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, 2025 and June 30, 2025.
Khaled A. Beydoun, The World Cup as a Racial Rebuilt Project, 2025 Utah Law Review 805 (2025)
Scholars, particularly Critical Race Theorists, have written trenchantly about the law’s role in racial formation. Yet, while instrumental in this process, the law does not stand alone as a conduit of making race. Particularly for misrepresented groups, like Arabs, who struggle to find existential self-determination between imperial identity impositions, ethnic cleansing, and clashing racial ascriptions, the law fails to create racial categories that reflect their lived realities.
Beyond the asymmetrical landscape of legal ordering, sport stands as a powerful site of racial formation. Sport is where racialization can unfold indigenously, rebelliously, and “from the bottom.” Particularly soccer, a game of unrivaled global resonance, especially within Arab societies where the “beautiful game” provides a venue for protest, possibility, and redefinition. This was on full display at the 2022 World Cup in Qatar when the host nation and the historic performance of the Moroccan National Team rebuilt a transnational Arabism that contested colonial divides and contemporary legal designations, ultimately unveiling the sport’s capacity to remake race.
This Article centers the World Cup as a counter-narrative that reconstructed Arabism in the native image of the host nation, Palestine, and the Moroccan team, and against the stigmatized racialization ascribed by Western laws. The 2022 World Cup did so by: (1) demystifying imperial and War on Terror constructions of Arab identity; (2) reconstructing an indigenous modality of transnational Arabism in its stead; (3) curating a generative setting for a “mosaic racialization” that harmonized the diversity of a peoples who found common existential ties as Arabs; and (4) providing a template for rebuilding Arab identity within the shifting contours of American racial ordering and racial demonization.
Khaled A. Beydoun, Telling War Stories: Innocence, Indictment, and (En)gendered Terror, 114 Georgetown Law Journal (forthcoming 2026)
The law is replete with dominant narratives endorsed by its letter and amplified by connected and conspiring levers of power. This Article centers the discursive power of law, and specifically, the War on Terror’s grand narrative of “masculine Arab and Muslim terrorism.” By gendering terror threat, this dominant wartime narrative marks Arab and Muslim men and boys as a terrorist bloc that justifies pre-crime indictment, collective punishment, and hegemony.
By focusing on law and its discursive echoes that brands Arab and Muslim men as presumptive terrorists, this Article: (1) Theorizes the gendered dimensions of Arab and Muslim threat, building upon formative frameworks of othering and racialization within and beyond the legal literature, (2) Develops the concept of masculine terror indictment assigned collectively to Arab and Muslim men and boys, (3) Interrogates War on Terror law as the forceful conduit of the dominant metanarrative of masculine Arab and Muslim terrorism, which brands anybody fitting that profile as a justifiable target of extrajudicial violence; and (4) Centers the counter-stories of men in Gaza, who repurposed new media to challenge the War on Terror narrative of masculine terrorism that erases their individual identities from legal, scholarly and popular view.
As an emanation of law itself, legal scholarship contributes to the power struggle of whose stories are told and untold, highlighting the urgency of this Article and the unheard voices within it. Through its criticism of dominant law and lore, this Article challenges the gendered War on Terror narrative. By introducing the stories from men in Gaza, it contributes the first counter-narratives of this kind to legal scholarship and writes the humanity of Arab and Muslim men into its pages. While legal scholars have examined the distinct plight of Arab and Muslim women, this Article asks: “What about the men?” and stands as the first to reconstruct their humanity through legal counter-storytelling and intimate profiles of the men themselves.
Khaled A. Beydoun, Playing Politics: Social Media, Censorship, and Speech Gamification, 74 Emory Law Journal (forthcoming 2026)
40% of Americans self-censor their speech online. While staggering, the hidden phenomenon beneath this figure reveals a more dystopic outlook for the future of free speech. The powerful predictive technologies driving social media platforms, which the Supreme Court dubbed “the most important spaces for the exchange of views,” control the terms of modern speech and the scope of political discourse. The Supreme Court’s laissez faire posture toward online speech moderation has only empowered digital dominion over modern expression and citizenship to the detriment of free speech principles.
As such, the primary threat to free speech today is not the state but Big Tech intermediaries. Tech giants like Meta, this Article’s focal case study, not only regulate political expression and identity, but reshape them in line with everchanging interests. Through facially neutral speech policies enforced by content moderation regimes steered by private instead of liberty interests, Meta digital platforms: (1) Gamify speech by reducing expression into a system of conditioned patterns and scorable outcomes, (2) Reward conformist speech and punish dissident speech within a controlled platform of shifting private political interests, (3) Suppress visibility of speech and accounts of dissident users, and elevate visibility of speech and accounts of obedient users; and, (4) Exact hidden infractions on online expression and identity, which blur into First Amendment harms within traditional public forums.
