This bibliography comprises scholarly books, book chapters, and journal articles published or accepted for publication by full-time, emeritus, and retired faculty of the Sandra Day O’Connor College of Law between January 1, 2025 and March 31, 2025.
Angela Banks, Constructing Effective Civic Education for Noncitizen Students, 153 Daedalus 302 (2024)
Primary and secondary education is essential because it not only provides students with critical literacy and numeracy skills, but also, for many students, it begins their civic education. The goals of civic education vary by country, but a consistent goal is to provide students with the knowledge and skills necessary to be productive members of society. Globally, approximately thirty-six million children are living outside of their country of nationality. With the growing number of migrant children, states are facing two challenges to effective civic education. The first is access to schools, and the second is creating a civic education curriculum that effectively prepares all students to participate in society in ways that align with democratic principles and goals. This essay focuses on unauthorized migrant children’s access to public schools and argues for civic education to incorporate the exploration of membership boundaries so that students, citizen and noncitizen alike, can study unauthorized migrants’ participation in society within the context of membership status. This exploration offers students the opportunity to consider how to better align unauthorized migrants’ lived realities with their legal status-and to better realize democracy’s promise.
Diana Bowman & Alisa Squires et al., Ethical analysis of community-based dementia screening for unhoused older adults, Nursing Ethics (forthcoming)
Screening for dementia and mild cognitive impairment (MCI) in community-based settings helps connect vulnerable older adults to medical and social support services promoting well-being. Referencing a universal screening program for unhoused older adults seeking emergency shelter services as a case example, this paper calls attention to alignment of programmatic features with the four principles of biomedical ethics, beneficence, nonmaleficence, autonomy, and justice. Regarding beneficence, homeless services workers gain insight into clients’ needs and can facilitate engagement with resources to aid in their successful exiting of homelessness. Using assessment findings to promote safety in shelter environments incorporates nonmaleficence. Concerning autonomy, by choosing to share screening results with healthcare providers and other human service stakeholders such as public safety officials and social service professionals, older adults are empowered to take charge of their care. Justice is embodied by the ability to influence policy changes related to homelessness prevention and equitable distribution of health resources.
Ellen Bublick & Jane R. Bambauer, Should Tort Law Care About Police Officers?, 134 Yale Law Journal Forum 765 (2025)
Should police officers be able to file tort lawsuits for injuries that they suffer while on duty? In this Essay, written in response to Professor Sarah L. Swan’s The Plaintiff Police, Professors Ellen M. Bublick and Jane R. Bambauer contend that the common law has expanded, and should continue to expand, the civil legal rights of wrongfully injured people, including people wrongfully injured while employed as police officers. Beginning with a review of recent appellate opinions in suits filed by police, Bublick and Bambauer outline the types of actions that would be eliminated by a proposed ban on police officer injury suits. They next examine police suits through the popular, if inaccurate, frame that civilians can obtain virtually no civil remedies based on police misconduct. From the baseline of actual suits, Bublick and Bambauer argue that civil enforcement is valuable to hold both civilians and officers accountable for the unjustified harms that they cause to each other.
Charles Calleros, Admissions and Access to Higher Education After SFFA v. Harvard, 50 Journal of College and University Law 1 (2025)
In 2023, the Supreme Court sent a seismic shock wave through higher education with its decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. This decision replaced decades of precedent that had permitted race-conscious admissions with a new requirement of race neutrality. Some universities might overreact to this development, avoiding consideration of any attributes that have their roots in racial diversity or that could contribute to a diverse student body. But the majority opinion describes a race-neutral approach based on individual assessment of valued character traits, even if based on that applicant’s experiences inextricably tied to the applicant’s race. Coupled with other efforts and policies designed to broaden access to higher education, universities should follow the Supreme Court’s race-neutral path, while implementing procedures that require and document decision-making that stays within the new constitutional lines.
Charles F. Capps, The Holistic Theory of Precedent, 93 University of Chicago Law Review (forthcoming)
Standard theories of precedent limit the legal effect of a precedent to cases that fall within the scope of its holding. Yet the widespread use of analogies to precedent in legal reasoning presupposes that precedents have legal implications for cases that fall outside the scope of their holdings. This Article suggests that arguments from analogy to precedent have the currency they do in our legal system because respect for a precedent requires more than treating the precedent’s holding as true: it also requires the judge, for purposes of deciding the case, to update her other beliefs around the assumption that the precedent’s holding is true. The Article employs the framework of Bayesian epistemology to develop this idea and demonstrate its fit with judicial practice. Recognizing the full breadth of precedent’s legal effect has significant scholarly and doctrinal payouts related to, inter alia, the workings of the Marks rule, the soundness of the Erie doctrine, the degree of indeterminacy in how far precedents extend, the extent to which it is legally proper for a judge to consult her priors when deciding whether to distinguish a precedent, and the way to solve the “problem of the second best” as applied to precedent.
