Social and Behavioral Sciences Commons^™

Separation-Of-Powers Lochnerism, Andrea Scoseria Katz

Scholarship@WashULaw

One hundred and twenty years ago, the Supreme Court handed down one of the single most notorious opinions ever rendered, striking down a New York labor law for violating a right to contract found nowhere in the text of the Constitution. The era of Lochner v. NY (1905) is well past us, but not the judicial impulses that gave rise to the case. 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 lines of case-law-on …

Judicial Reform From The Inside Out, Daniel Epps, Marin K. Levy

Scholarship@WashULaw

Prepared for the Notre Dame Law Review’s Spring 2025 Federal Courts Symposium on the 100th Anniversary of the Judiciary Act of 1925.

The Judiciary Act of 1925, the subject of this Symposium, is known as “The Judges Bill” for a reason. The Justices of the Supreme Court, and Chief Justice Taft in particular, produced the Act and persuaded Congress to enact it. To modern eyes, such efforts seem indecorous; perhaps even scandalous. But in fact, Supreme Court Justices and other federal judges have been extensively involved in judicial reform throughout American history. This Essay examines participation by federal judges in …

An Anthology Of Interference In Law School Clinics, Peter A. Joy, Robert R. Kuehn

Scholarship@WashULaw

An Anthology of Interference in Law School Clinics explores interference in law school clinics in the United States, addressing its long history and the legal ethics, academic freedom, and First Amendment responses to that interference. Law clinics have faced interference in their representation of clients from elected officials, business groups, alumni and, at times, even their own school administrators. This interference has targeted clinics for providing individuals and nongovernmental organizations with legal representation on important matters, including racial and gender discrimination, environmental issues, prisoner rights litigation, death penalty cases, and immigration and human rights matters. In each instance, the interference …

Offenders’ Perspectives On Acquisitive Crime Targets And Stolen Goods Disposal Methods, Joseph Clare, Liam Quinn, Natalie Gately, Suzanne Rock

Research outputs 2022 to 2026

This paper examines offenders’ perspectives about acquisitive crime targets and stolen goods markets in Australia that have not been comprehensively reviewed since 2005. Over the last 18 years there have been significant changes in the rates of property crime, reductions in cash usage, and rapid movements to online markets as a disposal outlet, that motivate this updated analysis. In late 2022, n = 107 detainees in a Western Australian police watchhouse were interviewed about their property offending frequency, offence preferences, target selection, disposal methods, and estimated financial return for targeted goods. Results demonstrated (a) meaningful shifts towards shoplifting and away …

When Descriptor Is Diagnosis: An Autoethnographic Response To The Medical Treatment Of Women With Vulvodynia, Josephine Taylor, Alexandra Ridgway

Research outputs 2022 to 2026

Women with chronic vulvar pain experience symptoms that can affect their everyday functioning. These women are often diagnosed with vulvodynia, defined as vulvar pain without a medical explanation lasting at least three months. Yet while vulvodynia is presented by medical authorities as a diagnosis it is, more accurately, a descriptor of the physical condition. As such it does not have the ability to explain what causes this vulvar pain and, consequently, cannot determine an appropriate treatment pathway for all patients. As women with vulvodynia (‘V women’), we use this article to highlight the issues posed by a descriptor camouflaging as …

The Combined Role Of Sexual Selection And Socioeconomic Environment In Explaining Everyday Risk-Taking Behavior In Human Males, Hannah Goodman, Cyril C. Grueter, David A. Coall

Research outputs 2022 to 2026

Sexual selection theory predicts that males, especially in their prime reproductive years, are more risk-prone than females. Risk-taking is a means to convey mate quality or “good genes” to members of the opposite sex or competitive ability to members of the same sex. Therefore, risk-taking should be more common in the presence of potential mates (intersexual selection or female choice) or in the presence of male competitors (intrasexual selection or male–male competition). Risk-taking can also be situated within a life history/ecological perspective, according to which environmental unpredictability promotes more present-oriented and risky behavioral strategies. Therefore, people living in areas of …

