New Faculty Publications – Summer 2023

New Faculty Publications - Summer 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 April 1, 2023 and June 30, 2023.

Khaled A. Beydoun & Nura A. Sediqe, The Great Replacement: White Supremacy as Terrorism?, 58 Harvard Civil Rights-Civil Liberties Law Review 69 (2023)

The events of January 6th 2021, and the era of emboldened armed white supremacist violence that surrounded the United States Capitol attack spurred state commitment to counter “white supremacist terrorism.” This unprecedented shift on the part of the federal executive branch, spearheaded by the Biden Administration, redirected War on Terror tools previously fixated on Muslim populations toward new subjects: white supremacist terrorists.

The Biden Administration marshaled counter-radicalization policing—the preventative informant-driven surveillance program—as the centerpiece of its white supremacist counterterrorism strategy. Counter-radicalization theory, specifically devised with Muslim subjects in mind, seeks to prevent the process whereby a subject becomes “radicalized,” or ideologically motivated to commit a violent act. This Article begins by analyzing the War on Terror roots of counter-radicalization policing, and the state and societal white supremacy that drove it. Interrogating the entrenched nature of white supremacy within different government institutions highlights the structural realities that impede its enforcement and the harms of extending the powers of the national security apparatus.

In addition to examining the enforcement perils tied to white supremacist counterterrorism, this Article introduces the concept of “surveillance relapse.” Surveillance relapse is the probability that counterterror enforcement will revert to principal and historic subjects of surveillance—Muslim and Black communities—because of the deeply racialized understanding of terrorism rooted in the federal and local law enforcement agencies tasked with carrying forward surveillance. This Article examines the critiques of a white supremacist counterterrorism regime through the prism of three surveillance relapse types: state-oriented relapse, circumstantial relapse, and structural relapse.

Khaled A. Beydoun & Nura A. Sediqe, Unveiling: The Law of Gendered Islamophobia, 111 California Law Review 465 (2023)

For far too long, “unveiling” has been the subject of imperial fetish and Muslim women the expedients for western war. This Article reclaims the term and serves the liberatory mission of reimagining how Islamophobia distinctly impacts Muslim women. By crafting a theory of gendered Islamophobia centering Muslim women rooted in law, this Article disrupts legal discourses that presume that its principal subjects—and victims—are Muslim men. In turn, this approach lifts Muslim women from the margins to the marrow of scholarly analysis.

Gendered Islamophobia theory holds that state and societal tropes ascribed to Muslim women are oppositional to those assigned to Muslim men. It elucidates how prevailing ideas of “submissiveness” and “subordination” attached to Muslim womanhood, and the grand aim of “liberating Muslim women” that follows, are rooted in an imperial epistemology that caricatures Muslim men as “violent,” “oppressive,” and “tyrannical.” This discourse of “masculine Islamophobia” drives War on Terror rhetoric and policy, and shapes how scholars imagine and then examine subjects of Islamophobia. This scholarly fixation on Muslim masculinity first, isolates Muslim men as the presumptive targets of Islamophobia; second, overlooks the distinct ideas that drive “feminine Islamophobia” and the specific injuries it levies upon Muslim women; and third, perpetuates the erasure of female experiences with systems of Islamophobia from scholarly view.

Beyond unveiling theory, this Article also contributes original empirical data highlighting how Islamophobia differentially unfolds along gender lines. Finally, to illustrate the law’s role in producing gendered Islamophobia, this Article examines six cases within three areas of critical concern: first, hijab bans and state regulation of Muslim women’s bodies; second, terrorism prosecution; and third, immigration and asylum adjudication.

Dan Bodansky, The United Nations Climate Change Regime Thirty Years on – A Retrospective and Assessment, 62 Washburn Law Journal 1 (2022)

The UN climate change regime celebrated its thirtieth anniversary earlier this year. During those three decades, there has been much sound and fury–the threatened breakdown of the Bali Conference in 2007 over a mislaid comma; the all-night negotiation of the Copenhagen Accord two years later by twenty-eight world leaders; the narrowly averted collapse of the conference the following day, as one delegate banged her hand so hard on the table in objection to the Accord’s adoption that it became bloody; the last minute question about a single “shall” in the text of the Paris Agreement, which nearly scuttled the entire agreement. But does all this drama signify anything? Thus far, despite all of the agreed words on paper, there has been little if any change in the upward trajectory of global greenhouse gas emissions. Is the Paris Agreement likely to change this? After many false starts, is the regime finally on track to successfully address the climate change problem?