In one year, Meta enacted moderation policies that categorically suppressed “political content” then shifted to a “more speech” standard announced on January 7, 2025. The reform reveals private opportunism and the perils it poses to modern speech and citizenship. While legal scholars examine the regulatory tension between the state and digital platforms, scarce attention is paid to bound subjects in between: the people. This Article sounds that alarm and centers harms suffered by individuals – crafting original theory and analysis interrogating how Meta’s gamification of modern expression exacts unseen and enduring infractions on speech, citizenship, and identity.
Dan Bodansky & Harlan Grant Cohen, Close Relations: International Legal Realism and Cognitive-Behavioral Studies in International Legal Theory and the Cognitive Turn (Anne van Aaken & Moshe Hirsch eds., Oxford University Press 2025)
Legal realism and cognitive-behavioral studies share an interest in studying empirically how individuals think and behave. For both, focusing on the actual people who practice, argue about, interpret, and implement international law is essential to explaining how international law works. The two approaches can thus mutually enrich one another; marrying legal realism’s empiricism and pragmatism with cognitive-behavioral studies’ rigor can be powerful and seductive. But in sharpening each other’s focus, legal realism and cognitive-behavioral studies may also amplify each other’s blind spots. Considering related critiques of both legal realist and cognitive scientific approaches to international law that emphasize instrumentalism at the expense of normativity, this chapter reaffirms the importance of legal realism’s characteristic pluralism, openness, and capacity for self-critique. Those values, the chapter argues, can provide a path forward for a partnership between legal realism and cognitive-behavioral studies that remains true to the objectives and values of each.
Karen Bradshaw, Depolarized: How Nature Can Save America (Columbia University Press) (forthcoming 2026)
Drawing on more than a decade of academic and government research, the book examines the promise and limitations of stakeholder collaboration as a tool for governance. Aimed at a broad readership, it translates complex research into accessible insights that shed light on how collaborative approaches can shape federal environmental policy—particularly in addressing some of the nation’s most divisive issues.
Ellen Bublick et al., Design for Destruction: Designing Products, and Products Liability Law, for the Natural History of Products (forthcoming)
In the United States, products liability design defect law in many states focuses on the existence of a reasonable alternative product design; in other words, whether a reasonable alternative product design could have reduced or eliminated foreseeable risks posed by the product. Yet surprisingly few common law authorities or state statutes have considered the term of product life over which a product’s risks and alternative designs should be evaluated. In this article, a torts treatise writer, a distinguished sustainability law student, and an award-winning product designer, argue that reasonable alternative design should be based on the foreseeable risks and benefits of the design over the product’s expected natural history, not merely during the product’s initial intended use. When the existence of a reasonable alternative design is evaluated through this lens, the test can weigh true risks and benefits of products as disparate as batteries, stents, and ships. Requiring product designs to prevent excess dangers posed by the product, to the extent foreseeable and reasonable, aligns product designers’ interests with the interests of society as a whole.
Ellen Bublick & Gregory C. Keating, Complex and International Litigation and Empirical Litigation Studies: Festschrift in Honor of Professor Deborah Hensler, 17 Journal of Tort Law 93 (2024)
Professors Ellen Bublick and Gregory Keating, Co-Editors of the Journal of Tort Law, introduce Complex and International Litigation and Empirical Litigation Studies, a Festschrift in Honor of Professor Deborah Hensler, Judge John W. Ford Professor of Dispute Resolution at Stanford Law School.
Charles Calleros & Louis Schulze, Law School and Exams: Preparing and Writing to Win (4th ed., Aspen 2025)
Law School and Exams: Preparing and Writing to Win, Fourth Edition is the fourth edition of a popular book whose first edition Bryan Garner reviewed and judged to be “the best on the market.” It combines:
1. Clear and comprehensive explanations of study and exam techniques
2. Numerous illustrative samples that are truly instructive
3. Twenty in-class exercises or take-home assignments on everything from case briefs to essay and multiple-choice exam questions.
Comprehensive and self-contained, the Fourth Edition is suitable for use as the textbook for a sophisticated Prelaw course, 1L Orientation, or a 1L Academic Success course. Alternatively, incoming freshmen can work through it independently over the summer to be optimally prepared for law school in the fall.
Susan Chesler & Elizabeth Porter, Contracting for the Company’s Culture, 19 Ohio State Business Law Journal 1 (2024)
Company culture is not a new phenomenon. It refers generally to a set of beliefs and behaviors that guide how a company’s management and employees interact with each other and how they handle external business transactions. A company’s culture has always been relevant to employee retention and financial success, but recently its importance cannot be understated. Companies are not immune from the culture wars that divide the United States and countries across the globe. Increasingly, companies have become participants – willingly or not – in a wide range of social and political controversies. A company’s stakeholders in these ongoing culture wars include their employees, investors, and consumers. And those stakeholders make choices about which companies they want to work for, invest in, purchase from, and even boycott, based in part on a company’s beliefs and behaviors surrounding a variety of social issues like gender equality, diversity, LGBTQ+ rights, sustainability, human health, abortion rights, and so on.
