Aug 28, 2025 Bethany BergerLexNative Peoples Law
Alexandra Fay,
Courts of Indian Offenses, Courts of Indian Resistance, __
Mich. L. Rev. __ (forthcoming 2026), available at
SSRN (April 8, 2025).
Much of the history of federal Indian policy is a story of failed attempts to make Native peoples give up what makes them distinct. The complement of this history is the way Native peoples resisted each of these attempts, often using the implements of federal policy in doing so. Failure of U.S. treaty negotiators to recognize differentiation between tribal groups led some Native peoples to develop centralized political structures to coordinate their response. The devastation of federal boarding schools created a generation of Native people who formed the Society of American Indians, the first modern pan-Indian advocacy group, and communicated their resistance in ways familiar to non-Native policymakers and the public had to acknowledge. Mid-twentieth century relocation of Native people from their tribal homelands into American cities brought together people from many tribes to unite against Termination Policy. This is not a triumphal history—many lives, lands, and lifeways were lost in the process. But it underscores the ways that Native people have transformed the tools designed to destroy them to survive and fight back.
In Courts of Indian Offenses, Courts of Indian Resistance, Professor Fay adds to this history. She examines how Native people transformed the Courts of Indian Offenses created by the Department of Interior in the late nineteenth century. Interior created these courts for the express purpose of “civilizing” the Indians, directing them to punish the practices of medicine men, plural marriage, religious dances, and other “heathenish rites and customs.” Although their judges were tribal members, local federal agent appointed these judges and could remove them. Most tribes have now replaced these courts, and the old rules criminalizing tribal culture no longer exist. But five such courts still exist, serving sixteen tribes; their judges are still appointed by the federal government, and their current title, “CFR Courts,” reflects the federal regulations that govern them. Continue reading "Transforming the Master’s Tools: The History of Courts of Indian Offenses"
Aug 27, 2025 Sida LiuLegal Profession
Jedidiah J. Kroncke,
Legal Complicity in an Age of Resurgent Authoritarianism, 38
Geo. J. Legal Ethics ___ (forthcoming 2025), available at
SSRN (Feb. 24, 2024).
As authoritarianism gains momentum globally, the rule-of-law ideal is increasingly compromised. Lawyers are confronting a wave of attacks, ranging from the persecution of human rights advocates and the restriction of criminal defenders to the suppression of corporate law firms, including some of the most prestigious ones worldwide. Recent actions by the U.S. government against elite law firms like Paul Weiss and Perkins Coie, along with the consequential deals struck by some firms, exemplify the daunting circumstances that lawyers encounter in today’s world.
In this context, Jedidiah Kroncke’s new article on legal complicity is particularly compelling. Written a year before Donald J. Trump’s return to power, Kroncke could not have anticipated the subsequent aggressive actions against U.S. law firms. His primary focus is the ethical dilemmas faced by American lawyers practicing abroad, especially in authoritarian regimes like Russia and China. He critically examines modernization theory, a prevalent late 20th-century view among law and development scholars that posits a connection between economic development and democratization or political liberalization. Nonetheless, the phenomena he observes and the arguments he presents are remarkably pertinent to today’s discussion of legal ethics in both democratic and authoritarian settings. Continue reading "Legal Complicity and the Futile Dream of Resistance"
Aug 26, 2025 Allison Brownell TirresLegal History
In 1958, then-U.S. senator John F. Kennedy published the first version of his influential book A Nation of Immigrants. Kennedy’s account, written to hasten the passage of long-overdue immigration reform, solidified the mythology of the United States as a land of arrival for those looking for democracy, economic security, and the so-called American dream. It reflected a national mythology that centers the U.S. as the most desired destination. In his book Quitting the Nation: Emigrant Rights in North America, historian Eric Schlereth turns this mythology on its head, viewing the U.S. not as a place of destination but as a place of departure. As such, he provides a much-needed corrective to the historical record and enhances our understanding of the legal history of citizenship and migration.
