New Faculty Publications – Fall 2023

New Faculty Publications - Fall 2023

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 July 1, 2023 and September 30, 2023.

Dan Bodansky, Advisory opinions on climate change: Some preliminary questions, 32 Review of European, Comparative & International Environmental Law 185 (2023)

The recent requests for advisory opinions from the International Court of Justice, the International Tribunal for the Law of the Sea and the Inter-American Court of Human Rights are understandable, given the slow pace of the climate change negotiations. But are they a good idea? Will an advisory opinion by an international tribunal be likely to strengthen the international response to climate change and, if so, in what ways? Will it complement or compete with the United Nations climate change negotiations? What are the risks, both to the negotiations and to the court’s own legitimacy, and do the potential benefits of an advisory opinion justify these risks? To what extent should international climate change law be developed through negotiations or adjudication, by States or by courts? Before jumping on the advisory opinion bandwagon, this article poses some questions to consider.

Mary Bowman, Seeking Justice: Prosecution Strategies for Avoiding Racially Biased Convictions, 32 Southern California Interdisciplinary Law Journal 515 (2023)

Common rhetorical techniques used by prosecutors, even those who reject racially prejudiced beliefs, are likely to trigger jurors’ implicit biases. Current case law and ethical rules set up well-intentioned prosecutors by obscuring the racial bias embedded in this rhetoric and the likely impact of coded language on jurors. In 2020, however, California passed the Racial Justice Act, which prohibits “racially discriminatory language” in criminal trials and covers implicit as well as explicit bias. This article unpacks social science research to show how common prosecutorial rhetoric is racially biased, regardless of prosecutors’ intent, and it provides prosecutors with concrete strategies to use in reforming their rhetorical choices while still effectively prosecuting cases. It also gives prosecutors strategies for preventing or responding to racially biased rhetoric by other participants at trial, rather than singling them out as the sole source of this rhetoric. It therefore gives California prosecutors concrete strategies for complying with the California Racial Justice Act, and it gives prosecutors nationwide tools they need to seek justice rather than convictions tainted by racial bias.

Charles Calleros & Stephen A. Gerst, Contracts: Cases, Texts, and Problems (3rd ed., Carolina Academic Press 2023)

The third edition combines classic cases, such as the Carbolic Smoke Ball case, with more recent cases, including many published within the previous decade and some appearing as recently as 2023. It includes the Supreme Court’s embrace of disgorgement of profits in an interstate-compact case, exploration of problems associated with electronic contracting, coverage of California’s Right to Repair Act, and an updated discussion of the Federal Arbitration Act’s preemption of state law defenses to class actions waivers in arbitration clauses.

Laura Coordes, A Clash of Automatic Stays: Analyzing Coinbase v. Bielski’s Impact on Bankruptcy Proceedings, 43 Bankruptcy Law Letter 1 (2023)

This Bankruptcy Law Letter analyzes Coinbase and dissects its potential impact for bankruptcy cases. Although I conclude that the Supreme Court’s read of the Griggs principle (discussed below) is overly broad, even if the Court got to the right result in Coinbase, there are compelling reasons not to extend its application to the bankruptcy courts.

Laura Coordes, ’Til Fraud Do Us Part: Bartenwerfer v. Buckley, 26 Green Bag 273 (2023)

The passive voice may be the bane of English teachers and writers everywhere, but from time to time, we all let it creep into our writing. As it turns out, Congress is no exception here. The drafters of the Bankruptcy Code used the passive voice when listing exceptions to the bankruptcy discharge. Interpretation of that language–and the role of the passive voice–was the subject of a recent Supreme Court decision.

