What Legal Scholars Are Writing About: 2021 Edition

2021 has been another whirlwind year — with a lot for legal scholars to unpack.

In the midst of the COVID-19 pandemic, countless pressing global issues are being magnified, from systemic racism to climate change to the housing crisis to labor shortages, just to name a few.

With so much to cover, are you wondering what topics legal scholars have been focusing on?

At Scholastica, we were curious. So we dug into our law review data (anonymized and aggregated) to take a look at some of the most popular keywords added to article submissions.

In this blog post, we’re highlighting 25 of the keywords most used during the 2021 law review submission season that stuck out as particularly timely and noteworthy. This list is not a ranking of any kind. It is simply intended to provide a window into what legal scholars have been writing about this year. The keywords appear in no apparent order.

25 of the most-used keywords this submission season

As noted above, this is not a ranked list of any kind and the keywords are in no apparent order.

COVID-19 pandemic
Human rights
Climate change
First amendment
Civil rights
Gender
Race
Policing
Immigration
Access to justice
Employment
Artificial intelligence
Corporate governance
Antitrust
Regulation
Privacy
Surveillance
Social media
Criminal procedure
Free speech
Separation of powers
Legal history
National security
China
Housing

Connections in the recent literature

It’s no surprise that many connections can be drawn between the keywords above and law review articles published this year. Among related themes in the recent legal literature include:

Human rights and the environment

2021 saw some of the most massive climate disasters in human history, including catastrophic floods in Germany and China, an unprecedented heatwave in the Pacific Northwest, and a devastating drought in the Western US that signals environmental crises more rapidly encroaching on water and food supplies. In what the UN has declared the “Decade of Action”, it’s apparent that time is running out to reverse the effects of climate change. Against this backdrop, legal scholars have been laying the groundwork for environmental human rights.

In “The Case for Environmental Human Rights: Recognition, Implementation, and Outcomes”, published in Cardozo Law Review, Distinguished Professor, Founder of the Global Environmental Rights Institute, and Co-Founder of the Dignity Rights Project and Environmental Rights Institute at Widener University Delaware Law School, James R. May, considers a healthy environment as a human right. May assesses the current state of environmental human rights in law, challenges to more widespread recognition, and the relationship between environmental human rights and climate reform.

Jennifer Huang, Associate Director for International Strategies at the Center for Climate and Energy Solutions, details examples of adoption of economy-wide or cross-sectoral formal climate legislation in “Exploring Climate Framework Laws and The Future of Climate Action”, published in Pace Environmental Law Review. The article focuses on case studies from The United Kingdom, Mexico, New Zealand, and Denmark exploring the implications for climate litigation now and in the future.

Articles have also come out analyzing underlying consequences of the climate crisis, such as threats to the supply and quality of traditional foods as a matter of cultural preservation. Steph Tai, Professor at University of Wisconsin Law School explores this topic in the Georgetown Environmental Law Review article, “In Fairness to Future Generations of Eaters”.

Substantial work is also happening in the area of environmental racism and how to elevate the voices of marginalized groups. In “Environmental Racism: Using Environmental Planning to Lift People Out of Poverty, and Re-shape the Effects of Climate Change & Pollution in Communities of Color” published in Fordham Environmental Law Review, William C.C. Kemp-Neal, Assistant District Attorney and recent Fordham Law School graduate, makes a case for incorporating environmental justice concepts into national policy. He also argues the need for “a right of action for private actors” and federal preclearance criteria that prevent the concentration of environmentally-damaging initiatives in low-income neighborhoods, which could enable minority groups to stand up against bad actors and help prevent destructive projects.

Vaccine mandates

Of course, COVID-19 has been a hot-button issue in legal scholarship, with recent articles turning to the constitutionality of vaccine mandates and ways to increase transparency and trust in vaccine development to encourage uptake.