Adam Chodorow, Redemption! Valuing Closely Held Companies after Connelly, Florida Tax Review (forthcoming 2025)
In Connelly v. U.S., the Supreme Court resolved a longstanding dispute over how to treat redemption obligations when valuing a decedent’s shares in a closely held company. The Court held that redemption obligations do not offset corporate-owned life insurance proceeds obtained to fund a redemption, upsetting a long-standing practice. While the Court undoubtedly reached the right conclusion, it (1) failed to address important arguments the parties and amici raised, (2) assumed away the effects of discounts, premia, and different valuation techniques, which would have complicated the analysis without changing the conclusion, and (3) muddied the water somewhat by leaving open the possibility of a different outcome where companies use operating assets to fund a redemption.
This Article lays out the various authorities that bear on this question, sets forth additional grounds supporting the Court’s conclusion, including the arguments the court sidestepped, addresses the complexities avoided by using a simple hypothetical, and explains why the reasoning applies equally to situations where operating assets are used to find a redemption. Finally, the article identifies different ways taxpayers can use insurance to fund redemptions while avoiding the results in Connelly.
Laura Coordes & Eugenio Vaccari et al., Municipalities in Financial Distress: An Environmental, Social and Governance Critique (Edward Elgar 2025)
This timely book argues that long-term recovery and sustainability for municipalities in financial distress requires a modularly tailored decision-making process, incorporating environmental, social, and governance (ESG) considerations.
Expert authors provide an in-depth comparison of the legal approaches to municipal distress in the United Kingdom, the United States and South Africa, documenting the effectiveness of diverse strategies in different legal and cultural contexts. Examining the extent to which local governments in these jurisdictions are accountable for their financial decisions, the authors analyse the responsibilities of locally elected officials to the public and future generations. They identify and interrogate legal frameworks and mechanisms, drawing on their extensive experience, relevant policy frameworks, and key judicial decisions. Chapters provide a critical assessment of ESG factors in the context of the management and the restructuring of municipalities and outline recommendations for local decision makers, policymakers and regulators worldwide.
This book is beneficial to scholars and students of insolvency law and administrative law and provides a multifaceted view of municipal financial distress. It is also of interest to foreign policymakers, professionals, think-tanks and civil servants seeking a comparative overview of the key features of different approaches to restructuring local entities in distress.
Laura Coordes, Whose Problem Is It, Anyway? Some Thoughts on § 541(b)(7)’s Hanging Paragraph, 45 Bankruptcy Law Letter 1 (February 2025)
Recently, my third grader has become interested in grammar. She has been learning sentence diagramming and grammar rules in school, and sometimes, she’ll quiz me at dinner to see if I can correctly identify various parts of a sentence. Her interest in this subject (and her fixation on getting the rules down pat) gives me hope for her generation, which one day will occupy seats in Congress.
By contrast, whenever I read § 541(b)(7) of the Bankruptcy Code, I find myself dismayed at a previous Congress’ poor drafting. Section 541(b)(7) is home to an infamous hanging paragraph, one that has bedeviled courts since its placement into the Bankruptcy Code in 2005. Hanging paragraphs are often confusing. This hanging paragraph, in particular, seems like very poor drafting. Recently, I had occasion to revisit this hanging paragraph upon reading the Ninth Circuit’s recent decision in In re Saldana. However, it appears that the Ninth Circuit majority has no problem with the hanging paragraph. In Saldana, the court held that § 541(b)’s hanging paragraph “unambiguously excludes voluntary contributions from a debtor’s disposable income in a Chapter 13 case.”
This holding is not as inevitable as it seems, however. Notably, with Saldana, the Ninth Circuit created a circuit split with respect to whether voluntary contributions to employer-managed retirement plans are disposable income in a chapter 13 bankruptcy. But what struck me about the Ninth Circuit’s decision in particular is the ease with which the majority concluded that the hanging paragraph was plain and unambiguous.
