This bibliography comprises scholarly books, book chapters, and journal articles published or accepted for publication by full-time, emeritus, and retired faculty of the Sandra Day O’Connor College of Law between April 1, 2026 and June 30, 2026.
Khaled A. Beydoun, Telling War Stories: Innocence, Indictment, and (En)gendered Terror, 114 Georgetown Law Journal 1017 (2026)
The law is replete with dominant narratives endorsed by its letter and amplified by connected and conspiring levers of power. This Article centers the discursive power of law, and specifically, the War on Terror’s grand narrative of “masculine Arab and Muslim terrorism.” By gendering terror threat, this dominant wartime narrative marks Arab and Muslim men and boys as a terrorist bloc that justifies pre-crime indictment, collective punishment, and hegemony.
By focusing on law and its discursive echoes that brand Arab and Muslim men as presumptive terrorists, this Article: (1) theorizes the gendered dimensions of Arab and Muslim threat, building upon formative frameworks of othering and racialization within and beyond the legal literature; (2) develops the concept of masculine terror indictment assigned collectively to Arab and Muslim men and boys; (3) interrogates War on Terror law as the forceful conduit of the dominant metanarrative of masculine Arab and Muslim terrorism, which brands anybody fitting that profile as a justifiable target of extrajudicial violence; and (4) centers the counter-stories of men in Gaza, who repurposed new media to challenge the War on Terror narrative of masculine terrorism that erases their individual identities from legal, scholarly, and popular view.
While legal scholars have examined the distinct plight of Arab and Muslim women, this Article asks, “what about the men?” and stands as the first to reconstruct their humanity through legal counter-storytelling and intimate profiles of the men themselves. As an emanation of law itself, legal scholarship contributes to the power struggle of whose stories are told and untold, highlighting the urgency of this Article and the unheard voices within it. Through critical interrogation of dominant law and lore, this Article challenges the gendered War on Terror narrative. By introducing the stories from men in Gaza, it contributes the first counter-narratives of this kind to legal scholarship and writes the humanity of Arab and Muslim men into its pages.
Khaled A. Beydoun, Rethinking Cyber Warfare: The International Relations of Digital Disruption, 65 Jurimetrics 333 (2026)
This review examines R. David Edelman’s Rethinking Cyber Warfare, highlighting its call for restraint, deterrence, and international cooperation in addressing state-sponsored cyber conflict.
Dan Bodansky & Beatriz Martinez Romera, Arctic Warming and International Law, 120 AJIL Unbound 165 (2026)
Not all warming is created equal. Although global warming is (as its name indicates) global in scope, its magnitude and impacts vary widely between regions. Nowhere is this more apparent than in the Arctic, which by one estimate has been warming four times as fast as the global average since 1979, due to a phenomenon known as “Arctic amplification.” Already, with “only” about 1.3ºC of global warming (as compared to pre-industrial levels), Arctic ice and snow are melting, Arctic permafrost is thawing, and Arctic glaciers are shrinking. These effects will only increase in magnitude as global warming continues. If the globe warms by 2.7ºC, as is currently projected if states implement their emission reduction pledges under the Paris Agreement, the Arctic will warm by more than 10ºC in the winter and will be “transformed beyond contemporary recognition.”
Dan Bodansky & Yoshifumi Tanaka, Arctic Climate Engineering, 120 AJIL Unbound 205 (2026)
The likely insufficiency of conventional climate mitigation policies to prevent dangerous climate change has prompted increasing interest in technological interventions to cool the planet. Most of the scholarly and policy literature on climate engineering has focused on interventions aimed at influencing the global climate—for example, by injecting reflective particles (aerosols) into the stratosphere, which would reduce the amount of sunlight reaching the surface of the Earth. Our focus here is on a less-studied area: potential Arctic-specific interventions to thicken sea ice, reduce ice melt, or stabilize glaciers, which we argue raise fewer legal and governance issues than global interventions.
Dan Bodansky, How Authoritative is the ICJ Climate Change Advisory Opinion?, Climate Law (forthcoming)
This brief essay offers an initial assessment of the authority, persuasiveness, and potential effects of the Climate Change Advisory Opinion of the International Court of Justice (ICJ AO). It proceeds in five steps. First, it considers whether the ICJ should be regarded as infallible. Second, it examines the legal status of ICJ advisory opinions and questions the finality of the ICJ AO. Third, it evaluates the persuasiveness of the Court’s legal reasoning, focusing on the ICJ interpretations of the Paris Agreement. Fourth, it explores the potential effects of the ICJ AO on the United Nations climate change regime, other international environmental negotiations, and the behaviour of states. Finally, it assesses its potential effects on future climate litigation.