In “To Force or Not To Force: Analyzing The Implications of the Executive Employer Vaccine Mandate”, published in Houston Law Review, Farhan I. Mohiuddin and Hina I. Mohiuddin, both J.D./M.B.A./LL.M in Health Law Candidates at the University of Houston Law Center, explore the legal, economic, and societal implications of vaccine mandates. They conclude that legal arguments against state and employer vaccine requirements will face significant challenges in court, with precedents for such mandates dating back to the 1800s during the smallpox outbreak.

Pamela Abbate-Dattilo, Employment Attorney and Business Litigator at Fredrikson & Byron, evaluates school vaccine laws as a model for employer vaccine mandate legislation in “Navigating the Legal Challenges of COVID-19 Vaccine Policies in Private Employment: School Vaccination Laws Provide a Roadmap”. The article was published in Mitchell Hamline Law Review.

Others are exploring vaccine distribution equity, such as in the SMU Science and Technology Law Review article “COVID-19: Legal Framework for Vaccine Distributions and Mandates”. The article, authored by Dana B. Taschner, Professor at the University of California School of Law at Berkeley, and Ashley Atwood, 2022 SMU Dedman School of Law J.D. candidate, analyzes the vaccination distribution system and legal complexities surrounding mandatory vaccinations, vaccine passports, and regulations for unvaccinated individuals with particular attention to the homeless population.

In addition to analyzing vaccine distribution frameworks, legal scholars are also considering trust and transparency in clinical trials. In “Vaccine Clinical Trials and Data Infrastructure”, an essay published in the Utah Law Review, Ana Santos Rutschman, Assistant Professor of Law at Saint Louis University School of Law, focuses on the role of data collection. Rutschman overviews COVID-19 vaccine data collection issues — with an emphasis on under-representation of minority populations — as well as delayed clinical trial reporting and data sharing restrictions, all of which affect public trust in vaccine development processes. The article concludes with recommendations to improve the existing clinical trial data infrastructure to combat misinformation and increase public trust in vaccines.

Alternatives to policing

The police killing of George Floyd in May 2020 sparked outrage around the world, bringing the pressing need for police reform to the fore. Despite declarations from police and government officials that Floyd’s death marked a turning point in policing, the rate of police killings in the US remains unchanged as compared to the last five years, with a marked increase in fatal police shootings.

Mounting calls for policing reform and defunding police to reallocate resources to other government agencies have been focus areas in the legal literature. In “Investing in Alternatives: Three Logics of Criminal System Replacement” published in UC Irvine Law Review Monica C. Bell, Associate Professor of Law and Sociology at Yale Law School, Katherine Beckett, S. Frank Miyamoto Professor of Sociology at the University of Washington, and Forrest Stuart, Associate Professor of Sociology at Stanford University consider defunding options. The article argues that investments in social welfare, safety production, and racial reparation could help guide decisions about the reallocation of policing resources.

“Traffic Without the Police”, an article in the Stanford Law Review by Jordan Blair Woods, Associate Professor of Law and Faculty Director of the Richard B. Atkinson LGBTQ Law and Policy Program at the University of Arkansas School of Law, brings a critical lens to traffic enforcement. Woods identifies traffic stops as a source of racial and economic injustice and argues the need for alternatives to traffic enforcement by the police outlining a new legal framework that separates traffic enforcement from policing.

In “Disaggregating the Policing Function”, published in the University of Pennsylvania Law Review, Barry Friedman, Jacob D. Fuchsberg, Professor of Law, Affiliated Professor of Politics, and Director of the Policing Project at New York University School of Law, argues the need for a fundamental rethinking of the function of police. Friedman argues that current means of combating police brutality and violence via “harm regulation” tools such as civil rights suits, prosecution of police officers, and elimination of qualified immunity are insufficient. The article identifies harm as innate to policing practices rather than collateral to it. It calls for a new system of “generalist first responders” to replace much of present-day policing.