These stakeholders are growing more critical of companies’ performative attempts to pacify them and often characterize such attempts as greenwashing or blackwashing. They expect more than just a rainbow flag during Pride month and a Black Lives Matter t-shirt featured in an advertisement. They expect companies to embrace these issues and incorporate their values into the way the company operates, both internally and externally. Companies have a vested interest in developing and nurturing a company culture that aligns with their stakeholders’ values, and also in telling the story of their company culture to as many stakeholders as possible.
While contract drafting is rarely seen as an avenue for developing and communicating company culture, let alone as a vehicle for social change, in this article we propose that contract drafting can be used to achieve both goals. By incorporating narrative techniques and impactful language, companies can use their contracts to tell the stories of the company culture that has become so important to their success. Because employment relationships embody such a vital role in so many individuals’ lives, this article focuses specifically on how companies can draft their employment contracts to better define and implement their company culture and thus improve their employee recruitment and retention, productivity, and financial success.
Beyond having an immediate impact on the transacting parties and even a company’s workforce, contract drafting can also be used as a vehicle for broader societal change. This is true for several reasons. First, private contracts necessarily have an impact on third parties. Second, while a single individual may lack sufficient bargaining power to seek favorable contract language, groups of individuals may yield great power if they work in tandem. Additionally, if a significant number of individual, unrelated contracts are drafted similarly to address key social issues, there may be a resulting culture shift. The use of the same or similar contract drafting language in numerous unrelated contracts can have a significant impact across an industry, or even more broadly. What may have started as a single company’s culture of promoting social good may eventually lead to a societal shift. Contract language also provides the benefit of incentivizing the transacting parties to act in accordance with their expressed intent, while also equipping the parties with the force of legal enforcement and tangible remedies.
This article begins by defining company culture and exploring its rising relevance. It will then address the value of incorporating storytelling and narrative techniques in contract drafting, highlighting four techniques that can assist drafters in crafting employment contracts that serve as a tool to develop and embed company culture. These techniques are character and voice; stock stories and counterstories; plot and alternative plot lines; and expressive language. By way of illustration, this article showcases how companies can embed a company culture of empowering women and preventing workplace sexual harassment into their employment contracts. It then explores ways in which companies can leverage their employment agreements to develop a company culture around Environmental, Social, and Governance (“ESG”) issues. ESG has emerged as a key factor in engaging today’s workforce, with one in three employees preferring to work for companies that are responsible to all stakeholders, not just investors and shareholders. Millennial and Gen Z employees are heavily influenced by employers’ ethical values in choosing where they work, and a recent study has shown that ESG values are among the most significant. Employers outside of the U.S. have already begun to find ways to develop a strong ESG culture as a means of attracting and retaining employees. This article explores ways that contract drafting techniques and language can effectively be used to develop and implement an ESG company culture to benefit the employer-employee relationship, the broader workforce, and beyond.
Ann Ching & David B. Gass, Contemporary Appellate Advocacy (Carolina Academic Press 2025)
Discover the art and science of appellate advocacy with Contemporary Appellate Advocacy, a comprehensive textbook for law students and lawyers. Moving beyond the basics, this book explores the realities of modern appellate practice.
Written by experienced authors Professor Ann Ching and Judge David B. Gass, this textbook demystifies the appellate process, offering both practical advice and theoretical foundations. It emphasizes ethics and professionalism while integrating psychology and social science to teach effective persuasion techniques. The book also adopts a modern approach to writing style and discusses the significant impact of technology on appellate practice.
Ideal for various audiences, Contemporary Appellate Advocacy serves as a primary textbook for appellate advocacy courses, a supplemental resource for moot court programs or clerkships, and a reference guide for practicing lawyers. The book is structured into five parts, covering an appellate practice overview, appellate brief drafting, persuasive writing guidance, oral argument strategies, and special considerations, including the integration of legal technology.
With Contemporary Appellate Advocacy, you’ll become a more effective, persuasive, and knowledgeable advocate. The authors’ real-world expertise and practical wisdom make this textbook an invaluable resource for students and practitioners alike.
Adam Chodorow, Saban, Pope, and the Benefits Theory of Taxation, 57 Arizona State Law Journal 171 (2025)
As a condition for receiving federal highway funding, Congress requires states to spend the revenues they raise from road users on the roads. Congress justified this condition, in part, because wanted federal money to supplement—not replace—state money and, in part, on fairness grounds, essentially endorsing the benefits theory of taxation, under which taxes can be justified based on the benefits taxpayers receive. To safeguard these federal funds and prevent legislatures from using road use revenues for other purposes, most states added anti-diversion provisions to their constitutions. A majority specifically identified the taxes their anti-diversion provisions would cover. However, a few—including Ohio and Arizona—adopted broad language providing that revenues from “fees, excises, or license taxes relating to registration, operation, or use of vehicles on the public highways or streets” be spent on the roads.
