This bibliography comprises scholarly books, book chapters, and journal articles published or accepted for publication by full-time, emeritus, and retired faculty of the Sandra Day O’Connor College of Law between July 1, 2025 and September 30, 2025.
Kenneth W. Abbott & Benjamin Faude, Does the System Work? Transnational Crises and the Resilience of Global Governance, International Studies Review (forthcoming)
In recent decades, global governance has faced significant transnational crises characterized by threat, urgency, and uncertainty, from the Global Financial Crisis to the COVID-19 pandemic. Simultaneously, heterogeneous infra-state, public–private, and private governance institutions have proliferated alongside incumbent inter-state institutions. As a result, contemporary global governance takes place through institutional configurations that we call Hybrid Institutional Complexes (HICs). How effectively can HICs respond to the stresses of transnational crises? Drawing on the concept of resilience, we prepare the conceptual and theoretical ground for analyzing the crisis responses of HICs-based governance. To that end, we first identify three dimensions along which the resilience of governance arrangements must be assessed. We then derive two theoretical conjectures as to the conditions under which a HIC will be (more or less) resilient. The first, institutional diversity, is structural; the second, the presence of intellectual and entrepreneurial leaders and bricoleurs, is agentic. To probe the analytical utility of our approach, we assess the performance of the global finance HIC in response to the Global Financial Crisis and compare the performance of the global health HIC in responding to COVID-19.
Dan Bodansky et al., Trump Administration Steps Back from International Environmental Cooperation, American Journal of International Law (forthcoming)
As part of a series of short articles in the American Journal of International Law on the effects of the Trump administration on international law, this article describes its effect on international environmental law. Thus far, the administration has focused primarily on rolling back—and potentially ending—U.S. participation in the UN climate change regime. But it has also slashed U.S. support for international environmental conservation programs, terminated environmental justice initiatives, and placed in doubt U.S. engagement in international environmental issues more generally. Although the disengagement of the Trump administration from international environmental cooperation may be reversed by later administrations, its long-term consequences for environmental health and human well-being will not be as easily reversed or remedied.
Karen Bradshaw, Wildlife as Property Owners in Elgar Concise Encyclopedia of Animal Law (Joan E. Schaffner ed., Edward Elgar 2025)
Wildlife as property owners is a legal approach that extends the right to own property to the more-than-human world, including plants and animals. Wildlife property ownership is grounded in the observation that humans share the Earth with a rich array of other living creatures excluded from the human-created system of property law. Many cultures throughout time and history (including the present) understand animals, plants, and natural objects as co-equal participants in systems of law, government, and culture. Contemporary Western understandings of property ownership, however, traditionally recognized only humans as the owners of land, resources, chattel, and intellectual property—excluding the interests of nonhumans. Through colonization, Westernized exclusion of the more-than-human world from legal institutions and markets became widespread. Wildlife as property owners attempt to re-integrate the rights of plants and animals to use and own property, with a particularized—although not exclusive—focus on the land they live on and resources they rely on to survive. Wildlife property ownership is predicted to preserve natural habitats for the more-than-human world and thus slow biodiversity loss.
Charles F. Capps, What Interpretation Just Is and Why It Matters (forthcoming)
Scholars often claim that judges must defend their choice of interpretive method based on its consequences. But analysis of the nature of interpretation reveals that to interpret something is just to form a judgment about its communicative content. And judgment is essentially aimed at truth, not consequences. A person who defends her approach to forming a “judgment” on a given matter on the ground that the approach leads to desirable consequences, not the truth of the matter, does not count as forming a judgment at all—any more than someone who adopts a method of “addition” on the ground that it leads to desirable consequences, not accurate sums, counts as doing addition.
The most obvious upshot of this conclusion is that it forces defenders of consequentialist and other “normative” approaches to constitutional and statutory adjudication to confront the fact that what they are advocating is not interpretation at all, casting doubt on whether it is consistent with respect for the authority of the Constitution and Congress. But interpretation’s nature as a judgment about communicative content has other implications, too. It supports an unorthodox version of originalism whose justification and doctrinal implications contrast sharply with popular versions of the theory. And it requires retheorizing so-called “substantive” canons of construction as linguistic canons, with ramifications for the canons’ strength and scope, the role of critical theory in assessing courts’ use of the canons, and the relevance of law-and-economics analysis to the interpretation of private-law instruments such as wills and contracts.
