a series of next big things in technology, and we have accumulated enough experience now to start to extract some lessons and recommendations from our recent history of technology governance.  That is what this article seeks to do.  It first explains what quantum governance is and why people expect it to be such a big deal.  The article then describes the existing. Limited regulations in place for quantum technologies, and then discusses some of the key governance challenges that quantum is expected to present.  It then provides three case studies of other recent “next big thing” emerging technologies – biotechnology, nanotechnology and artificial intelligence.  While each technology presents unique governance issues and challenges, the case studies extract a total of 15 lessons that may be relevant for quantum governance.  The article next examines seven types of governance frameworks that have been proposed of emerging technologies by leading international and national organizations, with each type of framework providing a different emphasis, that focus on governance that is anticipatory, agile/adaptive, equitable, sustainable, soft law, coordinated and international.  Finally, drawing from three technology case studies and the seven types of governance frameworks, the article identifies and discusses eight governance pillars that are common to each emerging technology and which collectively provide the foundation for effective governance, and project how these eight pillars will apply to quantum technology.  These analyses provide a comprehensive roadmap, lessons and recommendations for the coming challenges of quantum technology governance.

Gary E. Marchant et al., Governing New Technologies that Stop Biological Time: Preparing for Prolonged Biopreservation of Human Organs in Transplantation, American Journal of Transplantation (forthcoming 2024)

Time limits on organ viability from retrieval to implantation shape the US system for human organ transplantation. Preclinical research has demonstrated that emerging biopreservation technologies can prolong organ viability, perhaps indefinitely. These technologies could transform transplantation into a scheduled procedure without geographic or time constraints, permitting organ assessment and potential preconditioning of the recipients. However, the safety and efficacy of advanced biopreservation with prolonged storage of vascularized organs followed by reanimation will require new regulatory oversight, as clinicians and transplant centers are not trained in the engineering techniques involved or equipped to assess the manipulated organs. Although the Food and Drug Administration is best situated to provide that process oversight, the agency has until now declined to oversee organ quality and has excluded vascularized organs from the oversight framework of HCT/Ps. Integration of advanced biopreservation technologies will require new facilities for organ preservation, storage, and reanimation plus ethical guidance on immediate organ use versus preservation, national allocation, and governance of centralized organ banks. Realization of the long-term benefit of advanced biopreservation requires anticipation of the necessary legal and ethical oversight tools and that process should begin now.

Antonia Miceli, Teaching Dobbs as a Contemporary Case Study of Federalism in Action and an Introduction to the Cross-Disciplinary Nature of the Law, 17 Saint Louis University Journal of Health Law & Policy 285 (2024)

With its decision in Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court ended the constitutional right to an abortion, overturning Roe v. Wade and Planned Parenthood v. Casey, and returned the issue of legal access to an abortion to the states. Prior to Dobbs, reproductive rights and the right to an abortion were firmly situated within the substantive due process and fundamental rights coverage of law school constitutional law courses. But this coverage often falls late in, or completely outside the scope of, the required constitutional law curriculum at U.S. law schools. This Article offers the Dobbs decision as an opportunity for constitutional law professors to begin their coverage of the right to an abortion earlier in the required constitutional law curriculum in a manner that moves away from a strictly “Case-Method” study of law to a more accessible cross-disciplinary study of law.

By using Dobbs as a contemporary case study of federalism in action, constitutional law professors can utilize a rich variety of readily available resources to make the legally complex concept of federalism more approachable and accessible to a wider assortment of students, including students with learning disabilities. Professors also can use Dobbs as an introduction to the cross-disciplinary nature of the law by exploring Dobbs’ impact on other academic disciplines including medicine, business and economics, and political science, while empowering students to engage with their law school studies in a more meaningful and active manner. This Article presents exercises for both recommended uses of Dobbs, which apply different teaching modalities inside and outside the classroom, allowing constitutional law professors to support their students in developing new critical thinking skills that support a greater understanding of the law and the intersections between the legal profession and other areas of academic pursuit.

Roselle Wissler & Art Hinshaw, Comparing Joint Session and Caucus Outcomes: Factoring in Substantive Discussions and Case Characteristics, 25 Cardozo Journal of Conflict Resolution 491 (2024)

Many of the traditional components of initial joint sessions occur less frequently today than they did historically and are more likely to take place during initial caucuses than during initial joint sessions. These changes in mediation practice lead to questions about whether initial joint sessions still provide the benefits historically attributed to them and whether initial caucuses now provide not only the benefits specifically ascribed to them but also the benefits typically associated with initial joint sessions. The present Article addresses these questions while taking into consideration differences in case and mediator characteristics as well as the extent of discussions in each setting. The findings are based on the survey responses of over 1,000 mediators in general civil and family cases across eight states.

There were differences between cases that began mediation in joint session versus in caucus in several intermediate outcomes associated with the initial session, especially in civil cases, but few differences in final outcomes between cases where the disputants spent some versus no time together during the entire mediation. However, for the most part the differences disappeared or were reduced after we statistically adjusted for the extent of substantive discussions among the mediator, the disputants, and the lawyers as well as several case and mediator characteristics. Thus, the outcome differences largely appear to be explained by differences in the extent of discussions that occur during the initial mediation session as well as differences in case characteristics rather than simply by whether the disputants are together or apart during the mediation. The findings do not support some common assertions about the relative benefits of initial joint sessions and initial caucuses or the benefits of the parties being together for some time during the mediation, but they do provide evidence for the informational and relational benefits of mediation more generally.

Glenn M. Wong et al., General Counsels in Sports: An Updated and Expanded Analysis of the Responsibilities, Demographics, and Qualifications, 13 Arizona State Sports & Entertainment Law Journal 1 (2024)

This Article builds upon the prior findings of our 2017 article, General Counsels in Sports: An Analysis of the Responsibilities, Demographics, and Qualifications. That Article provided an in-depth analysis of the responsibilities, demographics, and qualifications for General Counsels of the clubs in the National Football League (NFL), Major League Baseball (MLB), the National Basketball Association (NBA), and the National Hockey League (NHL). This Article updates that work, examines the role of General Counsel within a Major League Soccer (MLS) club, and compares the backgrounds of the present MLS General Counsels to the General Counsels of the other leagues. Additionally, this Article discusses the Women’s National Basketball Association (WNBA) and the National Women’s Soccer League (NWSL); however, currently, the majority of clubs within these two leagues do not have enough internal legal counsel to provide comprehensive data for a complete analysis.

As to the NFL, MLB, NBA, and NHL, we found the following changes: (1) an increase in the number of Black/African American General Counsels, but only a very slight increase for other racial/ethnic groups; (2) an increase in gender diversity, with significantly more women General Counsels today; (3) an increase in General Counsels with prior legal experience in the sports industry; (4) an increase in General Counsels with prior experience at prominent sports law firms, most of whom assume roles within the NFL; and (5) an increase in the number of General Counsels with prior experience in an Associate Counsel role.

Additionally, when examining the MLS General Counsels in comparison to their counterparts in the other leagues, we found that MLS General Counsels are generally: (1) younger and have fewer years of prior legal experience before assuming the role; (2) of greater racial/ethnic diversity, specifically Asian/Asian American and Hispanic heritage; (3) include notably more women; (4) more likely to come from law schools and law firms of lower prestige and ranking; and (5) more likely to have prior experience working at a league office or in a prior role as an Associate Counsel.

Lastly, this Article discusses possible changes to the role of General Counsel as it adapts to broader developments in the sports industry, emerging technologies, and the changes across the legal field. In total, this Article provides an updated and expanded comprehensive understanding of the role of General Counsel.