Despite the broad language found in Arizona’s provision, Arizona’s Supreme Court—relying in part on Ohio’s jurisprudence—narrowly construed the state’s anti-diversion provision to apply only to a narrow class of taxes. This article considers Arizona’s jurisprudence—and in particular cases considering the rental car taxes used to fund Cardinal stadium and a rental car facility at Phoenix’s Sky Harbor airport—to show how the courts have gone astray, drifting further and further away from the provision’s underlying purpose, shortchanging drivers whose money is being spent for non-road purposes, and potentially putting Arizona’s federal highway dollars at risk.
Adam Chodorow, Judeo-Christian Theories of Taxation: The Jewish Perspective in Christian Perspectives on the Role of the State, Justice, and Taxation (Robert F. van Brederode ed., Springer 2025)
Tax scholars have traditionally looked to economic theory when considering questions of tax equity and distributive justice. However, these questions are moral in nature, and some scholars have begun to look to Judeo-Christian texts and teaching when considering how best to design tax systems. However, it is not clear that Jewish and Christian thinkers understand their shared texts the same way. The goal of this book chapter is (1) to explain briefly how tax policy experts, including those arguing from religious principles, generally approach questions of tax equity, (2) provide readers with a basic understanding of the structure of Jewish law, and (3) set forth how Jewish religious thinkers understood the shared religious texts and practices that arguably speak to the question of how best to design a secular tax system. The Bible and Talmud contain a number of biblical tax or tax-like practices, including (1) the temple tax, (2) agricultural tithing, and (3) maaser kesafim, also referred to as non-agricultural tithing, and two secular practices, including (4) the taxes imposed by the kings and other leaders of Israel and (5) discussions in the Talmud of how best to allocate the costs of communal expenditures. While it might be tempting to assume that such systems present the best evidence of a divinely inspired or sanctioned tax system, the religious nature of these practices and the purposes they served render them poor models of tax fairness. Similarly, the more general obligation to care for the poor provides little guidance regarding modern tax design. Instead, those seeking to rely on Biblical tax practices or Judeo-Christian values are left to argue by analogy and inference, leaving the door open to disagreements about what Judeo-Christian values require of a modern, secular tax system.
Laura Coordes, Bankruptcy and the Public-Private Divide, 43 Yale Law & Policy Review 418 (2025)
The Bankruptcy Code draws a firm line between “municipalities” and other entities. In reality, numerous entities exist that could be categorized somewhere between a purely public municipality and a private entity. This incongruence between theory and practice creates two primary sets of problems. First, when a “blended entity” seeks to file for bankruptcy, the relief it receives from the bankruptcy system, if any, may be practically inappropriate or constitutionally suspect. Second, blended entities’ use of the bankruptcy system creates uncertainty, which parties and courts can capitalize on to exploit gaps in the law.
This Article is the first to take an in-depth look at blended entities and the problems that ensue when they attempt to use a bankruptcy system that does not contemplate their existence. In doing so, it contributes to the larger debate about the usefulness of the current Bankruptcy Code in light of manipulation of the bankruptcy laws, and it exposes a core weakness arising from the Code’s inability to recognize the blended nature of many of the entities that form the backbone of the U.S. economy and provide services the public has come to rely on in everyday life.
Laura Coordes, Chapter 11 Mediation, 41 Emory Bankruptcy Developments Journal 153 (2025)
Mediation has become an increasingly popular and powerful tool in chapter 11 reorganizations, especially in large cases. Despite its widespread and growing use, mediation in chapter 11 is under-studied. This Article begins to fill this gap in the literature by critically assessing mediation, a form of largely private dealmaking, in the context of a bankruptcy process that is supposed to be largely public. The Article begins by discussing mediation’s popularity within the bankruptcy process before turning to a review of issues that have arisen in recent cases, providing a critical assessment of mediation’s promise and perils. In particular, the Article examines the role mediation can play in providing—or, in some cases, denying—different groups equitable access to bankruptcy dealmaking. The Article then offers suggestions for ways that courts can provide more guidance as to the use of mediation practice and the choice of mediators and concludes with some thoughts on how this private dealmaking process must evolve to better coexist with the public nature of a bankruptcy proceeding.
Elissa Gentry, Disrupting the Risk Ratchets, 104 Oregon Law Review (forthcoming)
The “ratchet” effect—a phenomenon in which stopping or reversing course becomes impossible—has been largely ignored by the doctrine of informed consent. Health contexts like fertility treatment are particularly vulnerable to such effects: patients may temporarily be willing to accept increasing risks and costs when focusing on the risks and costs already incurred.