Theories Of Child Development & Theories Of Religious And Spiritual Development (Rsd) In Children, Marjorie Lindner Gunnoe

University Faculty Publications and Creative Works

This essay introduces readers to the foundational theories of child development and the ways in which these theories have been applied or extended to children’s religious and spiritual development (RSD). By “foundational theories,” I mean the theories introduced in the opening chapters of developmental textbooks. This essay is not a theological critique of psychological theories (for this, see Gunnoe, 2022), nor a “state of the field” review of RSD (for this, see Boyatzis, 2023). Rather, it is a primer on the broad theoretical approaches that scaffold contemporary research on RSD.

Private Law Without Precedent, Danielle D'Onfro

Scholarship@WashULaw

A common-law system assumes that judges regularly issue new opinions that clarify and update the law over time. At the same time, our federal system assumes that state courts will do the bulk of judicial lawmaking, especially in private law. And, with a few exceptions, our broader legal system assumes that state private law has allocated entitlements and obligations into a coherent system. None of these assumptions has been true for a long time.

This Article offers a comprehensive account of when and why these assumptions about the proper functioning of private law fail. It then uses this account to …

Gender Equality And Social Capital Empowerment Of Rural Women, Nuraedah Nuraedah, Syamsul Bahri -

Masyarakat: Jurnal Sosiologi

This study explores the role of social capital in empowering rural women, focusing on how social networks, trust, and community norms contribute to gender equality and women's decision-making. Despite the recognition of gender equality as a fundamental right, rural women continue to face structural barriers that limit their access to resources and opportunities. By examining the interaction between social capital and women's empowerment, this research aims to fill the gap in understanding the mechanisms that support women's empowerment in rural areas. The research adopts a qualitative approach, utilizing in-depth interviews with 30 women from various villages in Indonesia, complemented by …

The Swiping Desire: Intimacy, Libidinal Capitalism, And The Digital Subject In The Tinder Swindler, Chanif Ainun Naim

Masyarakat: Jurnal Sosiologi

This article examines how dating applications operate as libidinal infrastructures that restructure and commodify intimacy within platform capitalism, using The Tinder Swindler as a cultural case study. Employing a visual-narrative approach within the framework of Critical Discourse Analysis, the film is analyzed to reveal the structural exploitation of user affect and desire. Grounded in Lacanian psychoanalysis and Baudrillard’s simulation theory, the study argues that these platforms capitalize on the subject’s ontological lack (manque) which fuels desire as the desire for the Other’s desire. This psychic lack sustains a perpetual pursuit of recognition that can never be fulfilled. The swindler’s hyper-curated …

Still Making It Up As He Goes: Revisiting The Hyper-Rhetorical Presidency In Trump’S Second Term, Richard Holtzman

Politics, Law, and Society Faculty Journal Articles

In Fast Capitalism’s 2020 issue, “This is Not Normal,” I explored Trump’s propensity for improvised rhetoric during his first term; that is, his reliance on “making it up as he goes” in his public statements, whether communicated verbally or through social media. The primary goal of my original essay was not simply to identify the president’s ad-hoc communication style—which is clear for all to see—but to argue that the president’s tendency toward improvisational speech matters because it represents more than just his approach to communication. This tendency toward improvisation also constitutes much of his approach to governing.

In “Making It …

Algorithmic Governance And Nondiscrimination Rights In The Workplace, Pauline Kim

Scholarship@WashULaw

This chapter analyzes existing legal responses to the problem of discriminatory algorithms in the workplace. As firms increasingly rely on algorithms or automated decision systems, a type of artificial intelligence, to manage their workforces, concerns have grown that these tools can systematically exclude historically disadvantaged groups. One response is to rely on traditional anti-discrimination law. These laws clearly prohibit certain forms of algorithmic discrimination; however, the complex, opaque nature of algorithms makes identifying and proving discriminatory harms challenging. Another response looks to broader frameworks of data protection and algorithmic regulation to protect against workplace discrimination. These initiatives are promising, but …