The post New Faculty Publications – Fall 2024 appeared first on Ross-Blakley Law Library Blog.

Kenneth W. Abbott & Thomas J. Biersteker eds., Informal Governance in World Politics (Cambridge University Press 2024)

Throughout the nineteenth and twentieth centuries, cooperation among nations was based on international regimes and formal intergovernmental organizations. However, since the 1990s, informal modes of global governance, such as informal intergovernmental organizations and transnational public-private governance initiatives, have proliferated. Even within formal intergovernmental organizations, informal means of influence and informal procedures affect outcomes whilst, around all these institutions, even more informal networks shape agendas. This volume introduces and analyzes these three types of informality in governance: informality of, within, and around institutions. An introductory chapter traces the rise of informal governance and suggests a range of theoretical perspectives and variables that may explain this surge. Empirical chapters then apply these and other explanations to diverse issue areas and cross-cutting issues, often using newly developed datasets or original case study research. The concluding chapter sets out a research agenda on informality in global governance, including its normative implications.

Khaled A. Beydoun, The New Crusades: Islamophobia and the Global War on Muslims (University of California Press 2023)

The New Crusades examines Islamophobia as a global phenomenon, detailing how the American War on Terror has facilitated and intensified the network of anti-Muslim campaigns unfolding across the world. At a juncture when both democratic and authoritarian regimes across the world are vested to persecuting their host Muslim populations, The New Crusades interrogates–through trenchant analysis and direct testimony of Muslims on the ground–how Islamophobia stands as a unifying global thread of both state and societal bigotry. Whether imposed by way of Hijab Bans in democratic France or the network of concentration camps in communist China, The New Crusades reveals–lucidly and luridly–that Islamophobia is not only a global phenomenon, but one of the world’s last bastions of acceptable hate.

Dan Bodansky & Harlan Grant Cohen, Close Relations: International Legal Realism and Cognitive-Behavioral Studies in International Legal Theory and the Cognitive Turn (Anne van Aaken & Moshe Hirsch eds., Oxford University Press) (forthcoming 2024)

Legal realism and cognitive-behavioral studies share an interest in studying empirically how individuals think and behave. For both, focusing on the actual people who practice, argue about, interpret, and implement international law is essential to explaining how international law works. The two approaches can thus mutually enrich one another; marrying legal realism’s empiricism and pragmatism with cognitive-behavioral studies’ rigor can be powerful and seductive.

But in sharpening each other’s focus, legal realism and cognitive-behavioral studies may also amplify each other’s blind spots. Considering related critiques of both legal realist and cognitive scientific approaches to international law that emphasize instrumentalism at the expense of normativity, this chapter reaffirms the importance of legal realism’s characteristic pluralism, openness, and capacity for self-critique. Those values, the chapter argues, can provide a path forward for a partnership between legal realism and cognitive-behavioral studies that remains true to the objectives and values of each.

Karen Bradshaw & Monika Ehrman, Cloud Seeding, Wildfire Smoke Emissions, and Solar Geoengineering: Why is Climate Modification Unregulated?, 35 Georgetown Environmental Law Review 459 (2023)

This Article is the first to identify that companies and agencies systemically modify climatic airspaces through wildfire smoke emissions, weather modification (cloud seeding to cause rain), and solar geoengineering. Climate modification is not a conspiracy theory or a hypothetical: it is happening, and it is changing weather patterns. Yet, climate modification is almost wholly unregulated. Further, it is also not recorded or tracked in systemic ways. That is to say, even government agencies do not have comprehensive records of whether; how often; or how much climate modification is occurring. The data is simply not gathered, aggregated, or stored. As a result, major indicators that rely on climatic conditions–including the Environmental Protection Agency climate accounting–systemically overlook the effects of human-caused climate manipulation when accounting for changes in weather and air quality over time.

This lack of regulation is a serious problem: climate accounting fails to measure virtually unregulated activities undertaken by a mix of public and private actors. Without accurately accounting for these activities, scientists and agencies may be understating the effect of climate change on historical factors, including CO2 emissions levels and rainfall. Such misinformation may lead to dramatic misstatements about the severity of the climate emergency. Inaccuracies in climate accounting stemming from the lack of data about climate modification also blind policymakers to opportunities to slow or reverse anthropocentric climate change through measuring, accounting for, and regulating human manipulation of airspace.

How is it possible that the leading federal agency accounting for climate change is failing to account for changes to airspace? Law as a whole systemically overlooks and underregulates human manipulation of “invisible” natural resources which are diffuse; invisible to the naked eye (and thus difficult to detect); lacking commercial value; and seemingly outside centralized human control. From pollution to fish populations, underground water sources to oil and gas flares, even the agencies tasked with regulating invisible resources find it nearly impossible to detect, measure, and account for human inputs into natural systems.

These examples illustrate a broader theoretical point: climate and environmental policy analysis and solutions are hamstrung by the limitations inherent in modern Western conceptions of property. This Article demonstrates how an emerging model of multidimensional property–derived from interdisciplinary discussions of overlapping property rights, mismatched property rights, and landscape-level resources–can improve the framing of climate change and other ecological problems, and thus improve the available outcomes.

This Article makes at least three contributions to environmental law, natural resources law, and property law literatures. First, it identifies the crucial problem of climate manipulation, which is currently unregulated and not included in climate accounting. Second, it develops a theory of invisible resources which are difficult to measure, detect, and regulate but nevertheless affect the human environment in vitally important ways. Finally, it demonstrates how a new model of multidimensional property can extend concepts of property rights and regulation into invisible airspaces, making currently unregulated climate mitigation the subject of oversight and regulation.

The real-world importance of addressing this crucial oversight cannot be overstated: Agencies must use all tools at their disposal to understand and address the climate emergency.

Karen Bradshaw & Challie Facemire et al., Animals in the Courtroom, 32 Journal of Law and Policy 1 (2024)

Law centers on the experience of the human species. Yet, emerging scholarly and public conversations advocate for bringing animals into spaces once assumed to be human, a growing field known as animal studies. This Article is the first to experiment with how to integrate the more-than-human experience into the courtroom. It specifically reimagines canonical legal cases from the perspective of the animals involved in them. Through the perspective of the animals at issue, it examines cases in which animal interests were considered by human advocates and decided by human judges. This novel technique of de-centering the human requires developing a wholly new, highly experimental methodological framework for how legal scholars and commentators might expand anthropocentric legal processes (such as adjudicating cases) to consider the perspectives of nonhuman animals. This project rests at the intersection of critical animal studies and the burgeoning fields of animal and biodiversity law. More broadly, this Article considers the potential for law to be used to achieve bold aims. Law school curricula have traditionally emphasized teaching students to “think like a lawyer,”—limiting the creative potential of talented minds to fit the conventionality of the field. This Article presents a different, more innovative approach to legal education and scholarship, in which lawyers and legal scholars reimagine social issues, develop new legal realities, and wield the traditional, time-tested tools of our craft in new ways to reach more desirable social outcomes. We identify and explore how lawyers can use the traditional tools of our field (legislation, regulation, common law, constitutional provisions, and private law) to create positive visions for new ways of more equitably co-existing with nature and nonhuman living beings. We are interested in reforming the law to incorporate principles of interspecies equity, which requires institutional shifts away from assumed anthropocentricity through the development of new tools and techniques to integrate the interests of nonhuman living beings—animals specifically for this work—into the field of law.

