Oct 24, 2025 Eric BiberEnvironmental Law
America will probably be using a lot more electricity in the very near future. Demand will increase due to data centers for artificial intelligence, as well as electrification that is a central part of decarbonizing the American economy such as continued adoption of electric vehicles and electrification of home heating and cooking. But increased demand for electricity creates a problem. It will require an expansion of our electricity transmission network, a system that was designed for much lower levels of electricity usage. Moreover, the restructuring of electricity markets in much of the US starting in the 1990s is requiring more transmission capacity because of the integration of electricity generation and demand on a much larger scale than in the day when most electricity was generated and used within the service area of a single public utility. Greater extreme weather events because of climate change will increase the demand for electricity and also increase the risk of failures in the transmission system – larger transmission systems can provide resilience for these situations.
But the process for constructing new US transmission systems is broken. The US has built a fraction of the miles of high-voltage transmission lines that are required to meet our future needs. Building on prior work that has helped identify the problem, Joshua Macey and Elias van Emmerick’s article provides two key contributions. First, they show how the current system incentivizes the construction of transmission projects that do not benefit the grid as a whole. Second, through a thorough analysis of the existing powers of the Federal Energy Regulatory Commission (FERC) and the Department of Energy, they identify a range of legal authorities that those agencies could use to address the problems already identified through administrative action – providing a potential roadmap for at least starting to work on our need for more transmission.
It’s not as if we aren’t spending money on transmission, as Macey and van Emmerick note. The problem instead is that the money we do spend is not spent on projects that would actually benefit the grid overall. Nor do we spend that money to facilitate bringing a range of new generation resources online, including renewables. The authors document how the current system by which we decide which lines get built, and then get paid for by electricity consumers, is broken. In theory that system should facilitate the independent identification of where transmission would most benefit the electric grid, and consumers, as a whole, get it built through a competitive bidding process, and then allocate the costs of construction among those who would benefit.
In practice, utilities use loopholes to avoid competitive bidding, so that they construct the lines themselves, and then recoup the costs of that construction through charges to consumers. Utilities also use loopholes – especially for local or small projects – to avoid state approval requirements or regional transmission planning processes and construct lines that provide limited or no benefits to the stability of the overall grid, or to the facilitation of new generation (including renewable energy), but instead benefit the incumbent utility’s own generation resources and exclude competition. Finally utilities use their influence over regional transmission organizations to control what kinds of projects are approved, and to develop the rules that allow utilities to avoid planning and competition.
Just describing these phenomena would be a helpful contribution. But Macey and van Emmerick comb through the provisions of the Federal Power Act, plus other authorities for the Department of Energy, to identify powers that FERC and DoE could use to close loopholes, force better governance at regional transmission organizations, and reduce state and local obstacles to siting. Most of the changes they propose do not necessarily require legislative action – though Congressional action might reduce the risk that what they propose would be overturned in court.
As with any proposal for administrative or regulatory action as a substitute for Congressional inaction, there are challenges. Some of their proposals call for relatively aggressive interpretation of statutory authorities by FERC and DoE – such an effort might run afoul of a Supreme Court that has been more aggressive in patrolling agency statutory interpretation after the Court overturned Chevron and has developed the major questions doctrine. And all of their proposals presume an administration that is interested in thoughtful and effective engagement in expanding transmission. The evidence that this administration has such a position is . . . pretty thin. Thus, their proposals may have to wait for a future administration. But even so, their analysis is important – while delays in expanding our transmission system will be costly, delayed action is better than inaction. Moreover, it is unlikely that Congress will be substantially changing these authorities in the near future.
While these reforms may seem deep in the weeds of energy law, they have real implications for environmental law. Decarbonizing the American economy will require significant increases in electrification, and that in turn requires tremendous expansion of our transmission system in a way that will produce greater reliability and greater access for a wide range of zero-carbon energy sources (solar, wind, nuclear, geothermal, and more). Transmission reform is a necessary condition for decarbonizing. Macey and van Emmerick have given us a roadmap for starting that process.
Oct 17, 2025 Tom SimmonsElder Law
Nina A. Kohn,
Ageless Law, __ N. Cal. L. Rev. __ (forthcoming 2026), available at
SSRN (April 24, 2025).
Since 2022, voters in both Nevada and New York have overwhelmingly approved state constitutional amendments characterizing age as a protected class. As a result, a host of age-based policies and practices may soon become legally impermissible there. If the enactments in those states are part of a trend, the scrutiny on classifications based on adults’ chronological age will only intensify.
Nina Kohn’s Ageless Law ought to be required reading for any Elder Law class. It constructs a comprehensive intellectual scaffolding on which all the different sorts of age-based classifications and justifications thereof are strung. “Policies that differentiate based on older age are so common in modern America that they are often treated as unremarkable,” (P. 7) she observes. Excavating that which may have become unremarkable is an important and often overlooked academic enterprise. Professor Kohn undertakes this enterprise with remarkably sensitive concision.
First, she notes, “When age-based policy is discussed, it is often assumed that those policies benefit older adults” (P. 8). Not so. Age-based rubrics are commonplace in allocating government benefits based on age (e.g., Social Security), but they also appear in the form of interventions to address abuse and exploitation, tax breaks, mandatory retirement ages (e.g., for judges) and in the allocation of healthcare resources – both affirmative and negative.
During the COVID epidemic, for example, older adults were prioritized for preventative care such as scarce vaccines. At the same time, some states adopted triage standards which deprioritized older adults for curative care interventions like respirators. Older patients face de-prioritization barriers in other contexts as well. The United Network for Organ Sharing, a nonprofit network which contracts with the Department of Health and Human Services, assigns priority scores for organ transplants based, among other factors, on age.
After outlining the various forms of age-based classifications, Professor Kohn excavates the policy justifications for them. One primary reason we discriminate based on age is that it is so easy to do so. An individual’s chronological age is much cheaper to determine that the individual’s vulnerability, frailty, or maturity indexes. But age is almost always a proxy for something else and often a poor one at that.
Interestingly, another policy justification for age discrimination is the promotion of egalitarianism. But depending on the context, it may be invoked to favor the old, favor the young, or even to argue that individuals ought to be treated with equal degrees of favoritism without regard to their phase in life (a “temporal egalitarianism”).