Not all changes in preferences are concerning: new information about the efficacy of treatment or about a patient’s own medical condition may better reveal a patient’s true preferences over treatment. Instead, the problem occurs when patients focus on the cumulative costs of, or risks associated with, past failed treatments in deciding whether to pursue additional treatment. This focus risks temporarily ratcheting up the acceptable cost or risk for an additional chance at a positive outcome, raising it above the cost or risk a patient would find otherwise acceptable. This predictable reaction ends up harming patients both physically and financially.
Given the broad range of reasonable preferences over acceptable risks and costs to achieve a viable pregnancy, the law should be very careful to protect patient autonomy in this context. The traditional tool for disclosing medical information that a patient would need to make their own individualized choice—informed consent—currently does not make any allowance for a risk ratchet effect.
This Article proposes a soft intervention that balances respect for patient’s preferences with nudges against incremental ratcheting of acceptable risks and costs. This informational intervention in the form of a patient decision aid (“Preference Tracker”) records initial preferences and requires a discussion when those preferences change. Patients are free to change their minds, but providers have the obligation to discuss this decision. This intervention is entirely feasible at various government levels and does not fall prey to the underenforcement that plagues litigation-based informed consent. This more fulsome implementation of informed consent can apply to other emotionally charged contexts and is necessary for the continued success of ART services.
James G. Hodge, Jr., Legal Underpinnings of the Great Vaccine Debate of 2025, 53 Journal of Law, Medicine & Ethics 171 (2025)
Multiple factors aligning in 2025 implicate challenges to vaccines as a primary public health tool. Anti-vaccine proponents seek to recast immunization policies in promotion of perceived individual liberties. Recalibrating national vaccine approaches, however, runs counter to long-standing public health laws and policies grounded in a core truth: safe and effective vaccines save lives. As discussed herein, the significant possibility of a national vaccine overhaul led by the federal government necessitates manifold legal arguments, maneuvers, and options to obviate predictable reductions in life expectancies and rises in morbidity.
James G. Hodge, Jr., On The Efficacy and Legality of Vaccine Mandates, 115 American Journal of Public Health 985 (2025)
Time and again, federal, state, tribal, and local public health officials, legislators, and policymakers have turned to vaccine mandates to promote the public’s health, safety, and security. With rare exceptions, such mandates are adjudged constitutionally—and otherwise legally—sound.
James G. Hodge, Jr., “Everything is Tuberculosis” – Except the Law?, Journal of Law, Medicine & Ethics (forthcoming)
In “EVERYTHING IS TUBERCULOSIS,” author John Green assesses the intricacies of the communicable condition, TB, as a source of significant morbidity and mortality globally over centuries. Despite available vaccines, treatments, and protocols, tens of millions are infected and over a million persons will die from TB in 2025 alone. Searching for answers to mitigate this global scourge, however, Green looks past a key factor – namely the role of law – as a primary tool for prevention and control.
James G. Hodge, Jr., Supreme Court Impacts in Public Health Law: 2024-2025, Journal of Law, Medicine & Ethics (forthcoming)
After dispensing major precedents affecting the public’s health in its prior three terms, SCOTUS 2024-2025 term was arguably less impactful amid several unanimous decisions preserving in part existing jurisprudence. This is an understatement. While the Court issued key decisions this term arguably favorable to communal health it also denied minors access to medical procedures sought by their doctors, diminished diversity, equity, and inclusion (DEI) initiatives in employment, allowed states to deny health providers access to Medicaid because they also provided abortions, disallowed rural hospitals from collecting specific costs for treating low-income patients, and provided a “script” of sorts for executive control of federal health advisory committees.
Kimberly Holst, Assessing Legal Writing Skills in the NextGen & AI World, 5 Proceedings: An Online Journal of Legal Writing Conference Presentations 23 (2025)
Given the convergence of rapidly developing generative artificial intelligence tools and the looming implementation of the NextGen Bar, it may be time to rethink whether the gold standard of assessment and feedback used by most legal writing professors is sufficient in assessing student skills. Or, rather, whether other means of assessment can serve a beneficial function in teaching legal writing.
First, this essay examines the rapidly changing state of legal practice. A major impetus for this change is the advent and accessibility of generative AI tools. Ignoring AI is not an option. Assessment in light of AI may require changes to our well-worn practices. Second, this essay takes into account that the way applicants are assessed to determine whether they should be admitted to the bar is changing. The NextGen Bar proposes to move away from an emphasis on memorization and towards an assessment of skills relevant to legal practice. While current assessment methods likely prepare students for practice, other forms of assessment may provide greater preparation for the newly formatted bar exam. Finally, this essay evaluates our current assessment practices and offers suggestions for how additional assessment may be incorporated.
Esther Hong, The Carceral State(s), 30 Michigan Journal of Race and Law 1 (2025)
The carceral state is everywhere. Legal and social science scholars are increasingly using the carceral state concept to criticize various aspects, or even the entirety, of the United States. But despite how popular and common this term has become in writings about mass incarceration, criminal processes and punishments, and other forms of social control, the definition, conceptualization, and theorization of the carceral state are far from settled. This Article analyzes and contributes to this discussion by highlighting the diversity and fluidity of ideas surrounding the carceral state.