Laura Coordes, Bankruptcy Overload, 57 Georgia Law Review 1133 (2023)

The bankruptcy system is overloaded. Those who use it, whether debtors or non-debtors, frequently seek to extract more out of a bankruptcy than the process can, practically and legally, provide. The goals and boundaries of bankruptcy law have always been subject to debate, making the system particularly susceptible to taking on more than it can bear. This Article defines and explains the concept of bankruptcy overload, illustrating that many of the problems currently plaguing the bankruptcy system derive from overloading it. In addition, although overloading the system may create problems in individual cases, this Article shows that bankruptcy overload is systemically harmful, and that failure to recognize and address it will undermine the system’s long-term utility. Those seeking changes to bankruptcy law must be aware of the system’s capacity constraints. In addition to defining bankruptcy overload and identifying its harms, the Article illuminates ways to address many of the issues present in bankruptcy today while being cognizant of the effect of changes to bankruptcy law on the system as a whole.

Joel Friedman & Michael G. Collins, The Law of Civil Procedure: Cases and Materials (6th ed., West Academic 2023)

The Sixth Edition integrates all significant developments that have occurred since the last revision of this casebook in 2017. These changes include new principal cases that reflect changes in the law with particular emphasis on personal jurisdiction, and a number of amended problems and notes to reflect all changes in such other areas, such as the definition of citizenship for diversity purposes, transfer of venue, pleading, and class actions. The Sixth Edition also includes a full discussion and analysis of all intervening Supreme Court and important lower court opinions, and changes in the Federal Rules of Civil Procedure, all up through May 20, 2023. Any subsequent major decisions will be made available in an online Supplement. The Teachers’ Manual will also be updated to reflect changes in the Sixth Edition.

Betsy J. Grey, Preventing Student Suicide: Nguyen v. Massachusetts Institute of Technology, 16 Journal of Tort Law 107 (2023)

Student suicide is a tragic problem on university campuses. Should universities have a tort duty to prevent them? Common law historically has shielded universities from liability based on the “suicide rule,” which holds that suicide is an intervening cause of harm and thus not within the scope of risk of negligence. Nguyen v. Massachusetts Institute of Technology represents a shift in this view, and begins to usher universities into an era of greater accountability, while mitigating the harsh impact of the suicide rule. This essay examines Nguyen as a classic example of common law’s incremental development. As with other areas previously off-limits to tort liability, Nguyen moves cautiously, opening the door to liability but with limits that avoid expansive liability in the absence of a university’s actual knowledge of suicide risk. It is too early to tell whether those limits will remain, or whether the basis for liability recognized in Nguyen will expand. Either way, Nguyen represents an important step in tort law’s response to a significant societal problem.

Art Hinshaw, Adrian Borbely & Calvin Chrustie, Where is Negotiation in Hybrid Warfare?, 24 Cardozo Journal of Conflict Resolution 517 (2023)

The question of what negotiation has to do with hybrid warfare was the starting point for Project Seshat, a project gathering a global group of academics and practitioners from many walks of life. Their shared interest is in exploring what the fields that fit generally within the concepts of “security” and “dispute resolution” have to offer each other in the context of hybrid warfare / grey zone conflict, and how these two “sets” of fields interconnect. In trying to better understand what hybrid warfare is, how it works, and how best to respond to it, negotiation and dispute resolution academics have been led to question some of the core assumptions and theories they generally rely on.

These reflections, we believe, raise a set of specific questions when we consider how lawyers think of and practice negotiation. In a recent discussion with the head of the cyber response group for a global law firm, that person told one of the authors that they “never negotiate with cybercriminals.” When asked whether this stance resulted in missed opportunities, the lawyer refused to move off his/her no-negotiation stance as if negotiation was incongruent with the means of handling these situations. In practice, engaging in negotiation in these contexts has resulted in positive outcomes and is one of several reasons the authors wish to explore the idea of negotiation within hybrid warfare in a more thorough and comprehensive way. The fact that targets of hybrid warfare attacks refuse to negotiate with their attackers does not mean that negotiation, as a process and as a set of skills, does not play a central role in the interaction. That is what we will demonstrate in this essay.

