Law Commons^™

Profiteers Of Death, Match Dawson

Faculty Articles

Brazenly operating within the illicit world of stranger-owned life insurance (“STOLI”), unscrupulous investors and colluding life insurance agents unapologetically engage in a calculated dance of fraud and deceit. With the skill of seasoned con artists, these “Profiteers of Death” prey upon the unsuspecting elderly community, strategically targeting senior assisted living facilities by dangling the golden carrot of easy money in exchange for unwittingly selling away their insurability for little more than copper pennies. Standing idle like salivating vultures, the Profiteers of Death make a mockery of legislative attempts to curb the illegitimate secondary market, perfectly exploiting regulatory deficiencies as they …

Everything New Is Old Again: The Coming Metaverse, Platforms As Premises, And Addressing Harms That Occur Behind The Veil Of Scale, Lara Putnam, Jena Martin

Faculty Articles

Increasingly, social media companies have engaged in the creation, development, and deployment of "worlds" within a virtual reality setting, leading to significant interactions among users within these engineered spaces. However, this expansion has also been accompanied by harms. While some harms are unique to immersive reality technology, many mirror harms that occur in the analog environment, including fraud, theft, verbal abuse, and child sexual exploitation. Others replicate harms that have already exploded in non-immersive online spaces, including image-based sexual exploitation, cyberstalking, and invasion of privacy. Unfortunately, the architecture and infrastructure of these spaces has created what we coin here to …

How To Let A Democracy Die: “First,…Let’S Kill All The Lawyers” And Other Lessons From The Bard, Jena Martin

Faculty Articles

This article serves to provide a much-needed perspective on how international legal mechanisms (or the lack thereof) impact democratic in institutions.

2025 Environmental Flows Report, Adrian Oglesby, Anjali Bean, Martha Cooper, David Pílz

Publications

A selection from the 2025 Environmental Flows Workshop Report's Introduction: 

The term environmental flows means different things to different people. For example, environmental flows might refer to the science underpinning instream flow recommendations; or environmental flows might refer to the tools used to legally allocate water to rivers; or it might most broadly refer to the question, “how much water does a river need to stay alive?” Workshop presentations and discussions covered all these topics and others.

How District Administrators Further The Book Banning Agenda, Kim Reichenbach Krutka

STEMPS Faculty Publications

Book banning and censorship in school libraries remain a significant barrier to intellectual freedom. Drawing on ten years of experience as a Texas school librarian, this opinion article highlights how district policies and grievance procedures empower individuals to exclude books representing marginalized identities, particularly queer and Black experiences. Using Critical Race Theory (CRT), specifically the tenets of whiteness as property and counter storytelling, the article explains how these policies uphold white privilege and dominant narratives while silencing counter-stories that validate diverse student identities. The grievance process allows a single hearing officer to overturn committee decisions without transparent reasoning, often restricting …

Table Of Contents, Jtaa Editors

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Securities Law—Beware The Shadows—District Court Broadens Federal Insider Trading Laws To Include “Shadow Trading”—Sec V. Panuwat, No. 21-Cv-06322-Who, 2024 Wl 4602708 (N.D. Cal. Sept. 9, 2024), Trevor Pilkington

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Victims In Criminal Cases: The Right To Settle Your Own Case, Isabella Lund

Public Interest Law Reporter

No abstract provided.

Distinguishing Among Climate Change-Related Risks, Lisa E. Sachs, Denise Hearn, Matt Goldklang, Perrine Toledano

Columbia Center on Sustainable Investment

Understanding the diverse types of climate change-related risks is crucial for developing effective strategies to address the global climate crisis. A holistic yet disaggregated approach allows for a comprehensive view of the challenges while enabling targeted responses from various stakeholders. This document outlines three main categories of climate-related risks: planetary, economic, and financial, detailing their relevance to various stakeholders, timeframes, and potential response strategies.

This short brief aims to disentangle the complex nature of risk discussions for productive discourse and appropriate risk management approaches for different stakeholders. In practice, discussions related to assessing and responding to climate change risk have …

Fiscal Citizenship And Taxpayer Privacy, Alex Zhang

Faculty Articles

Should individual tax data be public or confidential? Within the United States, secrecy has been the rule since the Tax Reform Act of 1976. But at three critical junctures—the Civil War, the 1920s, and the 1930s—Congress made individual tax records open for public inspection, and newspapers published the incomes of the billionaires of the time. Today, Finland, Norway, and Sweden all mandate significant transparency for individual tax information.