Abolish What?, Benjamin Levin

Scholarship@WashULaw

From leading academic journals to popular press outlets, abolitionist activism and scholarship have earned airtime in national debates about criminal justice reform. But what is "abolition?" When scholars, lawyers, and activists talk about abolition, they seem to mean very different, even conflicting, things. In this Essay, I focus on a core question that might divide different abolitionists-and different critics of abolition: what is to be abolished? Abolitionists argue that it's critically important to abolish something, while critics of abolition insist that something is necessary to a well-functioning society. Yet, it's not always clear what that something is-both for abolitionists and …

Measuring Income And Income Inequality, Conor Clarke, Wojciech Kopczuk

Scholarship@WashULaw

Income inequality is important, but attempts to measure it arrive at strikingly different conclusions. Why? We use recent disputes over measuring United States income inequality to return to first principles about both the income concept and inequality measurement. We emphasize two broad points. First, no measure of the income distribution is truly comprehensive, or could attempt to be comprehensive without making controversial choices. We document the practical and conceptual problems that the standard ideal—comprehensive Haig-Simons income—raises. Second, much of the controversy in this area turns on the many tradeoffs between starting with individual tax data versus more expansive income concepts. …

Disagreement And Historical Argument Or How Not To Think About Removal, Andrea Scoseria Katz, Noah A. Rosenblum, Jane Manners

Scholarship@WashULaw

Scholars have debated the reach of the President’s power to remove government officers for over one hundred years. This old fight is now suddenly urgent as President Trump asserts far-reaching powers to control the federal bureaucracy and the Supreme Court transforms Unitary Executive Theory into caselaw. Yet the scholarly case for an indefeasible presidential removal power has never been weaker.

This Essay continues an ongoing conversation about how to read some critical early republic evidence about removal. It briefly recapitulates the stakes of the disagreement before offering in-depth analyses of developments in Pennsylvania removal practice, including a reading of the …

When Hard Cases Make Bad Law: A Theory Of How Case Facts Affect Judge-Made Law, Sepehr Shahshahani

Scholarship@WashULaw

“Hard cases make bad law” is one of the most famous aphorisms in Anglo-American law. Its insight is that when strict application of a generally sound law would impose a special hardship on someone, a court may be tempted to distort the law to avoid the hardship. Scholars have long debated the meaning and truth of the aphorism, but the debate has suffered from an imprecise conceptualization of what makes a case “hard.” This lack of precision limits our ability to disentangle and work through the important questions the aphorism raises about how the facts of a particular case affect …

Ai Fetishism And Perverse Climate Disavowal: Why Denying Destructiveness Facilitates Our Ecological Collapse, Alexander M. Stoner, Alexander M. Stoner, Anthony J. Knowles

Journal Articles

As ecological crises intensify, scholars and activists increasingly question the sustainability of economic growth. Yet, the dominant growth-oriented paradigm remains foundational to advanced capitalist societies and cannot be altered without significant social disruption. The resulting tension between ecological limits and the imperative for continuous growth generates “climate anxiety.” This article advances the concept of perverse climate disavowal: a mode of climate denial that acknowledges climate threats while maintaining faith in the illusion of infinite economic expansion. This disavowal functions as a psychological defense mechanism, enabling individuals and institutions to avoid confronting structural contradictions. The article examines the increasing use of …

The Illusion Of Inclusion: The False Promise Of The New Governance Project For Content Moderation, Brenda Dvoskin

Scholarship@WashULaw

Because private companies now control the most prominent communication platforms, the most pressing question in the field of content moderation is how to ensure that the governance of public discourse responds to public values. The prevailing approach, given that the state cannot regulate speech directly, is that state regulation can be substituted with audited self-regulation, broad stakeholder participation, and negotiated rulemaking. In this model, which this article refers to as the “new governance model for content moderation,” companies include advocates as representatives of the public in their processes to govern online speech. Ideally, they negotiate policy goals and share responsibility …