James G. Hodge, Jr. & Leila Barraza et al., Supreme Court Impacts in Public Health Law: 2022-2023, Journal of Law, Medicine & Ethics (forthcoming 2023)

In another tumultuous term of the United States Supreme Court in 2022-2023 a series of critical cases implicate instant and forthcoming changes in multiple fronts that collectively shift the national public health law and policy environment. As examined in this article across 10 core public health law themes, SCOTUS (1) upended affirmative action policies, (2) skirted past social media liability for misinformation, (3) reduced criminal liability for cyberthreats, (4) opened health care and public health agencies to newfound claims, (5) injected itself into medication abortion debates, (6) denied executive authority to forgive federal student loan debts, (7) re-defined the breadth of First Amendment religious freedoms, (8) assessed discriminatory impacts of racial redistricting, (9) rejected federal obligations to assure water rights for tribal nations, and (10) avoided resolving immigration policies tied to public health emergency powers. For a Court persistently mired in controversy and disapproval among Americans, this term breaks new ground yet again in the ever-changing public health legal landscape.

Kimberly Holst & Jason S. Palmer, International Legal Developments Year in Review: 2022, 57 The Year in Review 1 (2023)

This publication, International Legal Developments – Year in Review: 2022, presents a survey of important legal and political developments in international law that occurred during 2022 amid a continuing global pandemic. The volume consists of articles from thirty 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 particular knowledge or expertise in an area may also be contributing authors.

Orde F. Kittrie, Chinese Lawfare in the Maritime, Aviation, and Information Technology Domains (July 20, 2023) (SSRN Working Paper No. 4515674)

This article analyzes the PRC’s lawfare against the United States and its allies in the maritime, aviation, and information technology domains. In the maritime and aviation domains, the PRC is using lawfare to take control of the South China Sea without firing a shot. In the information technology domain, the PRC is stealing the West’s best weapons systems using keystrokes rather than the use of force. It is also positioning itself to shut down the West’s critical electrical and other infrastructure without bombing a single power plant. In addition, it is developing the means to revolutionize the brink and conduct of any future kinetic conflict through the hyper-personalization of war, in which it would deploy financial, health, and other personalized data about Western troops to blackmail, distract, and demoralize individual Western warfighters and their families.

Rhett Larson & Vanessa Casado Pérez eds., A Research Agenda for Water Law (Edward Elgar 2023)

This timely Research Agenda provides imaginative solutions to existing and emerging challenges for the study, application, and development of water law. It argues for a dynamic approach to water law, anticipating how water and its relationship to humanity will shift due to climate change, modern societal norms and values, and technological innovation.

Bringing together leading experts and rising new voices, this Research Agenda analyses local, national, and international water law. It explores the pressing issues of today and tomorrow, and identifies areas for further research to ensure legal regimes can respond to future challenges for water provision. Contributors consider the legal personhood of rivers, water quality, international basins, water markets, and the role of indigenous groups in water management. Ultimately, this Research Agenda provides a portfolio of options for responding to the uncertain natural, social, and political future of water.

Rhett Larson, Introduction: Water Equity and Prior Appropriation in the West, 33 Western Legal History 2 (2023)

The Guest Editor of this edition, Rhett Larson, is widely recognized as one of America’s best informed and knowledgeable water experts. He is no stranger to the thirst of arid lands for water, having cut his working teeth in the deserts of Jordan, Lebanon, and Israel where he helped develop solar powered wells in the midst of sectarian conflict. Rhett has assembled a wide and talented group of individuals immersed in Western water issues to provide a description of the various competitors for the limited supply of its lifeblood and so much more about Water in the West.

Gary Marchant & Whitney Stefko Dover, Law Practice Disruptors: Large Language Models and Artificial Intelligence, 60 Arizona Attorney 26 (2023)

The headlines are ominous. “Will ChatGPT Replace Lawyers?” “Why ChatGPT-3 is Just the Beginning–And Lawyers Risk Getting Left Behind.” “Generative AI is Coming for the Lawyers.” And so on. The good news is that there is no need to panic. Artificial intelligence (AI) will not be replacing lawyers en masse. But there is truth to the oft-stated prediction that lawyers who use artificial intelligence will replace lawyers who don’t. Just as the advent of computers decades ago affects every lawyer’s practice today, so too will the rise of AI affect every attorney. This transition has started already, accelerated by the recent introduction of new types of AI such as ChatGPT. This is not time for complacency–every legal professional must start learning about AI, and how it may affect their job.