Commentators have already written about how bad Congress’ drafting was in this particular instance, and this Bankruptcy Law Letter is not going to rehash all of those criticisms. Instead, I will walk through the hanging paragraph problem and explain why I think the result in Saldana has the potential to direct attention away from the very entity that could solve this problem. Because Saldana has created a circuit split, the Supreme Court may now be more interested in granting certiorari and seeking to clarify this issue. Nevertheless, it is Congress’ poor drafting that has created the problem of numerous, conflicting interpretations of the hanging paragraph. The Supreme Court’s resources are not put to their best use if the Court is asked to puzzle through which of those interpretations should govern. Instead, Congress should act to resolve the problem that it created: Congress can and should clarify its meaning through an amendment to the Bankruptcy Code.
Laura Coordes, The Messiness of Midlantic, 34 Norton Journal of Bankruptcy Law and Practice 1 (February 2025)
Nearly 40 years ago, the United States Supreme Court decided Midlantic National Bank v. New Jersey Department of Environmental Protection (“Midlantic”). In Midlantic, a narrow (5-4) majority of the justices held that a trustee in bankruptcy may not abandon property in contravention of state laws or regulations reasonably designed to protect the public’s health and safety. In effect, the justices read a public-interest exception into the Bankruptcy Code provision governing abandonment of property, an exception that the four dissenting justices characterized as “ill-defined and uncertain.”
In the years since Midlantic, the lower courts have sought to give this exception definition and clarity. However, much uncertainty remains as to the scope and applicability of the Midlantic exception. To avoid this uncertainty, debtors in bankruptcy have devised creative ways to construct settlements and trusts such that outright abandonment of property occurs less frequently than might be expected.
Like many of the Supreme Court’s bankruptcy opinions, the Midlantic opinion sticks closely to addressing the issue before the Court. Consequently, in the years since the Court’s decision, questions have arisen about when, whether, and how a trustee in bankruptcy (or debtor-in-possession) may abandon environmentally contaminated or hazardous property. This article considers several of these questions in light of the developing case law and also asks whether Midlantic would be decided the same way today should the issue again reach the Court.
The article proceeds as follows. Part II provides some background on the Bankruptcy Code’s abandonment provision and on the Court’s reading of that provision in Midlantic. Part III discusses how Midlantic has generated confusion, creativity, and in some cases, consensus among practitioners and the lower courts. Part IV analyzes questions that remain unresolved as the Midlantic decision approaches its 40th birthday, while Part V provides a brief conclusion.
David Franklyn & David A. Hyman et al., Influencer Marketing on Instagram and TikTok: Entertainment or Deception?, 22 Virginia Sports and Entertainment Law Journal 154 (2024)
Influencers routinely promote goods and services to their followers on Instagram and TikTok. Federal law requires influencers to “clearly and conspicuously” label content for which they are paid, but the social media environment deliberately blurs the lines between paid and unpaid content. We study whether Instagram and TikTok users can identify paid influencer marketing content from six different influencers. On average, 29% of respondents believed paid marketing content from six different influencers were not paid ads and 8% were unsure, with significant variation by influencer. The labeling used by influencers to identify influencer marketing content is not consistent – let alone clear and conspicuous. There is also considerable heterogeneity in how respondents interpreted the labels that are being used by influencers. We also find evidence of two-way blurring; on average, 29% of respondents thought unpaid influencer content on Instagram and TikTok were paid ads, and 9% were unsure, with significant variation by influencer. Influencer marketing on Instagram and TikTok involves a significant risk of deception that is not adequately addressed by current policies.
David Gartner, Preventive Care and Health Equity: The Educational Divide, 50 American Journal of Law & Medicine 121 (2024)
The preventive services at the center of Braidwood Management, Inc. v. Becerra contribute to reducing inequities in life expectancy in the United States. Critical preventive are currently fully covered by insurance as preventive care under the Affordable Care Act. Reducing affordable access to such screenings and medicines is most likely to impact those with lower incomes and less education, and contribute to widening existing inequities in health outcomes.
Recent research has identified a large and growing mortality gap between those with and without college degrees. On average, individuals without college degrees are likely to die about 8.5 years earlier than those with such degrees. In recent decades, cancer death rates fell nearly two times faster among the college educated. Mortality from heart disease fell by nearly two-thirds among those with college degrees but by less than one-third for all others.
Disparities in life expectancy in the United States reflect the uneven progress against the leading causes of death among different populations. The Braidwood decision, if upheld, will raise the costs to patients for interventions that have contributed to recent gains in life expectancy. This Article analyzes the impact of Braidwood on preventive health interventions in the context of growing life expectancy gaps within the United States.
