Law Commons^™

Bank Supervision And Article Ii, Kathryn Judge

Faculty Scholarship

The administrative state is again at a cross roads. The Supreme Court seems poised to continue its march toward trying to fit all of government neatly into one of the three constitutionally enumerated branches. An important front of this shift has been a flattening of the mechanisms through which officers of the United States may be held appropriately accountable for their actions. Waning are the days when Congress had the flexibility to create the institutions it believed were “necessary and proper” for carrying into execution important policy aims and to determine the appropriate mechanisms for accountability in conjunction with considering …

Trump Epa’S Proposed Revocation Of Greenhouse Gas Endangerment Finding Raises Tangle Of Legal Issues, Michael B. Gerrard

Faculty Scholarship

On July 29, 2025, at an auto dealership in Indiana, Lee Zeldin, Administrator of the U.S. Environmental Protection Agency (EPA), announced a proposal to withdraw the Endangerment Finding for greenhouse gases (GHGs), which has been EPA’s legal basis for using the Clean Air Act to fight climate change. This action, which will surely be fought in court once it becomes final, raises a host of legal issues. This article discusses the legal basis for and significance of the Endangerment Finding; Zeldin’s principal arguments for revoking it, and challenges that will be raised to them; the range of possible outcomes in …

Getting To Court Is The Hard Part, Michael B. Gerrard, Jessica A. Wentz

Faculty Scholarship

The article by Quilcaille and colleagues makes a convincing case that heatwaves around the world have been worsened by the combustion of fossil fuels produced mostly by a limited number of companies. This is the latest in a series of climate-attribution studies5 that are demonstrating — with increasing precision — the link between greenhouse-gas emissions and climate impacts.

Mitigating Ai Bias With Prompt Augmentation, Verónica C. Gonzales

Faculty Scholarship

Large-language-model (“LLM”) outputs are inevitably shaped by assumptions, biases, and attitudes rooted in racism and other systemic inequities embedded in the civil-law tradition. This Equity-in-Justice CLE focuses on helping civil legal service providers recognize and work to eliminate biases in generative AI outputs through equity-centered prompt augmentation and engineering. These small, cost-free interventions re-orient LLMs assistance toward fairness, cultural competency, and client-centered outcomes. Participants leave with an action plan for embedding anti-bias safeguards in everyday research, drafting, and client communication tasks.

Oriented Data-Generating Processes: A Categorization Of Roc Curves, Claude Fluet, Murat C. Mungan

Faculty Scholarship

Decision makers attempting to classify a binary state of the world may commit two types of errors. Even when the two alternative states have equal prior probabilities and when the two types of errors are equally costly, a classification criterion may be chosen which leads to one type of error being committed more frequently than the other, because of asymmetries in the data that informs their decisions. We formalize this possibility through a categorization of data-generating processes (DGPs), which may be ‘oriented’ towards evidence favoring one of the two alternatives, or which may be ‘unoriented’. We identify the shape properties …

Defending Rule-Of-Law Minimalism, Ashraf Ahmed

Faculty Scholarship

The rule of law is a political idea that counts only allies and no enemies. As a popular concept, the rule of law inspires broad rhetorical support. In the United States, for instance, liberals and conservatives alike invoke the “rule of law” as a normative lodestar in political conflicts. Liberals targeting the Trump administration cast their lawsuits as a defense of the rule of law. In parallel fashion, conservatives often charge creative readings of old statutes and ambitious administrative action as departures from the rule of law. It seems that any viable political venture must defend, advance, or at least …

The Origins Of "The Rule Of Law", Jeremy K. Kessler

Faculty Scholarship

This Article offers a novel account of the origins of “the rule of law” in the English-speaking world. The phrase itself likely entered the language as a literal translation of the Latin regula juris. Prior to the early seventeenth century, however, the phrase appears to have been used exclusively to refer to the specific legal rule or maxim most relevant to the resolution of a particular kind of dispute. The more general and abstract use of the phrase – to refer to an ideal of political morality or an ideal type of governance – first appeared in the public …

Foreword, Madhav Khosla, Jedediah Britton-Purdy

Faculty Scholarship

What is the rule of law, and why does it matter? Scholars have tended to pose this question as a conceptual one: does organizing power and authority by means of law imply certain moral commitments, ways that power should be shaped and constrained?