Ellen M. Bublick & Jane R. Bambauer, Tort Liability for Physical Harm to Police Arising From Protest: Common-Law Principles for a Politicized World, 73 DePaul Law Review 263 (2024)

When police officers bring tort suits for physical harms suffered during protest, courts must navigate two critically important sets of values—on the one hand, protesters’ rights to free speech and assembly, and on the other, the value of officers’ lives, health, and rights of redress. This year courts, including the United States Supreme Court, must decide who, if anyone, can be held accountable for severe physical harms suffered by police called upon to respond to protest. Two highly visible cases well illustrate the trend. In one, United States Capitol Police officers were injured on January 6, 2021, during organized attempts to overturn the results of the U.S. presidential election. In the other, a Baton Rouge police officer suffered traumatic brain injury when he was hit by an object thrown by an unidentified protester during a Black Lives Matter protest that sought to block a highway in front of police headquarters.

In this article, Professors Bublick and Bambauer argue that courts analyzing common-law liability claims for physical injuries suffered by police in the highly political circumstances of protest, would be well-advised to work through a list of content-neutral questions. Such a list could help courts maximize states’ legitimate interests in officer safety, while minimizing impacts on protestors’ legitimate First Amendment activity. We juxtapose these political contexts to create an analytical framework that recognizes the threats involved, to both speech and safety, without as great a risk of ideological distortion. Courts in both the January 6th case and the Black Lives Matter case have failed to accommodate both physical safety interests and First Amendment issues.

Ellen M. Bublick, What We Talk About When We Talk About the Duty of Care in Negligence Law: The Utah Supreme Court Sets an Example in Boynton v. Kennecott Utah Copper, 16 Journal of Tort Law 231 (2023)

Every day, state common law courts define the duty of care in negligence law. There is no formula for how courts should determine duty. Yet when judges are charged with important decisions about whether to open or shut the courthouse doors to whole categories of claimants, judges need some framework for decision. This article commends as an exemplar, the Utah Supreme Court’s decision in Boynton v. Kennecott Utah Copper, a take-home asbestos exposure case. The power of Boynton is not only the answer it provides, but also the coherent framework for analysis that Justice Constandinos Himonas’ opinion sets forth. The opinion’s framework incorporates established principles as well as important tort policies such as harm prevention. Boynton’s structure at once provides the stability and consistency of precedent befitting common law adjudication while also incorporating the public policy and pragmatic concerns that have long guided tort law’s development. Boynton’s framework achieves a similar result to the one in the Third Restatement—creating duty and no-duty rules with possibility of exception based on principle and policy factors. However, Boynton does so through traditional terminology that has acquired meaning through repeated historical application. Courts, scholars and students would be well advised to examine the Utah Supreme Court’s approach to duty analysis.

Charles F. Capps, Rethinking Accomplice Liability, 56 Arizona State Law Journal 1 (2024)

In every American jurisdiction, accomplice liability is “derivative” in the sense that the accomplice is punished not for her own acts of aiding or abetting but for the acts of the principal whom she aids or abets. The derivative character of accomplice liability has created problems in cases where the principal and the accomplice have different affirmative defenses or mental states as well as cases where the principal’s conduct is causally efficacious but the accomplice’s is not.

American law has partially corrected for these problems by walking back the extent to which accomplice liability is derivative. Although at common law the accessory’s liability was wholly derivative of the principal’s, now most jurisdictions judge the accomplice by her own affirmative defenses and mens rea. But no jurisdiction has taken the final step of eliminating derivative liability for accomplices altogether and judging the accomplice by her own actus reus.

This Article urges the law to complete the process of doctrinal evolution by abolishing derivative liability for accomplices. In some cases, judging the accomplice by her own actus reus and mens rea would not change the outcome because the accomplice’s actus reus and mens rea constitute the same type of crime as the principal’s. In the remaining cases, judging the accomplice by her own actus reus and mens rea would change the outcome for the better.

Susan Chesler & Karen J. Sneddon, Raising the Bar: The NextGen Bar Exam and Contract Drafting, 25 Transactions: The Tennessee Journal of Business Law 843 (2024)

Set to debut in July 2026, the NextGen Bar Exam will test a broad range of foundational lawyering skills needed in today’s practice of law, including contract interpretation, drafting, and revising. According to the National Conference of Bar Examiners (“NCBE”), this exam is designed “to balance the skills and knowledge needed in litigation and transactional legal practice.” More specifically, the foundational skills that will be tested include drafting and revising contract provisions consistent with the facts, the law, and the client’s objectives, interests, and constraints. The NCBE has indicated that the examinees’ knowledge of the doctrinal subject matter topics, like Contracts, will be tested using these, and other, foundational skills. Bar takers will therefore be required to perform these lawyering skills as a way of proving their knowledge on topics such as contract formation, contract modification, interpretation, breach, and remedies. For the first time, in order to succeed on the bar exam, every law student will need to know how to draft and revise contract provisions.

This article discusses and dissects the content scope for the NextGen Bar Exam, outlining the areas of legal knowledge, practical skills, and abilities that will be covered. As this overview illustrates, law schools can no longer ignore contract drafting skills or relegate the teaching of contract drafting to an elective, upper-level legal writing course of 20 students or less. To facilitate incorporation of contract drafting skills into a range of courses, this article presents examples of a wide variety of in-class and out-of-class exercises and assignments along with possible assessment methods that law professors can integrate into their existing courses, whether that course is a first-year required course, an upper-level doctrinal subject-matter course, a skills course, or a clinic. This article will then present an in-depth analysis of simulated NextGen-style prompts and questions based upon a single hypothetical that allows students to complete a number of client-centered lawyering tasks. Transactional skills are finally getting the recognition they deserve. This article provides concrete guidance to ensure that law schools and law students are ready for it.

Laura Coordes & Joan N. Feeney, The History of Bankruptcy Venue Choices and the Evolution of Magnet Courts for Chapter 11 Cases, 36 California Bankruptcy Journal 333 (2024)

Bankruptcy forum shopping is a controversial topic prompting hotly debated questions: is it a race to the bottom or to the top? Should the venue rules be changed to prohibit forum shopping, or does the status quo give debtors the flexibility they need to succeed in a bankruptcy case? How did forum shopping become so ubiquitous in the first place?

Many scholars and commentators have wrestled with these questions. This article contributes to the ongoing debates by shedding light on the last of these questions. Its central claim is that, at bottom, the history of bankruptcy forum shopping is really a story of the rise and fall of various magnet courts, where a “magnet court” is one of a handful of United States bankruptcy courts that attracts an inordinate number of large chapter 11 cases.

Our study of magnet courts reveals that the sustained popularity of any one magnet court is not guaranteed. Indeed, recent months provide a prime example of the shift in popularity among the magnet courts. A comparison of data from the final quarter of 2022 to the final quarter of 2023 reveals that a new magnet court, the Bankruptcy Court for the District of New Jersey, is on the rise. Further, a once-popular magnet court, the Bankruptcy Court for the Southern District of Texas, may be on the decline as a result of a well-publicized scandal involving one of its judges.

Although our views on forum shopping in bankruptcy are known, we do not seek to weigh in on the forum shopping debate directly in this article. Rather, our goal is to document how the statutory venue provisions in bankruptcy, as used by debtors’ attorneys, have contributed to the development and evolution of magnet courts. As we describe below, in addition to the trend of consolidation of large reorganization cases in a handful of districts, recent years have seen a shift in preferred venues for large chapter 11 cases. Although the District of Delaware and the Southern District of New York are still preferred venues, other districts have become popular for large cases. These new magnet courts have infringed on New York’s and Delaware’s command of magnet court status. As filing trends fluctuate, the status of certain courts as magnet courts is subject to change.

