New Faculty Publications – Spring 2024

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, 2024 and March 31, 2024.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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