Teaching Transactional Skills And Lawyering Values To First-Year Students Through An Affordable-Housing Deal, Laura E. D'Amato

Faculty Scholarship

With the anticipated launch of the NextGen bar exam next year, transactional lawyering skills are enjoying increased attention in first-year law school curricular development. At the same time, recent amendments to ABA Rule 303 have made it essential for new law students to learn about the profession’s core values and responsibilities. While these evolving priorities open the door to pedagogical innovation, incorporating two distinct topics into an already packed curriculum can be challenging. This article explores how a simulated affordable-housing financing deal has served as a cohesive foundation for introducing first-year students to transactional skills and core professional values.

Is R&D Rivalry Slowing The Growth Of Productive Firms?, Yoshiki Ando, James Bessen, Xiupeng Wang

Faculty Scholarship

The reallocation of jobs to more productive firms is a substantial component of aggregate productivity growth, yet job reallocation rates have declined substantially in the United States. This paper explores the hypothesis that greater technological rivalry has exacerbated adjustment costs, slowing reallocation. Using microdata at the US Census and estimates of technological rivalry in firm growth regressions, we find that technological rivalry slows firm responses to productivity shocks. Firms do not expand as rapidly in the face of higher obsolescence risk. Estimating counterfactual firm growth from 1997-2018, we find that growing technological rivalry accounts for most of the decline in …

Fixing A 100-Year-Old Mistake, Michael J. Graetz

Faculty Scholarship

Posing the question of international tax cooperation versus competition reminds me of multiple-choice exams in which the right answer is “all of the above.” National interests determine which dominates at any given time. And in tax competition among nations, zero is not a lower bound.

In 1918, to encourage U.S. investments abroad, the United States enacted a credit for foreign taxes paid by U.S. companies and relinquished taxing rights to most foreign-source income. With the foreign tax credit, the United States assumed sole responsibility for reducing the double taxation of its residents and citizens. As the influential economist Edwin Seligman …

Caste Formalism: The Law And Politics Of Equality In India, Madhav Khosla, Pratap Bhanu Mehta

Faculty Scholarship

In modern constitutional democracies, achieving equality has long been a challenge. In recent years, theorists have focused on understanding the meaning of discrimination and determining when and how discrimination becomes problematic. One critical issue that has long animated discussions on both the general guarantee of equality and the specific goals of anti-discrimination law is the relationship between individuals and groups. If a constitutional order aims to take equality seriously, how should it address the experiences of specific groups historically subjected to discrimination? Indeed, questions of equality and discrimination often converge around the issue of affirmative action, sometimes at the expense …

Too Many Mergers? The Golden Parachute As A Driver Of M&A Activity In The 21st Century, Jeffrey N. Gordon

Faculty Scholarship

This Article argues that the corporate governance regime in the United States has produced a level of mergers and acquisition activity greater than the social optimum because of the current version of the “golden parachute,” a super-bonus payoff to a target CEO. In the late nineteenth through the twentieth century, M&A activity was characterized by “waves” that reflected adaptations to changing external environment, whether the efficient production frontier, regulatory constraints, or capital market developments. Economically-motivated parties saw the opportunities in changing the boundaries of the firm; successful first-movers spawned imitators, hence a wave, which eventually subsided, often alongside deteriorating capital …

Drug Versioning And Legal Accountability, Robert A. Bohrer

Faculty Scholarship

No abstract provided.

Oped: Forced Disappearances In New Mexico 2025, Jennifer Moore, Antoinette M. Sedillo Lopez, Linda Serrato

Faculty Scholarship

Immigration raids and unaccounted-for seizures of human beings are occurring in New Mexico and throughout the country, with increases in their frequency and magnitude as of June 2025. As we celebrate our Independence, every U.S. citizen should do some soul searching–to seek the soul of our nation. We call on our federal elected officials to work to ensure that enforced disappearances do not happen in our beloved country. As elected representatives and educators we demand to know where our constituents are being held and under what allegations. And we ask ICE agents to consider their actions. History did not look …

Medium Matters In Preparing For Law Practice: Critical E-Reading, Amanda L. Sholtis

Faculty Scholarship

No abstract provided.

