Digital Commons Network^™

Defining The Field Of Judicial Administration, Marin K. Levy

Faculty Scholarship

This Keynote address, as part of a symposium on "Theorizing the Judicial Process," aims to make a case for the field of judicial administration and to define the field more generally. Specifically, it seeks to raise the organizing questions of the field and to note the kind of work--descriptive, empirical, and theoretical--that is needed to answer them. The hope is to map out a collective research agenda for courts scholars to pursue into the future for the benefit of the academy and judiciary, both.

Criminalization Of Immigration, Emily Ryo, Jennifer M. Chacón, Cecilia Menjívar

Faculty Scholarship

This article presents a critical analysis of social scientific research from the past fifteen years on the criminalization of immigration in the United States. Our review reveals three central themes. First, although immigration law is considered federal civil law, immigration enforcement has become substantially intertwined with criminal law enforcement in ways that have broad-ranging and radiating effects on immigrant communities of color. Second, race plays an important bidirectional role in the increasing criminalization of immigration. Specifically, criminalizing immigration results in the racialization of certain immigrant groups as dangerous outsiders, and such racialization has the effect of sustaining and promoting the …

As They Think Best: A History Of The "One Crowded Hour" Autograph Manuscript, Jennifer L. Behrens

Faculty Scholarship

No abstract provided.

Secondary-Default Remedies: Should Harshness Limit Enforcement?, Steven L. Schwarcz

Faculty Scholarship

This Article examines a critical but largely unexplored issue in contract law: whether secondary defaults—that is, relatively minor or technical defaults not involving debt repayment— should justify enforcing severe contractual remedies. In the context of lending, this issue concerns whether those types of defaults should justify terminating financing commitments, accelerating the maturity of outstanding debt, and foreclosing on collateral, any of which can cause a firm’s failure. Although this issue arises constantly and its resolution can be critical to a firm’s survival, judges and lawyers lack clear answers. This Article analyzes and seeks to provide answers both under existing law …

A Historical Analysis Of Book Challenges And Banning In Louisiana, Janelle Zetty

Faculty Scholarship

This article explores the history of challenges and bans on library and school materials in Louisiana from 1938 to 2024. It provides context for recent legislation, particularly Act 436 of 2023. The article reviews incidents documented in newspaper articles and library publications, focusing on challenges related to race, sexual content, political views, and LGBTQ+ themes. It discusses the roles of librarians, school boards, and community groups in these circumstances. The historical challenges and book bans in Louisiana reveal a recurring pattern of moral and political arguments used to justify censorship. This pattern directly influences, and is echoed by, recent legislation, …

Bailing Out Biometrics, Chinmayi Sharma, Elijah Gordon

Faculty Scholarship

In 2023, hackers breached 23andMe and extracted the biometric and genealogical data of nearly seven million people. By 2025, that data-originally offered up in the spirit of medical discovery and consumer empowerment-was being auctioned off in bankruptcy court as a corporate asset. The breach exposed more than technical lapses or governance failures. It revealed a structural gap in how the law understands, regulates, and protects biometric identity. Biometric data is intimate, immutable, and implicates human dignity and autonomy. And yet, the legal frameworks most often tasked with protecting it-tort, contract, and even modern privacy statutes-have consistently failed to impose meaningful …

Now?, I. Bennett Capers

Faculty Scholarship

This essay brings Afrofuturism, and its notion of the plasticity of time, to imagine how we will think of the past in the future and, more specifically, to consider what will "enrapture, haunt, and/or plague thinkers in the future." Although many answers come to mind, including this country's original sin-slavery-ultimately this essay turns to our current technologies, especially policing technologies. And this essay turns the question around to ask, "How should we in the present think about the future? And what can we do now to change it?"

The Radical Potential Of Consumer Financial Protection, Vijay Raghavan

Faculty Scholarship

This Article offers a novel retheorization of consumer financial protection that surfaces its radical potential. That retheorization is motivated by two developments. The first is the rise of debtor movements over the last decade demanding the abolition or cancellation of debt, such as the recent national campaigns against student debt and medical debt. The second is an emerging view this Article identifies in sociological and legal scholarship. Recent scholarship understands consumer financial protection as in tension with the radical ambitions of debtor movements and neoliberal in its orientation: it operates to sustain market logics as opposed to contest them.

