Mar 19, 2025 Ann E. TweedyEquality
In Flattening Breast Cancer by Removing the Breasts: Protecting a Woman’s Right to Choose Reconstruction of an Aesthetic Flat Chest After a Mastectomy, Amelia Landenberger centers the experiences of women who carry a genetic predisposition for breast cancer (namely the BRCA1 gene). The article argues that these women should have the option of aesthetic flat chest reconstruction, along with other breast reconstruction options. To vindicate this option as a legal right, Landenberger argues for a broad interpretation of the Women’s Health and Cancer Rights Act of 1998 (WHCRA). The WHCRA is an under-researched federal statute that prevents insurance companies from denying coverage for breast reconstruction after mastectomies. Landenberger maintains it should be read to require coverage for aesthetic flat chest reconstruction when preferred by a patient. Landeberger’s article contributes to the sphere of equality scholarship by centering the experiences of a little-understood group—those who carry the BRAC1 gene—and by bringing to light a little-understood problem, namely difficulty accessing aesthetic flat chest reconstruction.
Landenberger’s article is illuminating in several important respects. First, Landenberger centers the experiences of high-risk women, who are termed “previvors,” for a practical reason, namely because, when they choose mastectomies as a preventative measure, such women have a full-range of options available for reconstruction (whereas the reconstruction options of some breast cancer patients may be more limited). (Pp. 1201-02.) Nonetheless, this approach is a powerful one. Landenberger explains the astronomical risks that these previvors have of becoming afflicted with breast cancer—a 55% to 72% chance, and she further describes the liminal space that such women occupy—the space between sickness and wellness. She also relates that, for many such women, breast cancer is “not merely a hypothetical future,” but it is also “a part of their past,” as many have lost mothers, grandmothers, and/or aunts to breast cancer. (P. 1204.) Continue reading "Supporting the Full Suite of Reconstruction Options Under the Women’s Health and Cancer Rights Act of 1998"
Mar 18, 2025 Aila HossLexNative Peoples Law
Nothing ruins my appetite for research and commentary on elections and politicians more than a presidential election. Civic duty and guilt keep me engaged, albeit begrudgingly. So, when my initial intrigue in picking up Professor Elizabeth Reese’s recent article, Tribal Representation, and Assimilative Colonialism, turned into captivation, I knew this piece was something I had to share.
Tribes have been exercising their authority as sovereign nations since time immemorial. Tribal sovereignty is an inherent authority that originates from a social contract between a government and its citizens. It predates the United States and colonial governments. Although colonization and genocide diminished Indigenous populations and impeded Tribal governments, Tribes persisted. Today, Tribes occupy a unique status in the United States. They maintain their nationhood while being part of the American family of governments—federal, state, local, and territorial. Continue reading "Tribal Representation in American Democracy"
Mar 17, 2025 Carole SilverLegal Profession
International students have been a significant presence on U.S. campuses and in U.S. law schools for decades. They have accounted for 5% or more of overall enrollment in U.S. higher education each year since 2015 (with the exception of the 1st year of the pandemic) and 3% or more since 1992. While trends in the law school context are difficult to discern (more about this below), it is clear that international students have been an important element in U.S. legal education since at least the late-1990s, when schools began to increase the number and size of degree programs aimed at international students. Between 2012 and 2021, for example, nearly 60,000 unique individuals obtained a visa to study in an ABA-approved law school. It is not clear what impact the second Trump administration will have on this dynamic, particularly because of visa delays and uncertainty about OPT, but the rhetoric against international individuals in the first Trump administration did not substantially dampen mobility into the U.S. for law school until the pandemic.
While law schools and universities have grown reliant on the contributions of international students to the intellectual life of their institutions, to their financial well-being and to their global reputations, there is very little understanding of the identities and experiences of these students, including where they’re from, who pays for their education, their bar exam aspirations (much less results) and even the number of international students studying in particular law schools.
Kathryn Hendley and Alexander Straka aim to shed light on these issues in their new article, International Students from the Perspective of U.S. Law Schools. The article analyzes data they collected from 81 law schools during the spring of 2019 (that is, just as law schools and universities were shifting to online classes because of COVID) by surveying the administrators managing international students. (P. 61.) Their focus is on international students enrolled in LLM and other non-JD degree programs as well as non-degree students such as visitors. (P. 68.) The LLM remains the degree program that attracts the largest share of international students. Hendley and Straka found that “[w]ell over half [of the responding law schools] told us that…[LLM programs] accounted for 80 percent or more of their foreign students.” Continue reading "Who’s Here? How U.S. Law Schools Understand Their International Students"
Mar 14, 2025 Lisa Larrimore OuelletteIntellectual Property Law
Doni Bloomfield,
Intellectual Antiproperty: Export Controls and the Transformation of IP (Jan. 13, 2025), available at
SSRN.