Thus, the “fair innings” theory coined by John Harris avers that younger adults should be prioritized via age-based rationing since older people have already had more opportunities (fair innings) than younger people. If rationing is to be based upon projected life span, it follows that those with more life to live ought to be favored since allocating more resources to them will achieve greater impact. The theory assumes that older individuals have “taken” more than younger individuals—which is true to a certain extent insofar as the consumption of fossil fuels, nutrition, and other consumables.
On the other hand, favoring older adults finds justification on the ground that the old are more deserving. The “fair deserts principle” says that pro-elderly policies recognize that old age is a sort of “earned status” (P. 21) – an idea posited by Douglas Nelson. The idea here is that during adulthood, one contributes to society. The longer one has lived, the more they have given to others. In old age, those still living ought to be repaid.
Yet this raises the question of why exclude those adults who die prematurely from the scope of repayments. Kohn says, “Old age is not an equitably allocated resource” (P. 28). Many adults never become older adults, whether because of illness, accident, or violence, and statistically speaking, those of higher socio-economic status live longer than the less privileged. Prioritizing older adults might be simply rewarding those for having won the life expectancy lottery, which seems a poor justification for chronological-ism.
Finally, Kohn highlights the potential ramifications in states which recognize age as a protected class under their constitutions. Louisiana has long recognized age as a protected class, but its constitution’s text and the jurisprudence applying it essentially only applies a rational basis level of scrutiny to government-enacted age classifications. The impact of New York and Nevada’s recent enactments are less certain.
Kohn considers whether heightened scrutiny will be applied both to private actors and local government classifications. She also unpacks the disparate impact theory and analyzes whether states are likely to restrict their new constitutional age-classification protections to disparate treatment (intentional) discrimination.
Whether age can or should be used as a classification system for older adults depends in large measure on alternative rubrics. Age is a very imprecise proxy for need, vulnerability, or cognitive decline. Alternatively, for example, a sorting mechanism could be employed which scores an individual’s vulnerability to a specific problem such as financial exploitation. The “vulnerability theory” articulated by Martha Finman would target resources based on vulnerability rather than age.
Certainly, alternative classification rubrics to age such as vulnerability would be more costly to administer than age-based classifications. But the benefits associated with reducing chronological-ism would include both more efficient allocations and a reduction of the associated ageism which government-mandated age-based classifications inevitably endorse. Kohn’s article contains a wealth of additional points and considerations. It helps us understand why we discriminate based on age and to ask whether – and in what contexts – we still should.
Sep 26, 2025 Felix MormannEnergy Law
It is all but impossible for government to adopt industrial policies and regulations without creating winners and losers. The Obama administration’s support, for example, turned Tesla, SolarCity, and other cleantech ventures into regulatory winners, while its “war on coal” relegated fossil fuel companies to regulatory losers. The first Trump administration sought to reverse this trend by dialing back clean energy policies and using emergency powers to prop up the nation’s ailing coal industry. And the regulatory pendulum has continued swinging back and forth during the Biden presidency and under Trump 2.0. When changes in policy and regulation interfere with corporate interests, regulatory losers are quick to call foul and demand compensation for their regulatory burdens. But what about those who find themselves on the losing end not by virtue of regulatory activism and change but, rather, due to a persistent lack of regulation? In his excellent new article, Compensating Regulatory Losers, professor Todd Aagaard asks this provocative question and develops thoughtful answers drawing on case studies from climate and energy regulation, among others.
A robust literature grapples with the question of whether and when regulatory losers deserve to be compensated. Some have attempted to frame and answer this question based on the welfare impacts of regulation, while others have turned to (other) notions of fairness in search of answers. Some scholars advocate for replacing regulation-specific compensation with more comprehensive redistribution programs carried out via income taxes. Libertarian entitlement theorists, meanwhile, argue that regulatory losers should be compensated when their reliance expectations are thwarted by changes in regulation. And if fairness arguments do not sway you, leave it to economists to reframe the debate along Pareto and Kaldor-Hicks efficiency metrics.
In Compensating Regulatory Losers, professor Aagaard thoughtfully engages with the major strands of the compensation literature, offering a tailored critique to each of them. In response to calls for comprehensive redistribution in lieu of compensation, for example, Aagaard reminds readers that “[r]egulatory fairness is not a fungible concept that can be aggregated across all policies and delegated to the tax system. To the contrary, the fairness of regulatory outcomes depends on the context in which they arise.” (P. 578.) Similarly, he critiques entitlement and reliance arguments as circular because “[c]hanges in regulation create reliance interests only to the extent that regulatory changes should be treated as unforeseeable, which in a democracy they are inherently not.” (P. 579.) Aagaard’s biggest gripe, however, is with the status quo bias that he finds pervasive throughout the compensation literature: “None of these approaches provides a framework for addressing injustice in the status quo, despite a history that is replete with unfairness.” (P. 583.)
To remedy this oversight, Compensating Regulatory Losers proposes a two-pronged approach. The first prong expands the field of inquiry beyond the consequences of regulatory activism and change to also include “unregulatory consequences” defined as “regulatory outcomes that result from the extent to which regulation does not completely prevent the regulated harm—that is, benefits and burdens as measured against a baseline of completely effective regulation.” (P. 585.) Aagaard convincingly argues that virtually all regulatory measures simultaneously create regulatory consequences (e.g., the compliance burden imposed on the regulated entity) and unregulatory consequences (e.g., the burden suffered by allegedly protected parties from residual harms not mitigated by the regulation). Drawing on evidence from the Clean Air Act, the Occupational Safety and Health Act, and the Consumer Products Safety Commission, the article illustrates the prevalence and magnitude of such unregulatory consequences, juxtaposing the positive impact of these policies and regulations with continuing fatalities from persistent air pollution, unsafe workplaces and consumer products. The dual effect of regulation – regulating some firms, behaviors, and/or harms while leaving others unregulated – leads Aagaard to conclude that “[a]ny even-handed consideration of the consequences of regulation, therefore, must include both regulatory and unregulatory benefits and burdens.” (P. 590.)