Ann Ching, Depictions of War Crimes in Film in Law and War in Popular Culture (Stefan Machura ed., Nomos 2024)
The depiction of law and war in popular legal culture forms the focus of this book. The authors are from a variety of academic fields of expertise, such as film studies, musicology, law, sociology of law and criminology. They analyse works of popular culture, place them into their context at the time of origin and discuss their meaning for today’s audiences. Law and war in film, television series, opera and pop music are investigated in the ten chapters of the book. Special emphasis lies on the role of the state in the context of law and war.
Laura Coordes, Back to Bankruptcy Basics with a Trade Secret Case, 45 Bankruptcy Law Letter 1 (August 2025)
When I am trying to convince my students to take a bankruptcy class, I’ll often mention the possibility (threat?) that bankruptcy law will one day intrude into their lives, even if they don’t choose bankruptcy practice as a career. Although I hope that none of my students experience personal bankruptcy, I stress that someday, a client, vendor, partner, or even a loved one may file for bankruptcy. If that happens, our future lawyer will need a basic understanding of how bankruptcy will change their business or personal relationship.
This same argument holds for students wanting to pursue a career on the bench: knowledge of bankruptcy, and its impact on non-bankruptcy law and practice, are equally important to these students. A recent trade-secret misappropriation case illustrates this well.
The plaintiff in the case had allegedly purchased trade secrets and related claims as part of a bankruptcy asset sale. However, the debtor had failed to list those trade secrets and claims on its bankruptcy schedules. When the plaintiff-purchaser later sued the defendant for trade-secret misappropriation, the defendant argued that the plaintiff-purchaser should be judicially estopped from asserting the claim because of the debtor-seller’s failure to disclose the claim on its bankruptcy schedules.
This Bankruptcy Law Letter takes a close look at this case, along with a couple of related decisions from the D.C. Court of Appeals. Although these cases were all decided by non-bankruptcy courts sitting in Washington, D.C., they deal directly with the intersection of bankruptcy and non-bankruptcy law. The trade-secret misappropriation case at the heart of this Law Letter appears to have settled; however, prior to settlement, the trial court issued a number of important decisions that, if applied by other courts, raise important questions about the treatment of unscheduled claims, the purposes of judicial estoppel in bankruptcy, and the finality of § 363 sales. If nothing else, these cases also serve as a good vehicle by which to revisit and reinforce basic bankruptcy principles, such as what constitutes property of the estate, in a way that is meaningful for scholars and practitioners of bankruptcy and non-bankruptcy law alike.
Elissa Gentry et al., Embryonic Option-hood, 79 Southern Methodist University Law Review (forthcoming 2026)
A frozen embryo does not merely represent a potential for human life; it represents a deferred decision to trigger this potential. Parties value this decision deferral because it allows them to retain the option to attempt conception after any uncertainty about future events or desires has resolved. Failing to recognize this “option value” of embryos has resulted in confusion over the best approach to allocating ownership of embryos and calculating damages for reproductive harms. This Article provides a novel paradigm showing that embryos should be treated as neither persons nor mere property; instead, a significant portion of their value is in their ability to preserve and defer decisions over implantation. When such embryonic option-hood is overlooked, society risks improperly allocating disposition rights and undercompensating patients who were deprived of this option. Given this insight, this Article makes two significant contributions. First, this Article proposes a modified approach to embryo disposition that validates—rather than undermines—the option value of embryos. In the absence of a valid contract, most courts balance party interests at the time of conflict. Because this approach is not focused on party expectations at the time of embryo creation, reliance on the traditional balancing test can essentially destroy the option value of embryos. This Article adds an intermediate step before resorting to balancing which requires the court to make a fact-intensive determination into whether there was an agreed-upon disposition at the time of embryo creation. In the absence of evidence of original intent, the Article proposes a modified version of the traditional balancing test courts have used. Second, acknowledging the option value of embryos sheds light on how to calculate damages in different contexts. This Article establishes a methodology for determining both the standard of care/regulatory standards necessary to protect embryos as well as damages for compensating patients for negligence resulting in embryo loss and for intentional interference with embryos. The Article concludes by cautioning that state interference newly allowed by Dobbs can eviscerate the option value of embryos, with upstream effects for embryo creation and fertility care access.