Charles F. Capps, The Holistic Theory of Precedent, 93 University of Chicago Law Review 549 (2026)
Standard theories of precedent limit the legal effect of a precedent to cases 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 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. This 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 scope of indeterminacy in how far precedents extend, the degree to which it is legally proper for a judge to consult her priors when deciding whether to extend or cabin a precedent, and the way to solve the “problem of the second best” as applied to precedent.
Susan Chesler & Elizabeth Zipp-Seng, Leveraging AI-Assisted Contract Drafting for Social Good, Hofstra Journal of International Business and Law (forthcoming)
This article focuses on how contract drafters can – and should – use AI tools to assist them in drafting contracts that not only achieve the parties’ goals but can also be used for social good. While contracts are generally entered into by two discrete parties and private law has not traditionally been viewed as a means of advocating for social good, the contract drafters of today (and tomorrow) need to understand the potential for contract language to drive social change. Companies are increasingly becoming embroiled in the culture wars that plague our country, and a variety of stakeholders now make decisions about which companies they want to invest in, buy from, and work for based on the company’s perceived commitment to social values such as sustainability, diversity and inclusion, climate change, and access to health care. Whether fueled by a company’s altruistic desire to become a platform for social change or in response to their stakeholders’ demands to put into action their stated beliefs, companies often struggle with how to implement and prove their commitment to social values.
One often-ignored means available to companies to further their commitment to social values is through their contracts, whether supply agreement, employment agreement, or operating agreement. Companies can use a variety of drafting techniques and carefully select contract terms in order to create contracts that have the potential to have broader societal impacts. But doing so may prove challenging for a variety of reasons, such as the reliance on traditional contract drafting language, and the time and money needed to revise standard contracts to incorporate the type of language and terms needed to facilitate such change. The recent proliferation of generative AI tools can be used to help alleviate many of these challenges. Contracts can be an effective vehicle for social change and contract drafters should learn how to leverage AI tools to assist them in reaching that goal. In this article, we will provide concrete illustrations of how contract drafters can leverage AI tools and incorporate a variety of drafting techniques to craft contract terms that not only achieve the best results for the transacting parties but can also be used for social good.
Joel Friedman, The Law of Employment Discrimination: Cases and Materials (15th ed., Foundation Press 2026)
This casebook covers all major aspects of employment discrimination law, including benchmark legislative, administrative, and judicial developments. Due in part to frequent updates and revisions, it has received accolades as one of the most comprehensive and frequently updated texts on the market. The 15th Edition continues this tradition by seamlessly incorporating all major legislative and judicial developments through March 2026, including all relevant decisions rendered by the Supreme Court in its 2024-2025 term, with no major cases pending for the 2025-2026 term. There were two major Supreme Court rulings in the 2024-2025 term. One was in Ames v. Ohio Department of Youth Services, where a unanimous Court issued its latest ruling in an affirmative action/reverse discrimination case. The Court soundly rejected the defendant’s contention that a majority-group individual plaintiff in a reverse discrimination case should shoulder a heightened evidentiary burden to establish a prima facie case of intentional discrimination by showing background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority. Instead, the Court reiterated its adherence to the traditional McDonnell Douglas proof standard. The other was Stanley v. City of Sanford, where a seven member majority resolved the conflict as to whether a retired former employee who did not hold or seek a job when suit was filed was a “qualified individual” to bring suit under the ADA for an alleged act of discrimination that occurred during its term of employment. Focusing on the present tense of this statutory provision, the majority ruled that a retired former employee only has standing to challenge an employer action if the plaintiff held or desired to hold a job and could perform its essential functions at the time of the alleged act of discrimination.
Elissa Gentry, Disrupting the Risk Ratchet, 104 Oregon Law Review 427 (2026)
The “ratchet” effect—a phenomenon in which stopping or reversing course becomes impossible—has been largely ignored by the doctrine of informed consent. Health contexts like fertility treatment are particularly vulnerable to such effects: patients may temporarily be willing to accept increasing risks and costs when focusing on the risks and costs already incurred.