A discussion of bankruptcy’s magnet courts is relevant to bankruptcy practitioners throughout the country. Yet it may have special salience in California, where the Bankruptcy Court for the Central District of California recently adopted a general order establishing filing procedures in complex chapter 11 cases. This move seems designed to appeal to debtors with complex cases, although it is arguably too early to tell whether it will attract more complex cases to the district.

Jamie Grischkan, Regulating Bank Mergers: Past and Present, 2024 University of Illinois Law Review 557 (2024)

For the first time in nearly half a century, bank merger policy stands at a crossroads. Amidst a new and wide-ranging antimonopoly movement, concerns regarding concentrated financial power and the structure of the American banking system have taken center stage. Following calls for public comment on revising the 1995 Bank Merger Competitive Review Guidelines by the Department of Justice, internal discord over reform efforts at the FDIC, and the failure of numerous regional banks, a fundamental reassessment of the law governing bank mergers and acquisitions is firmly underway. While some policymakers and scholars have argued that antitrust law should play a larger role in preventing consolidation in the financial sector, this Article employs the methodology of legal history to emphasize the limits of reviving antitrust in banking.

Excavating the origins and evolution of the Bank Holding Company Act (the “BHCA”) and the Bank Merger Act (the “BMA”), which govern regulatory oversight of bank mergers, reveals that an expansive conception of the public interest extending well beyond the bounds of antitrust doctrine guided the bank merger regime in its formative early years. By retracing the legislative, administrative, and judicial interpretations of the public interest approach to bank mergers, this Article foregrounds an alternative, and historically potent, mechanism through which to combat banking consolidation. Ultimately, the complex history of the BHCA and BMA provides an important reminder that while antitrust has long served as a critical weapon in the battle against concentrated economic power, it has not been the only weapon. As the future of bank merger policy hangs in the balance, a turn to the past may therefore yield a more promising way forward.

James G. Hodge, Jr., Erica N. White & Jennifer L. Piatt et al., Assessing Impacts of ‘Anti-Equity’ Legislation on Health Care and Public Health Services, 52 Journal of Law, Medicine & Ethics 172 (2024)

A deluge of state “anti-equity” legislative bills seek to reverse prevailing trends in diversity, equity, and inclusiveness; withdraw protections of LGBTQ+ communities; and deny access to gender-based care for trans minors and adults. While the political and constitutional fate of these acts is undetermined, profound impacts on patients and their providers are already affecting the delivery of health care and public health services.

James G. Hodge, Jr., Jennifer L. Piatt & Erica N. White et al., Supreme Court Impacts in Public Health Law: 2023-2024, Journal of Law, Medicine & Ethics (forthcoming 2024)

In a “mixed bag” 2023-2024 session, the U.S. Supreme Court issued a series of decisions both favorable and antithetical to public health and safety. Taking on tough constitutional issues implicating gun control, misinformation, and homelessness, the Court also avoided substantive reviews in favor of procedural dismissals in key cases involving reproductive rights and government censorship. Ultimately, SCOTUS upended major precedent (as per prior recent sessions) in rewriting administrative law, with public health impacts likely extending for decades.

Kimberly Holst, Rebellions Are Built on Hope…but a Little Kairos Can’t Hurt in Star Wars and Conflict Resolution II: My Negotiations Will Not Fail (Jen Reynolds & Noam Ebner eds., DRI Press 2024)

Using examples from Rogue One: A Star Wars Story, this chapter examines two aspects of Kairos and explains how Kairos is an essential tool for negotiation. First, we consider the skills that allow us to recognize and take advantage of Kairic moments. Throughout history, Kairos has been referred to as an opening, a shot, or an alignment of circumstances where an actor can successfully accomplish her goal. But merely taking an opening or a shot when it presents itself is not enough to be Kairic. The actor must also be prepared. She needs to have been practicing her aim with a blaster or mastering her control of the Force if she wants to make the best use of that moment. In this way, Kairos is properly understood as the combination of timing and preparation that allows the moment to be ripe for the actor’s taking. What’s more, skillful preparation may make it possible to manufacture Kairos in some situations. By putting actions in motion so that an opportunity is more likely to arise in the future when the actor has the information, skills, and other tools at the ready, the actor has positioned herself to capitalize on a Kairic moment.

Second, we consider the rhetorical or persuasive dimension of Kairos. Negotiators and others can use Kairos as a tool to make an appeal or create space for negotiated agreement. Not only can a negotiator be on the lookout for his own Kairic moments, but he can also be looking for Kairic moments that may appeal to the opposing party and, ideally, use those Kairic moments to convince the other party to choose the course of action that the negotiator desires.

Esther Hong, The Age of Creativity and Crime, Arizona State University Sandra Day O’Connor College of Law Research Paper No. 4818374 (May 7, 2024)

Creativity and crime may seem like worlds apart, but they have much more in common than intuition may suggest. Criminal and juvenile legal scholars have largely overlooked the connections that exist between the two. This Article brings them to the forefront and considers the legal implications of their overlap in spaces where creativity and crime collide.

In many instances, the line that separates creative acts from criminal ones is thin and arbitrarily drawn, shaped by the discretion and biases of various decision-makers, including police, prosecutors, and juries. Creative acts are mischaracterized as criminal ones. Creative expressions are used as evidence of one’s criminality or dangerousness. These misconstructions are generally harmful, but they cause distinct harm when implemented against adolescents and emerging adults. These young people have developmental traits that naturally heighten their associations with creativity and crime, and also have a developmental need to engage in creativity. That young people, and particularly young people of color, have their creativity criminalized or limited imposes an additional and distinctive developmental harm.

These considerations invite the application of an increasingly influential legal framework for young people called the developmental framework. Implementing this framework in a manner that protects and prioritizes young people’s creativity requires changes in the prosecution and punishment of crime, continued dismantling of the school-to-prison pipeline, and increased opportunities for creativity. Making such changes will not only further young people’s well-being but also help pave the way for systemic changes for all.

Esther Hong, Prosecutors and the Child Wellbeing Framework, 92 University of Chicago Law Review Online 1 (2024)

The importance of initial prosecutorial decisions in juvenile outcomes is well-studied, but recent developments in the law, including the Supreme Court’s decision in McGirt v. Oklahoma; new laws and proposed legislation pertaining to youth being tried in juvenile or criminal court; and the forthcoming adoption of the Children’s Restatement require that we reexamine their significance.

Caitlin Millat, Race, Religion, and the Antiparallel, American Journal of Law and Equality (forthcoming)

The Supreme Court last Term issued its monumental decision in Students for Fair Admissions v. Harvard, which struck down a pair of race-conscious admissions policies as unconstitutional, upending a half-century of affirmative-action precedent. But importantly, SFFA did more than simply outlaw the universities’ schemes. Rather, it reshaped entirely the doctrine and narrative set forth in the Court’s earlier affirmative-action cases, offering a diametrically opposite view on the role of race – and racial discrimination – in modern America. On SFFA’s telling, an explicit consideration of race in schooling, even one meant to benefit racial minorities, was itself discrimination, an impermissible violation of the Equal Protection Clause’s mandate of total “colorblindness.” In this way, the Court told a story of a new, post-racial America, one in which racial classification may be more pernicious than racial remedy.

Critically, though, this sea change has not been the only such shift in the Court’s recent education jurisprudence. Across the same period, the Court also has transformed its approach to evaluating the role of religion in schooling, from religious exercise in educational institutions to state funding of religious activity. Indeed, for the better part of the 20th century, the Court consistently deployed the First Amendment’s Religion Clauses to enforce a “wall of separation” between church and state – or, church and public school. With the advent of the Roberts Court, however, this view changed, as the Court inverted its Religion Clause jurisprudence in the religious-schools context. Over this time, for example, the Court would issue a series of decisions that, bit by bit, permitted religion to creep into the public educational space: upholding voucher programs that siphoned funds to religious schools; permitting public funds to flow directly to sectarian institutions; and requiring districts to allow state officials to engage in public prayer.