Elissa Gentry & W. Kip Viscusi, Embryonic Personhood’s Threat to Conception, Houston Journal of Health Law & Policy (forthcoming 2025)
Embryonic personhood perversely threatens fertility patients’ chance at parenthood. The designation of personhood to genetic matter not only creates legal risks to fertility patients attempting to conceive but imposes artificial risk tradeoffs that undermine patients’ ability to balance medical risk with the chance at a viable pregnancy. As with any medical treatment, assisted reproductive technology (ART) involves risky tradeoffs. Participating in riskier techniques boosts the baseline likelihood of a viable pregnancy. Exploration of data on choices over fertility treatments demonstrates that patients routinely balance risks of embryo destruction and maternal side effects against the likelihood of a viable pregnancy in a reasonable manner. Current jurisprudence’s shift toward adopting embryonic personhood assumes a dominant role of embryo survival. This jurisprudence is a departure from how courts have balanced the right to pursue procreation with the right to avoid it.
Jonathan Green, Tradition and Discretion, 77 Florida Law Review (forthcoming 2025)
Prof. Girgis’s Dunwody Lecture argues that today’s originalists face a choice between two irreconcilable goals—constraining judges’ moral or policy-making discretion and adhering to the Constitution’s original meaning. In the academy, they’ve generally opted to sacrifice judicial constraint for the sake of fidelity to original law. But the Supreme Court’s originalists are far less comfortable with that move. Where the Constitution’s original meaning is underdetermined, or seems to invite discretionary judgment calls, they’ve looked for other, non-originalist tools to tie their hands. According to Girgis, that explains why the Court is increasingly using “tradition,” rather than normative balancing tests, to define the scope of constitutional rights.
But can “tradition” actually constrain judges? Or is it just an invitation for the judge to project her own values onto the past? In this brief Essay, I suggest that traditionalism isn’t necessarily interest-balancing in historical garb. It’s possible, in my view, for a judge to determine whether a modern law fits within an inherited legal tradition without falling back onto her own views about what the tradition should permit as a policy matter. In other words, tying the scope of constitutional rights to tradition doesn’t necessarily vest the judge with moral discretion. Equally, however, reasoning coherently from tradition requires the ability to intuit and articulate what’s essential to a tradition, and what’s not. It demands an exercise of aesthetic judgment. And the capacity to form such judgments may have been lost to our legal culture.
Art Hinshaw, Discussions in Dispute Resolution: The Coming of Age (2000-2009) (Art Hinshaw et al. eds., Oxford University Press 2025)
The U.S. judicial system is not merely a system of trials but a system of alternative means to resolution. Highlighting dispute resolution scholarship emphasizes the diverse ways of thinking available for resolving conflicts beyond traditional trials. In their first volume, Discussions in Dispute Resolution: The Foundational Articles (OUP 2021), the authors celebrated the field’s foundational writings and reflected on what makes those pieces so significant. In this second volume, Discussions in Dispute Resolution: The Coming of Age (2000-2009), they focus on the 16 most significant and influential articles on U.S. dispute resolution during its golden age of extraordinary growth. These articles shaped legal thinking about how the judicial system outsources the resolution of civil claims.
The heart of the book consists of short excerpts from these significant pieces, distilling them to their core ideas: the concepts, phrases, or findings that made them noteworthy. Four leading dispute resolution scholars (sometimes including the original author) then engage with different aspects of the articles’ ideas, recognizing their prescience and critiquing them where appropriate to answer the question: Why is this a significant work in the field?
By highlighting these influential works, the authors bring a fresh perspective, challenge them with the benefit of hindsight, engage with themes discussed in the first volume (such as disputant autonomy, access to justice, equal justice, changing views of legal and legalistic processes, and systemic impacts on processes and disputants), and compare the challenges of this era to those of the founding era.
James G. Hodge, Jr., Legal Strategies Countering Federal Public Health Data Purges, 53 Journal of Law, Medicine & Ethics 327 (2025)
Ongoing efforts among federal agencies to expunge public health data from websites and other media in line with Trump administration directives on “gender ideology” and other themes has led to widespread confusion, angst, and concern among health officials, medical practitioners, and patients. It has also generated legal claims seeking to reverse and stop public health data purges. Framed within statutory or constitutional limits, legal strategies countering these data policies help assure access to core public health information essential to specific services, care, and outcomes.