This Article provides a retrospective assessment of the regime at age thirty. It consists of five parts. Part I reviews the key stages in the development of the UN climate change regime. Part II discusses how, despite considerable changes in the world, the climate change regime has stayed much the same. Part III analyzes why the climate change issue has been so intractable. Part IV introduces three models of how international law might address the climate change problem. Part V concludes with a report card on how the regime is doing on its thirtieth anniversary.

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

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

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

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

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

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

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

Laura Coordes, Successor Liability Theory in Insolvency Law in Re-Examining Insolvency Law and Theory: Perspectives for the 21st Century (E. Ghio et al. eds., Edward Elgar Publishing) (forthcoming 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 & Eugenio Vaccari, Global Trends in the Treatment of Local Public Entities in Distress: A Principled Approach, 32 International Insolvency Review 93 (2023)

This article presents the findings of a global study on the treatment of local public entities in distress conducted in 20 jurisdictions across the world. It sets out to detail and analyses how different national insolvency law systems treat local public entities in distress. The main purpose of this study is to provide recommendations for a harmonised and principled treatment of these entities. The key priority of the recommendations proposed in the study is to ensure the continuity of essential public services without necessarily deviating from the established insolvency principles of collectivity and equality of treatment among creditors.

Ira Ellman & Sanford Braver, When Laws Seem Fair: The Example of Family Law (Eliva Press 2023)

Family law rules decide whether former intimate partners have continuing financial obligations to one another, how their property should be divided, and how parental responsibility should be allocated. All may agree such laws should be fair, but how is fairness judged? The authors measured a previously unstudied benchmark of fairness: what seems fair to ordinary people. They asked random samples of community members for their judgment of the fair resolution of hundreds of hypothetical cases and found that rules inductively derived from their patterns of decisions did a better job than did legislatures and judges in balancing the valid but competing fairness claims such cases present. These studies should interest anyone who wants to understand when laws seem fair. The book presents the studies as originally published along with newly written chapters that synthesize and give context to their findings.

James G. Hodge, Jr., Federalism and Liberty: Reaching Constitutional Accord, 72 Kansas Law Review (forthcoming 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. & Leila Barraza et al., Midterm Maelstrom: Public Health Legal Impacts of Election 2022, 51 Journal of Law, Medicine & Ethics 208 (2023)

Among the morass of critical issues impacting the results of the midterm elections in 2022 were core public health issues related to health care access, justice, and reforms. Collectively, voters’ communal health and safety concerns dominated outcomes in key races which may shape national, state, and local legal approaches to protecting the public’s health in the modern era.

Stacy Leeds, Robert J. Miller, Kevin K. Washburn & Derrick Beetso, Oklahoma v. Castro-Huerta–Rebalancing Federal-State Tribal Power, 23 Journal of Appellate Practice and Process 47 (2023)

The Supreme Court’s unexpected decision in Oklahoma v. Castro-Huerta in 2022 overturned established precedent and scrambled long-settled expectations about the division of criminal jurisdiction in Indian country. In this panel discussion shortly after the decision was issued, the authors provided a “hot take” on the Castro-Huerta decision and discussed its impact on criminal justice in Indian country and on federal Indian law more broadly.

Gary E. Marchant & Carlos Ignacio Gutierrez, Soft Law 2.0: An Agile and Effective Governance Approach for Artificial Intelligence, 24 Minnesota Journal of Law, Science & Technology 375 (2023)

Artificial intelligence (AI) is the most transformative technology of our era, affecting every industry sector and aspect of our lives. While AI promises enormous benefits, some of which are already manifesting, AI also has the potential to create many risks and problems, some of which are already starting to appear. Traditional command-and-control government regulation, referred to as “hard law,” barely exists for AI, and following the pattern of other technologies, is likely to be adopted incrementally in a trickle that will extend over future decades. Thus, for now, and for the immediate future, AI will be primarily governed by “soft law,” which consists of a variety of instruments creating substantive expectations that are not directly enforceable by governments. The primary problem with soft law is that because it is not enforceable, there are doubts about its effectiveness. This article provides the results of a two-year study on how to make AI soft law more effective and credible. It first summarizes lessons from decades of soft law governance of other technologies, including biotechnology, nanotechnology, information and communication technologies, and environmental technology. Next it identifies, analyzes, and draws observations and insights from over 600 existing AI soft law programs. Finally, building on the previous two tasks, it proposes a new Soft Law 2.0 model that consists of a toolbox of thirteen different mechanisms that can be used to ensure that soft law measures are implemented as intended, which should help make AI soft law more effective and credible.