Intellectual property laws are government policies to encourage the creation and dissemination of information. But there are also laws allowing the U.S. government to suppress IP-protected technical knowledge, and Doni Bloomfield’s insightful article argues that IP scholars should pay more attention to these forms of “intellectual antiproperty.” Just as intellectual property laws allow innovators to capture some positive externalities of their efforts, Bloomfield argues that intellectual antiproperty laws address some of the negative externalities—at least as they relate to national security. And with increasing global competition between the U.S. and Chinese governments, these laws are likely to grow in importance.
Bloomfield focuses on two legal channels of information suppression, which cover information protected under trade secret law and patent law. First, U.S. export-control laws allow the State and Commerce Departments to restrict transfers of thousands of categories of proprietary U.S. technologies. For example, these agencies can bar a U.S. firm from sharing covered information with non-U.S. employees within the United States. The U.S. government has even claimed authority over extraterritorial sales involving U.S. know-how, such as fining an Irish firm for selling disk drives to China. Second, the Invention Secrecy Act allows the U.S. Patent and Trademark Office to impose secrecy orders on patent applications that pose a national-security risk, including to restrict use to classified contexts or to bar disclosure altogether. Continue reading "Government Suppression of IP"
Mar 13, 2025 Mark KendeConstitutional Law
Ran Hirschl,
Comparative Constitutional Law: Reflections on a Field Transformed in
Redefining Comparative Constitutional Law: Essays for Mark Tushnet (Madhav Khosla & Vicki C. Jackson eds.,2024), available at
SSRN (Jan. 15, 2024).
“Retired” Harvard Law professor Mark Tushnet is legendary for the quality and quantity of his scholarship. Earlier in his career, he was a founder of the revolutionary Critical Legal Studies movement. Then in the 1990’s, he became a pioneer, reinvigorating the field of comparative constitutional law. This important book contains numerous chapters related to Tushnet’s legacy. Although the whole book is worthwhile, I want to give special attention to law and political science professor Ran Hirschl’s spectacular chapter on Tushnet and the evolving field of comparative constitutional law, Comparative Constitutional Law: Reflections on a Field Transformed.
Hirschl initially mentions some of Tushnet’s books and articles on comparative constitutional law. One of Tushnet’s key books is Advanced Introduction to Comparative Constitutional Law. His 1999 Yale Law Journal article on the possibilities of comparative constitutional law, evaluating the different ways in which “comparing constitutional experience elsewhere,” if undertaken in a “cautious and careful” manner, might allow one to “sometimes gain insights into the appropriate interpretation of the U.S. Constitution,” was noteworthy both for its bravura intellectual style—the section on bricolage was especially interesting—and for its critical examination of future directions for the field. Continue reading "Mark Tushnet, Comparativism, and Global South Third Generation Human Rights"
Mar 12, 2025 Michael GreenJurisprudence
There is renewed interest in the categorization of fundamental legal relations offered by Wesley Newcomb Hohfeld. McBride’s article is about the two problem children among the Hohfeldian relations—the liberty and, especially, the no-claim. Although his article is technical, it has significant consequences concerning our understanding of the nature of permissions (legal and moral).
Before introducing his argument—and the fascinating larger debate within which it is situated—a Hohfeldian primer is needed. Here is the Hohfeldian table of legal relations with the disambiguating terms that many Hohfeld scholars now use in brackets: Continue reading "No-Claims"
Mar 11, 2025 Mathilde CohenInternational & Comparative Law
Do you teach comparative law? If so, rejoice—your job just got a lot easier and more engaging with the publication of Comparative Law: Introduction to a Critical Practice by Fernanda Nicola and Günter Frankenberg. And if you don’t teach it, here’s a perfect excuse to dive into comparative legal studies: this textbook covers a broad range of topics, from property and administrative law to contracts, torts, and family law.
