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 October 1, 2024 and December 31, 2024.
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.