Jonathan Green, Some Traditional Questions About “History and Tradition”, Arizona State University Sandra Day O’Connor College of Law Paper No. 5170253 (March 7, 2025)
Recently, in Vidal and Rahimi, the Supreme Court reaffirmed that “history and tradition” are probative of, and in some cases dispositive of, the outer bounds of constitutionally enumerated rights. But for the Court’s originalists, that move is puzzling. If the Constitution’s legal content resides in the original meaning of its terms, how might a tradition of political practice that arose long after a constitutional provision’s adoption be legally relevant?
Eighteenth-century English jurists had an answer to that question. By 1791, it was well-established that where a written source of law codified a preexisting, common law right—like the freedom of speech (at issue in Vidal), or the right to keep and bear arms (at issue in Rahimi)—the scope of that right would continue to be defined, as before, by custom. The codification of an unwritten right in written law did not alter its status as a customary right, whose limits were set by a tradition that preceded and succeeded the text’s enactment. So, if the provisions at issue in Vidal and Rahimi codified preexisting unwritten rights into our Constitution, then under Founding-era interpretive rules, the original meaning of First and Second Amendments would just direct contemporary judges to look beyond their words, to pre- and post-enactment tradition. From the eighteenth century looking forward, the Court’s turn to “history and tradition” is entirely reconcilable to originalism, and may be required by it.
At the same time, excavating how tradition delimited the outer bounds of fundamental rights in the decades before ratification throws up a number of interpretive puzzles. Whose tradition, exactly? What is tradition, anyway: how did past jurists conceptualize it? And where an unwritten right had been codified into written law, to what extent could later practice reshape its original scope? These questions vexed English jurists across the eighteenth century, and were unsettled when our Constitution was adopted. If classical English constitutionalism offers a way to square originalism to “history and tradition,” it also highlights the challenges of using tradition to define the scope of rights today. Under the surface, eighteenth-century jurists had questions about “history and tradition” too.
Betsy Grey, Removing Torts, 62 Harvard Journal on Legislation 135 (2024)
The common law torts system generally governs the way private harms are addressed throughout the United States. But there is a notable exception when governments decide to oust or limit common law tort remedies for certain kinds of conduct. Examples are many, including state and federal legislation proposed or implemented during the COVID-19 pandemic to shield industries from liability; federal legislation shielding airlines from liability arising from the 9/11 attacks; federal legislation shielding gun manufacturers from claims stemming from violent crime; federal legislation granting immunity to social media platforms for harm from materials posted by third parties; and state workers’ compensation programs shielding employers from liability for harms in the workplace.
This article does not specifically question the power of governments to override or preempt private law obligations; it assumes that the power exists. Instead, drawing from the examples above, the article explores from a policy perspective the competing interests involved in the exercise of that power—both the interests served and disserved by granting liability immunity. Given the important consequences of how this balance is struck, this article proposes a roadmap of factors and findings that governments should weigh before granting immunity to private industry. Without a general framework, the governmental process may appear to be—and may in fact be—arbitrary or the result of political favoritism and regulatory capture. When torts are removed, the significant values promoted by the common law, such as deterrence, redress, and exposure of substandard behavior, may be undermined and citizens may lose their confidence in the government’s ability to protect them from harm. To justify that result, the interests advanced by granting immunity should be sufficiently compelling. Consequently, the decision-making framework includes four main areas of inquiry: 1) identifying the public interest served by protecting the industry from tort liability; 2) determining the reasonably anticipated threats to the industry from liability exposure, including the likelihood of successful lawsuits; 3) examining the likely impact of immunity on tort policies, particularly with regard to the accountability, deterrence, and compensation functions traditionally provided by torts; and 4) assuming that some immunity is warranted, tailoring immunity to minimize interference with tort policies.
Zach Gubler, The “Section 122 Revolution” in Delaware Corporate Law and What to Do About It, 110 Cornell Law Review Online 31 (2025)
Recently, the Delaware General Assembly amended Delaware’s corporate code to allow boards to delegate their decision-making powers to stockholders via contract. These amendments are significant because they effectively overturn a recent Delaware Chancery opinion. They’re also problematic, for two reasons: (1) because they are out of step with the best reading of Delaware corporate law—what I have referred to elsewhere as “the perpetual entity model” of the corporation and (2) because they are inconsistent with Delaware law’s tendency to eschew monetary penalties in favor of a system built on informal reputation-based sanctions and norm internalization, all of which assumes that the board is at the helm. These problems could be largely addressed by limiting the amendments’ application to contracts with stockholders that either exercise control or are themselves members of the board. Otherwise, the law as written threatens to destabilize what we know about what corporations are and how corporate law works.
