Abstract During the global pandemic, people around the world are at risk of serious illness and death from contact and proximity to other people. But Indigenous peoples, particularly those in voluntary isolation, have always faced that risk. International organizations have relied on the right to self-determination as the primary legal grounds to justify the principle of no-contact for...
Post-COVID Courts
Abstract As with so much else in American life, the COVID-19 crisis delivered a gut punch to our justice system. And the worst is yet to come, as federal and state courts alike are soon to fill with cases reflecting the failing finances and fraying relationships of our sheltered-in-place lives. But in truth, our courts were already at a crossroads: chronically underfunded, increasingly...
Presidential Crimes Matter
Abstract The resignations of United States Attorneys Geoffrey Berman and Jessie Liu from their respective positions in the Southern District of New York and the District of Columbia, and Attorney General William Barr’s and President Donald Trump’s persistent undermining of Special Counsel Robert Mueller’s Russian interference and obstruction of justice investigations and prosecutions are clarion...
The Law & Politics of Cyberattack Attribution
Attribution of cyberattacks requires identifying those responsible for bad acts, prominently including states. To guard against baseless or false attributions, this Article argues that states should establish an international law requirement that public attributions of state-sponsored cyberattacks must include sufficient evidence to enable cross-checking or corroboration of the accusations.
The Hollowed Out Common Law
We measure the evolution of the common law using a comprehensive data set of cases regarding the enforceability of online consumer contracts. We find a steady decline in the number of cases adjudicated in state courts relative to federal courts, and a parallel rise in class actions migrating to federal courts. Erie notwithstanding, the common law is driven by federal court decisions, building...
Codification and the Hidden Work of Congress
This Article provides the first in-depth scholarly examination of the process by which enacted laws are organized and presented for public consumption, known as codification, a process that has mostly escaped the notice of judges and scholars of legislation, and even fails to make it into textbooks meant to introduce lawyers to the creation and interpretation of law. It argues that the failure to...
"Sociological Gobbledygook”: Gill v. Whitford, Wal-Mart v. Dukes, and the Court’s Selective Distrust of “Soft Science"
Abstract In the last decade, the Supreme Court has heard a number of high-profile cases holding potential for major progressive reform which hinge crucially on the Justices accepting, or at least not rejecting, the findings of social science experts. Time and again, however, the Court has found ways to ignore, minimize, or misconstrue the work of highly-qualified social scientists, with Chief...
Law Meets World Introduction
Introduction Much has been written on how the COVID-19 pandemic has brought longstanding structural inequities into sharp relief. Like in all crises, the effects of the pandemic have not been evenly distributed. Black, Brown, and Indigenous communities have been disproportionately harmed by the virus. Low-wage workers—largely workers of color and immigrant workers—are deemed essential yet...