Law and Society Commons^™

The Poly Problem In Zoning: Redefining "Family" For A Changing Society, Aric K. Short, Tanya Pierce

Faculty Scholarship

Single-family zoning has long dictated not only where people may live but also with whom. Although extensively critiqued for perpetuating racial and economic exclusion, these laws also privilege relationships defined by blood, marriage, or adoption and marginalize nontraditional families. This Article focuses on a particularly overlooked group: polyamorous families who often face legal uncertainty, social exclusion, and housing discrimination due to restrictive zoning definitions of “family.”

As polyamory gains cultural visibility and increasing legal recognition—through West 49th Street, LLC v. O’Neill and municipal reforms in cities like Somerville and Cambridge—now is the time to examine zoningÊs role in reinforcing outdated …

The Establishment That Time Forgot: The Historical Understanding Of Religious Offenses And Their Unconstitutionality In Modern Law, Benjamin J. Citow

Northwestern University Law Review

This Note argues that religious offenses, meaning laws which penalize conduct for religious purposes, should be barred by the Establishment Clause of the Constitution, as the Clause was interpreted in Kennedy v. Bremerton School District. This is because Kennedy interpreted the Establishment Clause to prohibit each of the several types of laws which early Americans associated with religious establishment—the historical practice wherein early states would adopt a religion as the state religion and pass various types of laws for its support. And religious offenses, this Note argues, were amongst the types of laws which early Americans so associated with …

Policing Agency Data Trusts, Barry Friedman

Northwestern University Law Review

Policing agencies are indiscriminately collecting, retaining, and using vast quantities of personal data from people who are suspected of no unlawful conduct whatsoever. This has caused expressions of concern or caution from many quarters, including—notably—the Director of National Intelligence (DNI). In a declassified report, the Office of the DNI stated that massive amounts of data are being collected “on nearly everyone that is of a type and level of sensitivity . . . that could be used to cause harm to an individual’s reputation, emotional well-being, or physical safety.”

This practice of universal data collection presents a conundrum. As many …

Applying The Indian Commerce Clause To Indian Commerce, Adam Crepelle

Northwestern University Law Review

Indian country commerce generates tens of billions of dollars annually and is a constant source of litigation. These disputes typically revolve around jurisdictional conflicts: whether states, tribes, or both possess regulatory authority over the business operating in Indian country, particularly those involving non-Indians. Despite numerous court cases, no clear legal framework has emerged, creating pervasive uncertainty regarding fundamental issues, such as state taxation of tribal transactions and the proper forum for resolving Indian country contract disputes. Interestingly, these commercial cases overlook the Indian Commerce Clause—the constitutional provision designed to address such matters.

This Article argues the Indian Commerce Clause prohibits …

Electoral Due Process, Michael S. Kang

Northwestern University Law Review

Hyperpartisanship has hit century-long highs in American politics and is emboldening state government attempts to undermine election outcomes by using control over state lawmaking structure to strip away authority, and sometimes outright unseat, partisan opponents after they win elected office. Even as traditional norms against such moves have eroded, the Supreme Court has taken a pro-partisanship turn in removing judicial checks against such moves under equal protection and constitutional structure. This Article proposes shifting from challenges under those doctrines to a new approach under electoral due process for confronting this new generation of antidemocracy. Federal due process law restricts the …

Adversarial Comparativism: The Role Of Emotion In United States–China Comparative Law Projects, Matthew S. Erie

Scholarly Articles in Law Reviews & Journals

Contemporary comparative law operates across a landscape riven by protectionism, nationalism, and securitization, all of which complicate comparative law projects. Nowhere is this more evident than in the U.S-China relationship, the most important bilateral relationship in the world. Despite economic “delinking,” the U.S. and Chinese legal systems are interacting more than ever; however, how this interaction works is poorly understood. This Article proposes “adversarial comparativism” to explain this dynamic. It is an approach to comparative law and politics that includes different modalities: competition, aggressiveness, transactionalism, misunderstanding, opportunism, and gaslighting. Many of these are underpinned by emotion. As such, while this …