Uses And Abuses Of Johnson V. M’Intosh In Native American Land Rights Cases: Investigative Insights From The Indian Law Justice Files, John P. Lavelle

Faculty Scholarship

The 200th anniversary of the foundational Indian law decision Johnson v. M’Intosh has come and gone, with many scholars contributing criticism and commentary. The dominant focus has been the case’s notorious embrace of the so-called “doctrine of discovery,” an odious theory for rationalizing European nations’ claims of superior rights to lands occupied by Indigenous Native American peoples. Commanding less attention, however, is the Johnson decision’s core protective legal feature, i.e., its reinforcing the United States government’s duty to guard against the alienation of Indian lands through private, unauthorized acquisitions.

This Article offers a somewhat different appraisal of Johnson v. M’Intosh …

Liquid Power: Myths, Realities, And Policy Responses To Wall Street's Takeover Of Water Markets, Vanessa Casado-Pérez

Faculty Scholarship

In Don Quixote, there is a moment when all the knightly novels are thrown into the fire for their fantastical depictions of chivalry. Yet one book is spared: Tirant lo Blanc. It is saved because, unlike the others, it portrays knights who die in their beds-offering a more realistic depiction of medieval battles. Similarly, Liquid Asset stands out as the book that should be preserved from the extensive body of scholarship on water markets. Many works in this field are influenced by ideological biases that shape their analyses. In contrast, Buzz Thompson's books provides the nuance and balance often lacking …

The Role Of Proactive Management Based Regulation In Assisting Lawyers And Promoting Public Protection, Susan Saab Fortney

Faculty Scholarship

Increasingly, jurisdictions around the world are exploring and implementing proactive, management-based regulation (PMBR) as an alternative to traditional regulatory approaches that discipline attorneys after misconduct occurs. This essay examines the proof and potential of PMBR to empower lawyers and enhance public protection, while transforming the relationship between regulators and practicing lawyers. The essay is based on the Distinguished Lecture the author delivered at the Joseph G. Miller and William C. Becker Center for Professional Responsibility at the University of Akron School of Law.

Earth Day 2025: Albuquerque, Nm, Clifford Villa

Faculty Scholarship

This Earth Day 2025, I was at home in Albuquerque, New Mexico, where I was born and raised, where we measure time in family generations. For too long, I’ve been away. But returning home, I have new perspectives—and new technology. You may laugh, but I’ve discovered Merlin.

Boundary-Setting And Choice-Making With No "Adult" In The Room: Professional Identity Formation Opportunities For 1ls In The Transactional Context, Marni Goldstein Caputo, Kathleen Luz

Faculty Scholarship

Law schools are now required by the American Bar Association’s Standard 303(b)(3) to provide students with opportunities for professional identity formation throughout their legal education. It is critical that those opportunities be well-balanced and tied to the realities of practice. Yet until recently, we, as 1L lawyering skills professors at Boston University School of Law, only provided those opportunities in the litigation context. Further, our 1L lawyering skills curriculum was, since its inception, almost entirely steeped in litigation. This litigation focus matches neither the career trajectory nor the upper-level experiential opportunities of the majority of our students. In fact, transactional …

Examining Pricing And Availability For Neglected Tropical Disease Therapies In The Us, Maple Goh, Kevin Outterson, Aaron S. Kesselheim

Faculty Scholarship

Background

Neglected tropical diseases primarily affect vulnerable populations in low-resource settings worldwide. In the US, neglected tropical diseases such as Chagas, soil-transmitted helminthiases, and other infections historically impacted immigrants but are increasingly relevant for US residents with climate change. We examined the pricing, prescribing rates, and supply of therapies used to treat neglected tropical diseases in the US and their implications for accessibility and patient care. Methods

A retrospective analysis of prescription rates, wholesale acquisition costs, and shortages was conducted for 11 treatment products from 2019 to 2024, aggregating data from Symphony Metys, First Databank, NAVLIN, Red Book, and the …

The Potential And Perils Of Financializing Climate Risk Governance: Insights For Urban Policymakers, Emma Colven, Madison Condon, Kelly Hereid, Savannah Cox

Faculty Scholarship

In this roundtable discussion, Savannah Cox speaks with three experts about the financialization of climate risk governance: Kelly Hereid, a climate scientist at Liberty Mutual, Madison Condon, an associate professor at Boston University School of Law, and Emma Colven, a lecturer in risk, environment, and society at King’s College London. In this conversation that ranges from Miami to Jakarta, Savannah, Kelly, Madison, and Emma discuss the legal, political, and technical challenges relating to financialized climate risk governance: on one hand, the rise of insurance companies and rating agencies as de facto “risk assessors” and, on the other hand, the proliferation …