Ben McJunkin & J.J. Prescott, Collusive Prosecution, 108 Iowa Law Review 1653 (2023)

In this Article, we argue that increasingly harsh collateral consequences have surfaced an underappreciated and undertheorized dynamic of criminal plea bargaining. Collateral consequences that mostly or entirely benefit third parties (such as other communities or other states) create an interest asymmetry that prosecutors and defendants can exploit in plea negotiations. In particular, if a prosecutor and a defendant can control the offense of conviction (often through what some term a “fictional plea”), they can work together to evade otherwise applicable collateral consequences, such as deportation or sex-offender registration and notification. Both parties arguably benefit: Prosecutors can leverage collateral consequences to extract greater punishments and defendants can avoid consequences they view as particularly burdensome. But these benefits can come at a cost to others who are not at the bargaining table. We contend that “collusive prosecution” of this sort can be pernicious, as may be the case when sex-offender registration and notification laws are in play, but it also has potential to be socially attractive. Accordingly, we sketch a normative framework for evaluating collusive prosecution as a matter of prosecutorial ethics. We draw on the emerging field of public fiduciary theory to characterize prosecutors’ ethical duties to varied—and often conflicting—beneficiaries. We suggest that programmatic uses of collusive prosecution may be fair and reasonable in a common immigration context, but collusive prosecution designed to relocate sex-offense registrants likely fail these conditions. Ultimately, we offer a suite of reforms that may be useful for policing collusive prosecution without banning the practice outright.

Susan A. McMahon, What We Teach When We Teach Legal Analysis, 107 Minnesota Law Review 2511 (2023)

Traditional legal education, especially in the first year, often leaves students with the impression that law is neutral and objective, and their job, as lawyers, is to read cases, pull out rules, and sift facts into legal categories. This training contributes to a student’s sense that law is natural and normal, and, to quote Robert Gordon, “usually OK and just,” instead of invigorating her imagination as to law’s possibilities and giving her the tools to push for legal change.

To combat these effects, law schools must teach not only the usual legal analysis skills, but also promote a pedagogy of disruption and creation. First, professors should disrupt students’ sense that law is neutral and objective. Students need to see legal rules not as fixed and natural, but as flexible and value-laden. They need to see opinions not just as statements of what the law is, but as one vision of many possible ways law could be. A disruption legal analysis pedagogy trains students to adopt an outsider’s gaze, to unearth the bias and assumptions often embedded in the law, and to imagine other possibilities.

Second, law schools must also teach students how to create, how to use the traditional tools of legal reasoning to achieve change. This approach accepts the rhetoric, structure, and go-to moves of legal thinking as it exists, acknowledges their failures and weaknesses, and aims to arm students with the skills to birth new rules, cement new baselines, and create new approaches to legal problems.

Teaching with both strategies in mind will help the scales drop from students’ eyes—they will be clear-eyed about the system’s flaws and failings—while still preparing them to operate within it and change it from the inside. This Article encourages professors to incorporate disruption and creation into their legal analysis pedagogy and provides specific strategies for bringing out these themes in the classroom and on exams.

Caitlin Millat & Melissa Murray, Education as Childcare, 101 North Carolina Law Review 1463 (2023)

American parents have their feet in two camps: one, the vast, state-sponsored project of education, and another, the highly privatized world of childcare. Much has been made of the fact that there are few public supports for families and childcare. But what often goes unstated is that the provision of public education effectively serves as a significant “care” subsidy. To be sure, most are loath to frame public education in this way, but as the recent COVID-19 pandemic lays bare, in fact, the provision of public education does serve as critical childcare scaffolding for families, enabling workplace participation and productivity. The crisis of caregiving that resulted when families lost access to in-person education–for many their sole state subsidy for the provision of care–revealed the ways in which education and childcare are necessary bedfellows.