Not all changes in preferences are concerning: new information about the efficacy of treatment or about a patient’s own medical condition may better reveal a patient’s true preferences over treatment. Instead, the problem occurs when patients focus on the cumulative costs of, or risks associated with, past failed treatments in deciding whether to pursue additional treatment. This focus risks temporarily ratcheting up the acceptable cost or risk for an additional chance at a positive outcome, raising it above the cost or risk a patient would find otherwise acceptable. This predictable reaction ends up harming patients both physically and financially.
Given the broad range of reasonable preferences over acceptable risks and costs to achieve a viable pregnancy, the law should be very careful to protect patient autonomy in this context. The traditional tool for disclosing medical information that a patient would need to make their own individualized choice—informed consent—currently does not make any allowance for a risk ratchet effect.
This Article proposes a soft intervention that balances respect for patient’s preferences with nudges against incremental ratcheting of acceptable risks and costs. This informational intervention in the form of a patient decision aid (“Preference Tracker”) records initial preferences and requires a discussion when those preferences change. Patients are free to change their minds, but providers have the obligation to discuss this decision. This intervention is entirely feasible at various government levels and does not fall prey to the underenforcement that plagues litigation-based informed consent. This more fulsome implementation of informed consent can apply to other emotionally charged contexts and is necessary for the continued success of ART services.
James G. Hodge, Jr., Taylor Brown & Kimberly Hartle, Insurrection Powers and the Public’s Health, 54 Journal of Law, Medicine & Ethics 251 (2026)
President Trump and his administration have repeatedly threatened to invoke insurrection powers and unleash U.S. military and National Guard members in American cities in response to civil uprisings and alleged interferences with immigration officials’ actions. In so doing, they raise a specter of significant constitutional clashes over the use of these antiquated emergency authorities. To the extent Congress is unwilling to constrain Presidential discretion, the U.S. Supreme Court may be called on to clarify the scope and limits of Insurrection Act powers.
James G. Hodge, Jr., Summer Ghaith & Amirala Pasha, Public Health Limits of Medical Freedom, Journal of Law, Medicine & Ethics (forthcoming)
Through emerging interpretations of individual “medical freedoms,” a panoply of state legislative bills seeks to undermine long-standing public health and health care requirements including recommendations to test, screen, treat, and vaccinate persons. To the extent these bills could upend decades of laws and policies protecting individual and communal health, especially among vulnerable individuals, they threaten the health-and freedoms-of all persons.
James G. Hodge, Jr., Federal Quarantine Authority Gone Awry, University of Pittsburgh Journal of Health Law & Policy (forthcoming)
Are you willing to set aside over 10% of your life this year to be physically corralled and medically monitored daily in a federal facility on the grounds that your potential exposure to a sometimes lethal disease which is not easily spread person-to-person may lead to your infection and threaten others? Public health authority to quarantine individuals in the United States is well-established and practiced annually largely through state and local governments. Yet, what the U.S. Centers for Disease Control and Prevention (CDC) conducted beginning in May 2026 tied to the hantavirus – Andes strain (Andes virus) outbreak on a foreign cruise ship arguably exceeded effective, ethical, and lawful quarantine powers. CDC stretched the boundaries of its quarantine authority in her case while similarly-situated passengers were exempted from heavier-handed measures. Within the realm of mandatory social distancing powers, CDC’s discordant approach to instituting quarantines forewarns its handling of additional persons exposed to Ebola and other dangerous, infectious diseases at home and abroad.
James G. Hodge, Jr. & Taylor Brown, Supreme Court Impacts in Public Health Law: 2025-2026, Journal of Law, Medicine & Ethics (forthcoming)
In an increasingly contemptuous political environment as the nation prepares to celebrate its sesquicentennial on July 4, 2026, the U.S. Supreme Court capped its 2025-2026 term including profound decisions on a series of cases raising significant controversies in health law and policy. As per Figure 1 and analyses below, major topics addressed by the Court this term include: (1) the scope and limits of Presidential emergency authorities; (2) state debates over LGBTQ+ rights and discrimination in parental and sports-related settings; (3) First Amendment interests juxtaposed against states’ rights to regulate medical professionals or require vaccinations; (4) expansion of Second Amendment rights to possess firearms; and (5) state-based product liability and other claims foreclosed via Congress.