This Essay intervenes in the tax-confidentiality debate by building a new analytical framework of fiscal citizenship. Until now, scholars have focused on compliance—whether disclosure incentivizes honest reporting of income, and if it …

Recusal Reform: Treating A Justice's Disqualification As A Legal Issue, Michael J. Broyde, Hayden H. Hall

Faculty Articles

This article addresses the pressing issue of recusal in the U.S. Supreme Court. It critiques the current practice of Supreme Court Justices deciding individually whether to recuse themselves from cases, highlighting the flaws and potential biases inherent in this practice. The authors advocate for a reform where initial recusal decisions are made by individual Justices but then are subject to review by the Supreme Court as a whole.

The article offers several arguments to support this proposal. First, the authors explore the evolution of recusal laws, focusing on the significant amendments to 28 U.S.C. § 455 in 1948 and 1974. …

Judging Judiciaries: How Sticky Defaults, Status Quo Bias, And The Sovereign Prerogative Influence The Perceived Legitimacy Of The New International Commercial Courts, S. I. Strong

Faculty Articles

Forum shopping is routinely criticized as contrary to procedural justice. However, recent years have seen an increasing number of jurisdictions engaged in the process of forum selling, in which countries actively seek to bring lucrative litigation business to their national judicial systems. One of the most common types of forum selling involves the creation of new international commercial courts designed to increase a nation’s competitiveness in the global litigation market.

Most studies of the new international commercial courts have focused on how procedural innovations adopted by different courts are likely to affect party choice. While useful, these analyses assume that …

Genetic Property Rhetoric And The Public Domain, David Fagundes

Faculty Articles

Among the many themes that illuminate Jorge Contreras’s The Genome Defense, this Essay focuses on property. It considers the rhetorical role played by property in convincing both courts and the public that patenting genetic data was legally and ethically objectionable. This Essay begins by locating property—and public property—as a major theme in the dialogue surrounding the Myriad litigation. It then situates this rhetorical move in the context of property-talk generally, highlighting the distinctiveness of leveraging public rather than private ownership as a means of accessing moral intuitions. Finally, this Essay reflects on what the use of public property rhetoric …

Legislatures And Localized Resentencing, Ronald F. Wright, Kay L. Levine

Faculty Articles

Recent legislation, exemplified in statutes from California and Washington, creates new methods for resentencing defendants in old cases. These laws place controlling authority for resentencing in the hands of local officials, especially local prosecutors, and invite variation at the county level.

While some new procedural channels for reducing the sentences of people convicted of past crimes are mandatory, in that they entitle certain defendants to resentencing if they were convicted of certain crimes or were subject to certain penalty enhancements that are no longer valid, other statutes create discretionary resentencing channels. In the discretionary channels, the chief local prosecutor has …

Federalism, State Action, And Workers’ Medical Privacy, Ani B. Satz

Faculty Articles

Injured workers entering state workers’ compensation systems effectively forego their medical privacy. This is due to widespread judicial misinterpretation of the HIPAA Privacy Rule (HPR) as excluding injured workers from federal medical privacy protections. As a result, medical privacy for workers’ compensation claims is effectively governed by state law. This Article argues that states have failed to protect the medical privacy of injured workers adequately and that there is a pressing need for legislative reform. The Article presents the first comprehensive survey in the legal literature of state action protecting the medical privacy of injured workers. Part I describes the …

Customary Corruption, Ani B. Satz, Liza Vertinsky

Faculty Articles

For over a hundred years, it has been well-accepted among tort scholars that physicians—as one of the legally recognized professions— determine their own customary practices. Within tort law, and medical malpractice more specifically, customary practice establishes whether physicians breach or uphold the required standard of care toward their patients. The results of our hand-coded examination of decided cases and statutes show a more complex picture. While some states have endeavored to shift the standard away from professional custom, it continues to play a critical, and in many cases a determinative, role in establishing physician liability in most states.