But these race and religion shifts in the Court’s education jurisprudence have not occurred in isolation. As I argue in this reflection, one cannot properly consider the impact of Students for Fair Admissions, and the post-racial change it portends, without taking account of the Court’s increasing allegiance to and protection of religious – primarily Christian evangelical – interests. Instead, examining these movements together reveals that while these changes have taken place in chronological parallel, they have moved in opposite, or antiparallel, substantive directions. Put differently: on one hand, the Court has used its religious-schools shift to carve out increasing protections for religious exercise, crafting a narrative that the true minority in American life is the religious observer. On the other, the Court has used its race-consciousness jurisprudence to shrink protections for racial minorities, crafting a counter-narrative that attempts to erase “race” entirely.

Troy A. Rule, Preserving Sacred Sites and Property Law, 2024 Wisconsin Law Review 129 (2024)

Should courts have the power to order the federal government to give land rights to particular groups based solely on their religious beliefs? Calls for legal rules requiring such effectual transfers have grown in recent years as Americans have started to confront the country’s history of mistreatment of Native nations and other disadvantaged groups. Most recently, Indigenous claimants in a pending Ninth Circuit case want the court to interpret the Religious Freedom Restoration Act of 1993 to entitle them to a remedy resembling a perpetual easement on certain federal land. This would prohibit development on the land to protect a sacred site.

At first glance, a law requiring the federal government to give the equivalent of an easement in public land to a singled-out religious party might seem like an appealing way to further important reparative justice or religious freedom goals. However, legal rules requiring such uncompensated property transfers on the basis of religion would also contravene bedrock principles of constitutional and property law and threaten crucial climate change mitigation efforts. This Article is the first to rigorously examine the broader consequences of embracing rules that would compel governments to effectively forfeit public land rights to advance vital reparative justice or religious liberty objectives. It then outlines an alternative approach to preserving Indigenous sacred sites that would respect federal land rights and give Native nations a much stronger voice in site protection decisions.

Jennifer Selin & Paul R. Verkuil, The Importance of Removal Restrictions in a Schedule F World, 13 The Regulatory Review in Depth 1 (2024)

Terms of service and protections from removal for political reasons are important tools to promote nonpartisan, expert administration informed by experience. Most discussions about restrictions on removal of government officials center on agency heads or quasi-adjudicative administrative officials, such as administrative law judges, where removal protections serve compelling due process functions by promoting objectivity in decision-making. But protections from political influence extend beyond adjudicative positions and far into the hierarchy of federal agencies. We explore the importance of these positions for insuring that federal administrative agencies carry out their delegated functions on the basis of expertise and experience.

Jennifer Selin & Jordan M. Butcher, How Free is Information? Transparency in State Government, NYU Journal of Legislation & Public Policy (forthcoming)

How transparent are state governments in the United States? This Article explores the functioning of important, but often underappreciated, actors in the American constitutional system-state administrative agencies-and examines variation in the existence and implementation of transparency regimes across and within all 50 states. This Article first highlights differences that exist among state freedom of information (FOI) laws, focusing on three components: who can submit requests; the requirements for and exemptions to public release; and the process for appeal of agency decisions not to disclose information. Because FOI laws require the public to request access to information and permit state agencies to refuse release of records, these laws constitute “passive” transparency and have little effect without a strong administrative apparatus to facilitate implementation. Simply, FOI laws rely on administrators to interpret statutory language in ways that provide access to government information. Because passive transparency regimes like state FOI laws require high-quality administration in order to be effective, this Article presents a novel exploratory field experiment of administrative performance across all 50 states. Specifically, the Article evaluates state implementation of FOI laws using an original empirical study of 248 state agencies’ fulfillment of the same FOI request. This study illustrates that agency-level factors such as administrative function, policy mission, and leadership influence information disclosure.

Jennifer Selin & Pamela J. Clouser McCann, Constraining the Executive Branch: Congressional Use of the Courts in the Administrative State, Northwestern Law Review (forthcoming)

While scholarship examining the relationship between Congress, federal agencies, and the judiciary reveals variation in the statutory details that affect administrative and judicial decision-making, few studies explore how Congress can utilize the judiciary as a check on the executive branch. Using a focal case study of federal energy policy from the 93rd to 110th Congresses, this Article highlights the interactions between political coalitions, agencies, and courts during the legislative process. Based on the findings of this case study, the Article develops a new theoretical account of legislative choices over executive branch exposure to the federal judiciary. This Article then presents an empirical examination of significant legislation from the passage of the Administrative Procedure Act through 2016 to assess the factors that influence legislative choices regarding agency exposure to the judiciary.

In doing so, this Article makes several important contributions. First, the Article enhances scholarly understanding of delegation by providing a theoretical and empirical account of the circumstances under which Congress manipulates federal agency exposure to the court system. Ironically, increasing an agency’s exposure to the unelected federal judiciary can increase the democratic accountability of the administrative state. In addition, the Article offers a more complete explanation of how variation in agency structure influences the content of statutory and administrative law. Broadening scholarly discussions of agency design, delegation, and administrative responsiveness to elected officials, the Article illustrates underappreciated factors – including political volatility, technical uncertainty, and administrative structure – influence the parameters under which Congress delegates. Along with agency independence, political coalitions strategically adjust judicial review to account for the practical realities of governance. Specifically, political coalitions increase administrative exposure to the courts as political volatility increases and the autonomy of agency leadership increases. Political coalitions decrease agency exposure to the courts as the complexity of the administrative policy arena increases and as the availability of political review decreases.

Considered in its entirety, this Article suggests that legislative decisions regarding judicial exposure can enhance or diminish the effectiveness of other statutory and constitutional tools of democratic accountability such as administrative procedures or oversight. Simply, the level of administrative exposure to the judiciary has profound implications for the American separation of powers system of governance.

Justin Weinstein-Tull, The Experience of Structure, 55 Arizona State Law Journal 1513 (2023)

How do we experience constitutional structure? We understand structure—federalism and the separation of powers—as the ordering of governmental bodies. Rarely, however, do we ask how those structures affect our daily lives. Courts treat this question abstractly. They assert that federalism and separation of powers create “liberty” for individuals without specifying what that liberty looks like and who enjoys it. They speculate about the values of federalism and the normative virtues of the separation of powers. This is structural reasoning that sounds in human experience, but it is empty, based on little more than conjecture. The consequence is a faulty jurisprudential logic that permits courts to diminish federal rights for specific individuals in favor of uncertain, speculative, and generalized structural benefits that only some enjoy.

In this Article, I make the case for centering a broad base of human experience in structural constitutional law and provide a methodology for doing so. I argue that we experience constitutional structure as a calibration of the role and degree of federal and state governments in our lives. Since we all experience government differently—in ways that often relate to race and wealth—so too do we experience constitutional structure differently. I call this variability experiential pluralism and argue that engaging with this pluralism is essential to the constitutional project of equality. Reasoning from experience, rather than abstract normative theory, requires us to broaden our structural logic so that human experience becomes its primary epistemic source. Doing so both provides the intellectual foundations for a progressive, inclusive structural constitutional law and generates new perspectives on otherwise stalled structural issues like state sovereignty and criminal justice.

