This bibliography comprises scholarly books, book chapters, and journal articles published or accepted for publication by full-time, emeritus, and retired faculty of the Sandra Day O’Connor College of Law between January 1, 2026 and March 31, 2026.
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.