This …

More Than Miscommunication: Rethinking Interpretation At The Asylum Office, Pooja R. Dadhania, Hillary Mellinger

Faculty Scholarship

The United States requires asylum applicants to provide their own interpreters for their interviews at the Asylum Office, barring exceptional circumstances. Applicants can face significant hurdles in finding suitable interpreters, who play a critical role in giving them a voice in the asylum process. Inaccurate interpretation can have serious ramifications such as denial of an applicant’s asylum claim. Despite the critical need for meaningful language access in the asylum process, interpretation at the Asylum Office remains understudied. This article represents a first attempt at bringing the scholarly and practitioner communities together to rethink interpretation at the Asylum Office, with the …

Replacing This Old House: Certifying And Regulating New Legal Services Providers, Bruce A. Green, M. Ellen Murphy

Faculty Scholarship

This Article comprehensively examines the decisions that state courts must make, and have made to date, when they certify and regulate new categories of legal services providers: those individuals other than lawyers who are authorized to provide discrete legal services that the laws governing the unauthorized practice of law (UPL) generally reserve to lawyers.

In certifying new categories of legal services providers, courts must make an array of interrelated decisions. These include decisions about the rules for educational and testing requirements, the scope of services that legal services providers may offer, the conditions under which they may provide services, and …

The Association Between Medication Adherence, Internalized Stigma And Social Support Among Outpatients With Major Depressive Disorder In A Malaysian Hospital: A Cross-Sectional Study, Martha Sajatovic

Faculty Scholarship

Background: Internalized stigma and medication non-adherence pose significant challenges for treating major depressive disorder (MDD), leading to disability, increased suicide risk, and morbidity. Limited data exists on modifiable factors associated with adherence in lower-resourced settings like Malaysia. This study aimed to investigate poor adherence prevalence and the demographic and clinical factors associated with poor medication adherence among patients with MDD. Methods: This cross-sectional survey recruited participants using universal sampling from a major hospital in Selangor, Malaysia. Participants answered questionnaires consisting of demographic and clinical information (medical history, duration of anti-depressant treatment for MDD, psychiatric ward admission history, and any medication …

The Siren Song Of Territoriality, Robin J. Effron, Alan M. Trammell

Faculty Scholarship

Territoriality—the theory that a state’s physical borders determine its power and sovereignty—boasts a long, venerable history. For centuries, it served as the dominant political theory for myriad ideas. It defined a wide range of doctrines, including personal jurisdiction, choice of law, and prescriptive jurisdiction. By the middle of the twentieth century, though, this rigid territoriality no longer described or responded to the challenges of a society that had grown increasingly mobile and interconnected. Courts replaced inflexible territorial theories with more functional theories rooted in fairness and state regulatory interests.

In recent years, territoriality has seen a curious resurgence. The Supreme …

Opening The Channels And Speeding The Game: A Short History Of Transactional Forms, Laura M. Scott

Faculty Scholarship

Citators, digests, annotated codes. These standard legal research tools, developed by generations of lawyers and now adapted for the online era, tend to be the province of litigators. Transactional lawyers may also occasionally use these tools, but for the practitioner making and documenting commercial, corporate, real estate, or securities deals, legal forms are often a more useful tool. Used judiciously, these sample documents make drafting more efficient, guide junior business lawyers through unfamiliar transactions, and help identify legal issues to be researched.

For today’s dealmakers, online transactional forms are essential research and drafting tools in their own right, but examining …

Betwixt And Between: Restorative Justice, Dei, And Education Carcerality, Thalia Gonzalez, Alyssa Faith Scott

Faculty Scholarship

American K-12 public education is at a critical anti-civil rights inflection point amidst a rapidly changing landscape of federal and state education law and policy. From local anti-literacy measures to state “three strikes” exclusionary school discipline legislation to punitive federal executive orders, new legal mechanisms are conjoining to produce public school climates marked by structural violence, and the erasure of students with multiple marginalized identities. Attending to these political and legal realities is a growing cluster of legal scholarship empirically categorizing, and theoretically challenging, the rise of such anti-education civil rights obstructions. Though diverse in scope, analyses prominently center the …

Rejecting The Racialization Of Indianness, Andrea J. Martin

Faculty Scholarship

No abstract provided.

