It’s that time again — we’re ready for another Scholastica Wrapped! Or at least that’s what one law review editor coined our annual “what legal scholars are writing about” blog post, in which we look back at the topics that pervaded legal scholarship and discourse throughout the year. (Team Scholastica appreciates the comparison to Spotify Wrapped!)
Below, we highlight the 25 most-used keywords for articles accepted via Scholastica in 2023 (January 1st to present) and some notable new and forthcoming pieces related to those topics. You can check out our past “what legal scholars are writing about” roundups from 2021 here and 2022 here.
As noted in all previous editions, this list is not a ranking of any kind. It’s simply intended to provide a window into trending topics in legal scholarship this year.
As noted above, this is not a ranked list. The keywords are alphabetized.
- Administrative law
- Artificial intelligence
- Civil rights
- Climate change
- Constitutional law
- Corporate governance
- Corporate law
- Criminal law
- Criminal procedure
- Environmental law
- First amendment
- Human rights
- Intellectual property
- International law
- Supreme Court
Looking at the 25 most-used keywords for articles accepted via Scholastica in 2023, we see some notable shifts from last year that correspond with current events. For example, “COVID-19” dropped off the list, likely due to the worst of the pandemic subsiding. While the keyword “supreme court” made a new appearance, likely in response to recent decisions regarding affirmative action, religion, free speech, and gay rights, among other critical issues.
Below are just a handful of examples of themes in recent legal literature that correlate with the most-used keywords for articles accepted via Scholastica in 2023.
We’re starting off with a keyword that was also one of the buzziest terms of 2023 — artificial intelligence (AI) — and two keywords that frequently accompanied it in legal scholarship articles, “intellectual property” and “copyright.” We saw articles on all three of these topics permeate the literature this year, including the below highlights:
- Disrupting Creativity: Copyright Law in the Age of Generative Artificial Intelligence (by Ryan Abbott and Elizabeth Rothman, forthcoming in Florida Law Review): The authors of the article argue U.S. copyright law to protect AI-generated works will “promote transparency, efficient allocations of rights, and even counterintuitively protect human authors.”
- Tools Do Not Create: Human Authorship in the Use of Generative Artificial Intelligence (by Michael D. Murray, forthcoming in Case Western Reserve Journal of Law, Technology & the Internet): Taking an opposing stance on copyright laws to recognize AI-generated content, Murray argues “there may come a day, perhaps this year or next, when an AI system reaches what has been labeled as the point of singularity and becomes a true artificial general intelligence entity with agency and the ability to act autonomously on its own initiative and motivation. […] And that AI will be the author of those works. But for now, humans using AI tools are the authors of the works they create.”
- Copyright Regenerated: Harnessing GenAI to Measure Originality and Copyright Scope (by Uri Y. Hacohen and Niva Elkin-Koren, forthcoming in Harvard Journal of Law & Technology): Speaking to arguments for and against recognizing AI-generated works in copyright disputes, the authors of this article offer “a novel approach for measuring originality to assist in copyright legal disputes [by…] employing data-driven bi-as—a fundamental aspect of inductive machine learning—to assess the genericity of expressive compositions in preexisting works.”
- Algorithmic Disgorgement: Destruction of Artificial Intelligence Models as the FTC’s Newest Enforcement Tool for Bad Data (by Joshua A. Goland, Richmond Journal of Law and Technology): The author “discusses recent enforcement actions brought by the FTC that utilized algorithmic disgorgement, analyzes the legality of the FTC’s authority to order destruction of computer data models and algorithms, […] and proposes some possible alternatives to and restraints on the FTC’s use of algorithmic destruction orders.”
- ChatGPT and Works Scholarly: Best Practices and Legal Pitfalls in Writing with AI (by Bill Tomlinson, Andrew W. Torrance, and Rebecca Black, forthcoming in SMU Law Review Forum): the authors “present a perspective on how scholars may approach writing in conjunction with AI, and offer […] a set of best practices for standard of care with regard to plagiarism, copyright, and fair use.” This one is likely to be of interest to all legal scholars!
As in previous years, environmental law and climate change were among the most widely discussed pressing topics, with articles on issues ranging from “environmental constitutionalism” to the effectiveness of climate pledges. Notable examples include:
- The Legal Crisis Within the Climate Crisis (by Mark Nevitt, forthcoming in Stanford Law Review): The author calls for legal doctrine to adapt to meet the climate moment, arguing “absent a doctrinal change, climate adaptation will default to unmanaged retreat—an ad hoc, reactive, and disjointed ‘strategy’ that exacerbates existing inequalities.”
