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 October 1, 2025 and December 31, 2025.
Kenneth W. Abbott & Benjamin Faude, Does the System Work? Transnational Crises and the Resilience of Global Governance, 27 International Studies Review 1 (2025)
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.
Khaled A. Beydoun, Playing Politics: Social Media, Censorship, and Speech Gamification, 75 Emory Law Journal 59 (2025)
Forty percent of Americans self-censor their speech online. While staggering, the hidden phenomenon beneath this figure reveals a more dystopic outlook for the future of free speech. The powerful predictive technologies driving social media platforms, which the Supreme Court dubbed “the most important spaces for the exchange of views,” control the terms of modern speech and the scope of political discourse. The Supreme Court’s laissez-faire posture toward online speech moderation has only empowered digital dominion over modern expression and citizenship to the detriment of free speech principles.
As such, the primary threat to free speech today is not the state but Big Tech intermediaries. Tech giants like Meta, this Article’s focal case study, not only regulate political expression and identity but also reshape them in line with ever-changing interests. Through facially neutral speech policies, enforced by content moderation regimes steered by private—instead of liberty—interests, Meta digital platforms: (1) gamify speech by reducing expression into a system of conditioned patterns and scorable outcomes; (2) reward conformist speech and punish dissident speech within a controlled platform of shifting private political interests; (3) suppress the visibility of speech and accounts of dissident users and elevate the visibility of speech and accounts of obedient users; and (4) exact hidden infractions on online expression and identity, which blur into First Amendment harms in traditional public forums.
In one year, Meta enacted moderation policies that categorically suppressed “political content” then shifted to a “more speech” standard announced on January 7, 2025. The reform reveals private opportunism and the perils it poses to modern speech and citizenship. While legal scholars examine the regulatory tension between the state and digital platforms, scarce attention is paid to the bound subjects in between: the people. This Article sounds that alarm and centers harms suffered by individuals, crafting original theory and analysis interrogating how Meta’s gamification of modern expression exacts unseen and enduring infractions on speech, citizenship, and identity.
Dan Bodansky & Nicolás E. Esguerra, Rockets, Satellites, and Stratospheric Aerosol Injection: Regulating Human Impacts on Stratospheric Aerosols Under the Ozone Regime, 67 Environment: Science and Policy for Sustainable Development 9 (2025)
A half-century ago, Sherry Rowland and Mario Molina suggested that halogen compounds such as chlorofluorocarbons (CFCs) pose a threat to the stratospheric ozone layer. To address this threat, the international community adopted the Vienna Convention and the Montreal Protocol, which, together with the amendments, adjustments, and decisions adopted pursuant to these instruments, comprise the ozone regime. Today, the stratospheric ozone layer faces another threat, this time from changes in the amount and composition of stratospheric aerosols due to rocket launches, space debris, stratospheric aerosol injection (SAI), and other anthropogenic sources. These human influences are projected to increase massively in coming years.
Dan Bodansky et al., The Trump Administration Steps Back from International Environmental Cooperation, 119 American Journal of International Law 767 (2025)
As in other areas of international law, the Trump administration has questioned the degree to which U.S. participation in international environmental regimes and agreements furthers its “America First” agenda. 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. Moreover, the continuing pattern of U.S. positions flipping with every change of administration undermines confidence in the United States as a reliable negotiating partner.
Diana Bowman, The governance evolution of nanotechnology from controversy to consensus, 20 Nature Nanotechnology 1540 (2025)
The lively debate on nanotechnology that started 20 years ago spurred a collaborative effort between the private and public sectors that developed as the field was growing, leading to the creation of a regulatory framework that underpins today’s successful implementation of nanotechnology. Emerging technologies such as artificial intelligence should take notice.
Diana Bowman et al., Ethical analysis of community-based dementia screening for unhoused older adults, 32 Nursing Ethics 2551 (2025)
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.
Charles F. Capps, Does the Law Ever Run Out?, 100 Notre Dame Law Review 983 (2025)
Although laypeople commonly believe that a judge’s job is to decide every case as the law requires, a broad consensus exists among legal scholars that the law not infrequently “runs out,” leaving the judge to decide the case on extralegal grounds. This Article subjects that consensus to critical scrutiny. Tentatively, the Article concludes that none of the alleged sources of indeterminacy in the law—including permissive rules, balancing tests, vagueness, ambiguity, silence, contradictions, and uncertainty—actually causes the law to run out. More confidently, the Article maintains that the extent to which the law runs out, if it does at all, depends on difficult issues in the philosophy of law, language, and value—issues that parties to the consensus that the law runs out in a significant range of cases do not appear to have worked through to resolution. Casting doubt on the notion that the law runs out has important implications for judicial ethics, the scope of Auer deference and other legal doctrines, and adjacent scholarly debates such as the debate over the interpretation-construction distinction.