James G. Hodge, Jr., “Everything is Tuberculosis” – Except the Law?, 53 Journal of Law, Medicine & Ethics 475 (2025)
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. In searching for answers to mitigate this global scourge, however, Green looks past a key factor — specifically the role of law — as a primary tool for prevention and control.
Kimberly Holst & Rosa Kim, International Legal Developments Year in Review: 2024, 59 The Year in Review 1 (2025)
This publication, International Legal Developments – The Year in Review: 2024, presents a survey of important legal and political developments in international law that occurred during 2024. The volume consists of articles from twenty-six committees of the American Bar Association Section of International Law, whose members live around the world and whose committees report on a diverse range of issues and topics that have arisen in international law over the past year. Not every development in international law can be included in this volume, and the omission of a particular development should not be construed as an indication of insignificance. The Section of International Law committees draft their articles under extremely strict guidelines that limit the number of words that each committee has: approximately 7,000 words, including footnotes. Within these guidelines, committee members contribute submissions that describe the most significant developments in their substantive practice area or geographic region. In some cases, non-section members who have specialized knowledge or expertise in an area may also be contributing authors.
Rhett Larson, The Private Sector’s Role in Arizona’s Water Future, 44 Stanford Environmental Law Journal 243 (2025)
Professor Buzz Thompson’s book Liquid Asset explores the critical partnership between the public and private sectors in water management. Water management has taken center stage in Arizona, where Colorado River shortages, groundwater depletion, and persistent water rights litigation has placed national media attention on the state. The principles set out in Professor Thompson’s book can guide Arizona’s engagement with the private sector to address its water challenges. This essay identifies four areas for private sector engagement in Arizona – innovation in cooling technology, water rights markets, water infrastructure financing, and water data access. This essay then suggests how partnering between the state of Arizona and businesses can advance water security in these four areas.
David Lopez, The Quest for Algorithmic Justice in the Workplace: The Equal Employment Opportunity Commission and Other Federal Responses to AI, Technology, and Enhanced Dangers of Employment Discrimination, 49 Seton Hall Journal of Legislation and Public Policy 683 (2025)
The potential uses and misuses of artificial intelligence (AI) and other emerging technologies have been the subject of much discussion within and between academia, state and federal enforcement agencies, the advocacy community, and the business/human resource community.
Many scholars prospect these technologies could produce fairer, less discriminatory workplace policies and practices. At the same time, several scholars and civil rights advocates have raised concerns that the rapidly accelerating sophistication of these technologies has heightened dangers for abuse, including concerns about increased workplace discrimination, which is often hidden and difficult to detect.
Perhaps most notably, since at least 2016, the Equal Employment Opportunity Commission (EEOC), the federal agency charged with investigating and enforcing the federal workplace anti-discrimination laws, using a range of tools (e.g. education, policy, and enforcement) at its disposal, has been at the vanguard in examining the impact of these new technologies on workplace opportunity and its enforcement mandate.
This paper will be divided into three parts. First, I will survey the EEOC’s efforts, including those in coordination with other government agencies, to address the impact of these rapidly emerging technologies on workplace opportunity using three interrelated tools: (1) fact-finding, (2) policy and guidance, and (3) enforcement.
Second, I will discuss three, sometimes intersecting, obstacles hampering the agency’s admirable efforts, regardless of the administration: (1) the unique challenges ferreting out hiring discrimination, especially in view of the doctrinal limitations of disparate impact law, (2) unique challenges enforcing the Americans with Disabilities Act; and (3) the obstacles presented by trade secrets and confidentiality in discovery.
Finally, I will conclude with some final thoughts on whether these challenges facing the agency with respect to emerging technology in the workplace call for a re-imagining of new regulatory approaches, especially those mandating self-audits, disclosure, and notice to those discriminatorily harmed by the technology.
Gary Marchant & Susan M. Wolf et al., Genetic Counselor Liability and Licensure in the Genomics Era in The Oxford Handbook of Genetic Counseling (Robin E. Grubs et al. eds., Oxford University Press 2025)
Genetic counseling is one of the fastest growing fields across clinical care, medical research, and health-related industries. This growth is driven by advancements in genetic knowledge, the expansion of genetic tests and sequencing tools, industry demands for new testing modalities, and a public interest in direct-to-consumer genetic testing.