Schlereth’s account focuses on the pivotal era between the American Revolution and the Civil War, when citizenship rights were both highly contested and minimally regulated. The American Revolution itself, as Schlereth reminds us, was fought in part over rights to emigrate from Great Britain and ultimately to expatriate to the new American republic. Colonists seeking independence rejected the English legal tradition of “perpetual allegiance,” which assumed that subjects could not choose to give up their allegiance to the King. Rejecting perpetual allegiance was simple, but deciding what would replace it was not. Was it possible to have a free right of emigration and expatriation from the fledgling United States without threatening the future of the political union, or embroiling the country in unwanted foreign conflicts? How should the new nation regulate the loss of citizenship, and what should be the obligations of those seeking to give it up? These were among the questions that individuals, courts, legislators, and the press took up in the decades after the founding and which Schlereth explores in fascinating detail. Continue reading "A Nation of Emigrants: Understanding Citizenship from the Inside Out"
Aug 25, 2025 Thomas BustamanteJurisprudence
Some legal theorists suppose political authorities make laws for us and facilitate our access to correct reasons. Authorities play an instrumental role because they are better positioned to balance reasons for action and create second-order reasons to guide our behavior while alleviating our burden of judgment. This is a service only authorities can provide. Other theorists offer a different story. Authoritative pronouncements make an impact in our moral world that is not merely epistemic. They are part of what constitutes a moral obligation, such that the content of political morality depends on the pronouncements an authority has made. Dorfman and Harel, in their recent book, Reclaiming the Public, call the first view the “add-on conception” of political authority, and the second view the “constitutive conception.” (Pp. 45-49.) They claim these conceptions fail to provide a satisfactory account of the normativity of law, in that they purport to explain how law becomes binding via an account of the law’s contribution to the content of our moral obligations. This content-based strategy is wrong, for the authors, because “the moral difference that law makes is essentially one of standing, agency, identity, status, or some such concept”; in other words, it is “not a matter of what the law is, but of whose pronouncements can count as law.” (P. 50.) Law makes a content-independent difference even when people have no moral disagreement. Suppose an aggressor punches the face of an innocent person. Although most people converge on the wrongness of such action, they would still resist the thought that the aggressor can be punished through the efforts of a private person. To make the use of coercion appropriate, it must be the case that the legal norms that command such punishment count as ours, in a way that we can be held responsible for and accountable to those norms.
Reclaiming the Public is not primarily focused on jurisprudence, although it offers a jurisprudence that is part of the larger project of offering a noninstrumental account of “the public” (the “public institutions and the officials that run them”). What makes public institutions special is that they are not simply entities which act for us, but rather that they are able to “speak and act in our name.” (P. 1.) The gist of the book is the claim that political authority must be nonhierarchical. (P. 16.) At the center of the project lies a theory of representation that provides a “linking mechanism between institutions and the people whom they govern.” (P. 1.) When the mechanism of representation works well, rules pronounced by an official can be attributed to the citizens of a political community, who can in turn regard themselves as authors of these rules. But how can a representative’s decision count as a decision of the subjects? The proposed answer is that these rules must “reflect the perspective” of citizens. Representatives must endorse the worldview of the subjects, base their own decisions on these subjects’ preferences and judgments, to act in their name. Perspective-taking, in this view, entails attributability, because “ultimately it is the perspective of its subjects that dictate the rules.” (P. 17.) Continue reading "Towards Nonhierarchical Public Authority"
Aug 8, 2025 Christophe GeigerIntellectual Property Law
While climate change brings unprecedented consequences for the environment, impacting the life of everyone through natural catastrophes and the dramatic alteration of the living conditions in entire regions, increasing attention has been paid by scholars in recent times to intellectual property and particular how it should be rethought to foster -or at least not to hinder- innovations that would have positive impact on the environment. In this context, calls for more sustainable intellectual property legislation and judicial applications thereof have become frequent.