Laura Coordes, Bankruptcy’s Guardian Gaps, 99 American Bankruptcy Law Journal 471 (2025)
Chapter 11 practice has evolved significantly since the Bankruptcy Code’s enactment in 1978. Many cases move faster and not always towards plan confirmation. The key players around the chapter 11 negotiating table and the complexity of the issues also have changed. Professor Coordes examines these changes and identifies what she terms a “bankruptcy guardian gap.” Read this article to learn more about that oversight gap and Professor Coordes’ proposed solution.
Aaron X. Fellmeth, Personal Self-Defense Under International Law: A Case Study of an Inferred Human Right, 47 Human Rights Quarterly 338 (2025)
Against conventional wisdom, this article argues that personal self-defense is a human right under international law on three separate grounds. After defining self-defense and its requirements, it shows how the right to self-defense is a human right as an application of general principles of law, as a treaty right, and under customary international law. Specifically, it argues that, although a human right to self-defense may not be a general principle of law per se, it is a specific application of two general principles of law, equity and necessity. It then argues that, although self-defense is not listed as a human right in any treaty, it qualifies as a second-order human right integral to the human rights to life and personal security. In the course of this argument, it advances a new theory of implicit human rights. Finally, it contends that there probably is sufficient evidence to recognize a human right to self-defense as customary international law. It concludes by syncretizing these arguments into an analysis of the extent and limitations of the right.
James G. Hodge, Jr., Dispelling Vaccine Legal Myths, Journal of Law, Medicine & Ethics (forthcoming 2026)
Major shifts underway in U.S. vaccine policies reflect widespread misinformation, notably including unproven claims of harms from vaccines. Vaccination misconceptions also include an array of falsities about the scope and extent of governmental powers and protections. Exposing these “legal myths” clarifies existing foundations of vaccine laws and policies, providing guidance on appropriate responses to quell vaccine hesitancy.
Rhett Larson, Water Markets: Tools for Management and Diplomacy in The Routledge Handbook of Water Diplomacy (Shafiqul Islam et al. eds., Routledge 2025)
Various jurisdictions around the world have implemented water markets as a means of mitigating or avoiding water conflict, adapting to changing water supplies and demands, and improving water valuation. Water markets are sets of policies to allow the sale or trading of ownership interests in raw water resources between interested parties. Efforts to implement water markets have achieved various levels of success, while confronting obstacles and generating their own set of problems. Policymakers may struggle to implement efficient and effective water markets for a variety of reasons, including the sociocultural and ecologic values of water that may not be captured by markets, human rights and anti-commodification concerns, inter-generational impacts, and the administrative and practical complexities of regulating exchanges of such a critical and variable resource. Despite these challenges and risks, policymakers may still find markets a useful tool under appropriate conditions, including recognizing clearly delineated legal rights in water, appropriate use prioritization to protect nature and vital human needs, and reasonably predictable irrigation seasons and reliable models and data.
Gary Marchant, Soft Law Governance of Artificial Intelligence in Healthcare, 58 Akron Law Review 717 (2025)
Artificial Intelligence (AI) and healthcare are each other’s top influencer. AI experts believe that healthcare is one of the most important and impactful applications of AI. Conversely, healthcare leaders rate AI as the most important and impactful factor affecting healthcare today. Given this strong reciprocal relationship between AI and healthcare, this relationship must be carefully and properly managed and governed.
AI is contributing to healthcare in many different ways. It is saving costs and time in payments and reimbursement, assisting with appointments and patient communication, automating medical record creation, helping to diagnose and treat diseases, being used to discover new drugs, and has numerous other applications in the health field. But in addition to these beneficial aspects of AI in healthcare, AI presents a number of risks to healthcare, including inaccuracy, unreliability, bias, and privacy concerns.
The U.S. Food and Drug Administration (FDA) has primary regulatory responsibility for health technology, including AI. The agency has been quite proactive in developing new approaches to address some of the novel concerns raised by AI in healthcare while supporting the beneficial applications of AI. But the FDA oversight of AI has two types of gaps. First, there are some areas where the FDA is statutorily prohibited from regulation. Second, even where the FDA does regulate, its regulation is often incomplete, and some additional governance may be needed to supplement the FDA regulation.
These gaps in FDA regulation of healthcare AI can and are being addressed using soft law initiatives. “Soft law” is defined as any measure or program that imposes substantive expectations that are not directly enforceable by government. Soft law comes in a variety of forms, including codes of conduct, principles, private standards, ethical codes, best practices, certification requirements, government non-binding guidance and public-private partnerships. Soft law offers a variety of advantages such as its agility and flexibility to be adopted and modified more quickly than traditional regulation. It is also not limited by agency delegated powers or political jurisdictions, and so has plenary scope that can be applied to any aspect of a problem. Soft law also has its disadvantages though, such as lack of enforceability, public distrust, and limits on participation in developing and implementing the soft law measures.
