Imagine that you enter a parlor. You come late. When you arrive, others have long preceded you, and they are engaged in a heated discussion, a discussion too heated for them to pause and tell you exactly what it is about. In fact, the discussion had already begun long before any of them got there, so that no one present is qualified to retrace for you all the steps that had gone before. You listen for a while, until you decide that you have caught the tenor of the argument; then you put in your oar. Someone answers; you answer him; another comes to your defense; another aligns himself against you, to either the embarrassment or gratification of your opponent, depending upon the quality of your ally’s assistance. However, the discussion is interminable. The hour grows late, you must depart. And you do depart, with the discussion still vigorously in progress.
By Frances C. DeLaurentis* & Jessica Lynn Wherry**
In her Article, A New Parlor is Open: Legal Writing Faculty Must Develop Scholarship on Generative AI and Legal Writing, Dr. Kirsten Davis questions the assumption that a human is the agent of writing. Fundamental to Dr. Davis’s position is the question, does generative AI write or does it merely produce? Although such question may be warranted, it is premature and harmful to crown generative AI a “writer.” In this Article, we explore the unique aspects of legal writing and legal document production, discuss the benefits of generative AI-produced text, explore the risks to novice legal writers of treating generative AI-produced text as writing, and advocate for continuing to teach foundational legal writing skills and incorporating generative AI into that skillset. We conclude by reinforcing the uniquely human aspects of writing and suggest that generative AI should become part of the legal writing process, rather than its replacement. Generative AI should continue to be viewed as a powerful tool to be incorporated into the writing process, but should not be the sole entity at the center of legal writing. The human writer may share that center with generative AI especially if the writer has learned how to use generative AI to enhance their own writing and to evaluate text produced by generative AI. Novice legal writers need to be exposed to generative AI so that they can develop an understanding of how best to use it in their writing process and learn how to share that “center” with generative AI.
By Stephanie J. Thompson*
A recent viral trend on TikTok has spotlighted women attorneys who are leveraging microfeminisms to uplift other women and challenge entrenched gender norms within the workplace. The hashtag #microfeminism has garnered over a billion views, underscoring a growing interest in this nuanced form of advocacy. Microfeminism encompasses the subtle, everyday actions individuals—regardless of gender—take to promote gender equity and disrupt traditional expectations, both personally and professionally. In contrast to broader feminist movements that often seek systemic reform, microfeminism focuses on the interpersonal and individual level, recognizing the transformative potential of seemingly small gestures. This Article aims to initiate a critical discussion on the persistent underrepresentation of women’s voices in law school classroom dialogue, despite their numerical majority, and explores how using microfeminisms can be employed to address this disparity.
By Rebekah Hanley*
Large language models (“LLMs”), which are a form of generative artificial intelligence (“AI”), present a tremendous opportunity for legal writing faculty. Thanks to generative AI, the tools and processes for creating professional writing are evolving dramatically, offering educators a chance to rethink longstanding practices. That’s a gift. Generative AI can help breathe new life into tired material. It can prompt playful invention that pays large dividends in both professional development and student learning.
But a big change, like the introduction of powerful new technology, also brings into focus a serious responsibility—a duty to update legal education for the new era. And that duty extends far beyond the legal writing faculty. That duty is shared by the legal writing faculty’s casebook colleagues and law school administrators.
This Article begins to imagine the bold moves that law schools might make to capitalize on the paradigm shift triggered by LLMs. Because LLMs are predicted to reshape legal practice, they deserve a prominent position in the JD curriculum, which aims to prepare today’s students to become tomorrow’s lawyers. But because LLMs capably mimic human analysis and writing, many legal educators quickly categorized them as threats—sources of shortcuts that would necessarily undermine the acquisition of the knowledge, skill, and judgment essential for to professional preparation. LLMs prompted denial, fear, worry, and overwhelm among legal educators. The technology also sparked controversy: some educators pursued a cautious embrace of LLMs, while others insisted that any student use of the technology was tantamount to cheating.
Instead of dragging feet or fighting an inevitable force, law school faculty and leaders should proactively and creatively incorporate LLMs into courses across the law school curriculum—leveraging the technology’s strengths while also modeling the caution, critical analysis, and flexibility that legal work requires. This Article explores how LLMs might be integrated into the JD curriculum along with additional pedagogical shifts indicated by the rise of generative AI.