Fútbol Profesional, Derecho De La Competencia Y 'Fair Play', Stephen Ross

Faculty Scholarship

El presente ensayo examina la relación entre el derecho de la competencia y la noción de «Fair Play» en el ámbito del fútbol profesional. El autor comienza analizando el significado lingüístico y filosófico del término «Fair Play» y valorando cómo las diferentes interpretaciones de esta noción pueden influir en la percepción de lo que se entiende por justicia en el deporte. A continuación, compara la aplicación del derecho de la competencia en EE.UU. y Europa, destacando que, aunque hay diferencias, no existe un verdadero conflicto entre la noción de «Fair Play» y la normativa en materia de competencia. Finalmente, defiende …

Taking From The Most Vulnerable: Legal Implications Of Seizing Federal Benefits From Foster Kids, Lucy Johnston-Walsh

Faculty Scholarship

Foster youth in some states are paying the cost of their own room and board when state and local government agencies seize a child's federal social security benefits to cover the costs of care. Other states, however, have passed laws forbidding such a practice, allowing youth to save these funds for their own financial needs. Federal social security benefits are an individual's own property and should not be taken without adequate notice, nor without an opportunity to challenge the taking. Tet too many youth who are involved in the foster care system are unaware they are even receiving benefits and …

Loper Bright And The Great Writ, Anthony G. Amsterdam, James S. Liebman

Faculty Scholarship

Chevron deference is dead. The Court’s forty-year, seventy-decision experiment with Article-III-court deference to “reasonable” agency interpretations of ambiguous federal statutes failed, killed in part by concern that it unduly curbed the “judicial Power” to enforce the rule of law in the face of politics, partisanship, and mission-driven agency decision-making.

“AEDPA deference” lives. The Court’s twenty-five-year, seventy-two decision experiment with Article-III-court deference to “reasonable” state-court interpretations of the Constitution under the 1996 Antiterrorism and Effective Death Penalty Act continues to relegate criminal defendants to prison or death, notwithstanding federal habeas judges’ independent judgment that the state courts have misread or misapplied …

States In The Separation Of Powers, Ernest A. Young

Faculty Scholarship

No abstract provided.

An Introduction To U.S. Groundwater Law: Domestic And Transboundary Considerations, Caleb Cook, Gabriel Eckstein

Faculty Scholarship

In light of the scientific and historical factors that have shaped the development of groundwater law and policy, this chapter seeks to provide a primarily descriptive account of its current state in the United States and to lay a foundation for future efforts to address gaps in the regime. Section 8B.02 considers the importance of groundwater in modern American society, with a particular focus on its uses and the threats these resources face. Section 8B.03 describes the U.S. framework for the domestic governance of groundwater resources. Section 8B.04 describes the mechanisms for transboundary governance of groundwater between the United States …

Poor In Practical Capacity: How Environmental Alienation Is Really A Deficit Of Political Know-How, Jeremy Bendik-Keymer

Faculty Scholarship

“Alienation from nature” is a popular notion in Western environmental culture. Influential Anglophone critical theorist Steven Vogel claims that it makes no sense, unlike alienation from our productive capacity to dwell on Earth, called “alienation from the environment.” His criticism is accurate, but his view isn’t. The normative sets appropriate production and consists of social processes of arriving at norms. Politics is foremost among these processes, and it is fundamentally know-how. Given these assumptions, poor practical capacity ends up being the heart of “environmental alienation” – alienation from the built environment. Look at large-scale, anthropogenic, environmental change: a deficit of …

Sailing Stormy Waters: Leadership And Advocacy In Uncertain Times, Janine Galeski

Faculty Scholarship

In times of uncertainty and rapid change, health care leaders face unique challenges. This article explores best practices for leadership and advocacy in healthcare across five spheres of leadership influence: personal, interpersonal, organization, community, and society. Leaders can reduce the adverse effects of uncertainty by operating within the intersection of evidence-based practice, legal compliance, and ethical decision-making. This article explores practical applications and real-world examples in all 5 spheres of leadership influence.

Dirty Hands, Savage Enemies, And Bad Apples: A Taxonomy Of War Crimes Apologia, Jessica Wolfendale

Faculty Scholarship

In this paper, we detail and critique dominant narratives of war crime apologia. These narratives portray the circumstances of a war crime, the perpetrator’s character and motives, and the broader context in which the crime occurred, in ways that minimise or negate the perpetrator’s moral, and sometimes legal, blameworthiness. In section one, we identify and critique three broad categories: (1) individualising narratives (‘uncommon practice’), (2) excusatory narratives (‘essence of war’), and (3) justificatory narratives (‘tragic necessity’). Drawing on a range of real world examples, we outline the features of these narratives and the underlying theory of moral responsibility and blameworthiness …