Civilian Enforcers, Karen Pita Loor

Faculty Scholarship

This Article analyzes the largely unexplored phenomenon of militant civilians engaged in efforts to police and silence activism that challenges entrenched American power systems and economic distributions placing whites atop the social hierarchy in the United States. I argue that this civilian enforcement is an unregulated vessel for state-sponsored violence meant to silence the contestation of the existing racial hierarchy. While scholars, myself included, have written about the many ways police confront and silence racial justice activists on the streets at least since the beginning of the Black Lives Matter (BLM) movement, the role law enforcement plays in silencing racial …

"What Shall Be Orthodox" In Polarized Times: Overview And Response To Commentators, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Justice Robert Jackson wrote this celebrated passage in his majority opinion in West Virginia State Board of Education v. Barnette (1943), which protected the First Amendment right of Jehovah’s Witness children not to participate in a compulsory flag salute in public schools. In recent years, protests against imposed orthodoxy—usually invoking Barnette—have occurred in …

A Historical Case For A Robust But Non-Remedial Seventh Amendment, Jed Handelsman Shugerman

Faculty Scholarship

In Jarkesy, the Supreme Court rightly held that the Seventh Amendment required a jury trial for a case fundamentally similar to common law fraud, and it rightly limited the scope of the “public rights” exception to the Seventh Amendment. Grounded in historical and originalist methods, this essay makes four suggestions after Jarkesy:

1. Following Jarkesy, the judiciary should continue a more robust enforcement of the Seventh Amendment right to a jury trial. The courts should eliminate the “public rights” exception to the Seventh Amendment, which does not appear to have an original link to the Seventh Amendment. The …

An Originalist Case For Birthright Citizenship Of Unlawful Immigrants' Children: Anti-Gypsy And Anti-Chinese Restrictions As Context, Jed Handelsman Shugerman

Faculty Scholarship

The Trump administration and other opponents of birthright citizenship for the children of “unlawful immigrants” make the following originalist claim about the Fourteenth Amendment: Even if the clause meant birthright citizenship, it applies today only to “lawful immigrants,” because the category of “unlawful immigrant” or “illegal immigrant” did not exist in the 1860s, when the clause was written and ratified. Opponents also argue that the Fourteenth Amendment’s citizenship clause originally implied a “loyalty” or “allegiance” requirement.

These assertions are historically inaccurate.

To the contrary, the concept of “unlawful immigrants” existed in the 1850s-60s, and Americans ratified birthright citizenship without indicating …

Dark Patterns As Disloyal Design, Johanna Gunawan, Woodrow Hartzog, Neil Richards, David Choffnes, Christo Wilson

Faculty Scholarship

Lawmakers have started to regulate “dark patterns,” understood to be design practices meant to influence technology users’ decisions through manipulative or deceptive means. Most agree that dark patterns are undesirable, but open questions remain as to which design choices should be subjected to scrutiny, much less the best way to regulate them.

In this Article, we propose adapting the concept of dark patterns to better fit legal frameworks. Critics allege that the legal conceptualizations of dark patterns are overbroad, impractical, and counterproductive. We argue that law and policy conceptualizations of dark patterns suffer from three deficiencies: First, dark patterns lack …

A Conversation About Stare Decisis, Debra A. Livingston, John Q. Barrett

Faculty Scholarship

John Q. Barrett (“JQB”)

Chief Judge Debra Ann Livingston, welcome back to St. John’s.

The Chief Judge has been a friend to us for many years. It is an honor to host someone of her talent and someone in her position: the Chief Judge of the U.S. Court of Appeals for the Second Circuit.

We’re going to have a conversation for the first part of the program, about judging, her work, and stare decisis. But first, we need to meet you and hear a little bit about your background — where you are from — and the path that took …

Annual Review Of Seqra Cases And Developments, Michael B. Gerrard

Faculty Scholarship

The New York State Environmental Quality Review Act (SEQRA) turns 50 this year. The statute has changed only a little in the last half century, but it continues to be a font of litigation. The courts decided 43 cases under SEQRA in 2024.

Implementation of SEQRA is also raising policy issues. The legislature is considering whether to amend SEQRA to speed up affordable housing projects, and the State Department of Environmental Conservation (DEC) is drafting regulations concerning the role SEQRA should play in advancing environmental justice.

A constant theme is the tension between thoroughly studying important project impacts and involving …