Kimberly Holst, Press Freedom and Regulation in a Digital Era: A Comparative Study, 65 Jurimetrics 339 (2026)
This review examines Irini Katsirea’s Press Freedom and Regulation in a Digital Era: A Comparative Study (Oxford University Press, 2024), a comparative analysis of press regulation across international, supranational, and domestic legal frameworks in six countries and the European Union. The review situates the work within a media landscape transformed by social media, misinformation, and generative AI, and commends Katsirea’s broad conception of the press and rigorous thematic methodology. It also identifies limitations, including uneven treatment across jurisdictions, a Western-centric scope that excludes non-democratic press freedom contexts, an implicit assumption of historical journalistic neutrality, and the challenge of keeping pace with rapidly evolving technology and policy. Despite these limitations, Katsirea’s work offers an essential framework for understanding how democratic societies can preserve free press functions in the digital age.
Kimberly Holst et al., Legal Drafting for Conflict Resolution (West Academic) (forthcoming 2026)
Law school teaching is heavily focused on litigation. This is true for both doctrinal and skills courses. While an increased emphasis on contract drafting skills has occurred, the conceptualization of lawyerly work remains dichotomous—litigation v. transaction—rather than adopting a broader conception that recognizes that successful lawyers employ a wide array of skills regardless of their practice area. This text contextualizes drafting skills in a variety of practical settings. By using a framework of alternative drafting contexts, readers are free to examine skills as they might approach them in their area of practice. This emphasizes the transferability of these skills across practice types.
These skills will be important for students as they approach clinics and externships, the NextGen Bar exam, and their future practice as attorneys. This text may be a helpful supplement for students in a clinical setting, but it can also serve as a primary text for drafting across practice areas.
Esther Hong, The Age of Creativity and Crime, 99 Southern California Law Review 499 (2026)
Creativity and crime may seem worlds apart, yet they intersect and overlap in striking ways. While legal scholars have largely ignored the relationship between the two, this Article brings it to the forefront. It examines the legal implications of their connections, particularly for adolescents and emerging adults, who display heightened tendencies toward both.
In many instances, the line that separates creative acts from criminal ones is thin and arbitrary, drawn by the biases of decisionmakers such as police, prosecutors, and school administrators. Creative acts are mischaracterized as criminal ones. Creative expressions are used as evidence of one’s criminality or dangerousness. These mischaracterizations are generally harmful, but they cause particular harm for adolescents and emerging adults, who have developmental traits that increase their associations with crime and creativity, have a developmental need to engage in creativity, and are in a crucial developmental period of growing their creativity. That young people have their creativity criminalized imposes a distinct developmental harm.
These considerations underscore the need to apply an increasingly influential legal framework for young people called the developmental framework. Implementing this framework in a manner that protects and prioritizes young people’s creativity requires changes in the prosecution and punishment of crime, further dismantling of the school-to-prison pipeline, and increased opportunities for creativity. Making such changes will not only enhance young people’s well-being and reduce their risk of becoming entangled in the criminal system, but also pave the way for broader systemic reform for all.
Esther Hong, The Capacity for Change & Carcerality, 74 UCLA Law Review (forthcoming)
How will the carceral state be dismantled? This Article claims that the path forward is revealed by examining the carceral state’s interactions with children. By focusing on the juvenile system—the primary carceral system for children—it identifies a foundational insight: that more than age or status, it is the systemic belief about one’s capacity for change that drives significant shifts in carcerality.
When a critical mass of society or key decision-makers such as judges, legislators, or policymakers, believed that children could change, this perception spurred meaningful changes in state carceral practices. In other words, more than merely the age or status of “children” or “youth,” it is their presumed potential for change that matters. This foundational concept of change and carcerality is woven throughout all four distinct eras of juvenile law. And if indeed this narrative about the capacity for change, rather than mere age or childhood status, is the actual driving force behind changes in state carcerality, then lessons from the juvenile system hold broader implications for dismantling the carceral state as a whole.
The juvenile system not only provides compelling evidence for this concept of change and carcerality but also offers insights into how it should be construed and implemented. While powerful, narratives about change are not a panacea. Rather, they can cause grave harm when misinterpreted or misapplied. By examining how the concept of change and carcerality manifested in the juvenile system, this Article analyzes the broader significance of the belief in one’s capacity for change, and explores how it should be framed and applied to help dismantle the carceral state.