The Stripes Of Glory We Wear: Reflections Of The Legal Role And Intricacies Of Citizenship In The History And Foundation Of The Malaysian State

Washington International Law Journal

Abstract: The meaning of citizenship in Malaysia is a tale as old as the country itself—a thorny triangular relationship between the state; the Bumiputera majority of Malay and indigenous natives; and the non-Bumiputeras minority of Chinese and Indians who primarily migrated when the region was under British colonial rule and influence. In the present, Bumiputeras enjoy a constitutionally stipulated special status—a distinction that bestows many privileges and preferential treatment in all facets of life, from commerce to education, homeownership to government employment, that is off-limits to non-Bumiputeras. Supporters of the system argue it remains necessary—a form of affirmative action …

Visible At Last: Legal Recognition Of Children Born Of War (Cbow) And The Case Of Bosnia And Herzegovina, Ajna Jusić, Gordana Subotić Ph.D.

Human Rights Brief

Children born of war (CBOW) — those conceived through conflict-related sexual violence— have long remained stigmatized, marginalized, and largely invisible in law and policy. Drawing on international scholarship and Bosnia and Herzegovina’s post-conflict experience, this Article examines the social, political, and legal mechanisms that sustain CBOW exclusion and traces the emergence of CBOW as a recognized category within contemporary international legal frameworks. Using Bosnia and Herzegovina as a case study, the Article argues that patriarchal norms, fragmented governance and legal structures, and decades of institutional silence have profoundly shaped CBOW lived experiences and access to rights. Furthermore, the Article assesses …

B.T. And B.K.Cs. V. Hungary: Separating Roma Children From Their Mothers Before Births, Sara Apostol

Human Rights Brief

In June of 2025, the European Court of Human Rights (ECtHR) ruled in favor of a Roma mother, B.T., and her son after bringing a lawsuit against the Hungarian government for wrongfully violating their right to family life. The Hungarian government ordered the placement of B.T.’s unborn child into State care based on insufficient and dubious evidence used to justify such state action. This case focused on the prejudiced system that places Roma children into the State’s guardianship immediately after birth without evidence of imminent harm or other valid justification. Rather, it is based on the child’s ethnic and socio-economic …

Reparations Delayed, Not Denied: The Inter-American System Confronts Chile’S Dictatorship-Era Violations, Maggie Titus

Human Rights Brief

On September 24, 2025, the Inter-American Commission on Human Rights (IACHR) submitted Gustavo Guillermo Ramírez Calderón v. Chile to the Inter-American Court of Human Rights (IACtHR), seeking reparations and justice for victims of forced disappearances during Chile’s military dictatorship. According to the application, Chile has failed to fully comply with the IACtHR’s recommendations from Merits Report No. 154/23.

“Durable Solutions” Revisited: Italy’S Train-To-Hire Pathway Under The Cutro Decree As Alternative Refugee Protection, Tim Streit

Human Rights Brief

I. Introduction

If the average person were asked to imagine a refugee, they might conjure the image of a migrant fleeing war or persecution, showing up at the border of a new country with a few belongings in hand, and asking not to be sent back to the dangerous place from which they came. In fact, it is not only the hypothetical “average person” who pictures this scenario. The international refugee protection system, developed after World War II through the 1951 Convention relating to the Status of Refugees (Refugee Convention) and its 1967 Protocol Relating to the Status of Refugees …

Migration In Context And Law: Global Displacement And The U.S. Immigration System, Saya Khandar, Dominic Brunaccioni, Samantha Johnson, Nisa Manzar, Lindsey Nye, Alexis Stephens, Sherise Tracey

Human Rights Brief

On February 20, 2026, the Human Rights Brief at American University Washington College of Law (WCL) held its annual symposium, titled “Migration in Context and Law: Global Displacement and the U.S. Immigration System.” This symposium was curated in response to intensified immigration operations across the United States (U.S.), which have resulted in significant harm to individuals and families nationwide. The discussion centered on the humanity of immigration and explored how global displacement, armed conflict, economic instability, and climate change continue to shape migration. Organizers brought together legal scholars, practitioners, and advocates to examine current immigration policies in the context of …