James G. Hodge, Jr. & Maxwell Lauzon, Diminution of Public Health Agency Authorities Post-Loper, 52 Journal of Law, Medicine & Ethics 936 (2025)
In a new era of regulatory oversight, the U.S. Supreme Court upended traditional Chevron deference to agency interpretations of ambiguous Congressional provisions in Loper in June 2024. Federal courts were instructed to make their own assessments of statutory authorities amid an onslaught of public health agency challenges surfacing nationally. Even so SCOTUS may be eying further limits on agency powers despite clear and substantial repercussions for the health of the nation.
James G. Hodge, Jr., Legal Underpinnings of the Great Vaccine Debate of 2025, Journal of Law, Medicine & Ethics (forthcoming 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., Legal Strategies Countering Federal Public Health Data Purges, Journal of Law, Medicine & Ethics (forthcoming)
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.
Orde F. Kittrie & Claire Finkelstein, Evolving the Civilian Harm Mitigation and Response Action Plan to Support Precision Lethality and Effective U.S. Military Operations, Center for Ethics and the Rule of Law Briefing Paper (March 14, 2025)
U.S. Combatant Commands and other operational commands around the world have identified lessons and developed important tools to protect civilians and to counter efforts by adversaries to put civilians at risk. DoD’s CHMR program is responsible for identifying and institutionalizing these lessons for warfighters and helping them apply these tools in exercises and operations. One of the most challenging aspects of its mission is to help develop capabilities and procedures to address the illegal use of human shields by adversaries, including in urban environments and future LSCO. DoD’s efforts, therefore, would benefit from being re-tooled with a stronger focus on helping America’s military counter the efforts of its adversaries, particularly with regard to techniques like human shielding that place civilians at grave risk, ensuring that guidance actually enhances precision lethality, and equipping combatant commanders with data science tools and objective metrics needed to counter manipulation of the information environment.
The focus on civilian harm mitigation is critical for the mission effectiveness and precision lethality of U.S. forces. A retooled CHMR program could help the United States further hone its warfighting skills, enhance precision lethality, learn from the experience of our allies such as Israel who have been grappling with the problem of minimizing civilian casualties when fighting an enemy that uses civilians as human shields, and develop new technologies that will both assist with mitigating civilian harm in war and enhance lethality in both counter-terrorism operations and ultimately in large-scale combat operations.
Rhett Larson, Day Zero: How Cities Run Out of Water (Cambridge University Press) (forthcoming 2026)
This book is a comparative legal analysis of the water crises faced in recent years by Cape Town, Chennai, and Mexico City, and draws water policy lessons from those crises for other cities.
Stacy Leeds & Rebecca Tsosie et al., American Indian Law: Native Nations and the Federal System (8th ed., Carolina Academic Press) (forthcoming 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 & Lauren van Schilfgaarde et al., Tribal Nations and Abortion Access: A Path Forward reprinted in Gender and the Law (Aníbal Rosario Lebrón et al. eds., Thomson Reuters 2024)
In the wake of Dobbs and its upending the constitutional right to abortion care, commentators have explored the possibility of an abortion “safe harbor” in Indian country. These narratives largely contemplate co-opting tribal sovereignty to provide safety from state criminal and civil liability for non-Native people seeking abortion care. It does not consider the complicated legal and practical considerations that would face Tribes pursuing this strategy, nor the risk to providers and patients. Moreover, Indigenous people are already less likely to receive abortion care. Native reproductive care has long been the target of assimilationist and even genocidal policies, while also being greatly underfunded and neglected, resulting in a population with devastating rates of violence and maternal mortality, and with extremely limited access to abortion care.
However, despite numerous legal hurdles, and a historical context steeped in restricted reproductive health, Tribes, as sovereign nations, may be a position to fill a part of the enormous health care gap to serve their citizens and communities. Tribes have numerous reasons to be unsatisfied with the prospect of delegating their regulatory authority regarding reproductive care to the states. Native authority generally is under increasing threat from state encroachment and federal disestablishment, including in the most recent U.S. Supreme Court holding in Indian law, Oklahoma v. Castro-Huerta. But more fundamentally, Tribes have sovereign obligations to their Indigenous citizenry that include robustly asserting Native reproductive well-being as a human right, and zealously defending that right.