Gary Marchant, Chase Martins & Vrinda Gupta, The Hard Law-Soft Law Nexus: Autonomous Vehicles as a Case Study, 2026 Journal of Law and Mobility 53 (2026)
The technology governance debate often focuses on the dichotomy of hard law versus soft law as competing models. Both hard law and soft law have their strengths and weaknesses. But framing soft law versus hard law as a dichotomous choice is often unrealistic—every technology will be governed by a mix of hard law and soft law. So, the more realistic questions are where hard law works best and where soft law succeeds, and how these two types of governance interact and integrate. After reviewing the strengths and weaknesses of hard law and soft law, this Article identifies six different hybrid models integrating hard law and soft law. The article then considers hybrid hard law/soft law models in the context of autonomous vehicles (AVs) as a case study. After reviewing the challenges and stunted progress of AV regulation, the analysis focuses on two recent rulemakings in which the first Trump and then Biden administrations proposed frameworks for AV regulation in the waning days of their respective administrations. Analysis of the comments submitted by the broad range of AV stakeholders shows a sharply divided community, with about half of the stakeholders adamantly supporting a hard law approach, and another half equally favoring a soft law approach. However, there was substantial support for hybrid hard law/soft law models, with all six models identified earlier in the article and two new models receiving support. Based on this analysis, the Article suggests that a hybrid hard law/soft law approach is the most promising direction for AV governance.
Ben McJunkin, Consent & Causation, 112 Virginia Law Review 265 (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 a choice made in response to force, coercion, fraud, or mental impairment is 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.
Robert Miller, Supreme Court Errors in Lyng v. Northwest Indian Cemetery Protective Association (1988) in Native American Religions: Teaching and Learning on Stolen Land (Dana Lloyd ed., Routledge 2026)
In Lyng v. Northwest Indian Cemetery Protective Association, the Supreme Court refused to enjoin road building and logging activities that were in close proximity to sacred Yurok, Karuk, and Tolowa sites in northern California. This chapter—adapted from a 1990 Law Review article—describes the failure of the U.S. legal system to protect Indigenous religious freedom. The American Indian Religious Freedom Act (AIRFA), federal legislation passed to protect Indigenous rights, lacks the substantive teeth that laws must have to protect rights. The Supreme Court failed to provide Native American religious freedom the protection required by the Constitution because the Court departed from its traditional balancing test for unlawful government interference with the free exercise of religion. Reading this text decades after it was written, it sounds prophetic when it tells us that the precedent of Lyng would have a major impact in future Native American religious cases, and that its impact would extend to more than just Indigenous litigants.
Robert Miller, The International Law of Colonialism: The Doctrine of Discovery, 25 Journal for Cultural and Religious Theory 55 (2026)
Six hundred years ago, the Church and Spain and Portugal began developing the international law of Christian European colonization. That law is better known today as the Doctrine of Discovery. Joined by England, France, Russia, and Holland, European countries used this law to claim and acquire the lands, assets, sovereign rights, and even the existence of Indigenous nations and peoples. When the United States was formed, it also adopted this colonizing legal regime. This international law still applies today and is very relevant to Indigenous nations and peoples and seriously impacts their rights and existence even now. This chapter lays out the ten elements, or factors, that comprise the Doctrine. These elements were clearly defined and applied by the United States Supreme Court in the landmark Indian law case of Johnson v. M’Intosh in 1823.
Robert Miller, Unraveling the International Law of Colonialism – The Doctrine of Discovery, Arizona State University Sandra Day O’Connor College of Law Paper No. 6884840 (June 17, 2026)
Indigenous Peoples and Nations around the world have had to contend with the international law of colonialism, better known as the Doctrine of Discovery, for over 600 years. The vestiges of this racist, ethnocentric, and religiously based doctrine continue to be part of the law of most nations on earth today. This chapter highlights the development of this Doctrine and the specific elements or factors that comprise it. The author then lays out a strategy for Indigenous Peoples to unravel and remove colonialism and these elements of the Doctrine from their national and state laws today.
Robert Miller & Julia M. King, Indian Nations’ Economic Development and the SBA 8(a) Program, Tulsa Law Review (forthcoming)
Indian nations have long used the U.S. Small Business Administration (SBA) section 8(a) program to engage in beneficial economic development. Indigenous Peoples in the United States suffer from the worst economic conditions of any specific group of Americans. This article addresses the 8(a) program and the positive results it has produced for Native nations. The authors also address the current political controversy about the 8(a) program and the backlash against it. It is an open question whether this provision will survive in its present format.