Trevor Reed, Restorative Justice for Indigenous Culture, 70 UCLA Law Review 516 (2023)

One still unresolved aspect of North American colonization arises out of the mass expropriation of Indigenous peoples’ cultural expressions to European-settler institutions and their publics. Researchers, artists, entrepreneurs, missionaries, and many others worked in partnership with major universities, museums, corporations, foundations, and other institutions to capture and exploit Indigenous cultural creativity, often in violation of Indigenous peoples’ laws, protocols, and standards of care. Much of this cultural material remains in Institutional repositories today, where it has been treated as the raw material for settler research, creativity, and innovation, circulating outside the control of the Indigenous communities who created it. These institutions must grapple with their legacies of intellectual and cultural abuse towards Indigenous peoples and emerging industry norms that increasingly demand respect for Indigenous rights, while continuing to make knowledge resources available and accessible to the public, to the extent allowed by law. Faced with these two seemingly incommensurable objectives, many institutions have begun to adopt cumbersome, generally unenforceable internal policies and procedures that tend to limit access to Indigenous culture as a remedy for past abuses rather than looking to Indigenous communities for guidance on methods for repair and redress. This Article advocates for a different approach – one which merges restorative justice theory and well-established methods for “Open Source” or “Creative Commons”-style licensing into what I call restorative licensing. I further advocate for the integration of privately ordered licensing structures within the restorative justice process to ensure Indigenous expectations for repair and redress are met, and that Indigenous cultural expressions can circulate once again on terms consistent with Indigenous law, protocol, and standards of care.

Troy A. Rule, Electrify: An Optimist’s Playbook for Our Clean Energy Future, 63 Jurimetrics 213 (2023)

Replacing our fossil fuel-powered cars, furnaces, and water heaters with electric vehicles and electrified homes is a crucial step in the fight against climate change. In Electrify: An Optimist’s Playbook for Our Clean Energy Future, Saul Griffith fervently calls for accelerating this transition, arguing that the United States could accomplish the transition without significantly disrupting our daily lives. Griffith argues that powering the country’s buildings and transportation sector with electricity from wind and solar is entirely achievable in short order and would greatly benefit generations of future Americans. Although many of the ideas outlined in his book are not new, Griffith presents them in an accessible way that counters a growing drumbeat of disinformation about the costs of the sustainable energy movement. For that reason alone, the book is a worthy read for lawyers and nonlawyers working in energy policy areas.

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

Should courts have 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 begun to more seriously 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 that 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 vital 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. This Article 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.

Michael J. Saks, Jonathan J. Koehler & Jennifer Mnookin, The Scientific Reinvention of Forensic Science, 120 Proceedings of the National Academy of Sciences e2301840120 (2023)

Forensic science is undergoing an evolution in which a long-standing “trust the examiner” focus is being replaced by a “trust the scientific method” focus. This shift, which is in progress and still partial, is critical to ensure that the legal system uses forensic information in an accurate and valid way. In this Perspective, we discuss the ways in which the move to a more empirically grounded scientific culture for the forensic sciences impacts testing, error rate analyses, procedural safeguards, and the reporting of forensic results. However, we caution that the ultimate success of this scientific reinvention likely depends on whether the courts begin to engage with forensic science claims in a more rigorous way.

Ilan Wurman, Lyman Trumbull and the Second Founding of the United States, 12 American Political Thought 466 (2023)

In recent years there has been a renaissance of Fourteenth Amendment scholarship among historians and legal scholars, who take the amendment and Reconstruction more broadly to be a “Second Founding.” Eric Foner led off in more recent years with his popular book The Second Founding: How the Civil War and Reconstruction Remade the Constitution (New York: Norton, 2019), followed by my own book, The Second Founding: An Introduction to the Fourteenth Amendment (Cambridge: Cambridge University Press, 2020). Before us, other legal scholars, historians, and popular writers also referred to Reconstruction in such terms. Into this discourse enters Paul M. Rego’s timely and useful political biography Lyman Trumbull and the Second Founding of the United States.