Harold McDougall, professor of law at Howard University, has been examining social justice movements and police reform from a multidisciplinary lens throughout his career. His latest article, “Think Nationally, Act Locally: Cities and the Struggle for Social Justice,” to be published in the San Diego Law Review explores ways to progress civil rights causes at the local level. McDougall also recently outlined recommendations for holistic police reform directed at the community level in his article “Police Reform and Community Service” published in the National Lawyers Guild Review.

Immigration detention

Following the Trump administration’s pointed efforts to restrict immigration to the US, with Trump signing more than 400 executive actions on immigration with impacts on border and interior enforcement, refugee resettlement, the asylum system, and more, immigrant rights have become a greater source of concern worldwide. Legal scholars have been unraveling the consequences of current US immigration laws and detainment practices.

In “When Cruelty Is the Point: Family Separation as Unconstitutional Torture” published in Harvard Civil Rights-Civil Liberties Law Review, Jenny-Brooke Condon, Professor at Seton Hall Law School, argues separation of migrant children from their parents under the Trump Administration “zero tolerance” policy to deter migration is an abuse of power not only because it violates parents’ due process right to family unity as concluded by a district court in June 2018, but also because the administration knowingly inflicted and intended for families to “suffer grievous harm.”

Jaclyn Kelley-Widmer, Associate Clinical Professor at Cornell Law School, examines how the Trump administration quietly increased barriers to US immigration in “Unseen Policies: Trump’s Little-Known Immigration Rules as Executive Power Grab.”. The article, published in Georgetown Immigration Law Journal, uncovers how, amid news coverage of improper treatment of immigrants, the administration introduced “unseen” policies and strategic precedents to tighten regulations.

Legal scholars have also been examining the relationship between immigration and the prison-industrial complex. In “Immigration Detention As An Obstacle To Decarceration,” published in San Diego Law Review, Pedro Gerson, Assistant Professor at California Western School of Law, argues immigration detention directly hinders and inhibits criminal reform.

Artificial intelligence and the justice gap

Alongside and intertwined with environmental and social justice issues has been the rise of Artificial Intelligence and its many known and unforeseen consequences. Legal scholars are charting new territory around the ethics of AI use as in “How Can I Tell if My Algorithm Was Reasonable? “. In the article published in Michigan Technology Law Review, Karni A. Chagal-Feferkorn, Fellow and Law Faculty at the Haifa Center for Law & Technology and Scotiabank Postdoctoral Fellow at the AI + Society Initiative at the University of Ottawa and the University of Ottawa Centre for Law, Technology and Society, considers standards of negligence for self-learning algorithms.

Others have been making the case for AI regulations as in “AI ethical bias: a case for AI vigilantism (AIlantism) in shaping the regulation of AI” published in the International Journal of Law and Information Technology. The article by Ifeoma Elizabeth Nwafor, Co-Founder and Chief Product Officer at Decybr Inc, points to the deficiencies of AI technology regarding visible minorities, women, youth, seniors, and indigenous people. Nwafor argues current ethical guidelines and recommendations for AI are inadequate because they are non-binding and that government regulations are needed.

“The Middle Ground: A Meaningful Balance Between the Benefits and Limitations of Artificial Intelligence to Assist with the Justice Gap,” published in University of Miami Law Review considers the pros and cons of AI in relation to increasing access to justice. The article by Katherine L. W. Norton, Assistant Professor and Director of Clinical and International Programs at Duquesne University School of Law, explores challenges and opportunities across the current spectrum of available AI legal tools and argues further development of such tools is necessary to advance efforts to close justice gaps for those who cannot afford an attorney in civil legal matters.

Timely submission topic takeaways

A theme that stands out in the most-used law review submission keywords of 2021 is timeliness. Authors are digging into legal issues as they relate to current events and exploring new frontiers like alternatives to policing and the future of AI. This blog post highlights just a sampling of the numerous critical topics explored and path-breaking articles published this year.

What other research topic areas and articles stand out to you from the past submission season? We’d love to hear your thoughts in the comments section.

What Legal Scholars Are Writing About: 2021 Edition

25 of the most-used keywords this submission season