Professor Aagaard is no compensation hawk. If anything, he cautions against rushing to compensate for regulatory losses, especially when those losses might be offset by unregulatory benefits, such as when regulation prohibits certain behavior and mitigates a certain type of harm but leaves other behaviors and harms unabated. Furthermore, there is an intertemporal dimension to consider. In the author’s words, “[t]oday’s regulatory burdens are yesterday’s unregulatory benefits.” (P. 595.) Put differently, why should a manufacturer of children’s toys be compensated for regulation banning the use of toxic substances in toys without also considering compensation for children and their families for their previous unregulatory burden (when toys were still permitted to contain the now-banned toxic substances)?
The second prong of professor Aagaard’s approach relies on the principles of distributive fairness and corrective fairness to answer this pivotal question. The article’s conception of distributive fairness “requires mitigating regulatory impacts that exacerbate existing entrenched systemic inequalities” (P. 598) as opposed to regulatory losses perceived as unfair by a few regulatory targets compared to their status quo before the regulation. Aagard acknowledges but is untroubled by the fact that, under this conception, “the circumstances in which distributive justice requires compensating regulatory burdens ought to be quite rare.” (P. 597.) In fact, he crafts a similar argument on the basis of corrective justice; in his view the premise of corrective justice to restore equilibrium after an alleged wrongdoer’s conduct is nearly impossible to apply to regulatory intervention as no such prior equilibrium exists when the “victim” of regulation was previously allowed to harm and thus victimize others. All of this leads the author to conclude that “the vast majority of regulatory burdens are not unfair in a way that requires compensation.” (P. 607.)
I highly recommend Compensating Regulatory Losers is an immensely entertaining and thought-provoking tour de force through the complex and conflicting compensation literature. Professor Aagaard’s introduction of the concept of unregulatory consequences into the conversation may ultimately raise more questions than he can answer (for now). But isn’t that the mark of truly transformative thinking and scholarship?
Aug 28, 2025 Bethany BergerNative 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.
This history reached the Supreme Court in Denezpi v. United States, 596 U.S. 591 (2022). Denezpi considered whether a federal prosecution of a man that the Southern Ute Tribe’s CFR Court had already prosecuted violated the Double Jeopardy Clause. The majority of the Court held that it did not, relying on the dual-sovereignty doctrine to hold that because the federal and tribal laws criminalizing the conduct were “defined by separate sovereigns” the two courts “proscribe separate offenses.” Id. at 599. Justice Gorsuch, however, joined by Justices Sotomayor and Kagan, dissented, using the blatantly colonizing federal origins of the courts in support of a conclusion that CFR Courts prosecuted federal crimes. Id. at 612 (Gorsuch, J. dissenting).
Professor Fay examines archival records of these courts to argue that they were in fact “a means of maintaining tribal self-government by accommodating the assimilationist designs of federal bureaucrats.” Almost none of their convictions, she shows, were for the “heathenish” crimes they were created to police. The need to select judges with authority in tribal communities meant that the judges did not necessarily embrace assimilationist goals. More than one, for example, had multiple wives, although not being a polygamist was one of the few qualifications for such judges, and polygamy itself was one of the few crimes they were intended to police. Although the courts were created at the height of the assimilationist era in federal Indian policy, Professor Fay argues that compulsory education and military intervention played far larger roles in suppressing Indigenous tradition.
Of course, little of this history is new. As Professor Fay notes, the 1928 Merriam Report, The Problem of Indian Administration, noted the courts’ departure from federal commands in favor of local norms, William Hagan thoroughly plumbed this history in William Hagan’s Indian Police and Judges: Experiments in Acculturation and Control (1966), and an amicus brief in Denezpi of Federal Indian Law Scholars and Historians that I participated in summarized this history as well.
But Courts of Indian Offenses, Courts of Indian Resistance is the first standalone history of the courts since Hagan’s, and as Fay notes, Hagan regarded the courts as “vanguards of a more highly developed civilization.” Fay, quoting Hagan at 168. Fay further places the history in conversation with scholarship in other fields, including subaltern studies, the history of the administrative state, and Michael Lipsky’s examination of street level bureaucrats. Fay also painstakingly compiles available data regarding the courts to show exactly how few of their cases fell into the categories the Department of Interior sought to punish. Out of 1565 cases reflected in federal records, she finds, only 2 concerned dances or feasts, 28 concerned plural marriage, and 14 concerned medicine men. She also provides case studies of the Yakama, Pima, and Standing Rock Sioux courts. As Fay notes, the absence of prosecution of religious dances at Standing Rock is particularly significant because federal efforts to suppress the Ghost Dance there contributed to the 1890 massacre at Wounded Knee.
It is the case study section of the article that I hope Professor Fay will expand as she finalizes the article. Although the Pima case study includes tantalizing hints of the intersection of prosecutions with community politics, otherwise the article has few examinations of the actual cases the courts decide or the particular judges who decided them. Nor does it currently engage in the broader history and cultures of the three Indigenous communities she examines, which is important in understanding the roles of the courts in those communities. It would also be useful to consider the relationship between the courts and contemporary tribal courts; although few CFR Courts exist today, many present-day tribal courts had their origins in Courts of Indian Offenses. I hope to see more of that kind of examination in the published work.
But the article already makes an important contribution as a modern archival examination of failed efforts of assimilation. This kind of history is particularly relevant now, in the face of unprecedented efforts to destroy existing norms and institutions of the rule of law. May the example of tribal people, who took a tool intended to destroy them and used it to continue their traditions, inspire us in the days ahead.
Jul 28, 2025 Jaya Ramji-NogalesImmigration
What would a theory of migration that takes seriously the lived expertise of migrants and their families contribute to the scholarly conversation? Drawing from extensive qualitative interviews in Mexico with community members who journeyed to the United States to seek work and those they left behind, Prof. Ragini Shah has a compelling answer: a theory of migration as extraction. The thesis of her new book, Constructed Movements: Extraction and Resistance in Mexican Migrant Communities, builds on prior work on decolonizing migration and migrations as reparations, evolving those critiques into a comprehensive theory of migration.
This brilliant new work begins with the voices of migrants themselves, offering insightful quotes and a firsthand understanding of the journey to El Norte and its impact on individuals, families, and communities. One of the invaluable contributions that this qualitative work offers is a clear description of the emotional cost of migration as extraction. The interviews provide powerful insights into this profound price that families paid and continue to pay, and the ongoing impacts on migrant communities. Prof. Shah describes a vicious cycle of dispossession, dismemberment of family relations, and exploitation, as well as a story of agency on the part of migrants.