The Employment Benefits Of Law Clinics And Externships, Robert R. Kuehn

Scholarship@WashULaw

One of the reasons law students enroll in a law clinic or externship is the belief that the experience will improve their marketability. In a nationwide survey asking what was driving demand for their courses, 94% of externship directors and 66% of law clinic directors said it was, in part, because students believe those courses improve employment opportunities. Surveys of recent law graduates and employers show that students' perceptions of the positive impact of a clinic or externship experience on their job opportunities upon graduation are well founded. Research shows that clinics and externships do aid graduates in obtaining their …

Safe Sex In The Age Of Big Tech Feminism, Brenda Dvoskin, Thomas E. Kadri

Scholarship@WashULaw

Lawmakers and technology companies are regulating online sexuality in the name of feminism. Whereas libertarian ideals dominated early debates about internet governance, “safety” became a rallying cry to regulate online activity in the age of Big Tech. As these regulatory paradigms now clash once again, one trend remains: legislators across the political spectrum and companies around the world are devising interventions that purportedly keep people—and especially women—safe from the risks of online sexuality. Through law and technology, they are targeting everything from privacy invasions to unwanted messages to sexual deepfakes. We call this regulatory and ideological trend Big Tech feminism. …

Venturing Into Health, Rachel Sachs

Scholarship@WashULaw

In recent years, the landscape of venture capital (VC) investment in healthcare technologies has been altered by the introduction of new types of VC firms: those that have emerged from hospital systems and health insurers. However, the legal literature has not yet analyzed these new VC firms, the role they may play in healthcare innovation, and how innovation law and policy ought to consider their involvement. Hospital system and health insurer VC firms operate very differently than do traditional VC firms, even those that have historically developed healthcare specializations. Instead of simply investing capital into start-up firms, hospital system and …

The Other Delaware Effect, Jens Frankenreiter

Scholarship@WashULaw

This paper examines the effects of Delaware’s 2015 ban on fee-shifting provisions in corporate charters and bylaws, a significant legislative intervention in corporate law aimed at curbing managerial powers. The Delaware Supreme Court had approved these provisions just one year earlier as part of a series of measures aimed at curbing shareholder litigation. Because of their perceived substantial potential to reduce wasteful litigation, the Delaware legislature’s ban led many to predict an exodus of corporations from Delaware and the continued spread of fee-shifting provisions in other states.

Contrary to these predictions, this study finds that the ban did not trigger …

Crimes Against Humanity And Customary International Law, Leila Nadya Sadat

Scholarship@WashULaw

A draft text of a treaty on the prevention and punishment of crimes against humanity was finally sent to negotiations by the U.N. General Assembly on December 4, 2024, after six long years of advocacy by States and civil society. Questions remain, however, with regard to how crimes against humanity will be defined in the new treaty. On the one hand, some States have embraced a definition of crimes against humanity that tracks Article 7 of the Rome Statute of the International Criminal Court (“ICC”). Other States have rejected Article 7 as the basis for the new treaty, but theirs …

Tortious Interference Revisited, Danielle D'Onfro, Cathy Hwang

Scholarship@WashULaw

Tortious interference with contract has bedeviled legal commentators for over a century. It can provide relief in some situations where straightforward contract breach cannot reach. But these claims have also been derided for threatening competition, at-will employment, free speech, and important guardrails on other private law claims. The doctrine is also difficult to square with theories of efficient contract breach and the long-held view that contracts on their own are not property interests.

Perhaps because of its intellectual awkwardness, tortious interference claims were relatively rare until the twenty-first century. In the last twenty years, the doctrine has exploded in popularity, …

Disentangling Safety And Accountability In Criminal Justice Policy, Benjamin Levin

Scholarship@WashULaw

In this Article, I argue that the U.S. criminal system and debates about criminal justice reform reflect an elision of two largely distinct social functions: ensuring public safety and imposing accountability for harmful conduct. Despite deep disagreement about the specifics, most commentators seem to accept that these are both important social functions. Abolitionists claim that the criminal system doesn’t keep people safe and provide accountability. Instead, it harms—and perhaps is meant to harm—people from marginalized communities and protects the interest of socially dominant groups. Reformers contend that the criminal system can and should serve the safety and/or accountability interests, but …

How New Lawyers Value Law School Experiential Training, Robert R. Kuehn

Scholarship@WashULaw

While the legal academy continues to debate the appropriate role of experiential training in preparing graduates for practice, one group consistently embraces its value: newly-licensed lawyers. In repeated surveys over the past twenty years, early career lawyers, as well as experienced attorneys, report that law clinic, externship, and simulation courses play an important role in legal education. The research summarized herein demonstrates that newly-licensed lawyers highly value their law school experiential courses, deem them important in their transition to practice, and believe their legal education did not sufficiently prepare them for practice.