As the field continues to expand and diversify, The Oxford Handbook of Genetic Counseling is the most comprehensive and authoritative resource designed to meet the demands of a growing workforce. The volume contains thirty-six chapters that cover historic developments, application in clinical practice, research and industry, and genetic and genomic testing. The book also discusses ethical and social issues and provides an outlook on the future of the field.
Bringing together an interdisciplinary team that includes genetic counselors, clinical geneticists, medical researchers, bioethicists, legal and policy experts, and other healthcare professionals, this volume is an invaluable resource for professionals in the field. It appeals to genetic counselors, genetic counseling students, teachers, scholars, and bioethicists. Given its scope and diversity of topics, it is also an important resource for clinical faculty, health researchers, and healthcare providers who are increasingly encountering genetics and genomics in their respective fields.
Gary Marchant, Swords and Shields: Impact of Private Standards for Liability Determinations of Autonomous Vehicles, 18 Journal of Tort Law 311 (2025)
Private voluntary standards are playing an ever increasing role in the governance of many emerging technologies, including autonomous vehicles (AVs). Government regulation of AVs and other emerging technologies has lagged due to the “pacing problem” in which technology moves faster than government regulation, and regulators lack the first-hand information that is mostly in the hands of industry and other experts in the field who often participate in standard-setting activities. Consequently, private standards have moved beyond historical tasks such as inter-operability and definitions to now produce quasi-governmental policy specifications that address the risk management, governance, safety and privacy risks of emerging technologies. As the federal government has prudently concluded that promulgating government standards for AVs would be premature at this time and may do more harm than good, private standards have become the primary governance tool for these vehicles. A number of standard-setting organizations, including the SAE, ISO, UL and IEEE have stepped forward to adopt a series of inter-locking private standards that collectively govern AV safety. While these private standards were not developed with litigation in mind, they could provide a useful benchmark for judges and juries to use in evaluating the safety of AVs and whether compensatory and punitive damages are appropriate after an injury-causing accident involving an AV. This application of private standards would help solve two problems: (i) the lack of incentives for AV manufacturers to commit to conformance with the existing private standards for AV safety, and (ii) the concerns and uncertainty of AV manufacturers about potential liability standards (especially punitive damages) when their vehicles are inevitably involved in crashes resulting in injury or death. Drawing on several decades of relevant case law, this paper argues that a manufacturer’s conformance with private standards for AV safety should be a partial shield against liability, whereas failure to conform to such standards should be a partial sword used by plaintiffs to argue lack of due care.
Robert Miller & Adam Crepelle, Reservation Capitalism: Economic Development in Indian Country (2nd ed., Bloomsbury) (forthcoming 2025)
Reservation Capitalism: Economic Development in Indian Country supplies the true history, present-day circumstances, and potential future of Native American communities and economics.
In this new edition, Robert J. Miller, author of the first edition, teams with fellow Indigenous Peoples law and property expert Adam Crepelle to offer a meticulously edited and thoroughly updated text that addresses newly salient issues such as the fast-growing tribal cannabis industry, the significant developments within reservation-based Community Development Financial Institutions, and similarly significant developments with low-income tax credits. This edition also includes two new chapters on emerging opportunities in the clean energy sector and e-commerce, respectively.
Ultimately, these additions shows how, after Covid-19, tribal communities are moving beyond their formerly vulnerable economies predicated almost exclusively on gaming foster sustainable economic development on reservations in order to improve standards of living and sustain their self-sufficiency and self-determination.
Robert Miller, The Indian Law Bombshell: McGirt v. Oklahoma (2020), 166 Proceedings of the American Philosophical Society 50 (2025)
In McGirt v. Oklahoma, the US Supreme Court held in a 5-4 decision that the 1866 Muscogee (Creek) Nation Reservation still exists. Thus, one million Oklahomans found out that they live on the 3,250,000-acre Creek Nation reservation, including 400,000 people in the City of Tulsa. The Court partially relied on a long-standing Supreme Court test to determine whether the Creek Reservation had been diminished or disestablished by Acts of Congress in the late 1890s and early 1900s. Justice Gorsuch, writing for the majority, held that Congress never expressly stated an intention to diminish or disestablish the reservation. Consequently, under Supreme Court precedent, the reservation borders are still in place today and the entire 3,250,000 acre reservation is “Indian Country,” under 18 U.S.C. sec. 1151(a).