- Intertribal: The Unheralded Element in Indigenous Wildlife Sovereignty (by Bethany Berger, forthcoming in Harvard Environmental Law Review): The author outlines “why intertribal wildlife organizations are necessary and influential, and how the intertribal form reflects a distinct relational approach to wildlife governance” through a series of case studies showing ways intertribal organizations have served as robust actors in efforts to protect Indigenous wildlife sovereignty.
- Making Climate Pledges Stick: A Private Ordering Mechanism for Climate Commitments (by Oren Perez and Michael P. Vandenbergh, forthcoming in Ecology Law Quarterly): The article responds to challenges to regulating corporate climate behavior and disclosure “by developing two novel financial instruments that will enable companies to make credible commitments through entering into irrevocable forward contracts with third parties.”
- The Greens’ Dilemma: Building Tomorrow’s Climate Infrastructure Today (by J. B. Ruhl and James E. Salzman, Emory Law Journal): The authors discuss “the trade-offs inherent between building climate infrastructure quickly enough to achieve national climate policy goals versus ensuring strong conservation, equity, and participation goals,” arguing “the time for serious debate is now,” and, from there, “lays the foundation for that emerging national conversation.”
- Delegated Agency Authority to Address Chemicals of Emerging Concern: EPA’s Strategic Use of Emergency Powers to Address PFAS Air Pollution (by Robert L. Glicksman and Johanna Adashek, forthcoming in Harvard Environmental Law Review): The authors discuss a lack of action by the EPA to address the threats posed by airborne emissions of PFAS and a regulatory option “which EPA to date seems to have ignored, despite its accelerating use in other contexts — EPA’s authority under § 303 of the CAA to tackle imminent and substantial endangerment to public health, welfare, or the environment through issuance of administrative orders or the initiation of a civil suit seeking abatement of activities contributing to the endangerment.”
Related to the above, 2023 also saw many articles addressing ESG (Environmental, Social, and Governance), often in relation to corporate governance. Authors explored the impact of corporate social responsibility statements, ESG enforcement and accountability, and more. Examples include:
- A Green New Foreign Practices Act: How to Enforce Corporate Environmental Responsibility (by Lauren Robbins, forthcoming in Journal of Environmental Law & Litigation): The article “assesses the current gaps in US extraterritorial tools to prevent environmental degradation abroad. Using the Foreign Corrupt Practices Act (FCPA) as a model, it proposes a statutory solution in the form of a Foreign Environmental Practices Act.”
- Anti-Woke Capitalism, the First Amendment, and the Decline of Libertarianism (by Amanda Shanor and Sarah E. Light, Northwestern University Law Review): The authors perform in-depth constitutional analysis of “anti-woke capitalism laws.” Focusing on the First Amendment’s underlying objectives “to protect decisional and participatory liberty in both political life and the marketplace,” the article uses “anti-woke capitalism” laws “as a lens to clarify and rethink existing doctrinal categories in order to forward a conception of the First Amendment that advances democracy in a thoroughgoing way.”
- CEOs’ Endorsements of Stakeholder Values: Cheap Talk or Meaningful Signal? (by Jens Dammann and Daniel Lawrence, forthcoming in the Journal of Corporation Law): The authors explore the impacts of signing the Business Roundtable Statement on corporation’s ESG efforts, arguing that “declarations like the Roundtable Statement can contribute to solving a key challenge for ESG investing: the problem of how to signal a firms’ current and future commitment to stakeholder values without subjecting the company to cumbersome and inflexible legal constraints.”
- Corporate Criminal ESG (by J.S. Nelson, forthcoming in Iowa Law Review): The author discusses the need for “political and regulatory stability” for U.S. business on global issues like climate change and argues that “U.S. businesses, their directors, and agents, especially counsel, should see it as in their best interests for the U.S. to adopt protective international ESG standards.”
- Making Sense of ESG with the SEC (by Thomas M. Madden and Gerlinde Berger-Walliser, University of Pennsylvania Journal of Business Law): The authors argue that the most pressing issue with current ESG reporting is “that the essential concern of accountability and its component parts of materiality and liability included in the SEC’s mandatory ESG reporting project must be carried through and refined.”
Unsurprisingly, two other commonly associated keywords were “international law” and “human rights,” which were often present in articles addressing environmental matters. For example, “Environmental Justice as Environmental Human Rights,” an article by John H. Knox and Nicole Tronolone forthcoming in the Vanderbilt Journal of Transnational Law, discusses how drawing connections between “the environmental justice movement in the United States and the evolution of international human rights law concerning the environment” can support the struggle for both.