Incitement, Enthusiasm, And The Dangers Of Negligent Protest, John D. Inazu

Scholarship@WashULaw

This Article explores the murky line between protected speech and assembly on the one hand, and harmful incitement on the other. On the occasion of the 100th anniversary of Oliver Wendell Holmes’s dissent in Gitlow v. New York, it explores Holmes’s famous dictum that “every idea is an incitement” as a conceptual starting point. By analyzing the relational and temporal dynamics between speaker and listener, the Article highlights how meaning and effect are often shaped by the listener’s agency and other circumstances beyond the control of the speaker. Two contemporary cases illustrate these dynamics. The first is the Fifth Circuit …

Consumption Pressure In Estuaries Peaks At Intermediate Salinities, Catherine E. De Rivera, Amy A. Larson, Benjamin G. Rubinoff, Luna R. Soto, Seth L. Wright, Edwin D. Grosholz, Gregory M. Ruiz, Andrew L. Chang

Environmental Science and Management Faculty Publications and Presentations

The nature and strength of biotic interactions change along stress gradients, but the importance of these interactions across estuarine gradients is under studied. Here, we examined how consumption varies across estuarine salinity gradients by deploying standardized baits (‘squidpops’) to measure consumption pressure along the gradients of five estuaries in Oregon, USA. The relationship between consumption and stress was nonlinear: consumption pressure peaked slightly at mid salinity and decreased at low salinity, especially as temperature increased, in the five estuaries studied. This finding does not support either of two existing models for consumption across gradients, including the Consumer Stress Model and …

Preliminary Validity Of A Daily Functional Status Pain Assessment Tool, Wally R. Smith, Rehan Qayyum, Alexandra Ulbing, Margaret S. Guy, Daniel M. Sop, Yue May Zhang

Department of Medicine Faculty Publications

Objectives: Readiness for discharge for a sickle cell disease vaso-occlusive crisis is dictated by factors far beyond pain control, including physical function/activity. We therefore designed and tested a functional status-based pain assessment questionnaire in SCD patients hospitalized with vaso-occlusive crises.

Methods: Sickle cell disease patients on a preselected nursing unit rated 10 draft Functional status-Based Pain Assessment items of activities of daily living on a 5 point Likert scale (0-5) from “very easy” to “very difficult” daily on each day of their admission until discharge, at approximately the same time. Concurrently, they reported Numeric Rating Scale (0-10) pain intensity. …

Association Between Neighborhood-Level Social Vulnerability And Hypertension Outcomes, John E. Brush Jr., Chungsoo Kim, Yuntian Liu, Xin Xin, Chenxi Huang, Iris J. Lundy, Jordan R. Asher, Mitsuaki Sawano, Patrick Young, Jacob Mcpadden, Mark Anderson, John S. Burrows, Harlan M. Krumholz, Yuan Lu

Department of Medicine Faculty Publications

Background

Neighborhood-level social vulnerability is associated with hypertension prevalence and severity and with cardiovascular complications in conditions other than hypertension, but its association with cardiovascular complications in patients with hypertension is understudied.

Objectives

The aim of the study was to examine how the neighborhood-level social vulnerability index (SVI) influences cardiovascular outcomes in a large, diverse cohort of patients with hypertension.

Methods

We used electronic health data to examine the association between census tract-level rankings for the SVI with a composite endpoint of incident myocardial infarction, congestive heart failure, or stroke.

Results

In a longitudinal cohort of 330,972 patients with hypertension …