Although education and childcare, two sides of the childrearing coin, share deep roots in American society, they have, since the early twentieth century, been disaggregated. Though education and childcare occupy separate spheres, the pandemic has challenged us to reevaluate the ways in which education and care interact both with one another and with the state. Drawing on a history in which education and childcare were understood as unified, this Article considers how these two core aspects of childrearing might again be brought together as part of a system of public provision for families. More particularly, it suggests that the time is right to reconsider not only the role of education and childcare vis-à-vis the state, but also the ways in which education and childcare comprise dual parts of a spectrum of care.

Robert J. Miller, The International Law of Colonialism: Johnson v. M’Intosh and the Doctrine of Discovery Applied Worldwide, Canopy Forum, Center for the Study of Law and Religion, Emory University (March 30, 2023)

The international law of colonialism is known today as the Doctrine of Discovery. The clearest and most internationally influential explication of the Doctrine is found in the United States Supreme Court case of Johnson v. M’Intosh, 21 U.S. 541 (1823). I perceive that in 1823 the Supreme Court defined this international Doctrine as being comprised of ten distinct elements or factors. In this short article, I lay out these ten elements. Using these elements, I and various co-authors have compared and contrasted how Euro-American countries (USA, Australia, Brazil, Canada, Chile, England, Germany, New Zealand, Portugal, and Spain) used this international law in Africa, the Americas, and Oceania to steal the sovereignty, lands, assets, and human rights of Indigenous Nations and Peoples all over the world.

Troy A. Rule, Drones, Airspace, and the Sharing Economy, 84 Ohio State Law Journal 157 (2023)

Confusion regarding the scope of landowners’ rights to exclude low-flying objects from above their land has hindered commercial drone operations in the United States for more than a decade. This Article describes how policies that embrace rather than ignore landowners’ property interests in the low airspace above their land could accelerate the widespread deployment of commercial drone technologies. By enacting new laws that affirm and more clearly define landowners’ airspace rights, legislators could unleash market forces to more efficiently and equitably open up commercial drone activity throughout the country.

Troy A. Rule, Positive-Sum Water-Energy-Food Nexus Governance, 31 New York University Environmental Law Journal 117 (2023)

This Article introduces the distinction between zero-sum and positive-sum water-energy-food (“WEF”) nexus interactions and argues for a greater policy focus on promoting interactions that are positive-sum. Most WEF nexus governance research has historically centered on promoting more integrated management of scarcity-driven tradeoffs among nexus resources. Such research tends to presume that increasing the security of any one nexus resource necessarily diminishes the security of at least one of the others. In contrast, a small but growing subset of the WEF nexus governance literature focuses on what this Article calls “positive-sum” nexus interactions—synergistic nexus resource relationships unleashed by innovation and targeted capital investment. Unlike zero-sum nexus interactions, positive-sum interactions increase the security of at least one nexus resource while also maintaining or improving the security of the other nexus resources. Although effectively managing zero-sum nexus resource interactions is an important part of WEF nexus governance, a greater emphasis on policy strategies that leverage positive-sum nexus resource interactions could ultimately spare communities and nations from facing as many resource tradeoffs in the coming decades. This Article outlines core differences between zero-sum and positive-sum WEF nexus resource interactions and argues that much more policy attention on positive-sum nexus strategies will be needed to build low-carbon, sustainable water, food and energy systems across the world.

Michael Saks & Ira Ellman et al., Improving Consumer Understanding of Short-Term Health Insurance: An Experiment, Medical Care Research and Review (2023)

Short-term health insurance policies—made available with longer durations during the Trump Administration—offer substantially fewer consumer protections than do Affordable Care Act (“ACA”)–compliant policies. Federal regulations require short-term policies’ sellers to disclose possible ACA noncompliance to prospective buyers. This controlled experiment finds, however, that the federally required disclosure does not substantially improve consumer understanding of these policies’ coverage limitations. The experiment also finds that an enhanced disclosure greatly improves this understanding. Importantly, consumers’ preferences for ACA-compliant policies also increased with their comprehension of the coverage differences. Thus, the study demonstrates not only that easily implemented changes in the federally required disclosure would improve consumer understanding of the coverage differences but also that the improved understanding matters to consumers. However, even the enhanced disclosure left many respondents mistaken about some key limitations of short-term policies, suggesting that policymakers should consider other strategies to protect buyers of short-term health insurance.