Prof. Shah takes these lived expertise interventions seriously, not only for their individual perceptions, but also as a blueprint for the policy and theory contributions of the book. From the insights of her interviews with migrants and the loved ones they leave behind, Prof. Shah builds a comprehensive theory of migration as extraction. She provides the reader with invaluable historical context, describing the political economy dimensions of this migration, offering a structural framework to understand the exploitation and profound harms these families have suffered as part of a broader pattern imposed on migrant-sending countries by migrant-receiving countries. In particular, the book explains the role of global economic inequality and neocolonialism in constructing migration as extraction, dividing this phenomenon into three phases: dislocation, displacement, and entrenchment.
For the dislocation phase, Prof. Shah describes the uprooting of migrants in search of sustenance and the separation of families. Connecting the interviews with global neoliberal mandates, she explains how the International Monetary Fund’s policy of structural adjustment and the North American Free Trade Agreement profoundly weakened the public infrastructure in Mexico, driving down wages and dismantling access to education, two key factors that push families to migrate. For the displacement phase, Prof. Shah examines the process of labor recruitment and incarceration as well as the turn to coyotaje. She presents a timeline that delves deep into history, from Spanish colonization to the bracero programs to the maquiladoras, to provide a comprehensive description of the extractive nature of migration. For the entrenchment phase, Prof. Shah highlights the disinvestment cycle, family disintegration, and the remittance industry, explaining these phenomena and the role they play in perpetrating ongoing cycles of extractive migration.
These three phases are invaluable in describing the phenomenon of migration as extraction, and also lay a foundation for potential responses, examples of, and possibilities for resistance. Prof. Shah highlights the importance of the return of resources, local employment, and the repair of relationships with kin and land, a response that she describes as “the right not to migrate.” This right centers human autonomy, contesting the economic conditions at home that divest migrants of the choice to move. In particular, the lack of infrastructure, the lack of support for agriculture, and the lack of access to education are key problems that require investment in order to uphold the right not to migrate and to dismantle the phenomenon of migration as extraction. To this end, Prof. Shah highlights the importance of group-based resistance, drawing from the insight offered by one of her interviewees, Don Santos:
People think that migration is a benefit, but we don’t have anything in my pueblo. If we can get good work [in the United States], we can build a house for ourselves, buy clothes, a car. But it does nothing for the whole pueblo.
Cite as: Jaya Ramji-Nogales,
Migration as Extraction, JOTWELL
(July 28, 2025) (reviewing Ragini Shah,
Constructed Movements: Extraction and Resistance in Mexican Migrant Communities (2024)),
https://lex.jotwell.com/migration-as-extraction/.
Jul 11, 2025 Anita KrishnakumarLegislation
James J. Brudney & Lawrence Baum,
Does Textualism Constrain Supreme Court Justices?, available at
SSRN (Feb. 3, 2025).
Textualist jurists and scholars have long contended that their preferred interpretive approach is superior to competing approaches because text-based analysis limits judicial discretion and constrains judges. Indeed, the late Justice Scalia declared in his book, Reading Law: The Interpretation of Legal Texts, that a textualist interpretive approach would “narrow the range of acceptable judicial decision-making” and “curb—even reverse—the tendency of judges to imbue authoritative texts with their own policy preferences.” Correspondingly, textualists long have criticized legislative history as an illegitimate interpretive tool that “has something for everyone” and “greatly increases the scope” of judicial manipulation of statutory meaning to suit the judge’s ideological preferences. To date, these claims have gone largely untested, although several scholars have offered anecdotal evidence suggesting that textualism does not, in fact, constrain judges all that much.
Enter Professors Brudney and Baum, who marshal an impressive dataset of 660 statutory decisions involving labor and employment law statutes decided between 1969 and 2024 in order to measure empirically how well textualist interpretive tools constrain judicial decision making. The result is an article rich in both empirical and doctrinal analysis of liberal and conservative justices’ use of textual canons, legislative history, and legislative purpose to reach interpretive outcomes consistent (or inconsistent) with their ideological preferences. Because their dataset is so broad—covering 54 terms’ worth of cases—Brudney and Baum are able to document historical changes and draw historical comparisons that other scholars have only been able to gesture at anecdotally.
The authors report several important findings, summarized below:
First, although this will surprise no one, Brudney and Baum document dramatically and convincingly just how much the Court has increased its reliance on textualist tools, and correspondingly, decreased its reliance on purposivist and intentionalist tools between 1969 and 2023. For example, majority opinion rates of reference to dictionary definitions jumped from 1.0% during the 1969-1976 terms to 30.6% during the 2014-2023 terms; rates for language canon usage more than tripled from 14.6% during the 1969-1976 terms to 47.2% in the 2014-2023 terms; while rates for legislative history and purpose plummeted from 48.5% (history) and 84.5% (purpose) during the 1969-1976 terms to 13.9% (history) and 45.8% (purpose) during the 2014-2023 terms. Although I study the Court’s statutory cases closely, I found the magnitude of these increases and decreases stunning.
Second, the authors found that during the Rehnquist and Roberts Courts, both conservative and liberal justices reached outcomes that were consistent with their ideological preferences more often when they authored opinions that employed ordinary meaning than when they did not. (The sole exception was that during the Burger Court, liberal justices reached conservative outcomes more often when they employed ordinary meaning than when they did not). Thus, the authors conclude that there is no empirical evidence that ordinary meaning analysis—one of the touchstones of textualist interpretation—constrains judges to decide cases in a manner inconsistent with their ideological preferences, and there may even be some evidence that on the modern polarized Court ordinary meaning analysis enables judges more freely to adopt statutory constructions consistent with their ideological preferences.