Jonathan Rose, The Legal Profession and its Ethical Regulation in Medieval England and Continental Europe in Elgar Concise Encyclopedia of Legal History (Aniceto Masferrer & Agustin Parise eds., Edward Elgar) (forthcoming 2027)
Erin A. Scharff, The Challenge of Small Bases: Taxation at the Local Level, 79 Tax Lawyer 1 (Fall 2025)
This Article explores the often-overlooked role of small-base taxes in local government finance. While tax scholarship on local revenue typically centers on the property tax, local governments across the United States also rely on a patchwork of narrow taxes—such as occupational licensing and hotel occupancy taxes—to close budget gaps and fund essential services. This Article examines the legal authority, administrative capacity, and political dynamics that shape these small tax bases. It argues that many of these taxes pose distinct challenges due to their complexity, low salience, and limited enforcement infrastructure, yet they remain integral to local fiscal policy because of structural constraints on taxing authority. Through an in-depth exploration of local occupational licensing taxes, this Article offers new insights into how local governments navigate fiscal federalism under conditions of legal and institutional constraint.
The first part of this Article offers a descriptive account of local revenue. The second part explores some of the small bases on which local governments rely. The third part discusses the overlapping legal, administrative, and economic issues raised by small-base reliance and suggests that stakeholders need more research about costs of such reliance.
Erin A. Scharff & Emily A. Satterthwaite, Pooling and Preferences: A Survey of Tax Expert Opinion on Joint Filing, 23 Pittsburgh Tax Review 93 (2025)
Joint tax filing for married couples raises personal and politically-charged questions about the nature of family and marriage. Where do self-identified tax experts stand? To what extent have academic critiques of joint filing permeated the expert tax community? To start understanding the answers to these questions, we asked a group of experts about their joint filing experiences and attitudes. Our fifty-eight respondents overwhelmingly had personal experience with joint filing and were largely white and Democratic Party/independent-identified. Most reported pooling income with their spouse (83%) and agreed that joint filing reflected the economic reality of their marriage (84%). However, when asked how they would design a tax system from scratch (i.e., offer joint filing or require individual filing), respondents were sharply divided and often ambivalent. Individual filing was preferred by 38%, joint filing by 34%, and 21% selected “other” or “don’t know.” Comments suggested that, among those who preferred joint filing, respondents identified tradeoffs involved, thereby conveying some critical awareness. And, among the 72% of the sample that identified as tax law academics, by whom most of the criticism of joint filing has been published, support for individual filing was highest (45%). While our small sample had significant shortcomings, our results suggest that those in the homogeneous (white, liberal/independent, usually male) world of academic tax experts do acknowledge critiques of joint filing, but their experiences may not align with the critiques.
Justin Weinstein-Tull, Federalism in the Shadows, 17 Irvine Law Review (forthcoming)
An astonishing amount of government power operates in the shadows, evading scrutiny. From youth detention centers and federal immigration enforcement to local courts and public assistance offices, low-visibility institutions exert authority daily over individuals—often the most marginalized—without oversight from other governments, the media, or civil society. Despite federalism’s professed goal of protecting individuals through intergovernmental checking, prevailing federalism theory and doctrine have largely ignored these shadowed spaces.
In this Article, I argue that we must develop a federalism for the shadows: a theory and doctrine of federalism that takes as its central object the low-visibility governance that is also central to the work of government. Federalism for the shadows is guided by three ideas. First, that low-visibility government action is an important, pervasive, and unrecognized form of government power. Second, that low-visibility governance carries few of the federalism benefits we typically ascribe to state and federal power. Finally, that we should recognize the tight connection between low-visibility governance and government abuse of individuals and direct federalism’s structural safeguards to check those low-visibility spaces.
These ideas carry insights for federalism doctrines. Currently, most federalism doctrines shelter low-visibility governance from intergovernmental checking, limiting the kinds of state wrongs that may be policed. They permit the federal government to check state wrongs that are visibly widespread and caused by official state policy—characteristics rarely present in low-visibility governance. I argue that federalism doctrines should instead be responsive to institutional opacity and empower governments to intervene more robustly in opaque institutional spaces where abuse is most likely to persist.