This article describes and evaluates the role of soft law in governing AI in healthcare. Part I summarizes the current applications of AI in healthcare, as well as some of the problems that have been encountered in using AI in the healthcare sector. Part II analyzes the FDA’s regulatory efforts in governing the use of AI in healthcare, and the governance gaps in the FDA’s regulation. Finally, Part III describes and evaluates current and future soft law initiatives to govern AI in healthcare and discusses possible means to strengthen these soft law programs.
Gary Marchant et al., Mental Health App Governance: International Landscape, Gaps, and Soft Law Recommendations, 65 Jurimetrics 97 (2025)
Over the past decade, mental health applications (apps) have surged in popularity. While some of these apps may be beneficial, as a category, they present three major challenges: privacy and security, safety and efficacy, and integration into the traditional model of care. While there are legislative and regulatory efforts that aim to address these challenges at the U.S. federal and state level and through international standards, these challenges persist. To better understand the mental health app governance landscape, especially as it relates to these three challenges in the United States, we examined all U.S. federal and state legislative and regulatory efforts related to mental health apps and four international standard-setting body’s mental health app-related standards, the IEEE, ISO/IEC, ITU, and ETSI (as of April 2023). Our findings revealed that the governance landscape studied predominantly addresses the privacy and security challenge, particularly around consumer data, whereas the other two challenges are almost entirely forgotten. As these apps’ popularity continues surging, more and more health care professionals will encounter patients who use and rely on these apps for their mental health care. Consumers will unknowingly download and use mental health apps that may or may not have been tested, based on scientific evidence or follow international standards. To address consumer and health care professionals’ inability to distinguish between properly tested, evidence-based, and rule compliant apps from those that are not, we recommend a suite of interrelated soft law proposals: (1) to develop and implement a code of conduct that captures and addresses each of the three mental health app governance challenges; (2) to create a corresponding certification program and certification mark to demonstrate compliance with this standard; (3) to develop a label or ranking site so that consumers and providers can easily discern the evidence supporting an app; and (4) to include all certified mental health apps on an online public registry. This certification mark or label can be added to mental health apps’ home screens or app store information pages and possibly be required for app store listing. It would signal to consumers and health care professionals that the certified app has addressed the major mental health app governance challenges, particularly that it was rigorously tested against its target population.
Ben McJunkin, Harm and Wrongdoing in the Law of Rape, 35 Widener Commonwealth Law Review 1 (2026)
Part I of this Essay makes the case that consent or nonconsent should be understood as informing the harm of rape, rather than as the primary source of wrongdoing in rape. It does so by distinguishing between harm and wrongdoing in cases of so-called “secretive” consent, highlighting how a legal commitment to subjective consent masks other forms of wrongdoing that play a causal role in sexual relations. Part II of this Essay draws attention to two largely underexamined attacks on the very concept of sexual autonomy or (women’s) sexual choice. These attacks mirror rape law’s focus on consent, providing some hope that a change in the structure of rape law can disrupt the social discourses that enable such attacks. Part III concludes by reimagining rape as a result crime and examines the recent revisions to the Model Penal Code’s sexual assault provisions as an example of precisely how this can be done. Although I have elsewhere advocated for a rape law that is broader than the new Model Penal Code, these provisions, in many cases, at least reflect a promising structure for turning our attention from harm to wrongdoing.
Troy Rule, Rural Solar Rights, 51 BYU Law Review 447 (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 local 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.
Gregory Shill et al., Examination of Driver License Renewal Policies and Older Driver Crash and Injury Rates by Rurality, Journal of Safety Research (forthcoming 2026)
Background: Among adults aged 65 and older, motor vehicle crashes are the second leading cause of injury-related death—following falls. State driver license renewal laws commonly have provisions targeting older drivers, but limited evidence exists on their effectiveness in reducing crash and injury rates and how this may vary by rurality. This study aimed to investigate the impact of state driver license renewal policies on older driver crash and injury outcomes, by rurality.
Methods: Crash data, license renewal policies, and other relevant state policies were drawn from 13 U.S. states for the years 2000 to 2019. The primary exposures analyzed included the length of the license renewal cycle (in years) and the frequency of in-person renewal. Key outcomes included crash and driver injury rates, stratified by rurality.
Results: The study population included 15.6 million crash-involved drivers aged 40 and older. State license renewal laws generally became less restrictive during the study period. Among drivers 75 and older, crash rates in urban areas were higher in states where renewal periods and in-person renewal became less restrictive compared to states with no law change (RR = 1.30, 95% CI: 1.14-1.49). Among drivers aged 65 and older, injury rates were elevated in urban areas as renewal laws became less restrictive (RR65-74 =1.23, 95% CI: 1.02-1.47; RR75+ = 1.32, 95% CI: 1.12-1.57).
Discussion: The observed relaxation of driver license renewal policies was correlated with higher crash and injury rates among drivers aged 75 and older in urban areas. Restrictive license renewal policies that rely on age and time cut points should be weighed carefully against possible negative effects from premature license removal. Movement toward a performance-based licensing system and away from arbitrary age and time cut points may more effectively keep unfit drivers off the road, while retaining those who remain fit to drive.