By Jessica Faucher*
Arizona v. Navajo Nation where a 5-4 majority ruled that the U.S. government has no affirmative duty to secure water for the Navajo Tribe under its 1868 treaty with the United States. The majority’s decision in Navajo Nation mischaracterizes the Navajo’s claims, applies an unsuitable legal framework, and undermines the trust obligations traditionally held by the federal government toward Indigenous tribes. Located in an arid region with severe water scarcity exacerbated by climate change, the Navajo Nation struggles with inadequate access to water, directly impacting a significant portion of its residents.
After a critique of the majority opinion, this Note explores Navajo Nation’s detrimental impact on tribal water rights and the federal trust relationship. It provides a historical context of tribal water rights under the Winters doctrine and examines the complex legal framework of the “Law of the River,” detailing how tribes, including the Navajo, were systematically excluded from the Colorado River Compact and other agreements critical to regional water allocation. This backdrop highlights the Navajo Nation’s longstanding struggle for water access and the federal government’s historical role in the crisis. The Court’s decision not only denies meaningful judicial recourse for the Navajo Nation but also signals a concerning shift in the federal trust relationship and tribal water rights. This Note concludes by considering what recourse the Navajo Nation have, and advocates for the judiciary to analyze the scope of the federal government’s trust responsibility in a manner that ensures the United States honors its treaty obligations.
By Flora Goudappel*
Like the United States, the Kingdom of the Netherlands consists of a main part of the state and several parts with different levels of autonomy in other regions of the world. The organization of the cooperation between the four countries within the Kingdom is laid down in the Statute of the Kingdom. Yet, the position of the six Dutch islands in the Caribbean is hardly present in the curriculums at law schools in the European part of the Kingdom. At least in courses on constitutional law, an introduction to the constitutional law of the Kingdom would be expected. In the curriculums of the law schools in the Dutch Caribbean, the Statute and Kingdom relations play an important role. Moreover, a comparison of the differences and similarities between the systems of the four countries within the Kingdom is an integral part of these curriculums. This shows that awareness of the territorial scope of the state is not equal in all of the Kingdom of the Netherlands. Yet, lessons can be learned from the way this inequality is approached in the different curriculums.
In this contribution, the focus is on the teaching about the differences between the internal state systems since these are the basis of making students and practitioners aware of the existence of differences and similarities. Thus, other territories can not only be part of the curriculum, but also be used to possibly learn lessons from the differences and similarities. It can be concluded that lessons can be learned from the way the three overseas countries incorporate each other’s systems as well as the main legal system in the teaching of constitutional law. In addition, it is shown that spreading awareness, for example, through publications, helps in bringing the interesting and relevant lessons to be learned into the spotlight.
By Sígrid Vendrell-Polanco*
This Article delves into the intricacies of the checks and balances system meticulously crafted by the founders of the United States. This framework aims at ensuring a balanced distribution of power among the federal government’s branches. By dissecting historical documents and constitutional debates, this Article explores the checks and balances structure envisioned by the founders, meant to prevent any single entity from usurping overarching authority and safeguard democratic principles to ensure a system of mutual accountability. However, this well-intentioned system reveals its limitations when applied to the U.S. Territories —regions and peoples that have historically been marginalized within the American political discourse.
The Article systematically examines how the checks and balances system, while robust within the continental United States, has not been fully extended or adapted to the unique political and social contexts of the Territories. Through a detailed analysis of legislative, executive, and judicial interactions—or the lack thereof—with respect to the Territories, we identify significant gaps in representation, governance, and rights.
Moreover, the Article scrutinizes key legal and constitutional cases that highlight the Territories’ ambiguous status and the federal government’s often unilateral decision-making power. It argues that the current framework fails to provide adequate checks and balances for the Territories, leading to governance that is not fully accountable to its residents. This failure not only undermines the democratic ideals espoused by the founders but also perpetuates a colonial legacy that is increasingly at odds with contemporary principles of self-determination and equality.