Third, Brudney and Baum find interesting temporal changes in the relationship between judicial reliance on legislative history and the ideological valence of an interpretation. That is, the data reveal that during the Burger Court, authoring justices (especially conservative justices) were “substantially” more likely to reach an interpretive outcome inconsistent with their ideological preferences when they invoked legislative history than when they did not. However, during the Rehnquist and Roberts Courts, this pattern flipped for conservative justices—who were more likely to reach conservative outcomes when invoking legislative history than when not citing such history. For liberal justices, the rates of reaching conservative outcomes stayed almost the same whether they invoked legislative history or did not invoke such history (although liberal justices were slightly more likely to reach a conservative outcome when relying on legislative history than when not doing so). Brudney and Baum observe that in the modern era, the textualist critique that legislative history is easily manipulable has become a self-fulfilling prophecy—and they posit that textualist jurists may be more likely to use legislative history strategically in the modern era because of their jaundiced view of the manipulability of this interpretive resource.
There are other, more nuanced, empirical findings sprinkled throughout the paper, but I will leave those for readers to discover themselves.
To close, Brudney and Baum also provide a series of close doctrinal comparisons of “dueling” majority and dissenting opinions that both invoke legislative history as well “dueling” opinions that both invoke ordinary meaning. The upshot of their doctrinal analysis is that the justices duel over ordinary meaning just as much, and in many of the same ways, as they duel over legislative history. In other words, the infamous textualist critique that “there is something for everyone” in the vast legislative history of a statute is just as true for ordinary meaning analysis. Brudney and Baum thus conclude that “reliance on ordinary meaning allows for judicial discretion to the same substantial degree and along exactly the same categorical lines as when justices rely on legislative history” and that “there is every reason to conclude that the stock critique of legislative history (the risks of picking out your friends in a crowd) is comparably applicable to textual analysis.”
In short, Does Textualism Constrain Supreme Court Justices? provides much-needed empirical testing of one of textualist interpretive philosophy’s key claims. It is, of course, just one article, and much more work needs to be done in this area, but Brudney and Baum provide an admirable and welcome first foray into tackling this important empirical question. Anyone interested in statutory interpretation should read this article with interest!
Jun 17, 2025 Caprice RobertsRemedies
It’s time to get excited about deepening your understanding of the law of remedies. Law schools should deepen their commitment to hiring professors to teach remedies courses, and scholars should add remedies perspectives to their research agendas. (If you are wondering How Remedies Became a Field, Doug Laycock has answers. Its importance is worldwide. It is rich with theory, and it is practical and meaningful.) Professors Katy Barnett and Sirko Harder’s latest book, Private Law Remedies, provides a comprehensive yet accessible resource for jurists, legislators, private litigators, professors, and students. Notably, the book analyzes private law doctrines as a whole and comparatively to aid greater comprehension of the function and goals for each remedy. They diligently examine a wide array of cases to explore private remedies at common law, in equity, and per statutes. The authors meticulously explore unifying principles and identify commonalities and significant differences among private law wrongs. Their project is ambitious, functional, and successful. They candidly interrogate leading scholarly theories and carefully examine key cases. From their insights, readers can peruse a host of remedies for private law wrongs such as contracts, fiduciary duty, torts, and more.
Their work focuses on English law but includes relevant treatment of other common law countries. Without doubt, the import of the analyses will resonate with a much broader audience. The book is timely and makes an important contribution to the field of remedies. The authors artfully distill the complex field of remedies into meaningful, clear chapters that will benefit experts and newcomers.
The helpful framework begins with an introduction and then follows with general principles of compensation and responsibility. The chapters next explore remedies aligned to contract and then tort before turning to equity and coercive remedies. Valuable contributions also include chapters on vindicatory remedies and the rising frequency of awards for disgorgement of gain. The authors wisely treat restitution remedies and giving back relief. The last chapter explores proprietary remedies, which cover remedies that provide property rights over relevant assets.
Overall, this book structures remedies pursuant to their function regardless of the underlying cause of action. Classic functions include compensation, coercion, vindication, disgorgement, and give-back restitution. The authors recognize that some remedies have several functions, but they identify the dominant function as a pragmatic organizational method. This system enables the reader to glean commonalities and distinctions for a more nuanced understanding.
Professors Barnett and Harder divide core responsibility based on relevant extensive expertise, but both are jointly responsible for the whole of the book. It reads as one voice. Chapter one builds the foundation with key definitions and provides the framework for how remedies operate given their common law history. Readers more conversant in history may not need but will enjoy the concise summary and useful charts. The authors draw comparisons to help civil lawyers appreciate the nonexistence of a comprehensive Code because of the case-by-case development of common law remedial doctrines. Chapter one also outlines the primary functions of remedies in the private law. This chapter helpfully provides a functional roadmap of remedies law correlated to those key functions.
As to the definition of remedies, the authors offer several functional answers—a cure that ameliorates a wrong, for example, or remedy as the ultimate outcome of litigation. Then, they delve deeper into scholarly explorations. They provide an insightful analysis of scholarly treatments such as John Austin on the separation between rights and remedies, but then Barnett and Harder demonstrate the reality that many remedies, including restitution, fail to fit such models. They engage Peter Birks’s important distinction between wrongs and not-wrongs for unjust enrichment. They also explore Rafal Zakrzewski’s definition of remedies as, for example, rights immediately occurring from specific judicial commands. According to Barnett and Harder, the book’s discussion of remedies largely fits with Zakrzewski’s frame, but several remedies should be conceptualized as permission by the court for claimants to react to wrongs in particular ways (self-help remedies) or as procedural mechanisms (equitable orders such as injunctions). The authors also explore the relationship between right and remedy by offering salient critiques of two polar positions: (i) the dualist view providing a discretionary where a judge does whatever is most just or (ii) the monism view, honoring the English tradition, that offers an extremely rigid system where the remedy must reflect the right.
The book does not simply critique without providing an alternative path. The authors endorse an approach that David Wright has described as a sticky relationship between the remedy and the right. According to Barnett and Harder, typical defaults would likely apply, such as expectation damages for contracts, but where inappropriate, structured discretion would permit consideration of other remedies according to specified criteria. In my remedies scholarship, such as a piece coauthored with Ronald J. Krotoszynski, Jr., Reimagining First Amendment Remedies, I propose a similar notion as the application of principled discretion bounded by precedent and doctrine especially where the remedy is equitable. Given the effort to balance concerns, the Barnett and Harder approach is worth serious consideration.