This article outlines the legal realities of providing abortion care in Indian country, particularly in the context of avoiding state prohibitions. Abortion care is a fundamental human right of Indigenous people. The ability to safely end a pregnancy is consistent with Tribal conceptions of autonomy, privacy, and individual self-determination.
Erik Luna & Weldon Angelos, Proposed Clemency Criteria for Federal Marijuana Convictions, Academy for Justice and Drug Enforcement and Policy Center White Paper (March 2025)
Marijuana laws in the United States vary by state, with some states allowing recreational use and others only allowing medical use. At the federal level, marijuana is still illegal, however, banned as a Schedule 1 substance under the Controlled Substance Act. The disconnect between state laws and federal laws is growing. As of December 2024, 39 states allow for medical use of marijuana and 24 states allow for recreational use, while a proposed change in federal rules would reschedule marijuana from Schedule 1 to Schedule 3. With the laws constantly evolving, and calls for legalization at the federal level growing louder and louder, what happens to the people still affected by the federal war on marijuana at the twilight of national prohibition? This white paper proposes clemency criteria for non-violent, federal marijuana convictions. It concludes by offering next steps for both executive and legislative action. With the President’s leadership, this Administration and Congress can assure that individuals haunted by marijuana arrests and convictions will finally have the clean slate they deserve.
Gary E. Marchant et al., Governing New Technologies that Stop Biological Time: Preparing for Prolonged Biopreservation of Human Organs in Transplantation, 25 American Journal of Transplantation 269 (2025)
Time limits on organ viability from retrieval to implantation shape the US system for human organ transplantation. Preclinical research has demonstrated that emerging biopreservation technologies can prolong organ viability, perhaps indefinitely. These technologies could transform transplantation into a scheduled procedure without geographic or time constraints, permitting organ assessment and potential preconditioning of the recipients. However, the safety and efficacy of advanced biopreservation with prolonged storage of vascularized organs followed by reanimation will require new regulatory oversight, as clinicians and transplant centers are not trained in the engineering techniques involved or equipped to assess the manipulated organs. Although the Food and Drug Administration is best situated to provide that process oversight, the agency has until now declined to oversee organ quality and has excluded vascularized organs from the oversight framework of HCT/Ps. Integration of advanced biopreservation technologies will require new facilities for organ preservation, storage, and reanimation plus ethical guidance on immediate organ use versus preservation, national allocation, and governance of centralized organ banks. Realization of the long-term benefit of advanced biopreservation requires anticipation of the necessary legal and ethical oversight tools and that process should begin now.
Ben McJunkin, Consent & Causation, 112 Virginia Law Review (forthcoming 2026)
In criminal law, the doctrines surrounding sexual consent and proximate causation are both thought to reflect conclusions about individual autonomy. But these doctrines diverge in striking ways. In rape law, the choice to consent to sex is deemed sufficiently autonomous even when made in response to threats or coercion, when induced by fraudulent misrepresentations, or when produced by mental impairment. By contrast, the doctrine of proximate causation holds that choices made in response to force, coercion, fraud, or mental impairment are insufficiently autonomous, and therefore an individual is not morally responsible for any resulting consequences. This divergence invites a crucial question: Does the law of proximate causation capture something important about individual autonomy that has been overlooked in the law of sexual consent? After all, sexual consent frequently plays a causal role in normatively desirable sexual encounters. Yet the structure of U.S. rape law elides any inquiry into causation. Might rape law be improved—might it better protect individual autonomy—by demanding that sexual consent be a proximate cause of sex itself?
This Article is the first to raise this question and undertake this inquiry. By juxtaposing consent and causation in criminal jurisprudence, it reveals an inconsistency in the understandings of autonomy that motivate those doctrines, shedding new light on longstanding criticisms of rape law. This Article then makes a preliminary case for reforming rape law by recasting sexual consent as a matter of proximate causation. It offers three grounds for doing so: First, philosophical accounts of sexual autonomy require an individual to be able to control the character and circumstances of sexual contact, a requirement that is only vindicated when consent causally contributes to sexual activity. Second, the best understanding of consent’s exonerating role in sex is that consent alters another person’s reasons for acting, a function that can only occur when consent causally motivates sexual behavior. Lastly, the leading accounts of when sex is normatively desirable rest on a conception of mutuality—that is, responsiveness to the other person’s active consent. In short, this Article advances the novel claim that sexual activity is normatively desirable when it occurs because it is consented to, not merely whenever it is consented to.