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Summary of Legal Research Platform Access

More Details on Legal Research Platforms

Lexis

Summer
Lexis’ Terms & Conditions automatically allow you to use the platform during the summer months and after graduation:

Students should check with their employers. Some employers would rather students use their internal IDs rather than their law school IDs for billing purposes.

After Graduation
Once you graduate, you’ll automatically receive access for 6 months through the graduate access program.  If you’re working in the non-profit sector (at a 501(c)(3) corporation), you can apply for 12 months of access through their ASPIRE Program.  More information is available here: https://www.lexisnexis.com/grad-access/. Graduates may use their Lexis IDs for commercial purposes.

Summer
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Westlaw

Private internships, unconnected from school credit, are ineligible and you may not bill private clients for this access or research. However, you are encouraged to use Thomson Reuters tools to prepare for the bar exam or otherwise learn the law. Students may use their accounts for academic work, research assistant assignments, job searching, and other non-commercial uses.

After Graduation
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Here are the steps to enroll in the Westlaw Graduate Elite Program if the link above does not work:

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Dan Bodansky & Harro van Asselt, The Art and Craft of International Environmental Law (2nd ed., Oxford University Press 2024)

In countless ways we are affected by international environmental norms: some social, others legal; some quite general, others very specific. For example, the norms limiting the refrigerants used in air conditioners have been agreed upon in legal form internationally, and are mandated and enforced by national governments. The sustainable fishery and forestry standards used by Carrefour and Ikea were developed more informally by environmental groups and businesses, and are applied to producers through supply-chain contracts, without any government involvement. The reluctance to eat tuna fish or own elephant ivory reflects more general social norms, disseminated through education and culture.

How and why do these norms arise? In what ways do they affect behavior? Do they change what states and individuals actually do and, if so, why? How effective are they in solving international environmental problems? In the second edition of The Art and Craft of International Environmental Law, Daniel Bodansky and Harro van Asselt explore these and other questions.

Revisions cover the numerous developments spanning the 13 years since the first edition was published. New chapters address the growing role of environmental NGOs and the increasingly complex architecture of environmental law involving multiple institutions, levels of governance, and actors. Recent research has been incorporated on treaty design and policy implementation and effectiveness, and greater attention has been given to the role of the judiciary in standard-setting, implementation, and enforcement.

Dan Bodansky, Four Treaties in One: The Biodiversity Beyond National Jurisdiction Agreement, 118 American Journal of International Law (forthcoming)

The Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction is the most important ocean agreement to be adopted in more than a quarter century and complements the Convention on Biological Diversity (CBD), which addresses biodiversity found within national jurisdiction. In essence, it constitutes four treaties in one, all addressing marine biological diversity in areas beyond national jurisdiction (ABNJ), but each with its own objectives, principles, obligations and – in some cases – institutions: a treaty on marine genetic resources (MGRs), including fair and equitable benefit-sharing; a treaty on the establishment of area-based management tools (ABMT), including marine protection areas (MPAs); a treaty on environmental impact assessment (EIA); and a treaty on capacity building and the transfer of marine technology (CBTMT). The BBNJ Agreement has roots in both the law of the sea and international environmental law. It was adopted as the third implementing agreement under the United Nations Convention on the Law of the Sea (UNCLOS). As such, it fleshes out the Convention’s barebones provisions on environmental impact assessment, capacity building, and technology transfer; replicates the Convention’s dispute resolution system; and draws on the Convention’s jurisdictional rules and principles. But in many respects, the BBNJ Agreement more closely resembles multilateral environmental agreements (MEAs) such as the CBD or the UN Framework Convention on Climate Change. Like MEAs, it is intended to be a dynamic agreement that evolves in response to new information and circumstances. And like MEAs, it establishes a variety of institutions to implement and elaborate its provisions, including a conference of the parties, a scientific and technical body, a clearing-house mechanism, an implementation and compliance committee, and a financial mechanism. This article provides an overview of the development and key provisions of the BBNJ Agreement.

Karen Bradshaw & Jessica Owley et al., The Tyranny of Baselines, 54 Environmental Law Reporter 10219 (2024)

Many environmental law paradigms focus on fixed points. Sometimes, the fixed points are in the past, and environmental laws call upon us to look at a baseline or previous state of nature and compare our actions against it. Other approaches call for us to consider an ideal state and develop strategies regarding how to reach it. In a 4° Celsius world, both strategies fail. Adhering to baselines is meaningless and striving for goals that are unachievable may lead to paralysis. This Article, excerpted from Adapting to High-Level Warming: Equity, Governance, and Law (ELI Press forthcoming 2024), explores an alternative mode for moving forward with an approach that minimizes suffering.

Karen Bradshaw & Challie Facemire et al., Law Through the Eyes of Animals in Animals as Experiencing Entities (Michael J. Glover & Les Mitchell eds., Palgrave Macmillan 2024)

This chapter considers law through the lens of critical animal studies. It specifically reimagines canonical legal cases from the perspective of the animals involved in them. Through the lens of the animals involved in the case, we examine cases in which animal interests were considered by human advocates and decided by human judges. We begin by providing a rudimentary methodological framework for how legal scholars and commentators might expand anthropocentric legal processes (such as the decision of cases) to consider the perspectives of non-human animals. This project rests at the intersection of critical animal studies and the burgeoning field of animal and biodiversity law. More broadly, we are interested in how lawyers can use the traditional tools of our field (legislation, regulation, common law, constitutional provisions, and private law) to create positive visions for new ways of more equitably co-existing with nature and non-human living beings. We are interested in reforming law to incorporate principles of interspecies equity, which requires institutional shifts away from assumed anthropocentricity through the development of new tools and techniques to integrate the interests of non-human living beings—animals specifically for this work—into the field of law.

Laura Coordes, Bankruptcy Law in the United States in Are Legal Systems Converging or Diverging? (E. Ghio & Ricardo Perlingeiro eds., Springer 2024)

Because financial distress often extends beyond national borders in today’s globalised economy, one may expect to see convergence in the various national legal systems that address financial distress. However, this chapter shows that in times of financial crisis, there are still many opportunities for a foreign debtor and its creditors to obtain an outcome centred on United States law and procedure. This is particularly true for large corporate debtors, and this trend has held even during the most recent financial difficulties caused by the COVID-19 pandemic. Thus, although bankruptcy law in the United States does have components that may promote convergence, such as chapter 15 of the U.S. Bankruptcy Code, substantive convergence of United States bankruptcy law to conform with the laws of other jurisdictions still seems unlikely.

Laura Coordes, Successor Liability Theory and Insolvency Law in Re-Examining Insolvency Law and Theory: Perspectives for the 21st Century (E. Ghio et al. eds., Edward Elgar 2023)

The successor liability doctrine allows a court to hold a purchaser liable for the seller’s liabilities or tortious conduct. Courts have developed various theories for holding purchasers liable; however, successor liability theories are in tension with many of the policies behind insolvency law. This chapter asks whether it is time to rethink the role of successor liability theories in bankruptcy and insolvency law. Drawing upon examples from recent US chapter 11 practice, it contends that bankruptcy law’s broad preemption of successor liability can stifle the availability of a remedy for parties that have been harmed by corporations and their products. The chapter considers recommendations put forward by scholars to rectify this imbalance before arguing that the question of how to better reconcile the goals of bankruptcy law with those of successor liability is an important piece of a larger project of rethinking bankruptcy’s place in the broader legal system.