Clemency For Justice Reform: A Restorative Pardon Proposal Using Conditional Pardons, Stephanie A. Clark

Indiana Journal of Law and Social Equality

President Donald Trump’s pardons to people convicted for the January 6, 2021 attacks on the Capitol intensified the nation’s divisiveness. They also illustrate why proper clemency must be restored and used for its intended purpose to ameliorate injustice under the law. Clemency is not meant to be a “get out of jail free card” solely for family, friends, and political supporters. It is a constitutional mechanism designed to relieve consequences out of step with a criminal offense or to salve broad public hurt. When clemency is misused, it undermines public confidence and the principle that equal opportunity should exist for …

Legislative Support Of Religious Policy In Ukraine Under Martial Law, Volodymyr Karpunets, Andrii Shevchuk, Oleksandr Bilchuk

Occasional Papers on Religion in Eastern Europe

The article examines the legislative framework of Ukraine's religious policy under the conditions of martial law caused by the full-scale armed aggression of the Russian Federation. The constitutional foundations of state-confessional relations are analyzed, particularly the provisions of Article 35 of the Constitution of Ukraine on freedom of conscience and religion, as well as Article 64, which provides for the possibility of temporary restrictions on religious rights under martial law. Key legislative acts are reviewed: the Laws of Ukraine "On Freedom of Conscience and Religious Organizations" (1991, with amendments in 2018 and 2019), "On the Legal Regime of Martial Law" …

Sidelining The Public, Anya Bernstein, Glen Staszewski, Wendy E. Wagner

Faculty Scholarship

This Article challenges the widely held view that Congress is the American government’s institution closest to the people, while administrative agencies are unaccountable and unresponsive. Providing a systematic, side-by-side institutional analysis, we compare the actual practices and capacities of these two institutions to engage affected publics in policymaking. We find that despite the democratic bona fides of an elected legislature, agencies possess superior capacities, more evolved practices, stricter rules, and stronger incentives for meaningful public engagement. Yet these capacities have been eroded—particularly over the last 50 years—by intensifying legal, political, and managerial obstacles. The Supreme Court and political actors have …

A Terrorist In Death Only: How The Death Penalty Fills The Gap In Federal Terrorism Law, Caroline Alden Mcbride

Law Student Publications

In the absence of a federal statute criminalizing domestic terrorism, the United States turned to an unlikely proxy: the death penalty. This Comment argues that capital punishment is used to define domestic terrorism, particularly when statutory tools cannot capture white supremacist attacks. Although former President Biden commuted most federal death sentences to life imprisonment without parole, three individuals whose attacks met the legal definition of domestic terrorism were excluded from clemency. Examining several cases from Timothy McVeigh to Luigi Mangione reveals a trend of defendants whose crimes meet the legal definition of domestic terrorism receiving the death penalty, even when …

Equal Justice & Generative Ai, Milan R. Markovic

Faculty Scholarship

The United States has long suffered from unequal access to justice, with countless low-and middle-income Americans forced to navigate the legal system alone. Recently, prominent judges, lawyers, and scholars have seized on generative AI as a potential corrective. These techno-optimists maintain that ChatGPT and other large language models can demystify the law and address unmet legal needs. Chief Justice John Roberts has proclaimed that AI-based tools "have the welcome potential to smooth out any mismatch between available resources and urgent needs in our court system."

Although AI will be an increasingly important source of legal assistance for underserved populations, the …

Holding The Line On Academic Freedom In Law School Clinics, Ty Alper, Praveen Kosuri, Beth Lyon, Alicia E. Plerhoples, Laura Riley, Robin Walker Sterling

Georgetown Law Faculty Publications and Other Works

Since the emergence of modern clinical legal education, law school clinics have periodically faced political interference in their selection of clients and cases, interference that threatens clinics’ essential dual missions of training practice-ready lawyers and providing legal services to marginalized clients who would otherwise lack representation. While such pressure is not new, contemporary threats differ in scale and institutional form. Today, funding, oversight, and enforcement mechanisms are weaponized in an attempt to discipline universities, heightening institutional anxiety and prompting some universities to contemplate preemptive constraints on clinic autonomy in the name of risk management and reputational protection. This shift to …