In this talk at the April 2024 meeting of the American Philosophical Society, Professor Miller explains the Court’s analysis and briefly forecasts the significant ramifications that will ensue for the Muscogee (Creek) Nation, Oklahoma, and the United States. In fact, McGirt has already created political, legal, and societal changes for the Creek Nation and Oklahoma. The case also portends substantial adjustments in many different areas of law, politics, governance, life, and business in the decades ahead for the Muscogee (Creek) Nation, for Oklahoma, for other states and Indian nations, and for the United States. As one example of these changes, Oklahoma will now have to deal with the issue of Muscogee (Creek) Nation jurisdiction over an enormously larger expanse of land and population than had been previously assumed.
Robert Miller, American Indian Influence on the U.S. Constitution in Encyclopedia Virginia (Patricia Miller et al. eds., Virginia Humanities) (forthcoming 2026)
Robert Miller, Supreme Court Errors in Lyng v. Northwest Indian Cemetery Protective Association in Native American Religions: Teaching and Learning on Stolen Land (Routledge) (forthcoming 2026)
Michael Saks & Ira Ellman et al., Why Explaining the Impact of Excluding Preexisting Conditions From a Health Insurance Policy Is So Difficult: Experimental Evidence and Policy Implications, 120 Northwestern University Law Review Online 59 (2025)
The shocking reaction to the recent murder of a major health insurance CEO has heightened awareness of widespread discontent with coverage restrictions, among them the exclusion of preexisting conditions. Yet it is expected that the new Trump administration will roll back some consumer protections under the Affordable Care Act (ACA). One such measure would permit greater availability of short-term health insurance policies that are exempt from ACA mandates, including the requirement that policies cover preexisting conditions. Allowing their sale is justified by the belief that consumers should be able to choose a lower-cost policy with restricted coverage, in preference to a higher-cost, ACA-compliant policy. That belief depends on consumers’ understanding of the policies’ coverage differences. Federal rules therefore require sellers of exempt policies to disclose the exemption. However, the effectiveness of such disclosures is untested. This Article presents findings from a controlled experiment, showing that neither the disclosure current regulations require, nor a stronger and more complete one devised for this study, fully succeed in communicating the impact of the preexisting-condition exclusion. We conclude that the problem is in part an intractable difficulty in formulating the exclusion in clear language that also serves the exclusion’s actuarial purpose of controlling the insurer’s risk exposure. Because disclosure that reasonably ensures consumer understanding may not in fact be possible, policymakers should consider either barring the exclusion or requiring it be framed in more specific terms, even though that framing may not fully achieve the exclusion’s actuarial purpose.
Jennifer Selin & Lauren Mattioli, Independent Justice? U.S. Attorneys as a Case Study of Political Appointments, 58 University of Michigan Journal of Law Reform 675 (2025)
Concerns over presidential use of federal prosecution as a political weapon and the overall independence of the Department of Justice have increased in recent years. While most scholarship exploring the potential for political prosecution has focused on the legal and political forces that influence prosecutorial discretion, few studies have identified the varying ways that federal prosecutors obtain their jobs or how those processes affect who serves as U.S. Attorney. This is a consequential oversight, as U.S. Attorney appointments provide an informative case study of the legal frameworks, historical conventions, and politics that influence presidential appointments more generally.
In this Article, we illustrate how historical battles across different branches of government for control of federal prosecution have resulted in legal frameworks that provide for at least seven different U.S. Attorney appointment mechanisms. We then provide both qualitative examples and quantitative analysis of U.S. Attorney appointments from 1970 to 2022 to evaluate whether U.S. Attorneys appointed through the “traditional” presidential nomination and Senate confirmation process have different backgrounds and careers than U.S. Attorneys who obtain office through “non-traditional” methods, including appointment by federal district courts.