What sets it apart is its bold, critical approach to traditional comparative methodologies. It doesn’t just compare legal systems; it challenges the very assumptions, biases, and power structures embedded in legal comparison. The volume critiques comparative law as a discipline while also celebrating its richness, presenting its histories, internal debates, and evolution through a multi-disciplinary lens that draws on anthropology, feminist theory, political science, postcolonial theory, and sociology. Continue reading "A Critical Critique of Comparative Law"
Mar 10, 2025 Myrisha LewisHealth Law
Professor Alice Abrokwa’s article, Too Stubborn to Care for: The Impacts of Discrimination on Patient Noncompliance, focuses on a rarely acknowledged source of bias in the healthcare system: medical records. Although this bias may not be easily visible to the public, medical records can significantly impact the medical care that individuals receive, as well as eligibility for government benefits and the size of medical malpractice awards.
Professor Abrokwa begins her article by concisely telling the history of Elijah McClain’s interactions with law enforcement and emergency medical personnel, where he was labeled a “non-compliant person” during the interactions that eventually led to his death. As part of this story, she provides a quote from the City of Aurora’s investigative reportand recommendations in the aftermath of Elijah McLain’s death: “[I]mplicit biases can lead medical professionals to perceive Black patients as noncompliant and more resistant to pain, which can impact decisions regarding care to the detriment of Black Patients.” From there, she briefly outlines other instances where the labeling of patients in healthcare settings as “noncompliant” had significant detrimental impacts on their healthcare. Continue reading "The Overlooked Harms of Inaccurate and Biased Medical Records"
Mar 7, 2025 Linda C. McClainFamily Law
In 1973, before the Supreme Court decided Roe v. Wade, two members of a group of clergy committed to helping women receive abortion care stated: “every woman must possess the freedom, guaranteed by the U.S. Constitution, to follow her religious conscience in the determination of whether she will or will not bear a child.” Religious supporters of abortion access also cited the Establishment Clause: states were adopting, in a religiously diverse nation, a religious view about when life begins and how to value fetal and maternal life. These pre-Roe examples, Elizabeth Sepper argues in Free Exercise of Abortion, are part of a long history of recognizing the religious dimensions of abortion decisions. A significant post-Roe example is the initial success, in federal district court, of a free exercise challenge to the Hyde Amendment, which excluded most abortions from Medicaid coverage while funding all other pregnancy-related expenses. After hearing extensive testimony by religious authorities about religious teachings on abortion, Judge Dooling framed a woman’s abortion decision, when “medically necessary to her health” and exercised “in conformity with religious belief and teaching,” as “conscientious,” and doubly protected under the Due Process Clause and the First Amendment. However, the U.S. Supreme Court, in upholding the Hyde Amendment in Harris v. MacRae, avoided reaching the Free Exercise argument and rejected plaintiffs’ Establishment Clause argument.
Despite this history, Sepper argues that in popular representation and in the political arena, religion and abortion are typically viewed in stark opposition, with “the religious position on abortion” assumed to be “pro-life” or “anti-choice.” (P. 179.) However, since the Supreme Court’s 2022 decision in Dobbs v. Jackson’s Women’s Health Organization returned the issue of abortion to “the people and their elected representatives,” appeals to conscience and religion to challenge abortion bans have become more visible. These claims about religious liberty, “for the first time in many decades,” center women “as the relevant religious and moral agents” and “make visible what we once knew and were made to forget”: “that we undertake religious decisions—to have children, form a family, and end a pregnancy—consistent with conscience and religious faith.” (P. 180.) Continue reading "Reclaiming Abortion as a Moral—and Religious—Decision"
Mar 6, 2025 Jedidiah KronckeLegal History
Inherent in historical work is recovering aspects of the past lost to contemporary awareness. In her new book, Arbitrating Empire: United States Expansion and the Transformation of International Law, Allison Powers recovers one such aspect that has been more than passively forgotten—it was actively erased. Her target is a series of state-to-state arbitral claims commissions central to American international law during the country’s rise as a global power. Here Arbitrating Empire revises understandings of early international arbitration as an instrument of “civilized” non-violent dispute resolution by exposing its function as a legal technology of imperial power. Powers’s intervention is a powerful and persuasive addition to the rapidly expanding literature on the evolution of the legal forms used to project American power abroad while denying accountability for its violence. The initial history of American international arbitration, she shows, was governed by the imperative “to secure territory, wealth, and political power across the globe while disavowing charges of colonial aggression.” (P. 7.)
Arbitrating Empire centers on five different claims commissions from 1870-1930 tasked with resolving thousands of claims for damages incident to U.S. imperial expansion. In seven well-ordered, richly detailed chapters, Powers examines claims stemming from the Mexican-American War, the U.S. bombardment of Samoa, the Spanish-American War, land expropriations in the Panama Canal Zone, and the Mexican Revolution. Continue reading "Recovering an Erased Era of Early American Imperial Legal Experimentation"