In this context, Elena Izyumenko’s new article, Intellectual Property in the Age of the Environmental Crisis: How Trademarks and Copyright Challenge the Human Right to a Healthy Environment, is particularly timely and explores ways that sustainable development and environmental concerns could be better integrated within the intellectual property framework. Continue reading "“Greening” Intellectual Property via Human Rights"
Aug 7, 2025 Rachel RebouchéFamily Law
Yvonne Lindgren & Michelle Oberman,
Recalibrating Risk Under Dobbs, available at
SSRN (November 5, 2024).
Readers familiar with the popular South Korean television program, Squid Game, will appreciate the Jot title’s reference to a child’s game turned into a fictional life-or-death contest. When a light is green, players are free to advance across a field toward a finish line. When the light is red, players must freeze in their positions, as one movement leads to “elimination” from the game.
In their important and novel article, Professors Lindgren and Oberman deploy the terms “green light” and “red light” to help describe physician decision-making with respect to pregnant patients in states that ban almost all abortion – green light decisions are those that are legal; red light decisions are those that would fall afoul of the law. The consequences of acting in “the red,” according to ban states’ laws, can include prison sentences, hefty fines, and loss of professional license. Though not death, as in the program Squid Game, contravening an abortion ban can have severe consequences. Continue reading "Red Light, Green Light: Risk and Abortion Care in Ban States"
Aug 6, 2025 Sanja PesekInternational & Comparative Law
In an era marked by escalating political polarization, institutional erosion, and mounting threats to democratic governance, the volume Drivers of Authoritarianism: Paths and Developments at the Beginning of the 21st Century, edited by Günter Frankenberg and Wilhelm Heitmeyer, offers a profound and analytically sophisticated examination of contemporary authoritarian dynamics. Grounded in legal, sociological, and political theory, this interdisciplinary collection is particularly timely against the backdrop of what empirical data shows to be a global authoritarian trend.
Throughout its seventeen chapters—covering the theory and empiricism of authoritarianism, in its global, local and state iterations, via media, identity politics, capitalist economy, and social crises, this volume raises fundamental normative and empirical questions: What constitutes legitimate authority in an age of technocratic governance and media-saturated political life? How can democratic polities ensure robust oversight and inclusive participation without lapsing into proceduralism or populist reaction? What forms of institutional imagination and civic mobilization are required to resist authoritarian retrenchment? Continue reading "At the Threshold of Democracy: Understanding the Drivers of Contemporary Authoritarianism"
Aug 5, 2025 Nadia SawickiHealth Law
Maxine Eichner, Mara Buchbinder, Abby Schultz, Cambray Smith & Amy Bryant,
The Inevitable Vagueness of Medical Exceptions to Abortion Bans, __ U.C. Irvine L. Rev. __ (forthcoming), available at
SSRN, (April 22, 2025).
Prof. Maxine Eichner and her co-authors at the University of North Carolina have written a first-of-its kind empirical study and legal analysis that sheds light on the challenges doctors face in interpreting and applying “emergency exceptions” to state abortion bans. In The Inevitable Vagueness of Medical Exceptions to Abortion Bans, they present the findings of in-depth interviews of thirty-five maternal fetal medicine (MFM) physicians in the Southeast United States post-Dobbs, revealing “recurring patterns that create indecision regarding whether statutory exceptions will shield doctors from suit.” They use their empirical findings in support of a robust constitutional argument that state abortion bans with exceptions for medical emergencies are unconstitutionally vague.