Although the term often appears without an express definition, the limited ones that do exist vary in their construction. There are also multiple perspectives on the carceral state’s characteristics, including its composition, relationship with the prison-industrial complex, its age, size, and form. Also, while many prominent scholars agree that its discriminatory actions and effects are defining features of the carceral state, notable differences remain in how this discrimination is framed.
This decentralized and varied understanding impacts both the theoretical development and practical applications of the carceral state concept. Rather than converging into a single, cohesive theory, multiple interpretations of the carceral state persist and will likely continue to do so. While this diversity of perspectives offers advantages, it also presents challenges in achieving the necessary consensus to dismantle the carceral state and build a noncarceral one.
Stacy Leeds & Rebecca Tsosie et al., American Indian Law: Native Nations and the Federal System (8th ed., Carolina Academic Press 2025)
Now in its eighth edition, American Indian Law: Native Nations and the Federal System reflects the deep and thorough treatment of Federal Indian law that has been the hallmark of this book since its first edition in 1973, as the first casebook on this topic. The volume fosters a comprehensive understanding of the political relationship between American Indian and Alaska Native Nations and the United States.
The volume also includes a discussion of the Indigenous histories and voices that inform the broader understanding of “Indigenous rights,” including a discussion of Indigenous human rights and the rights of Native Hawaiian people. The Indigenous co-author team has created an accessible volume that synthesizes the treatise-like material from the last edition and modernizes the approach to a complex field of law.
Through the cases and materials, the book explains the historical and current context of federal, state, and tribal relations and provides a thorough foundation to understand the rights of tribal Nations, including rights to land, water, natural resources, and cultural resources.
Stacy Leeds & Laura Hines, Strategic Litigation in Pursuit of Indigenous Justice, 73 Kansas Law Review 747 (2025)
Advocacy for Indigenous Nations in the United States is a long game. It can take years of coordinated efforts, combined with spontaneous opportunities, to move the Federal Indian Law needle forward. Advances have required that a variety of lawyering skills and strategies be deployed across tribal, state and federal judiciaries. Where litigation is ineffective, or where the calculus of risks suggests other strategies, parties rely on non-litigation strategies such as intergovernmental agreements and diplomacy, political and administrative advocacy and increasingly, public education and media engagement.
The 2025 Kansas Law Review Symposium focused on the theme “Strategic Litigation in Pursuit of Indigenous Justice,” and addressed a wide range of advocacy approaches. As we envisioned and designed this symposium, we invited tribal leaders, scholars, and practitioners in order to represent the breadth of strategic litigation and non-litigation strategies. Symposium panelists included all the directors of the Tribal Law and Government Center since its inception more than twenty-five years ago. Systemic change sometimes comes from successful complex federal class action claims with carefully curated claimants. At other times, major victories with far-reaching implications for the field of Federal Indian Law flow from seemingly low-stakes challenges to governmental authority brought by otherwise powerless individuals. And yet other major shifts in power dynamics can come from the deliberate choice to avoid judicial adjudication of untested rights altogether, in favor of other strategies.
The following three papers address several of the themes explored throughout the symposium panels, including tribal, state, and federal litigation and alternative non-litigation strategies. In Rosalind’s Refund: The Woman, the Lawyers, and the Time that Created McClanahan v. Arizona, Professor Bethany Berger shares the story of how a small-scale income tax protest became a pivotal reset of Federal Indian Law to its foundational roots. In McClanahan, the U.S. Supreme Court unanimously rejected state regulatory authority over Indians inside of Indian country. The case’s impact reached far beyond the subject matter of income taxation and highlights the important work of legal service attorneys.
Professor Sarah Deer explores tribal jurisprudence in Sexual Assault in Tribal Appellate Courts. Strategic litigation in Indian law involves the judiciaries of three distinct sovereigns, and at times, jurisdiction overlaps in a web of concurrent jurisdiction. Tribal nations have inherent sovereignty and jurisdiction over local sexual violence cases, but that jurisdiction has been limited by colonial interventions in ways that disrupt tribal responses to violence. Centering the work going on in tribal courts is a critical part of the strategic litigation dialogue, as tribal courts are often the front-line forum for seeking redress, either through sovereign or private causes of action.
In Advancing Tribal Co-Management: Lessons Learned from International Comparisons, Matthew J. McGrath and Dean Elizabeth Kronk Warner highlight how tribes may address power imbalances with the federal government through avenues outside the courts. Co-management arrangements for stewardship of lands and natural resources are a common practical approach as a first step toward regaining tribal autonomy and self-determination. In these scenarios, tribal decision-making authority is strengthened, particularly in situations where lands are otherwise under the exclusive jurisdiction of the United States with federal administrative agencies otherwise in control. For instance, in the protection of sacred sites and in situations where tribes seek more meaningful consultation from federal agencies, strategic non-litigation often includes practical approaches to shared governmental authority arrangements and other government-to-government approaches.