Erin A. Scharff & Darien Shanske, The Surprisingly Strong Case for Local Income Taxes in the Era of Increased Remote Work, 74 Hastings Law Journal 823 (2023)

Traditional theoretical literature on fiscal federalism urges cities to finance themselves with taxes on immobile sources. Thus, the literature sees real property taxes as the best source of local revenue; real property, after all, cannot be easily moved. This same literature eschews local income taxes because it is easy for a taxpayer to move, thus allowing exit from local income tax obligations.

Practice here seems to follow theory: cities do not tend to levy income taxes. However, this general trend has caused scholars to overlook important exceptions. In fact, many cities impose income taxes and have for a long time. In this Article, we argue these exceptions are not a vestigial mistake. The persistence of local income taxes suggests that the traditional fiscal federalism view is too absolute. Rather, local income taxes can play a useful role in the municipal revenue toolkit, provided that such taxes are not too administratively burdensome and levied at a low rate that considers the city’s competitive position.

In this Article, we provide an account of local income taxes in practice. Because the existence of these taxes has been obscured by the theoretical dismissal of local income taxation, this account itself is a contribution to the existing local finance literature. We then argue that the traditional skepticism of local income taxes should be tempered. Evidence from agglomeration economics suggests some limits on the traditional mobility story; agglomerations make exit difficult for many industries and professions. Moreover, to the extent these agglomerations enable a segment of the population to earn more, it can be both fair and efficient to raise money through local income taxes.

We make this case for local income taxation well aware of increasing skepticism of local tax authority in an era of rising remote work. But the move to increased remote work does not doom local income taxes, either as a practical or legal matter. Remote work will not eliminate agglomerations so much as shift where they occur.

Erin A. Scharff & Kathleen DeLaney Thomas, Fake News and the Tax Law, 80 Washington and Lee Law Review 803 (2023)

The public misunderstands many aspects of the tax system. For example, people frequently misunderstand how marginal tax rates work, misperceive their own average tax rates, and believe they benefit from tax deductions for which they are ineligible. Such confusion is understandable given the complexity of our tax laws. Unfortunately, research suggests these misconceptions shape voter preferences about tax policy which, in turn, impact the policies themselves.

That people are easily confused by taxes is nothing new. However, with the rise of social media platforms, the speed at which misinformation campaigns can move to shape public opinion is far faster now. The past five years have seen a dramatic shift in the landscape of false information, and scholars in a variety of disciplines, from law to psychology to journalism, have explored the increasing influence of fake news.

Building on this burgeoning literature, this Article is the first to examine the incidence and impact of fake news on the tax law. We analyze a unique dataset of tax stories flagged as “false” or “untrue” by reputable, third-party news sources. We use this dataset to explore common themes in fake tax news, as well as the ways tax laws’ complexity contributes to spreading false information. We then offer recommendations for how tax administrators and policymakers can combat these misinformation efforts. Specifically, we argue that insights from the literature on fake news can and should inform how administrators disseminate true tax information to the public. Further, understanding what types of tax laws are easily misunderstood or subject to manipulation should inform substantive tax policy design.

Rachel Stabler, All Rise: Pursuing Equity in Oral Argument Evaluation, 101 Nebraska Law Review 438 (2023)

Oral argument is often described as a “rite of passage” for law students. As challenging and nerve-wracking as it may be for law students, it is also uniquely challenging for the person who evaluates it—usually a moot court judge or law professor. Oral argument is one of the few evaluations done in law school without the benefit of anonymity. Without anonymity, an evaluator can be subject to a number of biases. Some biases arise from the cognitive processes common to all evaluators. Other harmful biases arise from stereotypes based on the student’s identity, like race or gender. And these biases operate against students who already face additional burdens from the norms for presentation style that are rooted in classical tradition. When combined with the much-diagnosed problem of inconsistent judging, it is no wonder that evaluating oral argument is so difficult. After first identifying these challenges, the Article then discusses solutions for anyone evaluating an oral argument, identifying eight concrete steps they can take before, during, and after the argument. By identifying these steps, this article seeks to minimize the effects that bias, unfair presentation style norms, and inconsistent judging have on the students’ experience and ensure equity in the evaluation of their oral argument.