Let’S Talk About The Biological Reality Of Sex, Baby, John Parsi

FIU Law Review

Sex is at the very core of individual identity. It affects the conception of the self and the way others view the individual. Every day, one’s sex may open and close doors, access to communities, and opportunities. Laws that define sex may affirm scientific knowledge and protect people, or threaten to unravel the facts and the reality of sex. A deep unmooring of sex is underway, and this Article aims to halt it. On day one of the current presidential term, January 20, 2025, President Trump signed an Executive Order on “Defending Women from Gender Ideology Extremism and Restoring Biological …

When Convenience Compromises Rights: How The European Union And Washington State Confront Facial Recognition Risks, Debora Rodriguez Lugo

FIU Law Review

As facial recognition technology (FRT) becomes increasingly embedded in policing, concerns and controversies over the lack of consent, misidentification, and mass surveillance grow. This Comment compares how the European Union (EU) and Washington State (Washington) regulate law enforcement’s use of FRT to mitigate risks to individual rights. The EU governs FRT use through a robust legal framework, including the General Data Protection Regulation (GDPR), the Law Enforcement Directive (LED), and the Artificial Intelligence Act (AI Act), which offer protections against these risks. In contrast, Washington’s pioneering statute, Wash. Rev. Code section 43.386, promotes transparency and limits the use of FRT. …

The Making Of Egyptian Cotton: An Alternative Narrative Between Empire And Global Capital, Dina I. Waked

FIU Law Review

Egyptian cotton has become a celebrated brand. Referring to cotton as “Egyptian” signals a certain quality, luxury, and durability. Egyptian cotton has, thus, become its own trademark, a signifier of value, and a symbol of national heritage. This image is carefully curated. It is now protected under a licensing scheme of branding and marketing that assures that fraudulently claimed “Egyptian cotton” does not benefit from the added value this geographic location ascribes to it. The Egyptian Cotton Association was thus created 2005 to license and accredit the brand. Part of the curation of the brand image is a historical narrative …

Values Primacy & Total Governance Through Activism, Carliss N. Chatman, Sergio Alberto Gramitto Ricci

Faculty Journal Articles and Book Chapters

In the aftermath of George Floyd’s murder, public companies swift-ly pledged sweeping equity commitments—only to abandon them under political and market pressure. These reversals were not aberrations. They were opportunistic, performative, and reactionary marketing responses. They expose a governance regime in which stakeholder interests are structurally reversible because they remain doctrinally optional, lacking the institutional interlock needed to create binding accountability across stakeholder roles.

This Article explores how stakeholder power is already embedded in corporate governance through interlocking initiatives grounded in shared values. Stakeholder activism—boycotts, proxy votes, viral campaigns—is not merely expressive; it is an overlooked form of governance. Drawing …

Who Makes The Jury? Demographics And Decision-Making In The Jury Process., Ana B. Pons

Honors Undergraduate Theses

Within the American judicial system, juries have played a central role in promoting representation and fairness in the courtroom. However, limited information exists on whether prosecutorial decisions during jury selection, jury composition, or jury behavior differ based on the sex, race/ethnicity, type of case, political ideology, or geographic location of potential jurors. Following PRISMA guidelines, this scoping review synthesizes 48 peer-reviewed articles published between the 1940s and 2026 to examine whether prosecutorial decision-making and jury outcomes vary based on the sex, race/ethnicity, type of case, political ideology, or geographic location of potential jurors. Findings indicated that men are disproportionately selected …

From Myers To Slaughter: A Brief Theory Of The Constitutionalization Of Secondary Sources, Dana Neacsu, Paul D. Callister

Faculty Works

For more than two centuries, American constitutional adjudication has relied upon secondary sources. Yet constitutional theory has almost entirely ignored them. Originalism debates constitutional text. Living constitutionalism debates constitutional evolution. Theories of precedent debate judicial authority. None asks a more fundamental question: What role do secondary sources play in constitutional adjudication? This Article argues that the answer has fundamentally changed in the last 100 of years. Chief Justice William Howard Taft's opinion in Myers v. United States (1926) marked a constitutional revolution by transforming secondary authorities from explanatory materials into evidence of constitutional continuity. Exactly one century later, Chief Justice …

