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Robyn Powell, Reproductive Justice for Disabled People During COVID-19 and Beyond, in Routledge Gender Companion to Gender and COVID-19 (Routledge, 2024)Clicking on the button will copy the full recommended citation.
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Kirsten K. Davis, A New Parlor is Open: Legal Writing Faculty Must Develop Scholarship on Generative AI and Writing (2024)Clicking on the button will copy the full recommended citation.
Generative artificial intelligence likely represents a paradigm shift in legal communication teaching, learning, and practice. What we know (so far) about generative AI suggests that law school legal writing courses will need to teach generative AI skills to be used as part of a hybrid human-generative AI legal writing process. Accordingly, legal writing faculty will need to understand how generative AI works, its implications for legal writing practices, and how to teach legal writers the knowledge and skills needed to use generative AI ethically and effectively in their work.
As a community of scholars, legal writing faculty should lead the inquiry into the connections between generative AI and legal writing products, processes, and practices. This is an exciting time; there are many unanswered questions to explore about the relationships between human writers and machine writing tools.
Unlike other essays in the Unending Conversation collection, this essay does not join a conversation. Instead, it is a conversation starter; it is meant to “open the parlor door” and encourage legal writing scholars to research at the intersection of generative AI and legal writing. As legal communication experts, legal writing faculty are well-situated to be frequent and expert speakers in this conversation.
This essay explains why generative AI represents the beginning of a paradigm shift in legal writing that requires scholarly exploration and presents some ideas for the “big issues” that will need investigation.
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Louis J. Virelli, The Underappreciated Virtues of the Supreme Court’s Ethics Code, 52 Hofstra L. Rev. 657 (2024)Clicking on the button will copy the full recommended citation.
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Robyn Powell, Reproductive Justice for Disabled People Post-Dobbs: A Call-to-Action for Researchers, 17 Disability and Health Journal 101572 (2024)Clicking on the button will copy the full recommended citation.
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Louis J. Virelli and Richard W. Murphy, Supreme Court News, 49 Administrative & Regulatory Law News 22 (2024)Clicking on the button will copy the full recommended citation.
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Grant Christensen, Article III and Indian Tribes, 108 Minn. L. Rev. 1789 (2024)Clicking on the button will copy the full recommended citation.
Among the most basic principles of our federal courts is that they are courts of limited jurisdiction, exercising only those powers delegated to them in Article III. In 1985 the Supreme Court inexplicably created an exception to this constitutional tenant, and unilaterally declared a plenary judicial power to review the exercise of an Indian tribe’s inherent sovereign authority. This exception is unmoored from all other Supreme Court precedent outside Indian law, and unjustifiably assumes the judicial power in direct contrast to the Court’s ordinarily thoughtful jurisprudence on Article III and deference to the separation of powers.
This article concludes that the Supreme Court was wrong in 1985 when it assumed a plenary judicial power over Indian affairs. The consequences are profound, and suggest a reconceptualization of the entire field of Indian law. Canon creating cases like Oliphant, Montana, and Cabazon should never have been decided because the exercise of a tribe’s inherent authority does not create a federal question conferring subject matter jurisdiction on the federal courts. The inherent power of Indian tribes to criminally prosecute or civilly regulate non-Indians in Indian country should not subject them to the judicially imposed limits set by the Supreme Court, because the Court lacks subject matter jurisdiction to decide those cases. Until a treaty or statute creates an affirmative basis for federal court review, an Indian tribe’s inherent powers are subject to the checks and balances imposed by tribal government and no others.
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Jaclyn Lopez, Between a Rock and a Hardened Place: Prioritizing Climate Resiliency for Vulnerable Biodiversity, 34 Duke Envtl. L. & Policy Forum 157 (2024)Clicking on the button will copy the full recommended citation.
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Jaclyn Lopez, The (In)direct Effects of 20 Years of Public Citizen, 15 George Washington Journal of Energy and Envtl. L. 21 (2024)Clicking on the button will copy the full recommended citation.
The federal circuits have diverging trends in their treatment of Department of Transportation v. Public Citizen, the 2004 landmark Supreme Court decision that held that federal agencies do not always need to analyze and disclose the indirect effects of their actions. Explanations for this phenomenon include that courts may be following more universal conservative and progressive trends in their circuits, or perhaps that distinctions turn on the statutes at play, or that particular courts may be more inclined to defer to an agency's interpretation of its regulations rather than Congress' intent in passing a particular law. This Article provides a critical review of the last 20 years of case law and regulatory changes regarding the National Environmental Policy Act ("NEPA") and what types of environmental effects federal agencies must disclose and analyze in funding or authorizing major federal actions following Public Citizen.
Federal courts since that decision have navigated precedent seemingly at odds with Congress' intent that federal agencies use all practicable means to "assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings" in considering all reasonably foreseeable effects of major actions. Some courts maintain that federal agencies must analyze and disclose the reasonably foreseeable
indirect effects of the actions they authorize, while others have adopted a broader interpretation of Public Citizen to virtually eliminate indirect effects analysis regardless of foreseeability if there is a break in the causal chain or lack of discretion to address the impacts. This Article helps illuminate why these trends may have emerged, aids litigators in navigating the legal landscape, and provides fodder for NEPA reform. It concludes with recommendations for practitioners who seek to protect the human environment through the enforcement of NEPA's requirement that agencies analyze and disclose a complete account of the reasonably foreseeable effects of their actions.
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Francis J. Mootz et al. (eds.), Classical Rhetoric and Contemporary Law: A Critical Reader (University of Alabama Press, 2024)Clicking on the button will copy the full recommended citation.
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Will Bunting, Consumer Voice and Optimal Firm Size, 72 Buff. L. Rev. 617 (2024)Clicking on the button will copy the full recommended citation.
This Article examines the question: How can a consumer hold a seller to account in an exchange relationship when expectations have not been met. The Article’s first contribution is to recognize that, in the case of small firms, an employer business can provide a higher level of conflict resolution compared to a non-employer business. Unlike a consumer, an employer has the level of control necessary to compel an employee to remedy a product or service failure. Rather than engage in a costly personal confrontation with an employee, a dissatisfied consumer can simply request that the employer make the employee perform as promised. In this way, the existence of an employer-employee relationship allows a dissatisfied consumer to transfer or otherwise delegate conflict resolution to a person with greater power to remedy a product or service failure.
The Article’s second contribution is to recognize that, in the case of large firms operating in markets with imperfect competition, a large firm is likely to provide a suboptimal level of conflict resolution. When consumers are locked into an exchange relationship because switching costs are sufficiently high due to a lack of available market alternatives, consumers often have limited voice and no other feasible dissatisfaction response—a state of powerlessness that this Article terms “consumer captivity.” This Article argues that antitrust authorities ought to include consumer captivity more consistently in the mix of non-price consumer harms cognizable under U.S. antitrust law. To increase the level of conflict resolution of large firms in imperfect markets, this Article identifies two potential regulatory strategies informed by the analytic framework: (1) indirectly reduce the cost of consumer voice, and (2) directly increase the probability that a dissatisfied consumer receives a compensatory remedy.