The Article concludes by considering how rape laws may be reformed to leverage the normative insights just uncovered. It first examines the recent revisions to the sexual assault provisions of the Model Penal Code adopted by the American Law Institute in 2022. Those revisions, for the first time, included both requirements of causation and requirements of nonconsent. But the Model Penal Code’s revisions hew too closely to traditional rape laws, ultimately failing to capture the broad spectrum of normatively undesirable sex that warrants criminalization. The Article instead reconfigures rape as primarily a result crime, prohibiting specific wrongful means of causing sexual intercourse and exonerating sex when consent is the proximate cause. A rape law structured around the causes of sexual intercourse may best capture our normative intuitions about why and when consent matters.
Caitlin Millat, Education as a Democratic Prism: Warnings and Wisdom from America’s Schools, 73 Cleveland State Law Review 353 (2025)
Seventy years after the passage of Brown v. Board of Education, many believe that we remain far from achieving Brown’s lofty promises of educational equity. In an increasingly polarized political environment rife with disinformation and discontent, we seem particularly far from Brown’s belief that public education should work to shore up democratic health. Instead, public education is underfunded, underresourced, and profoundly unequal, and American democracy remains under threat.
This Symposium contribution suggests that by taking a closer examination at the state of America’s schools, we can gain insight into both democratic deficiencies and bright spots for the future of American democracy. In doing so, it takes seriously the idea that the schoolhouse acts as a microcosm for and window into the nation’s democratic health. And, more broadly, it seeks to begin to move past partisan lines in an attempt to harness interest in public education to achieve broad-base reforms that could benefit all students – and democracy as a whole.
Trevor Reed, Cohen’s Handbook of Federal Indian Law (Nell Jessup Newton & Kevin K. Washburn et al. eds., LexisNexis 2024)
Cohen’s Handbook of Federal Indian Law is an encyclopedic treatise written by experts in the field, and provides general overviews to relevant information as well as in-depth study of specific areas within this complex area of federal law. This is an updated and revised edition of what has been referred to as the bible of federal Indian law. This publication focuses on the relationship between tribes, the states and the federal government within the context of civil and criminal jurisdiction, as well as areas of resource management and government structure.
For this edition, Nell Jessup Newton continues in her editorial role as co-editor-in-chief, along with Dean Kevin K. Washburn, who has contributed to the project since the 2005 edition, in addition to a roster of new and returning contributing authors – all experts in their respective fields.
In the 2024 Edition of the Handbook, the authors have relied on the excellent treatment of many areas of federal Indian law in the 1982 edition and also continued practices tracing back to the first edition, such as by providing a full treatment of the federal programs and services available to Indians and Indian tribes. New for the 2024 edition are many updates and a full chapter on administrative policymaking.
Troy Rule, Rural Solar Rights, 51 BYU Law Review (forthcoming 2025)
Utility-scale solar projects on private land – the fastest-growing form of energy development in the United States today – generate low-cost, carbon-free electricity and can invigorate rural economies. However, they are also attracting unprecedented local opposition as municipal governments across the country adopt ordinances prohibiting or severely restricting solar farm development within their jurisdictions. Fortunately, state legislatures have multiple means of preventing municipal governments from unreasonably restricting solar energy. Among other things, states can legislatively preempt excessive local solar siting restrictions, manage more solar project permitting at the state government level, or statutorily require municipalities to classify solar farms as a “permitted use” within certain land use zoning districts. Such legislative strategies comprise a new generation of “solar rights” laws analogous to decades-old statutes in some states that prohibit cities and homeowner associations from unreasonably restricting rooftop solar installations. As federal support for utility-scale solar softens under the new Trump administration and local roadblocks to these projects become more commonplace, the need for a new generation of state solar rights statutes is greater now than ever. This Article describes and analyzes the growing local opposition to rural solar energy and ultimately argues for a wave of new state legislation designed to strengthen rural landowners’ rights to develop utility-scale solar projects on their land.
Michael J. Saks, The Continuing Risk of Forensic Error and Fraud, 49 Seton Hall Journal of Legislation and Public Policy 135 (2025)
Evidence generated by the proper practice of forensic science disciplines can aid greatly in exonerating the innocent, as it did, for example, in the cases of Kevin Baker and Sean Washington, detailed in the Introduction to this symposium. However, poor products of forensic science can still be generated and can contribute to miscarriages of justice, as was the case with the bitemark testimony in the 1995 conviction of New Jersey exoneree Gerard Richardson. Lawyers and the courts that evaluate the tenability of such claims would benefit from knowing what to look for in evaluating such claims.