Fundamental Rights Betrayed: How Pregnancy Exclusions In Advance Directive Statutes Silence Pregnant People’S Wishes, Molly Hill

American University Journal of Gender, Social Policy & the Law

INTRODUCTION: In 2013, Marlise Muñoz collapsed at her home and was rushed to the hospital, where the doctors informed her family that she had suffered a pulmonary embolism and was now brain-dead. Marlise had previously expressed to her family that she never wished to be kept on life support if she was left brain-dead, so her family wanted to honor her wishes. However, despite her irreversible brain death, because Marlise was fourteen weeks pregnant, Texas law required that her body remain on life-sustaining treatment until her fetus became viable. Her body lay in the hospital hooked up to machines against …

What Is “The Nation’S History And Tradition?”: Using History To Redefine “Liberty” And Applying A New Deeply Rooted Test To Transgender Rights, Kaori Kawaguchi

American University Journal of Gender, Social Policy & the Law

INTRODUCTION: “In a Constitution for a free people, there can be no doubt that the meaning of ‘liberty’ must be broad indeed.” In Roe v. Wade, the Court considered a woman’s liberty right to decide whether to continue a pregnancy or have an abortion and recognized the constitutional validity of a liberty right to abortion as part of the right to privacy. In Roe, the Court concluded, “[o]nly personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’ are included in the guarantee of a right of personal privacy.” Liberty should be “left to …

Regulating Crisis Pregnancy Centers After Nifla And Dobbs: Controversies Over When Government Is Imposing An Orthodoxy About Abortion, Linda C. Mcclain

Faculty Scholarship

How does this broader sense of Barnette’s proscription of government from imposing “what shall be orthodox” implicate governmental restrictions on reproductive autonomy? Battles over reproductive freedom centrally implicate objections that government is unconstitutionally imposing a gender orthodoxy. Arguments for a right of personal autonomy embodying an antitotalitarian principle of liberty are arguments for a right to resist governmental imposition of an orthodoxy— for example, an idea about the natural or traditional role of women as mothers together with a view about how best to respect the sanctity of life. Rights to reproductive autonomy, grounded in personal autonomy and equality, …

Health Truth To Power: Professional Collaboration To Bolster Trust Against Misinformation, William M. Sage, Keegan D. Warren

Faculty Scholarship

This Article is about health, leaving aside more general challenges to shared civic information today. The Article begins by surveying the principal challenges for health information in post-pandemic, arguably post-truth America, and then describes briefly the sources and limits of medical professional authority. Noting the double-edged sword of free speech guarantees under the U.S. Constitution, the Article continues by commenting on speaking truth to government, to industry, and to the crowd. Next, the Article considers the physicians’ role in speaking truth to power from the perspective of standard medical professional ethics and identity, comparing it to that of lawyers. Finally, …

How Armenia And Azerbaijan Are Lobbying For Influence In D.C., Gibran C. Boyce, Dawn Kikel

Capstones

In the wake of President Trump taking office, foreign government agencies and U.S.-based non-profits serving Armenian and Azerbaijani interests have been hiring lobbyists in Washington, D.C. as part of their concerted efforts to curry favor, gain influence, and seek policy changes that would benefit the rival post-Soviet nations.

Separation-Of-Powers Lochnerism, Andrea Scoseria Katz

Fordham Law Review

One hundred and twenty years ago, in 1905, the U.S. Supreme Court rendered one of the single most notorious opinions in history, striking down a New York labor law for violating the right to contract—a right found nowhere in the text of the Constitution. Though the era of Lochner v. New York is well past us, the judicial impulses that gave rise to the case remain. With a new champion in the Roberts Court, Lochnerism is alive and well, deployed in a new context to redefine the relationships between the president, Congress, federal agencies, and the courts.

Bringing together two …