This Article calls for a reevaluation of the checks and balances system in relation to the U.S. Territories. It proposes legal reforms and constitutional amendments aimed at integrating the Territories more fully into the American political fabric, ensuring that the foundational principles of democracy, representation, and accountability are upheld for all U.S. citizens, irrespective of their geographic location.
By Robert M. Jarvis*
Most law students know little, if anything, about the U.S. territories. Law professors can help increase their students’ knowledge by including references about the territories in their courses. In this Article, the Author explains how he does so in his gambling law course.
By Dolace McLean*
The Insular Cases continue to attract intellectual attention that excoriates their obvious racism, and rightly so. These cases stubbornly persist as part of constitutional law jurisprudence although they embrace concepts that make the territories separate and unequal under the Constitution—strongly reminiscent of the reasoning in Plessy v. Ferguson. Indeed, the author of the seminal Insular Case of Downes v. Bidwell is Justice Henry Billings Brown, the author of the Plessy decision. Despite their racist legacy, the Insular Cases continue to be good law and the Supreme Court has yet to overrule them. The persistence begs the question of why these cases have not yet met their Brown v. Board of Education takedown. While there is no answer that makes obvious sense, perhaps, there is an answer that is buried in the legal and political subconscious of America.
This Article argues that there is an imperial imperative that has always been at work in America since its inception. This imperative is made all the more forceful because it has always had the support of the law and legal system. Thus, the concept of “territories” has always existed as an integral part of the framework of the nation from the time the first settler set foot on the North American continent and claimed to have discovered the land. American colonialism has been rationalized in Supreme Court cases that employ a discourse of legal signification. Relying on this discourse, the imperial imperative continues today in court rulings that support lesser constitutional protections, and engage constitutional exceptionalism in territories that are considered foreign even though they are within America’s legal borders. This Article explores legal signification in two cases, Johnson v. M’Intosh and Downes v. Bidwell to uncover the political and legal dynamics that are at play in making and maintaining America’s colonies.
By Natalie Gomez-Velez*
The separate and unequal status of the U.S. territories under the Insular Cases’ “incorporation doctrine” is indefensible yet largely invisible. Few people in the United States, including lawyers, are aware of the colonialism position of the U.S. territories. This is largely attributable to the lack of coverage in the general law school curriculum. In August 2021, the American Bar Association passed Resolution 300, urging law schools to offer courses on the Insular Cases and the law of U.S. territories. The Report accompanying the Resolution notes:
“[A]lthough the legal academy played a pivotal role in developing the legal doctrines that the U.S. Supreme Court would adopt in the Insular Cases, for decades America’s territories have been largely absent from the law school curriculum and mainstream legal scholarship. Constitutional law casebooks only make passing references to the Insular Cases, and few courses cover the topic.”
This Article explains the position of the territories under the Insular Cases and more recent Supreme Court cases. It advocates for law school professors to discuss the territories in the constitutional law course, and it provides examples of how some law professors, including the Author, and writers of constitutional law textbooks cover the territories in different ways. Finally, this Article describes the challenges and rewards of including this material in the constitutional law course, particularly at a moment when teaching facts and history related to structural inequality are urgent and under challenge.
By Joseph T. Gasper II*
Clinical legal education has become a fundamental component of law school curricula in the United States, shifting from a historically marginalized practice to an essential requirement under American Bar Association standards. Despite this evolution, no law school clinic has been dedicated to addressing the unique legal challenges of U.S. Territories, including Guam, American Samoa, Puerto Rico, the Northern Mariana Islands, and the U.S. Virgin Islands. These territories, often overlooked in legal discourse and policymaking, face complex constitutional, legislative, and socioeconomic issues that merit focused legal attention.
This Article explores the history of clinical legal education, its gradual acceptance within the legal academy, and the potential for clinics to bridge the legal gap for the Territories. By contextualizing the Territories’ historical struggles—ranging from governance and citizenship issues to systemic economic disadvantages—the Article examines how law school clinics could serve as powerful platforms for advocacy, research, and policy development. Rather than outlining a specific model, it considers the ways in which clinics might engage with territorial issues, offering law students meaningful opportunities for hands-on legal work while advancing social justice and addressing structural inequalities within the U.S. legal system.
*Abstract drafted with the help of ChatGPT4o.