We find that, like with other political appointees, U.S. Attorneys are increasingly likely to obtain their jobs through “non-traditional” methods. In addition, U.S. Attorneys appointed through these methods differ from their presidentially-nominated and Senate-confirmed counterparts in important ways, including their background experience and what they go on to do after serving in office. While these findings may raise alarm bells for those who worry that presidents increasingly circumvent Senate confirmation of political appointments to further executive control of government, this Article illustrates that “non-traditional” appointments are the result of over two centuries worth of bargaining between the branches over the power of appointment in an effort to prioritize expertise over politics.
Michael Selmi, DEI and the Private Workplace, Arizona State University Sandra Day O’Connor College of Law Paper No. 5406970 (September 11, 2025)
In 2023, the Supreme Court invalidated the use of race in the admissions practices of Harvard University and the University of North Carolina in a case known as Students for Fair Admissions v. Harvard. Immediately following that decision, dozens of cases and inquiries were filed challenging the employment practices of private employers under the notion that the Supreme Court’s decision had effectively prohibited any efforts to diversify a workforce. But these recent challenges ignore the long history of workplace affirmative action which differs significantly from the educational setting where a diverse student body was seen as essential to creating an intellectual community. Private employers have long had substantial leeway to engage in practices to create and maintain a diverse workforce, now done primarily under the rubric of Diversity, Equity and Inclusion better known as DEI as opposed to affirmative action. This Essay will explore the older Supreme Court cases, how those cases have been interpreted over the years by lower courts, the move from affirmative action to DEI, and the limited effect the recent Supreme Court case should have on workplace diversity. Finally, I will discuss the recent cases and show that most of the cases resemble older cases alleging reverse discrimination and that most of the challenges to date have failed, leaving private employers with freedom to continue with their DEI practices.
Michael Selmi & Roberto L. Corrada et al., Employment Discrimination Law, Cases and Materials on Equality in the Workplace (11th ed., West Academic 2025)
This book examines the federal statutory protection against employment discrimination, highlighting the themes of workplace equality that are embodied in the civil rights laws. This edition has undergone a significant reorganization to better reflect how many instructors prefer to cover the material. Like prior editions, this edition incorporates many new cases, such as Groff v. DeJoy, Muldrow v. City of St. Louis, and many new cases from the Courts of Appeals. The book also includes diverse contemporary scholarship drawn from critical race theory, feminist legal theory, history, social science, and law and economics, among other disciplines. The authors’ extensive materials framing the cases are designed to prepare students thoroughly for practice in this rapidly changing field of law.
Michael Selmi & Marion G. Crain et al., Work Law: Cases and Materials (5th ed., Carolina Academic Press 2025)
The law of work has evolved as a patchwork of legal interventions in the labor market, sometimes by statute, and sometimes through the common law of judicial decisions. Most law school curricula divide the law of work into three topical areas—Labor Law, Employment Law, and Employment Discrimination—and offer separate courses in each area. Labor law in the United States is understood to encompass the study of the National Labor Relations Act, the law governing union organizing and collective bargaining. It is the law of collective rights at work. Employment law refers to the statutes and common law governing individual rights at work. It ranges from minimum standards legislation to judicially created doctrines based in tort and contract law. Employment discrimination law deals with the statutes and interpretative case law advancing the antidiscrimination norm in the workplace. These statutes address the problem of status discrimination at work (e.g., discrimination on the basis of race, sex, national origin, ethnicity, religion, disability, or sexual orientation).
This book offers a comprehensive view of the law governing the work relationship by touching on all three topical areas. The book treats individual employment rights in depth, and is most appropriate for an Employment Law course or a broad survey course. The book also adverts to Labor Law principles at a number of points, at a policy level rather than a doctrinal level, as a way of introducing and evaluating an alternative model of employee representation; the book does not assume any knowledge of Labor Law on the part of teacher or student and makes no effort to provide a satisfactory substitute for a Labor Law text. The book offers some detail in the law of Employment Discrimination but does so primarily with an eye toward surveying the field and assessing antidiscrimination regulation as a response to an increasingly diverse workforce, rather than providing an in-depth study of Employment Discrimination principles.