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

Although states and local governments administer elections in the United States, the federal government has also 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 administration laws. 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, Traffic Courts, 112 California Law Review (forthcoming 2024)

Traffic courts are deeply important, but we know almost nothing about what goes on inside them. There are at least three reasons to care. 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 work. Second, traffic courts have deep importance in people’s lives. Monetary penalties from traffic court can cause people to go into debt, sometimes so severe that it can take years to emerge. Suspended driver’s licenses—another potential penalty—have catastrophic effects on people’s lives and 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. They enable a massive transfer of capital from motorists—disproportionately Black and Latino motorists—to the government. In short, if you care about courts and the law, humans, or justice, you should care about traffic courts.

This Article provides the first comprehensive study of these courts. It demonstrates that traffic courts are diverse institutions—they vary state by state—but generalizations can be made. Traffic courts tend to be informal, lawyerless places, not particularly concerned with procedural rules or other traditional indicia of legality. Traffic judges—often non-lawyers themselves—wield extraordinary discretion. Traffic courts show us that our justice system is far less consistent and far more pluralist than we 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 ignoring well-established rights floors. 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: that between precedential and nonprecedential courts, and that between more judicial and more administrative courts. These distinctions suggest novel ways to reform and oversee both traffic courts and also the justice system more broadly.

Justin Weinstein-Tull, The Experience of Structure, Arizona State Law Journal (forthcoming)

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

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

Roselle Wissler & Art Hinshaw, What the Early Stages of Mediation Look Like Today, 29 Dispute Resolution Magazine 7 (2023)

Over the past decade or two, several mediator surveys suggest that changes have been taking place in the early stages of mediation. The surveys, however, have shed little light on what actually occurs during pre-session communications and during initial mediation sessions, be they joint sessions or separate caucuses, and on settings and case types beyond the private mediation of large civil and commercial cases. To get a sense of the current use of pre-session communications and initial joint sessions or initial separate caucuses, as well as what takes place during them, we conducted an online survey of civil and family mediators in state and federal court mediation programs and private mediation settings. The findings summarized here are based on the responses of 1,065 mediators across eight states and four regions of the United States.

Ilan Wurman, Reconstructing Reconstruction-Era Rights, 109 Virginia Law Review 885 (2023)

It is conventional wisdom that the Reconstruction generation distinguished between civil rights, with respect to which the Fourteenth Amendment would require equality, and political and social rights, which would be excluded from coverage. This Article challenges that wisdom. It demonstrates that social rights were not a concept relevant to the coverage of Article IV’s Privileges and Immunities Clause, the precursor to the Fourteenth Amendment’s Privileges or Immunities Clause. Antebellum legal and political sources used the term “social rights” in a variety of ways, but none tracked the purported Reconstruction-era trichotomy of civil, political, and social rights; most uses of the term connected social rights to civil rights, which Article IV (and therefore the Fourteenth Amendment) reached.

The harder question is whether the Fourteenth Amendment reaches “public” rights and privileges as opposed to “private” rights. A close examination of antebellum jurisprudence suggests that public rights were excluded from the scope of Article IV because they were privileges of “special” citizenship but not “general” citizenship common to the citizens “in the several states.” Public privileges are likely included under the Fourteenth Amendment, however, which guarantees the privileges and immunities of citizens “of the United States” within particular states, including the privilege of all U.S. citizens to the public privileges of their own states to which they contribute through general taxation. If this framing is correct, then both the interracial marriage and school desegregation cases are easier to sustain on originalist grounds than prior studies have suggested.

Ilan Wurman, Reversing Incorporation, 99 Notre Dame Law Review (forthcoming 2023)

It is originalist gospel that the Fourteenth Amendment’s Privileges or Immunities Clause was intended, at a minimum, to incorporate the Bill of Rights against the states. This Article revisits forty years of scholarship and concludes that this modern consensus is likely mistaken. Reconstructing antebellum discourse on fundamental rights reveals that the historical players assumed that every state must, as all free governments had to, guarantee and secure natural rights to their citizens. But that did not mean the states regulated these rights in the same way, nor did that dictate what the federal government’s role would be in guaranteeing and securing such rights. The record reveals that the antislavery and Republican concern, both before and after the adoption of the Fourteenth Amendment, was equality in civil rights however defined and regulated under state law. In making this claim, this Article identifies a significant conceptual error pervasive in the literature: conflating the rights the first eight amendments secure with the first eight amendments themselves. Merely identifying the freedom of speech or the right to bear arms as a privilege or immunity of United States citizenship tells us nothing about how various constitutional provisions would guarantee and secure them.