Understanding The Effects Of Platelet Transfusions In Neonates, Robert W. Maitta

Faculty Scholarship

Platelet transfusions represent a common life-saving intervention used in intensive critical settings to treat neonates with thrombocytopenia, at risk of or actively bleeding, or undergoing clinical complications that make transfusions part of the management. Even though it is intended to help restore hemostasis in patients, platelet transfusions can, under certain circumstances, lead to negative effects, greater inflammation, and rarely increased mortality. It is the occurrence of these unforeseen and yet to be defined transfusion-associated complications that are at the center of a renewed effort to identify those factors increasing risk or that make a subset of patients more likely to …

The Perverse Effects Of Mandatory Judicial Reporting To Bar Authorities Of Ineffective Assistance Of Counsel Determinations, Tigran W. Eldred, David M. Siegel

Faculty Scholarship

California Business & Professions Code § 6086.7(a)(2) provides that a court shall notify the State Bar “[w]henever a modification or reversal of a judgment in a judicial proceeding is based in whole or in part on the misconduct, incompetent representation, or willful misrepresentation of an attorney.” Some California judges now interpret this provision as mandating referral to the State Bar in any case in which a new trial or withdrawal of a plea is granted due to ineffective assistance of counsel. This interpretation directly conflicts with an attorney’s continuing duty to her former client. It is unnecessary and has profoundly …

Law As A Lamp Post, Janet Freilich

Faculty Scholarship

Law produces all manner of public information: court documents, securities filings, patents, property records, and much more. This information is used in a multitude of ways—it teaches readers about individual cases, transactions, or entities, and is also aggregated to inform policymaking, set priorities, and drive predictive analytics and artificial intelligence.

But choices about the information produced (or hidden) by law are often unintentional. Doctrines and institutions that appear facially unrelated to information production—like subject matter jurisdiction—nonetheless affect the shape and quantity of data produced. And even doctrines focused on information— like property recordation—create data used for purposes never envisioned by …

How Theories Of Art Can Inform Debates About Ai, Jessica Silbey

Faculty Scholarship

Debates about artificial intelligence (AI) tend to swing between the optimistic and the apocalyptic. I propose a less binary approach that frames conversations about AI from the perspectives of theories of art and creativity. Whether we agree that AI is artificial or intelligent, whether it should be constrained or liberated, we cannot deny its influence on literary, artistic, and innovative production. AI may be described as simply a new tool to produce art and science, like the camera or the microscope, or it may transform art and science, the way the internet transformed global communication. Either way, these debates about …

Amicus In Wilcox V. Trump On Presidential Removal And Unitary Executive Theorists’ Errors, Jed Handelsman Shugerman

Faculty Scholarship

As courts ask whether Free Enterprise and Seila Law call into question Humphrey’s Executor and independent officers or agencies, the more immediate questions should be focused on new historical evidence and new fact-checking finding pervasive and repeated historical errors and misinterpretations at the foundation of the unitary executive theory of removal.

Since the Supreme Court decided Seila Law, a wave of new historical research has shown that the Founding generation did not understand Article II to grant the President an indefeasible removal power over executive officials. In response, pro-unitary executive scholars have tried to offer new historical support. That …

Brief Amicus Curiae Of Professor Jed Hanelsman Shugerman In Support Of Respondents, Jed Handelsman Shugerman

Faculty Scholarship

Amicus Curiae Jed Handelsman Shugerman is a Professor of Law at Boston University. He holds a JD and a PHD is History. Shugerman subscribes to the interpretation of the Constitution based on original public meaning (i.e. originalism). He has written extensively on the history of presidential power and the original public meaning of Article II.

Shugerman and Gary Lawson have co-written "Presidential Removal as Article I, not Article II," offering originalist alternatives to limit Congress's power to restrict presidential removal power, while allowing good-cause conditions in traditional exceptional cases. This amicus brief summarizes these alternatives and shows how they are …

Originalisms' Indifferences?: Friendly Amendments To Sherif Girgis's "Originalism's Difference?", Jed Handelsman Shugerman

Faculty Scholarship

Sherif Girgis’s Lecture Originalism’s Differences? reflects on what had differentiated originalism from other methods and why those differences are eroding. The differences are (or were): (1) avoiding “ostentatious moral reasoning”; (2) relatedly, constraining judges by requiring originalist historical evidence (i.e., tying judges’ hands); and (3) engaging historical research with more “intensity.” Girgis rightly criticizes the Court for engaging in the same kind of flexibility and creativity that originalists had long rejected.

In this commentary, I highlight our areas of agreement and offer friendly amendments. My title takes Girgis’s title two or three steps further: I use an “s-apostrophe” because I …