Using illustrative …

Super-Groups: Legal Empowerment And “Public Law”, Matthew B. Lawrence

Faculty Articles

Not all interest groups are created equal. Some groups are created by or with the help of law. Law can confer political power on groups through wealth, rents, concentrated interest, and durability, creating synthetic factions that use their state-given influence to dominate lawmaking. Deregulatory and progressive traditions in public law have long thought differently about laws that empower. A deregulatory tradition sees legal empowerment as a democratic pathology that counsels against lawmaking, citing empowerment concerns as a perennial rhetorical point against consumer protection, environmental protection, and social welfare programs, among others, for fear they will lead to “capture.” At the …

Expertise, Ideology, And Dissent, Paul R. Gugliuzza, Jonathan R. Nash, Jason Rantanen

Faculty Articles

Part I sketches a theory of dissent, explaining how voting and opinion-writing behavior on a multi-member court, such as a federal court of appeals, is a function of both a judge's preferences, as well as costs, including the relational disruption that comes from disagreeing with colleagues.

Part II provides background on the U.S. Court of Appeals for the Federal Circuit as well as a survey of prior studies of decision-making on the court and explanations of those studies' limitations.

Part III describes our methodology, including the novel dataset we built for the purpose of this study.

Part IV conducts a …

Federal Officer Criminal Case Removal, Jonathan R. Nash

Faculty Articles

Recent events have brought the federal officer removal statute to the fore. The statute allows a defendant to remove a criminal prosecution to federal court, provided that the allegedly criminal behavior was performed by the defendant as a federal officer under color of office and provided that the defendant has a federal defense. Current litigation has exposed several open, important questions under the statute, which this Article confronts. On the question of who qualifies as an “officer” who can remove under the statute, it argues that removal is available both to former officers and to presidents. On the question of …

Destroy, Rebuild, Repeat: How To Break The Climate Disaster Cycle, Mark P. Nevitt

Faculty Articles

Climate change is fundamentally reshaping how we live, where we live, and whether we invest in or retreat from climate-exposed communities—but climate and disaster law is not changing with the climate. This legal latency is driven by antiquated statutes, doctrines, and policies that have not kept pace with the climate moment. Ex ante adaptation decisions governing where to live are life and death choices that shape ex post disaster response. Laws and policies should facilitate sound climate decisionmaking, but too often they frustrate individual and governmental decisions on whether to stay or retreat. In this Article, I argue that laws …

Katz'S Imperfect Circle: An Empirical Study Of Reasonable Expectations Of Privacy, Tonja Jacobi, Christopher Brett Jaeger

Faculty Articles

Under Katz v. United States, the Fourth Amendment restricts government actions that infringe upon expectations of privacy that society recognizes as reasonable. This foundational test has long been criticized as circular, both because courts can shape the very expectations they seek to identify through their decisions and because governments can manipulate those expectations to expand the reach of their own power. But how do members of society decide what expectations are reasonable, and how do judges ascertain those expectations? And are expectations of privacy malleable even without deliberate manipulation?

This Article shows that the circularity critique is both understated …

Vice Capital, Andrew K. Jennings, Kimberly D. Krawiec

Faculty Articles

Academic and market interest in environmental, social, and governance (ESG) investing has grown markedly in recent years. Although less prominent, a substantial literature also explores whether “sin pays” in the public capital markets. This literature’s underlying theory is that social norms discourage the funding of businesses that promote vice. According to this theory, some investors—particularly institutions sensitive to social norms, such as pension funds and foundations—will shun vice investments. A consequence of this aversion is a “vice premium” for those investors who will invest in such companies. Largely unexplored, however, is what industries or business models qualify as “vice,” how …

Tort Liability For Failure To Age Gate: A Promising Regulatory Response To Digital Public Health Hazards, Matthew B. Lawrence, Brett Frischmann, Avi Sholkoff

Faculty Articles

Tort liability for failure to “age gate” is a promising legal response to the public health hazards of AI, social media, sports gambling, and other digital spaces. Tort liability for failure to “age gate” hinges liability for harms to minors on an app’s failure to take reasonable steps to prevent minors from gaining access or otherwise to apply appropriate governance rules, such as privacy-protective default settings or ensuring genuine parental consent. While no one legal response is a panacea, tort liability for failure to age gate carries several distinctive advantages that make it a particularly promising option at this stage …

Criminal Investors, Andrew K. Jennings

Faculty Articles

This Article reassesses the culpability of those who invest in law-breaking firms. Prosecutors currently treat investors as victims of corporate wrongdoing rather than as actors who might bear responsibility for it. This Article observes, though, that investment can facilitate, and even cause, illicit corporate activity. When investors intentionally contribute to those effects, substantive criminal law imposes liability on them just the same as it does on accomplices, conspirators, or principals in other contexts. Despite this formal parity, however, investor criminal liability is more a theoretical proposition than a practical reality.