Chapters two and three are essential for appreciating relevant general principles: assessment of compensation and attribution of responsibility—both core to English law. Both chapters provide foundational understanding of pivotal doctrines such as avoidable loss and remoteness as well as usable litigation tools for valuating losses in lump-sum judgments. In the series of chapters devoted to distinct wrongs such as contract and tort, the book artfully synthesizes key concepts and cases in a manageable, useful form. The several chapters devoted to remedial functions, chapter seven on coercive remedies guides the reader through the equitable thicket of specific performance and injunctions, including exploration of traditional hurdles such as inadequacy of legal remedy (discussed as inadequacy of damages) and other discretionary bars like the unclean hands doctrine. This chapter, as with all the chapters, provides ample citation and helpful categorization through useful headings. Chapter eight on vindicatory remedies is particularly timely. These remedies include, for example, self-help remedies, exemplary damages, declaratory relief, and nominal damages. The AALS Torts section focused on vindication and dignitary harms, as have thoughtful scholars such as Rachel Bayefsky in Dignity and Judicial Authority. Chapter nine provides groundbreaking exploration of the remedy, disgorgement of gain. Here, the authors summarize the historical roots and distinguish inapplicable goals such as compensation. They also navigate the uncertain waters of novel, modern disgorgement awards and the challenges of overcoming applicable defenses.
In later chapters, the authors grapple with topics that are easily fields unto themselves such as remedies for unjust enrichment. In chapter ten on restitution, the authors avoid endorsement of any one scholar’s conception, but instead offer an incredibly helpful outline of the modern law of England and Wales with explanation on the current fault lines of controversy. The book unpacks thorny, technical (and very often Latin) terms and incorporates a welcomed inclusion of the American Law Institute’s Restatement of Restitution contribution to the international dialogue on unjust enrichment. The case exploration, developed through each relevant unjust enrichment doctrine, is sharp, contextualized, and valuable. For another example of vexing inquiry, in chapter eleven on Proprietary Remedies, the authors wisely acknowledge the challenges in distilling a complex, less coherent body of law. Still, they ably provide a baseline for greater understanding of such proprietary remedies as constructive trusts. The book provides accessible examples throughout to aid in conveying the nuances.
Overall, their thoughtful treatment in Private Law Remedies reminds all that there is much more worth learning about remedies. I am grateful for their illuminating contribution. Their work reaffirms why we all do what we do. Time devoted to teaching, researching, and writing in the field of remedies is time well spent.
May 19, 2025 Steve GoldEnvironmental Law
In my most recent Jot, I reviewed two articles that explored “The Limits to Law(s)” – more precisely, the inability of United States environmental law to respond quickly and effectively to the global problems of PFAS contamination and plastics pollution. William Boyd’s De-Risking Environmental Law criticizes the law’s ineffectual response to toxic hazards more generally and identifies a surprising culprit. “Environmental law, it seems,” Boyd writes, “suffers from too much science and not enough law.” (P. 156.)
What we need instead, says Boyd, is “a new ethics of regulatory science . . . that recenters law in the commitment to protecting public health.” (P. 153.) This new twist to an old debate about whether ethics or science should serve as the primary justification for environmental law startles the reader. After all, science appeared to have won that debate decisively and long ago. How could any government make policy choices to protect public health or ecosystems without a thorough understanding of the medical and ecological dynamics at stake? We are so accustomed to relying on science to justify regulatory interventions it seems impossible to imagine any other way of thinking.
And that, according to Boyd, is exactly the problem.
Of course, Boyd does not oppose applying scientific knowledge to regulatory decision-making. Rather, he contends that regulators have been applying the wrong kind of science in the wrong way. His gripe is with quantitative risk assessment and the preeminent role government agencies, especially EPA, have given that methodology.
Boyd shows that across EPA, quantitative risk assessment sits like a troll athwart the bridge to regulation. The troll demands to be fed, but its appetite for “sound science” is insatiable. With the troll on guard, almost no regulatory initiative can get across the bridge to the greener pastures of risk management. So, EPA remains ever in pursuit of its statutory mandates to protect public health from toxic exposures, but rarely able to fulfill its responsibility.
How did this situation arise? Relying on an impressively broad range of sources, Boyd persuasively demonstrates that the idea of quantitative risk assessment as a necessary predicate for regulation arose in reaction to rather than in service of early agency efforts to implement the protective legislation of the 1970s. He documents a multipronged push for this idea coming from trade associations, from the “science policy establishment,” from reviewing courts, and ultimately from within EPA itself. The articulated rationale was to improve regulatory decisions by making them more “scientific,” more objectively credible, and more defensible. But the effect was to impede regulatory decisions by making them more difficult, more time-consuming, and more contestable.
A cynic could justifiably conclude that this effect was foreseen and intended by industries advocating in their own self-interest and by ideological opponents of government regulation. Indeed, part of Boyd’s purpose is to make that case. But Boyd goes further, arguing that even with the best intentions and tireless effort of agency management and staff, quantitative risk assessment is beset by “knowledge problems” (P. 204).
De-Risking Environmental Law systematically explores inherent limitations that belie the ability of quantitative risk assessment to deliver clear scientific answers on which regulators and society could rely. One problem is that in some ways the real world is too complex for a methodology that entails simplifying assumptions. Boyd highlights two of these complexities: cumulative effects of multiple and variable toxic exposures and unequal distribution of toxic burdens in conjunction with socioeconomic inequality. Another problem is that although quantitative risk assessment can speak the language of probability, it cannot cope effectively with genuine uncertainty: the lack of knowledge about what values to assign variables in risk assessment models or how to describe those variables’ relationships. Yet the study of toxic exposures and effects is rife with known unknowns, not to mention unknown unknowns. Worse, Boyd explains that trying to deal with these problems by making risk assessment models more complicated is a Sisyphean task because new uncertainties ramify with each added complication. The answer to the problems of risk assessment is not more risk assessment.