Of course, these keywords expanded far beyond the environment to issues ranging from the war in Ukraine to migrant crises and gender and racial persecution globally, to name a few. Some articles that stand out include:
- Corporate Foreign Policy in War (by Kish Parella, forthcoming in Boston College Law Review): The author discusses how individual business decisions to assist Ukraine or punish Russia “illustrate a broader phenomenon of corporate foreign policy.” The article then “provides an analytical framework for understanding, evaluating, and even predicting whether companies will use a particular foreign policy in a crisis.”
- Bringing the Right to Education into the 21st Century (by Jonathan Todres and Charlotte Alexander, forthcoming in Berkeley Journal of International Law): The article discusses limitations in the current mandate on the right to education and “evaluates whether so-called ‘soft law,’ or non-binding measures, have helped fill the gap in existing treaty law on education rights,” concluding that “the international community needs to agree to an updated legal mandate on education that ensures all children have access to an equitable start and can complete secondary education.”
- Confronting Legacies of Indigenous Injustice: Lessons from Sweden (by Sara L. Ochs, forthcoming in Seton Hall Law Review): The author “examines the creation and operation to date of Sweden’s Truth Commission on the Violations of the Sami People by the Swedish State” and “seeks to draw lessons […] that the U.S. may learn from in creating its own national truth commission to address past harms against Native Americans.”
- The Emerging Crime of Persecution Based on Sexual Orientation (by Anthony J. Colangelo, forthcoming in Northwestern Journal of Human Rights): The author asserts that “persecution based on sexual orientation constitutes a crime against humanity under international law,” arguing “the legal landscape has changed dramatically in the intervening years since the Rome Statute went into effect, and now argues more powerfully for the inclusion of sexual orientation as a protected classification from persecution under international law.”
- The Puzzle of Discontinuous Non-International Armed Conflict (by Eden Lapidor, Georgia Journal of International and Comparative Law): The author discusses “discontinuous non-international armed conflicts (NIAC) and the puzzle regarding the proper legal regime that regulates them.” They then present a “situation-based harmonization approach” to address the complex reality of NIAC lulls that offers “a new way of conceptualizing the unique situation occurring during lulls in legal terms.”
Honing in on articles pertaining to legal issues in the United States, two often overlapping topics at the forefront were “civil rights” and the “Supreme Court.” Unsurprisingly, articles on these topics also frequently contained any one or a combination of the keywords “abortion,” “gender,” and “race” — all topics related to many of the court’s most recent and controversial rulings. Among notable examples include:
- Becoming a Doctrine (by Alli Orr Larsen, forthcoming in Florida Law Review): The author explores the question “How does a doctrine become a doctrine?” and the sway of forces beyond the province of courts, arguing “modern communication tools – new search methods, social media, amicus briefing – give political agents the chance to ‘doctrinize’ an idea quickly and to generate legal change through courts.”
- Beyond Discrimination: Market Humiliation and Private Law (by Hila Keren, forthcoming in University of Colorado Law Review): The author analyzes the oral arguments in 303 Creative v Elenis to magnify the ramifications of “granting private providers broad free-speech exemptions from nondiscrimination laws.” They argue, “it is time to go beyond discrimination: turning to private law and utilizing its tools to fight market humiliation.”
- Delegitimizing the Supreme Court: The Lessons of Dred Scott (by Jonathon Booth, forthcoming in UC Law Constitutional Quarterly): The author “examines how anti-slavery Republicans delegitimized the Supreme Court in the aftermath of Dred Scott v. Sandford, 60 U.S. 393 (1857) and compares this history to contemporary attempts to reform the Court or resist its decisions, focusing particular attention on recent cases regarding abortion rights.”
- Democratic Erosion and the United States Supreme Court (by Jenny Breen, forthcoming in Utah Law Review): The author provides a new perspective on the Court’s role in democratic erosion “through identification of four key areas for studies of democratic erosion — electoral rules, executive aggrandizement, income inequality, and speech rights — and examination of how the Supreme Court has intervened in each area between the 2016 and 2021 terms.”
- When it Happens Here: Reproductive Autonomy, Fascism, and Dobbs v. Jackson Women’s Health Organization (by Robin S Maril, forthcoming in Pace Law Review): The author discusses how “the specter of forced pregnancy threatens women’s full citizenship and the sustained stability of American democracy” and concludes “the present democratic crisis demands a robust democratic self-defense, specifically the deployment of an integrated model that is rooted in decreasing social, political, and economic inequality while fostering education and engagement.”
This blog post highlights a small sample of the many timely and thought-provoking law review articles published in 2023. We highly recommend you search your go-to legal scholarship repositories/databases and law review websites to find more pieces in these areas.
We also encourage you to share reading suggestions related to these research topic areas and others you think stand out in the comments section of this blog post and on social media using #LRSubmissions. You can find Scholastica on X (formerly Twitter) and Mastodon.