Gregory Shill & Jonathan Levine, Transportation for the Abundant Society, Arizona State University Sandra Day O’Connor College of Law Paper No. 5383031 (August 7, 2025)
The abundance movement has rapidly gained traction as voices across the political spectrum seek to overcome artificial scarcity in housing, energy, and infrastructure. In all these areas, transportation policy is a binding constraint —yet with limited exceptions, it’s one the movement has overlooked. This Article seeks to fill that gap by showing that abundance cannot succeed without rethinking transportation policy from the ground up. While this suggests a big lift, it offers big rewards: once reconfigured, transportation policy can be a powerful accelerant of abundance.
At present, the signature goal of abundance advocates—amping up housing production—stands to collide with a key driver of scarcity: development restrictions fueled by traffic concerns. Building more housing in auto-dependent regions without reconfiguring transportation will reinforce the very logic of those restrictions. A mechanical application of the prime abundance directive—build more—would thus miss the mark: outside the exceptional case of high-speed rail, “more” is often the problem. (See urban renewal.) But “less” isn’t helpful either. What’s needed is a new approach.
Drawing on original interviews with leading transportation officials and scholarship in local government law and planning, this Article makes two key contributions. First, it proposes a theory of transportation for abundance. Abundance suggests that more is better, but its canonical accounts falter when defining the desirable “more” and what’s needed to support it. This Article intervenes with a concrete and scalable framework from urban planning: transportation access, which measures system performance by the ability of users to reach destinations. Though seemingly uncontroversial, anchoring policy in this objective would mark a revolutionary departure from a century of transportation planning.
The Article’s second contribution is to show that transportation reform is essential—not ancillary—to abundance, particularly for housing affordability, climate goals, and social equality. Transportation can’t stay in the backseat if abundance is the destination.
Terry Skolnik et al., The Law of Racial Profiling, 58 Osgoode Hall Law Journal (forthcoming 2025)
Racial profiling is one of the most enduring problems in policing. Yet it remains largely under-theorized, which generates important theoretical and practical implications. Racial profiling tends to be construed as an arbitrary detention rather than a form of unconstitutional discrimination. For this reason, the section 15 Charter right to equality plays little to no role in most leading cases on racial profiling. The legal framework that governs racial profiling lacks clarity and can be applied inconsistently. And the remedial landscape associated with racial profiling claims has evolved minimally. This article advances a novel approach to racial profiling that addresses these shortfalls. It demonstrates why racial profiling is wrongful primarily because it embodies discrimination that violates the section 15 Charter right to equality, and secondarily, infringes liberty or privacy interests, and in so doing, breaches other constitutional rights. It offers a simplified legal framework for how courts can better approach racial profiling in constitutional criminal procedure. Drawing on the republican theory of freedom (or republicanism), it shows why racial profiling results in domination-meaning vulnerability to unchecked threats of interference that courts fail to control. In doing so, it deepens our theoretical understanding of racial profiling and its connection to equality and liberty. The concluding parts of this article contend that courts can incorporate two innovative remedies that can better prevent and address racial profiling: structural injunctions and constitutional settlement agreements. Ultimately, this article offers a new path forward for how racial profiling can be approached in a manner that better safeguards individuals’ fundamental rights and interests.
Terry Skolnik et al., Racial Profiling and the Rule of Law: A Reply, 58 Osgoode Hall Law Journal (forthcoming 2025)
This is a reply to Professor François Tanguay-Renaud’s article titled “Doing away with Racial Profiling without Doing away with the Rule of Law” in the Osgoode Hall Law Journal. It explores our respective agreements and disagreements. Although we disagree with many of Professor Tanguay-Renaud’s premises, arguments, and conclusions, we agree on certain important points. More specifically, we concur that section 15 of the Charter should play a larger role in criminal law and procedure, and that it captures the distinct harms and wrongs of racial profiling in ways that section 9 of the Charter cannot. We share the view that courts should embrace broader structural remedies—such as constitutional class action lawsuits and structural injunctions—that seek to counteract racial profiling more effectively than traditional remedies. Despite our significant disagreements—and notwithstanding the very different ways that we analyze racial profiling—we agree that current theoretical and remedial approaches to racial profiling can (and should) be improved. We disagree on three main points: (1) that section 9 of the Charter’s underlying purpose is to advance the rule of law; (2) that the section 9 racial profiling test framework is overbroad in the ways Professor Tanguay-Renaud suggests; and (3) that the legal framework for racial profiling normatively entrenches the under-policing of racialized persons. This reply will focus primarily on where—and why—we part ways.