Laura Coordes & Yseult Marique et al., Toward a Model Law for the Treatment of Distressed Local Public Entities, 98 Chicago-Kent Law Review 339 (2023)

This article provides a rationale for a potential model law for the treatment of distressed local public entities (LPEs). Building upon our previous work, a first-of-its-kind global study of the treatment of LPEs in distress, we contend that a model law for LPE distress should take a modular approach, outlining alternative options that can be tailored to different jurisdictions’ distinct legal traditions and cultures. Although most of the countries in our study do not have a comprehensive system in place to address LPE distress, the commonalities that emerged across the jurisdictions studied can provide a foundation to support a model law in this area. While we leave the task of drafting a model law to future work, this article moves the discussion forward by articulating the principles, gleaned from our study, that should guide the creation of a model law on this subject.

A model law for the treatment of distressed LPEs will have significant value because countries that lack a comprehensive framework for addressing these cases subject their LPEs, and the communities and creditors that depend on and invest in them, to heightened risks and hardship. Currently, the treatment of distressed LPEs varies from country to country, and most countries lack such a comprehensive framework. In many countries, the lack of a comprehensive system for addressing LPE distress means that, in practice, higher-level governmental authorities intervene in an ad hoc and disorganized fashion whenever distress occurs. A model law will provide a roadmap of best practices for jurisdictions to consider. Adoption of these best practices would bring more clarity, consistency, and legal certainty to the treatment of distressed LPEs, allowing investors and other creditors to better understand and mitigate the risks of lending to an LPE.

LPEs play a critical role in state economies. When they experience financial distress or insolvency, risk abounds to members of the local community, who risk deprivation of essential public services; to nearby regions, which risk the effects of contagion; and to investors, who risk a loss or diminution of their investment. Due to the rich variety of activities in which LPEs are engaged, and the various ways in which they contribute to the quality of public life, LPE distress can create systemic risks. Consequently, a comprehensive system for addressing LPE distress should be a part of any jurisdiction’s legal system. In this way, investors, creditors, the public, and all those who interact with or receive services from an LPE can clearly understand how the distress of that LPE will be handled and can take steps to mitigate risks relating to LPEs.

Although future work will develop the exact contours of a model law for distressed LPEs, this article lays the groundwork for such a law. Drawing upon original research of the treatment of distressed LPEs in twenty jurisdictions around the world, this paper demonstrates the value of a model law and outlines some key features and guiding principles to consider for its development.

The article proceeds as follows. Part I describes the current treatment of LPEs in distress, drawing heavily on information collected from our study. Part II examines the consequences flowing from current approaches to distressed LPEs. Using specific examples, Part II illustrates that many current approaches create commercial uncertainty and legal unpredictability. Yet, as divergent as these approaches are, they share some common goals: collectivity, continuity of essential public services, and protection of vulnerable stakeholders. In Part III, we outline our proposals for the guiding principles behind a model law for distressed LPEs and illustrate the extent to which these proposals are aligned with the insolvency principles articulated by the United Nations Commission on International Trade Law (UNCITRAL) with respect to insolvencies more generally. We do this to show that, at bottom, LPE distress is not so different from the insolvency or distress of other entities and, consequently, a model law will be useful in the LPE distress context, much as UNCITRAL’s model laws are useful in the general insolvency law context. Part III also identifies and addresses some concerns and challenges that may be raised in response to the development of a model law. Part IV concludes.

Laura Coordes, Red Flag or Green Light? Bankruptcy’s Police Power Exception, 44 Bankruptcy Law Letter 1 (2024)

The police power exception to the automatic stay recently made the news, thanks to events in Rite Aid’s bankruptcy case. Although Rite Aid filed for bankruptcy in October of last year, the events precipitating the police power exception issue arose several months earlier. In March of 2023, the U.S. Department of Justice (“DOJ”) sued Rite Aid in Ohio district court, alleging that the drugstore chain’s pharmacists had ignored so-called “red flags”—signs that a patient might be struggling with addiction—and had illegally filled prescriptions for highly addictive opioid medications. Rite Aid’s October 2023 bankruptcy filing brought a halt to this lawsuit, with the DOJ itself indicating that it was amenable to a “brief pause” in the litigation. However, negotiations between the two sides over when and how the Ohio district court litigation should resume broke down fairly quickly, and in November 2023, the DOJ moved to lift the automatic stay over Rite Aid’s objection in order to allow the suit to proceed.

In response, Rite Aid asked Judge Michael Kaplan of the U.S. Bankruptcy Court for the District of New Jersey not to lift the stay and to prevent the DOJ lawsuit from continuing during the bankruptcy case. In support of its argument, Rite Aid stressed that keeping the lawsuit on hold would put the government on equal footing with other opioid plaintiffs whose lawsuits were also stayed by the bankruptcy, thus promoting the bankruptcy policy of equality of treatment among similarly situated creditors. For its part, the DOJ has claimed that the Ohio litigation falls within the police power exception to the automatic stay, and indeed, negotiations between the DOJ and Rite Aid broke down precisely because the DOJ wanted Rite Aid to acknowledge the applicability of the exception before the DOJ would agree to a continued stay of the lawsuit. Interestingly, the parties also disagree on who should decide whether to stay the case: the DOJ has asked the Ohio district judge to determine whether the litigation can continue, while Rite Aid maintains that the bankruptcy judge is the proper person to make that call.

Rite Aid is hardly the first debtor to contend with the police power exception to the automatic stay, and it certainly won’t be the last. This Bankruptcy Law Letter examines several issues raised by Rite Aid’s bankruptcy as they relate to the automatic stay, the police power exception, and a debtor’s ability to gain breathing space from government lawsuits more generally. In particular, this issue examines the police power exception and the case law interpreting it, questions whether the exception should be viewed differently in light of the public nature of the opioid crisis, and suggests that the interplay between §§ 362 and 105 of the Bankruptcy Code could neutralize any stay-related victory by the DOJ in the Rite Aid case.

David Franklyn & David A. Hyman et al., Influencer Marketing on Instagram and TikTok: Entertainment or Deception?, Arizona State University Sandra Day O’Connor College of Law Legal Studies Research Paper No. 4730850 (March 26, 2024)

Influencers routinely promote goods and services to their followers on Instagram and TikTok. Federal law requires influencers to “clearly and conspicuously” label content for which they are paid, but the social media environment deliberately blurs the lines between paid and unpaid content. We study whether Instagram and TikTok users can identify paid influencer marketing content from six different influencers. On average, 29% of respondents believed paid marketing content from six different influencers were not paid ads and 8% were unsure, with significant variation by influencer. The labeling used by influencers to identify influencer marketing content is not consistent – let alone clear and conspicuous. There is also considerable heterogeneity in how respondents interpreted the labels that are being used by influencers. We also find evidence of two-way blurring; on average, 29% of respondents thought unpaid influencer content on Instagram and TikTok were paid ads, and 9% were unsure, with significant variation by influencer. Influencer marketing on Instagram and TikTok involves a significant risk of deception that is not adequately addressed by current policies.

Zach Gubler, How to Interpret the Securities Laws?, 47 Seattle University Law Review 863 (2024)

In discussions of the federal securities laws, the SEC usually gets most of the attention. This makes some sense. After all, it is the agency charged with administrating the securities laws and regulating the industry as a whole. It makes the majority of the laws; it engages in enforcement actions; it reacts to crises; and it, or sometimes even its individual commissioners, intervene publicly in policy debates. Often overlooked in such discussion, however, is the role of the Supreme Court in shaping securities law, and a new book by Adam Pritchard and Robert Thompson demonstrates why this is an oversight. The reason? Because, as we learn from Pritchard and Thompson, the Supreme Court has been hugely influential in federal securities law since really their inception. Perhaps not surprisingly, certain Justices have left a more significant mark than others on the field. But in Pritchard & Thompson’s telling, few have left a more significant influence than Lewis Powell.