Gary E. Marchant & Diana Bowman et al., Learning From Emerging Technology Governance for Guiding Quantum Technology, 31 Richmond Journal of Law and Technology 266 (2025)
Quantum technology is often described as the “next big thing.” But the past few decades have brought us a series of next-big-things in technology, and we have accumulated enough experience now to extract some lessons and recommendations from our recent history of technology governance. That is what this article seeks to do. This article first explains what quantum governance is and why people expect it to be such a big deal. The article then describes the existing limited regulations for quantum technologies and then discusses some key governance challenges that quantum technologies are expected to present. Then, the article provides three case studies of other recent “next big thing” emerging technologies–biotechnology, nanotechnology, and artificial intelligence. While each technology presents unique governance issues and challenges, the case studies extract fifteen lessons that may be relevant for quantum governance. The article next examines seven types of governance frameworks proposed for emerging technologies by leading international and national organizations, with each type of framework providing a different emphasis that focuses on governance that is anticipatory, agile/adaptive, equitable, sustainable, soft law, coordinated, and international. Finally, drawing from three technology case studies and the seven types of governance frameworks, the article identifies and discusses eight governance pillars common to each emerging technology that collectively provide the foundation for effective governance and projects how these eight pillars will apply to quantum technology. These analyses provide a comprehensive roadmap, lessons, and recommendations for the coming challenges of quantum technology governance.
Ben McJunkin, Grants Pass and the Pathology of the Criminal Law, 102 Washington University Law Review 1583 (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.
Troy Rule, Electricity Affordability in Context, 16 San Diego Journal of Climate & Energy Law 1 (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, Does Research Funding Affect Research Findings?, 74 DePaul Law Review 619 (2025)
Does research produce different findings depending on who is sponsoring (funding) the research? If so, that is a serious problem for society as well as for science. This Article reviews some of the empirical evidence on that question, illuminates some of the mechanisms through which sponsor influence might operate, and explores current and suggested strategies for mitigating the problem.
Terry Skolnik, Homelessness, Liberty and Property (Cambridge University Press 2025)
In Homelessness, Liberty and Property, Terry Skolnik establishes a novel theory about the government’s duties to end homelessness, maintain public property’s value, and legitimize laws that regulate public space. In doing so, Skolnik provides new insight into how the property law system and the regulation of public space limit unhoused persons’ freedom and political equality. The book deepens our understanding of how various areas of law, such as constitutional law, legal philosophy, criminal law, and property law, approach the reality of homelessness and advances original arguments to provide new justifications for the right to housing. Skolnik concludes by offering a set of concrete proposals for how the government can reduce the incidence of homelessness and treat unhoused persons with greater concern and respect.
Terry Skolnik, Criminal Justice and the Erosion of Constitutional Rights, 66 Boston College Law Review 1679 (2025)
In the context of criminal justice, many constitutional rights have eroded for reasons that are largely ignored. Beginning in the 1960s, the criminal procedure revolution sought to expand rights and remedies, encourage front-line justice system actors to respect defendants’ rights, and counteract discrimination. Yet many of these rights and remedies have progressively weakened. Prosecutors and police officers can easily evade constitutional norms. And defendants have little recourse against routine forms of discrimination that pervade the criminal justice system. How did this happen? And why?
This Article argues that four overlooked phenomena explain why certain constitutional rights weaken within the criminal justice system. First, constitutional rights can impose administrative burdens on justice system actors, which encourages under-investigation, under-litigation, and assembly-line guilty pleas. Second, constitutional rights may result in subtractability, meaning that each defendant’s legal claims can lower the quality of justice for others. The realities of administrative burdens and subtractability, in turn, elucidate how defendants who exercise their constitutional rights can impose negative externalities (or unaccounted-for costs) onto others that decrease the quality of criminal justice. Third, in response to expansive interpretations of rights, justice system actors can bypass these rights through different means: funding cuts, penalties, gamesmanship, and overregulation. Lastly, although courts initially interpret rights and remedies expansively, subsequent judicial decisions may deflate these rights and remedies over time. These four phenomena demonstrate how some constitutional rights can be self-defeating or can produce systemic adverse effects that are hiding in plain sight.
Ultimately, this Article provides a novel and comprehensive theory of how constitutional rights can deteriorate in the criminal justice system, and offers a starting point to better comprehend the erosion of constitutional rights more generally.
Terry Skolnik, The Tragedy of the Criminal Justice Commons, 58 U.C. Davis Law Review 2475 (2025)
One of the criminal justice system’s most overlooked features is that it is vulnerable to a tragedy of the commons: a collective action problem that destroys open-access resources. A tragedy of the commons occurs when too many users over-exploit an open-access resource, which results in its demise. Over-fishing, deforestation, and over-grazing are examples of this collective action problem. Two features of open-access resources expose them to tragedy: limited excludability — meaning a restricted power to exclude others — and subtractability — where one person’s use of a resource lowers its quality for others.