This Article questions that status quo by asking whether and …

Moral Panic Or Public Health Crisis? Lessons From Drugs And Gambling For “Addictive” Design, Matthew B. Lawrence, Haomin (Kevin) Yan

Faculty Articles

In her important book, Unwired: Gaining Control Over Addictive Technologies, Gaia Bernstein illustrates the value of a comparative approach, drawing lessons from fights around the regulation of tobacco and ultra-processed food for the regulation of social media. Building on Bernstein’s work, this symposium contribution aims to draw additional insight from experience with drug and gambling regulation for the regulation of social media, video games, AI, and other potentially-addictive technologies.

Specifically, after introducing Bernstein’s book and the foundation it lays, we draw six lessons from the study of psychoactive drugs and gambling. As we elaborate below: Lesson one is that …

Constitutionalizing Climate Rights, Mark P. Nevitt

Faculty Articles

This Essay proceeds in three Parts. In Part I, I describe and analyze which states have climate and environmental amendments within their state constitutions. Here, I focus on three states (Hawaii, Montana, and Pennsylvania) that have comparably strong Green Amendments and have experienced litigation in recent years enforcing these constitutional provisions. I describe and analyze three cases: Navahine F. v. Hawaii Department of Transportation (Hawaii), Held v. Montana (Montana), and Robinson Township (Pennsylvania). I argue that these three decisions—all of which enjoyed varying degrees of success—will spur greater efforts to constitutionalize state environmental rights. Indeed, there are grassroot efforts within …

Extramural Absolutism, Deepa Das Acevedo

Faculty Articles

As battles over academia escalate, an area of intensifying concern is the speech faculty engage in outside their professional functions—what is often called “extramural” speech. Professors have been criticized, disciplined, pressured to resign, and even terminated for extramural speech that is deemed offensive by individuals inside and outside university communities. And yet, academics generally remain committed to a principle that this Article identifies as extramural absolutism.

The Article explains extramural absolutism’s unpopularity outside academia as a reasonable consequence of the way supporters have presented and justified it. Contrary to widespread scholarly portrayal, extramural absolutism is not a moderate concession justified …

Searching For A Big Score: Analyzing Drug Yield From Search Warrant Executions, Elizabeth Griffiths, Walter Campbell, Kay L. Levine, Joshua C. Hinkle

Faculty Articles

In this study, we investigated the extent to which law enforcement efforts predicted drug and other kinds of illicit yield in search warrant executions. The data are drawn from one major metropolitan police department during 2005, 2009, and 2012. Using multilevel random intercept logistic regression models and multilevel random intercept multinomial logistic regression models, we regress high yields of various kinds of drugs and other illicit items seized during searches on the investigative activities that led to search warrant applications and the enlistment of teams of officers or other agencies in executing the search. Investments in high-effort search warrant work …

Pro Bono Publico Versus Pro Bono Presidential, S. I. Strong

Faculty Articles

In March and April 2025, the Trump Administration issued a series of executive orders directed at various law firms that had represented clients or undertaken actions with which the President disagreed. Those executive orders imposed various sanctions capable of destroying the firms financially. The Administration also threatened numerous other law firms with similar types of executive orders.

Although a few law firms challenged the executive orders in court, the majority of firms targeted by the President entered into informal settlement agreements whereby the firms promised to provide between $40 million and $125 million worth of free “pro bono legal services” …

Chevron Stare Decisis In A Post-Loper Bright World, Jonathan R. Nash

Faculty Articles

In its June 2024 decision in Loper Bright Enterprises v. Raimondo, the Supreme Court jettisoned the longstanding Chevron doctrine, which had directed courts to defer to agencies’ reasonable interpretations of ambiguous statutes. The Loper Bright Court attempted to minimize the substantial effect this change would have on administrative law and governance by declaring that “[t]he holdings” of cases that relied on the Chevron test to conclude “that specific agency actions are lawful...are still subject to statutory stare decisis despite our change in interpretive methodology.” But there are two problems with Chevron stare decisis. First, Chevron stare decisis is …