Cases like those of Amanda Zurawski in Texas – who experienced preterm premature rupture of membranes (PPROM) at 18 weeks and did not receive an abortion until she developed sepsis three days later and one of her fallopian tubes had closed, compromising her future fertility – and Amber Thurman of Georgia – who died of septic shock because doctors waited 19 hours to remove fetal tissue from a self-managed medication abortion – demonstrate with brutal clarity that abortion ban carveouts for medical emergencies do not effectively protect patients experiencing obstetric emergencies. Troublingly, some legislators and judges in abortion ban states have placed the blame on physicians for these tragedies, arguing that pro-choice doctors are intentionally misinterpreting these laws to make a political point at the expense of patient health and safety. Eichner et al’s robust research demonstrates that this couldn’t be farther from the truth. These statutes, written by legislators with no medical expertise or understanding of the nuances of obstetric emergencies, are so ambiguous that physicians struggle to understand their meaning. And when the penalty for unintentionally violating an abortion ban might be life in prison, it is understandable that these laws have a chilling effect on well-meaning obstetric providers who want to preserve their patients’ health. Continue reading "Emergency Abortion Laws: Vague by Design, Lethal in Practice"
Aug 4, 2025 Andrea FreemanEquality
Professor and scholar-activist Bernadette Atuahene’s meticulous research and riveting writing in Plundered reflect decades of living in communities resisting predatory governance. Over ten years after Professor Atuahene’s powerful first book, We Want What’s Ours: Learning from South Africa’s Land Restitution Program, she turns a spotlight on a Detroit community under siege from its own county. In her heartbreaking exposé of illegal property tax assessments and foreclosures, Professor Atuahene paints a vivid picture of people fighting for the right to keep the homes that rightfully belong to them.
Focused on two families – one Black and one Italian – Plundered: How Racist Policies Undermine Black Homeownership in America shows how government decisions circumscribe the ability to build wealth through generations. The narrative is rife with details that each deserve a book in themselves. Ms. Mae, who Plundered introduces in its opening pages, put up with years of abuse before finally shooting her husband. “He came home and tried to jump on me. I was sitting there watching tv, and he pulled his shotgun to shoot me, and so I got it, and I shot him.” To pay her defense lawyer, Ms. Mae took out a lien on her home. She finally got rid of the lien ten years later but her luck was short-lived. Soon after relieving herself of the debt, she damaged her shoulder while lifting a resident at the nursing home where she worked. Surgery could not fully restore proper use of her shoulder. Then, holes in the roof of her house caused leaks in the kitchen ceilings which made the basement ceiling fall in, unleashing a flood. While trying to drain her flooded basement, Ms. Mae fell, permanently injuring her spine and bringing her working life to an abrupt halt. The flood also destroyed her hot water tank, forcing her to boil water for everything. Instead of coming to her aid, the system repeatedly failed Ms. Mae and families like hers and then turned around and blamed them for their troubles. Continue reading "Predatory Governance in Wayne County and Beyond"
Aug 1, 2025 Sheldon EvansCriminal Law
As a hostage and their kidnapper physically struggle, both desperately trying to pry away a loaded firearm from the other, a police sniper takes the shot. The entire world pauses while looking to their smart phones for an update on this ongoing hostage crisis, and then moves on just as quickly. This surreal climax of the Black Mirror episode “Smitherines” brilliantly sets the visceral stakes of the ongoing transactions between Big Tech and Big Brother. But as Professor Yan Fang uncovered, this arms-length partnership is not as seamless as Big Tech pessimists might believe. There are what she calls “knowledge misalignments” between these two institutions that complicate the picture of the next generation of law enforcement, investigations, and individual privacy rights.
In Internet Technology Companies as Evidence Intermediaries, Fang discusses the reality that tech companies have become evidence intermediaries. This is fictionally illustrated in “Smitherines,” where the kidnapping of a social media company’s employee leads to an unlikely partnership between the social media company and law enforcement as they both try to uncover as much information as possible about the kidnapper. One of eerie takeaways from this on-screen partnership is that the social media company is able to access and leverage far more information about the kidnapper from his social media profiles than police detectives with years of experience. This striking commentary illustrates the real-world truth that tech companies are custodians of petabytes of consumer information that billions of people around the world freely share on their platforms. Thus, Fang describes that when law enforcement agencies (LEAs) seek information about these consumers for a variety of investigatory purposes, tech companies serve as the intermediary between LEAs and the trove of evidence they seek. Continue reading "Big Tech’s Asymmetries with Big Brother"