The mark of a great book is the reflection that it generates. And by that standard, Pritchard and Thompson’s book is truly great. Which brings us back to our original question: How then should one interpret the federal securities laws? The answer is that we should interpret them in the common law tradition, by considering the deficiency in the common law that led to their passage. This approach is arguably so thoroughly entrenched in the Court’s insider trading jurisprudence, it’s hard to imagine how (let alone why) to disentangle it. And with respect to everything else, that’s simply how the Court interpreted the securities laws for the first years of their existence. And, thus, while there might be disagreement about whether the common law tradition of reading statutes should be preserved as a general matter, when it comes to securities law, the answer should be far less controversial.

James G. Hodge, Jr., Federalism and Liberty: Reaching Constitutional Accord, 72 Kansas Law Review 163 (2023)

For many the constitutional concept of federalism in the United States centers on how federal and state governmental powers are purposefully divided via the Tenth Amendment (and other provisions) to balance intergovernmental authorities. Though easily conceptualized, applications of traditional notions of federalism are perplexing. Fluctuations are a constant in U.S. constitutional jurisprudence as federal and state governments regularly clash over their actual or prospective authorities. Yet the foundations of federalism run far deeper. Consistent with the Constitution’s cohesive design, federalism implications arise repeatedly in rights-based determinations, most notably entailing liberty interests. Questions surface over the exact purpose of federalism as a structural constitutional principle. Historical and contemporary guidance tends to focus on its role as a stabilizing factor undergirding levels of government. Federalism, however, is not solely about the stability of American government. Rather, it is about protecting and promoting Americans’ individual liberties and freedoms. In line with this view arise opportunities to wield American federalism in direct promotion of individual liberties, instead of their rescission.

James G. Hodge, Jr. & Erica N. White et al., Medicare Drug Pricing Negotiations: Assessing Constitutional Structural Limits, 51 Journal of Law, Medicine & Ethics 956 (2023)

A series of structural constitutional arguments lodged in multiple cases against Centers for Medicare and Medicaid Services’ (CMS) authorities to negotiate prescription drug prices via the 2022 Inflation Reduction Act threaten the legitimacy of CMS program and federal agency powers.

James G. Hodge, Jr. & Erica N. White et al., Assessing Impacts of ‘Anti-Equity’ Legislation on Health Care and Public Health Services, Journal of Law, Medicine & Ethics (forthcoming)

A deluge of state “anti-equity” legislative bills seek to reverse prevailing trends in diversity, equity, and inclusiveness; withdraw protections of LGBTQ+ communities; and deny access to gender-based care for trans minors and adults. While the political and constitutional fate of these acts is undetermined, profound impacts on patients and their providers are already affecting the delivery of health care and public health services.

Ben McJunkin, Rape as Indignity, 109 Cornell Law Review 385 (2024)

Rape law has a consent problem. The topic of sexual consent predominates any discussion of rape law, both doctrinally and socially. It is now widely taken as axiomatic that non-consensual sex is paradigmatic of rape. But consent is in fact a deeply contested concept, as recent debates over affirmative consent have demonstrated. Grounding rape law in sexual non-consent has also proven both over- and under-inclusive, too often leaving the law inadequate to vindicate some sexual harms and distorted in attempts to reach others. Increasingly, the very concept of consent is being questioned by scholars, who desire a rape law that more accurately reflects the lived experience of both victims and perpetrators. Consent is even potentially dangerous. The structure of consent reinforces problematic gender roles in sexual relations and fuels troubling narratives that have led to widespread violence against women.

This Article proposes a novel grounding for rape law—not as a matter of consent, but as a matter of human dignity. Human dignity has been perhaps the premier value in both political and moral thought over the past two centuries. As the Article documents, dignity’s relatively straightforward moral imperative — respect for persons — has a long tradition of being operationalized legally, making it ripe for use as the basis of a criminal prohibition. Building upon both federal and state efforts to combat the indignities of sex trafficking, the Article outlines a proposed framework for punishing as rape the infliction of indignity through certain means of compelling sex, namely force, fraud, and coercion. Centering human dignity, rather than consent, would more closely align rape law with the fundamental tenets of criminal law theory and has the potential to disrupt gendered social scripts that increasingly animate violence. In a time of mass incarceration, recognizing rape as indignity would also set the stage for a much-needed shift toward restorative justice and incarceration alternatives.

Michael Selmi, From Disparate Impact to Protecting White Men and Their Interests: The Early Development of Title VII, 65 Arizona Law Review 1009 (2023)

The early development of employment discrimination law is often perceived as a string of important victories for plaintiffs, although the real story is quite different. Although there were solid victories, including the early creation of the disparate impact theory, the Supreme Court continually refused to adopt a more progressive judicial vision that had been percolating in the lower courts, a vision that imposed far greater scrutiny on employers and their practices. In contrast, the Supreme Court quickly moved from questioning the validity of employer practices to deferring to employer judgments, even when those judgments produced a workplace where Black workers were generally absent or holding the least desirable jobs. And as the first decade of case development progressed, the Supreme Court became increasingly worried about the plight of white workers, ultimately approving of seniority systems that effectively locked Black workers into the jobs they had held prior to the passage of the 1964 Civil Rights Act. This Article explores the first decade of employment discrimination law’s development by looking not only at Supreme Court opinions but also at what lower courts were doing. Additionally, this Article incorporates insights from the papers of Justice Powell to demonstrate how the Court moved from a short-lived protective stance to one that seemed more focused on the interests of white workers.

Ilan Wurman, The Opinions Clause and Presidential Power, Journal of Legal Analysis (forthcoming)

The two predominant conceptions of executive power and supervision over the administrative state are inadequate. One maintains that all administrative discretion is the President’s, and that by virtue of the grant of executive power the President can both remove and control the discretion of all subordinate officers. That poses a textual problem: it makes the Opinions Clause superfluous. The other maintains that the President is, at best, a “persuader-in-chief,” with no constitutional right to control administrative discretion or to remove officers tasked with implementing statutory duties. Although this view makes sense of the Opinions Clause, there is no historical evidence for it. The proponents of these two schools of thought have thus been locked in a decades-long stalemate, with competing and irreconcilable paradigms of total control or no control.

This paper recovers another, lost way of thinking about presidential power. According to this conception, Congress can insulate inferior officers from removal because they must follow orders. As for principal officers, however, the President can remove but not control them, at least not directly. There is no constitutional obligation on the part of principal officers to obey; the only inducement is the threat of removal. The Opinions Clause, far from being superfluous, then assures the President the power to acquire information to intelligently exercise the power to remove. In addition to this account’s textual and structural virtues, it appears to have been a widely shared understanding of presidential power at the Founding. This understanding of executive power may seem overly formalistic, but it allows for an independent administrative apparatus but over which the President has an important check.

Ilan Wurman, Alexander Hamilton on Executive Authority, 63 American Journal of Legal History 251 (2023)

The ‘residuum’ theory of executive power maintains that Article II’s Vesting Clause grants to the president of the United States a residuum of royal prerogative powers that have not been assigned to other departments of the national government or otherwise limited elsewhere in the text of the Constitution. This theory is often traced to Alexander Hamilton’s Pacificus essay, in which he defended President Washington’s proclamation of neutrality with a version of that theory. Two years earlier, however, in his opinion on the constitutionality of the Bank of the United States, Hamilton appears to have rejected the residuum theory; at a minimum, he had incentive to propound that theory but did not do so. Although not the only possible way to interpret Hamilton’s opinion, scholars of executive power must contend with this possibility before concluding that Hamilton believed in a residual vesting of prerogative powers.

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