The discussion of the conceptual limits of quantitative risk assessment, alone, makes this article worth reading. But Boyd also shows that these limits have consequences. “[O]pponents of regulation can always find ways to argue for more science, more research, and more data,” (P. 229), resulting in either total inaction or nearly endless delay. He provides a breathtakingly panoptic list of examples of ensnared risk assessments or regulatory initiatives: asbestos, dioxin, trichloroethylene, formaldehyde, PFAS “forever chemicals,” organophosphate residues, the proposed Yucca Mountain nuclear waste repository, the leaded gasoline phasedown, the Hudson River Superfund remedial action, and doubtless others that I’ve overlooked. It is too simplistic, as Boyd acknowledges, to ascribe these failures entirely to quantitative risk assessment, but Boyd compellingly argues that the dominant role of quantitative risk assessment is an important part of the problem. Not in the abstract, but in the “violence embedded in” (P. 228) the power “to determine which environmental harms will be imposed on whom.” (P. 169.)
In the post hoc risk regulation of toxic tort cases, courts invoking the “sound science” mantra have for more than three decades imposed stringent proof requirements on plaintiffs, justified in part by contrast to “the preventive perspective” of regulatory agencies that imposes a “threshold of proof [that] is reasonably lower than that appropriate in tort law.” Such rulings require injured plaintiffs to bear the cost of scientific uncertainty about toxic harms. Boyd’s article calls into question the reality of that preventive perspective.
To solve this problem, Boyd sketches out a truly precautionary approach that relies much less on the illusory precision of quantitative risk assessment. He endorses “innovative uses of generic approaches built on simple hazard-based triggers” (P. 246) that would be based on broad screening for and early warning of potential toxic dangers. Such an approach, Boyd contends, would provide incentives for industry to develop less hazardous alternatives to dangerous materials and products. The approach would be justified by an ethical imperative to end or at least minimize the violence of toxic exposures.
As ever, the problem is pathway. Boyd acknowledges that the prominence of quantitative risk assessment seems over-determined. The root causes he identifies – industry influence and manipulation, political backlash, activist judicial intervention and constraint – have intensified, not diminished, since the dominant position of quantitative risk assessment became entrenched. These forces seem poised not only to block the development of a new paradigm, but to immobilize any ethics-based regulatory approach that might develop, just as they immobilized the risk-based approach.
The evident priorities of the current Administration amplify the concern. There is good reason to worry that EPA is losing both the will and the ability even to continue along the path it has been pursuing. At a time when both science and law are taking major hits, thinking about how to improve their relationship may seem beside the point.
Yet even from a defensive crouch hoping to maintain what has been, it is necessary to imagine what could be. William Boyd’s De-Risking Environmental Law is a valuable contribution to a growing literature that identifies the ways environmental regulation has failed, names the reasons for those failures, and gropes toward a proactive, protective, precautionary future.
May 7, 2025 Ezra RosserPoverty Law
Uma Outka,
Energy Law and the Low-Income Household, 54
Envtl. L. 720 __ (forthcoming 2025), available at
SSRN (Jul. 01, 2024).
Uma Outka’s article, Energy Law and the Low-Income Household (forthcoming in Environmental Law), convincingly argues that the affordability challenges related to energy facing poor households should not be treated as external to the field of energy law. As Professor Outka shows, it is tempting to treat the problems faced by low-income households—high energy cost burdens, poor insulation, and vulnerability to service cutoffs—as exogenous to energy law. By sidelining such concerns as matters of poverty law, those within the energy sector, as well as academics working within energy law, can ignore the precariousness of low-income households and neglect the need for innovation and support within the field. Professor Outka succeeds in contributing to the conversation in both the energy law and poverty law spaces by presenting an in-depth history of the principal government program, the Low-Income Home Energy Assistance Program (LIHEAP), supporting the needs of low-income households, and by carefully connecting the poverty and energy law fields.
The article begins with a rich history of the LIHEAP program and then expands slightly to include the Low-Income Weatherization Assistance Program (WAP). This history will be new to many in the poverty law field since energy policy, even programs that help low-income households, is beyond the scope of most work in the field. Yet, as Professor Outka notes, access to reliable energy is often crucial for basic survival in summer or in winter. Inability to pay can leave poor households extremely vulnerable to loss of service. Even when such households can pay their energy bills—Professor Outka highlights research showing that need for money to pay utilities is the number one reason low-income households turn to payday lending—high energy costs relative to income can threaten such households’ other basic needs. The history that Professor Outka includes is presented at just the right level of detail; readers come away understanding how the LIHEAP and WAP programs work as well as the politics shaping their creation and evolution.
One of the norms of legal scholarship that can be frustrating is that it is not enough to give a good history. Though a complete description of an area of study—and Professor Outka’s article has that, the footnotes offer a great leaping off point for anyone interested in delving deeper into the political currents of these programs—would be enough in many fields, in legal scholarship the expectation is that articles will be both positive and normative. Fortunately, Professor Outka’s article delivers here too, on top of her comprehensive coverage of programs that support low-income households, the prescription she advocates for, the incorporation of the energy needs of the poor into energy law.
Just as some law-and-economics scholars have strived to define the problems of poverty as outside the bounds of ordinary legal debate, as matters that should be dealt with solely through tax-and-transfer programs, so too it is common, according to Professor Outka, for energy law works to push aside affordability concerns by declaring them matters of “poverty law.” This all-too-easy out, Professor Outka argues, is neither fair nor appropriate for the energy field. The article ends with examples highlighting ways in which deliberately incorporating the concerns and needs of low-income households into energy policy can lead to better outcomes and make the benefits of energy more secure to all households.
Professor Outka’s primary goal is to bring the needs of low-income households, and the programs that serve them, out from the cold by showing how they are fundamental to the larger energy law field. The article succeeds in that goal, but it also does the inverse, showing poverty law scholars the importance of not neglecting these programs and of elevating the place that energy policy has in our understanding of the challenges facing low-income households.
Cite as: Ezra Rosser,
Bringing Everyone, Including the Poor, in Energy Law and Policy, JOTWELL
(May 7, 2025) (reviewing Uma Outka,
Energy Law and the Low-Income Household, 54
Envtl. L. 720 __ (forthcoming 2025), available at SSRN (Jul. 01, 2024)),
https://lex.jotwell.com/bringing-everyone-including-the-poor-in-energy-law-and-policy/.