This Article argues that the criminal justice system operates like a commons that is prone to tragedy. A tragedy of the criminal justice commons occurs when too many defendants enter the justice system and attempt to exploit its scarce resources, which lowers the overall quality of justice. Wrongful convictions, miscarriages of justice, excessive sentences, and assembly line guilty pleas all exemplify a tragedy of the criminal justice commons.
But why does a tragedy of the criminal justice commons occur? And what can be done about it? This Article shows how the justice system constitutes an open-access resource for defendants; one that is characterized by limited excludability and subtractability. Statutory and constitutional rights restrict the State’s power to exclude defendants from using the justice system’s resources to defend themselves. And each defendant’s legal claims can impose unaccounted-for costs onto other defendants, such as delays, decreased scrutiny of individual cases, and stronger incentives to plead guilty. This Article elucidates how overcriminalization and the criminal procedure revolution laid the foundation for a tragedy of the criminal justice commons because they exacerbated the effects of limited excludability and subtractability. In response to greater resource pressures, the justice system embraced two mechanisms that encourage defendants to plead guilty and self-exclude from the criminal justice commons: coercive plea bargains and underfunding. The concluding parts of this Article offer concrete proposals that address the effects of overcriminalization and underfunding, and ultimately, aim to prevent a tragedy of the criminal justice commons: hard prosecutorial screening, misdemeanor decriminalization, and defense salary and caseload parity.
Terry Skolnik, Cruel and Unusual Punishments as Legislative Gross Negligence, 19 Criminal Law and Philosophy 61 (2025)
Many jurisdictions confer a constitutional right to be protected against cruel and unusual punishments. This right is typically justified by three considerations. First, cruel and unusual punishments undermine human dignity. Second, such punishments shock the community’s conscience or violate evolving standards of decency. Third, grossly excessive sanctions violate proportionality constraints. This article advances an additional justification for the prohibition against cruel and unusual punishments. Drawing on Kantian theories of public authority, republicanism, and fiduciary theories of legal authority, it argues that cruel and unusual punishments are objectionable because they constitute a form of legislative gross negligence that the Constitution prohibits. The core arguments of this article demonstrate why lawmakers have a fiduciary duty to ensure that the punishments they enact do not inflict needless harm and suffering—an obligation that requires them to enact sanctions that respect proportionality constraints. Lawmakers engage in legislative gross negligence when they enact cruel and unusual sanctions that are either indifferent to individuals’ interests to avoid unnecessary harm or depart significantly from the applicable standard of care. Ultimately, the right to be protected against cruel and unusual sanctions safeguards individuals against legislative gross negligence that results in grossly excessive punishments.
Roselle Wissler & Art Hinshaw, Participant Actions and Intermediate Outcomes in Initial Joint Sessions and Initial Caucuses, 2025 Journal of Dispute Resolution 43 (2025)
Historically, the initial mediation session usually was a joint session where the mediator and the disputants met together to exchange information and discuss the substance of the dispute. Accordingly, the main components of the initial mediation session and the informational and communication benefits they were thought to provide were discussed in the context of the disputants being together and speaking directly. Today, however, many actions that traditionally took place during the initial joint session, including the discussion of substantive matters and exchanges between the parties, are less likely to occur during initial joint sessions than they did historically and are more likely to take place during initial separate caucuses. These changes lead to questions about whether the actions historically discussed as contributing to mediation outcomes (a) still show these relationships in initial joint sessions today and (b) have the same benefits when they take place during initial caucuses instead of during initial joint sessions.
Roselle Wissler & Art Hinshaw, The Role Different Factors Play in the Use of Initial Joint Sessions or Initial Caucuses, 31 Dispute Resolution Magazine 16 (2025)
For the past decade or two, mediators, lawyers, and frequent mediation users have been debating whether the first formal mediation session should begin in joint session or separate caucuses. Although some argue that one structure generally has greater benefits than the other, many say that the best practice is tailoring the initial session to the individual case rather than using a “one-size-fits-all” approach. Analysis of the online survey responses of 1,065 civil and family mediators who mediate in state and federal court programs and private settings in eight states across the country showed that, notwithstanding this advice, most mediators begin the initial mediation session in the same way in most or all their cases. Moreover, how mediation begins in an individual case appears to be influenced more by local mediation or legal culture and norms, as well as by the general preferences of the mediator and their usual case referral source, than by the characteristics of the dispute and the disputants’ goals. By being mindful of the influence that general customs and preferences can have on the decision about whether to begin the initial mediation session in joint session or separate caucuses, mediators and mediation participants can try to make a more considered decision about the structure of the initial mediation session by taking into account the characteristics and disputant goals in the instant case.