The problems range from poor science (some techniques that are invalid and others that have not been validated as they should have and could have been) to the failure to install the kinds of methodological protections against error that are routine in settings dominated by normal science, to the all-too-human tendency to want to help one’s team win its case, even if that sometimes means distorting the (good, bad, or indifferent) science to make it appear more incriminating than it actually is, to skipping over science altogether (i.e., “drylabbing”). Instances of error and fraud in forensic expert reports and testimony can be uncovered, if at all, with difficulty. Consequently, legal “barriers to the convicted innocent” compound an already great challenge.
In what follows, I try to illustrate those risks, and argue that improvements in any and all phases of the legal process, including postconviction processes, can improve the courts’ ability to detect and correct errors.
Jennifer Selin & Pamela J. Clouser McCann, Constraining the Executive Branch: Delegation, Agency Independence, and Congressional Design of Judicial Review, 119 Northwestern University Law Review 1273 (2025)
While scholarship examining the relationship between Congress, federal agencies, and the judiciary reveals variation in the statutory details that affects administrative and judicial decision-making, few studies explore the extent to which congressional delegation decisions balance both the substantive and procedural independence of agencies against the possibility of the federal judiciary’s review of administrative action.
This Article enhances scholarly understanding of delegation by providing a qualitative, theoretical, and empirical account of the circumstances under which Congress manipulates federal agency exposure to the federal judiciary. Ironically, combined with statutory provisions dictating agency independence, increasing an agency’s exposure to unelected federal judges can increase administrative responsiveness to elected legislators.
Using a motivational case study of federal energy policy from the 93rd to 110th Congresses, this Article highlights how, during the legislative process, Congress’s members’ delegation decisions account for agency independence and administrative exposure to the courts. Based on the findings of this case study, the Article develops a new theoretical account of legislative choices over Executive Branch exposure to the federal judiciary. This Article then presents an empirical examination of significant legislation from the passage of the Administrative Procedure Act through 2016 to assess the factors influencing legislative choices regarding delegation, agency independence, and Executive Branch exposure to the judiciary.
In doing so, this Article makes several important contributions. First, by broadening scholarly discussions of agency design, delegation, and administrative responsiveness to elected officials, the Article illustrates how underappreciated factors—including political volatility, technical uncertainty, and administrative structure—influence the parameters under which Congress delegates. Along with agency independence, political coalitions strategically adjust the availability of judicial review to account for the practical realities of governance. Specifically, political coalitions increase administrative exposure to the courts as political volatility and the autonomy of agency leadership increase. Political coalitions decrease agency exposure to the courts as the complexity of the administrative policy arena increases and the availability of political review decreases.
Considered in its entirety, this Article suggests that legislative decisions regarding judicial exposure can enhance or diminish the effectiveness of other statutory and constitutional tools of democratic accountability, such as administrative procedures or oversight. Simply put, the level of administrative exposure to the judiciary has profound implications for the American separation of powers system of governance.
Jennifer Selin & Lauren Mattioli, Independent Justice? U.S. Attorneys as a Case Study of Political Appointments, University of Michigan Journal of Law Reform (forthcoming 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 this possibility 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 in the role of 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 for control of federal prosecution has resulted in current 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. 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.
Jennifer Selin & Pamela J. Clouser McCann, The First Branch: How Congress Manipulates Judicial Review of Administrative Action, 111 Iowa Law Review (forthcoming)
The text of the U.S. Constitution is a result of a political compromise that granted Congress the authority to define the jurisdiction of all inferior federal courts and the appellate jurisdiction of the Supreme Court. While important scholarship has explored the parameters under which Congress may exercise this authority, few studies have examined congressional use of federal jurisdiction-stripping provisions as part of a larger statutory framework designed to control the administrative state.
This Article fills this gap by providing a novel theoretical and empirical account of the circumstances that motivate Congress to restrict the jurisdiction of federal courts to review administrative action. Notably, Congress engages in jurisdiction-stripping in this context to accommodate uncertainty regarding how legislative delegation to the executive branch will result in real world outcomes.
Using empirical data on the jurisdiction-stripping provisions included in all significant legislation enacted after the passage of the Administrative Procedure Act through 2019, this Article demonstrates Congress constructs judicial review based on the legislature’s assessment of the extent to which elected officials are able to exert influence over final agency actions; volatility in the political world; and the ideological makeup of all three branches of government. Notably, Congress is more likely to strip federal courts of their ability to review the final administrative actions of the same agencies that are protected by statute from political review. These findings have profound implications for those who consider the constitutional context in which the administrative state operates.