Apr 17, 2025 Rachel RosenbloomImmigration
With the Trump Administration threatening to carry out a wave of mass deportations, understanding the history of federal attempts to secure state and local cooperation in immigration enforcement feels more urgent than ever. Immigration law scholars have devoted considerable attention in recent years to the federal government’s deepening cooperation with state, county, and local law enforcement agencies, part of a growing focus within immigration law scholarship on the intersection of immigration law and criminal law (or “crimmigration law”). In large part, the story that legal scholars have told centers on the past three decades, a period in which both immigration detention and federal-state cooperation have dramatically expanded.
A new book from historian Brianna Nofil, The Migrant’s Jail: An American History of Mass Incarceration, makes a persuasive case for understanding such cooperation along a much longer timeline. Centering on the county jail, the book tells “a national story about local institutions” (P. 14), one that offers new insights into the dynamics of immigration federalism and the symbiotic relationship between the criminal legal system and the ostensibly civil regime of immigration law.
The Migrant’s Jail begins its story in 1903 in the Franklin County Jail in upstate New York, a 6-cell facility condemned as unsafe for use as a jail but used, regardless of its dangerous conditions, for holding Chinese migrants apprehended on the U.S.-Canada border. Most scholarship on immigration enforcement in the Chinese Exclusion era has focused on the Pacific coast, but Nofil offers a striking statistic: three-quarters of the Chinese migrants detained at the turn of the twentieth century were apprehended east of Ohio. Local jails in small towns like Malone, New York, played a central role in the machinery of Chinese exclusion, Nofil argues, and in the process, brought federal dollars into local economies. The sheriff in Malone, for example, could make a year’s salary in a single month by engaging in the “business” of detaining migrants.
This revenue stream is just one of the themes in Nofil’s account that will resonate with observers of contemporary immigration detention. Others include the government’s practice of moving detainees from one location to another to manipulate which court they ended up in; the government’s use of prosecutorial discretion to manage budgetary constraints and to defuse criticism when sympathetic cases garnered media attention; and the difficulties that detainees faced in accessing legal representation in remote locations.
From this starting point, The Migrant’s Jail traces the shifting geographies and institutional structures of migrant incarceration across the span of the twentieth century. By the 1920s, county jails held increasing numbers of Canadian and European migrants, including women and children. Local communities showed few qualms about subjecting racialized others to substandard conditions, but the specter of white women and children in such facilities prompted calls for reform. These debates played a substantial role, Nofil shows, in the establishment of the federal Bureau of Prisons in 1930.
The county jail temporarily recedes to the periphery in the middle chapters of The Migrant’s Jail, as the book turns to the expansion of federal facilities in the 1930s and ‘40s, the unprecedented scale of the detention of Japanese nationals as “enemy aliens” during World War II, the detention of suspected subversives at federal facilities such as Ellis Island in the postwar years, and the supposed decline of immigration detention with the passage of the McCarren-Walter Act in 1952. Nofil argues, however, that detention was far from over, and that “the immigration service never fully broke its bond with local jails.” (P. 85.) At the same time that the government was shutting down Ellis Island and beginning to release many European migrants on bond, it was also launching “Operation Wetback,” a massive enforcement campaign against Mexican migrants in the Southwest that depended on hundreds of county jails as well as newly constructed federal facilities.
The expansion of federal facilities in the Southwest, Nofil argues, “signaled that the federal government was ready to make serious investments in a permanent system of migrant incarceration.” (P. 117.) The Migrant’s Jail traces both the growth of these investments and the continuing salience of the county jail through the latter half of the twentieth century and into the twenty-first. Against the backdrop of the expansion of federal facilities and the advent of private prisons, Nofil’s focus remains on local cooperation and the flexibility that it offered the federal government.
Across these various contexts, Nofil documents the ways in which jails have long functioned as a “space that produced and confirmed racial difference.” (P. 30.) Detention, Nofil argues, has been most politically popular when it has targeted “people deemed racially unassimilable or unfit for citizenship – people whom many Americans imagined might belong in jail.” (P. 10.) In seeking local cooperation, the federal government has relied not only on offering financial incentives but also on promoting the idea of “unauthorized migration as an existential, racialized threat that demanded the assistance and resources of localities.” (P. 6.)
The Migrant’s Jail also shows, however, that this racialized, carceral logic has not gone uncontested. Drawing on an impressive range of sources, Nofil paints a vivid picture not only of the suffering and isolation that migrants experienced in custody, but also of the many acts of resistance, both large and small, that took place. County jails were “sites of coercion and neglect” but also “sites where migrants lodged legal claims, plotted escapes, organized with aid groups, and fought for the right to stay in the United States.” (P. 2.) Residents of cities and towns across the country have spoken out against contracts with federal immigration authorities and against federal detention facilities being situated in their communities. Immigrants’ rights groups have organized to protect detainees and have pursued sophisticated litigation strategies.
In telling this story, The Migrant’s Jail argues for a reconceptualization of the relationship between immigration enforcement and the criminal legal system. Crimmigration law scholars have written extensively about the importation of criminal law norms into the ostensibly civil realm of immigration law. Nofil argues that ideas traveled in both directions: “[I] immigration enforcement did not merely borrow the infrastructure, legal precedents, and practices of late twentieth-century criminal punishment. Instead, in countless small towns, suburbs, and cities, migrant incarceration activity expanded the power and capacity of local, state, and federal governments to imprison.” (P. 4.) Throughout the book, Nofil documents the emergence of an “interconnected carceral state.”
The Migrant’s Jail also offers a new perspective on immigration federalism. It is widely recognized that the power to restrict immigration shifted from state and local authorities to the federal government in the wake of the Civil War, and some have viewed recent attempts by states to reclaim some of this power as an attempt to turn back the clock. Nofil argues, however, that the post-Civil War shift was not as clear cut as it has been made out to be and that the detention of migrants in county jails in the early twentieth century returned some of the power to local communities, in ways that worked both for and against the interests of migrants: “Reliance on localities enabled unprecedented, large-scale deportations in some moments and incapacitated the immigration service in others.” (P. 13.)
The Migrant’s Jail is a welcome addition to recent scholarship on the history of immigration detention by scholars such as Kelly Lytle Hernández, Kristina Shull, Elliott Young, Jessica Ordaz, Ana Raquel Minian, and Carl Lindskoog. This growing body of work offers crucial insights that should inform the work of crimmigration law scholars.
