As 2022 comes to a close, it’s prime time to catch up on the latest legal scholarship published this year — and there’s no shortage of content to explore!
Are you wondering what topics scholars have been focusing on?
Last year, Scholastica dug into our law review data (anonymized and aggregated) to look at some of the most popular keywords added to law review submissions and shared a list of 25 that stood out with examples of related articles. Since interest was high, we decided to keep it going in 2022.
In this blog post, we highlight the 25 most-used keywords for articles accepted via Scholastica from January 1st, 2022, to present and some notable pieces related to those topics. This list is not meant to be interpreted as 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.
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
- Due process
- Environmental law
- First amendment
- Fourth amendment
- Human rights
- Intellectual property
- International law
As was the case last year, a theme that stands out among accepted articles that include the most-used law review submission keywords of 2022 is timeliness. Many connections exist between the keywords above and law review articles on topical issues published this year. Below are just a handful of examples.
It’s likely no surprise that legal scholars are continuing to cover the COVID-19 pandemic as in 2021. However, while most of the articles we looked at last year focused on COVID-19 prevention measures, including analysis of the constitutionality of vaccine mandates in the U.S. and recommendations around increasing vaccination uptake, many articles published in 2022 take a more reflective lens. As time passes, scholars are analyzing the current and potential future impacts of the pandemic and related policies on law and society.
Topics covered include how the pandemic has magnified the right to housing and prison abolition as separate but related movements. Norrinda Brown Hayat, professor at Fordham Law School, discussed this in “Housing the Decarcerated: Covid-19, Abolition, and the Right to Housing,” published in the California Law Review. The article argues that public and subsidized housing policies keep as many people from benefiting as possible due to a “‘culture of exclusion’ that has long pervaded subsidized housing policy,” with the recently decarcerated among the most vulnerable populations, and calls for policy changes to address the issues. Hayat’s recommendations include “transcending the narrative of innocence, directing public housing authority discretion, and equalizing voucher holders through civil rights laws,” in addition to repealing the Anti-Drug Abuse (ADA) Act and overturning the Department of Housing and Urban Development v. Rucker.
Scholars are also considering the economic impacts of the pandemic, including Assistant Attorney General for the Virginia Office of the Attorney General Travis Andrews. Andrews discussed the potential impact of “one-size-fits-all minimum wage laws” on nonurban areas as communities work to recover from the pandemic in “Localizing Minimum Wage Laws: A Rural Perspective.” The essay, published in Cornell Law Review Online, argues that “a one-size-fits-all minimum wage law no longer makes sense given the vast cost-of-living disparity between urban and rural areas.” It calls for legislators to base minimum wage laws on local economic conditions.
Other examples of legal scholarship on COVID-19, the economy, and the law include “Resurrecting the Monster? Protecting the Market From Unfettered Covid-19 Fraud Enforcement.” The article by Major Erik Fuqua, acquisition attorney at Robins Air Force Base in Georgia, published in the Syracuse Law Review, explores the potential impacts of COVID-related False Claims Act (FCA) enforcement on the market for medical supplies. And in a forthcoming Washington University Law Review article titled “The Political Economy of WTO Exceptions,” Timothy Meyer, professor at Vanderbilt University Law School, considers possible paths to rejuvenating the WTO dispute settlement system. Meyer calls for “an approach to exceptions that accommodates the domestic political bargains necessary to tackle contemporary problems.”
In a Stanford Law Review note titled “Education Equity During COVID-19: Analyzing In-Person Priority Policies for Students with Disabilities“ J.D. Candidate Bruce A. Easop also explored the disproportionate adverse effects of COVID-19 school closures on students with disabilities and particularly students of color. The note recommends strategies for schools to develop reopening models that are more equitable and inclusive for all without segregating classrooms and deepening disciplinary disparities.
Another focus of law review articles this year was immigration and human rights. For example, in “Rights Retrenchment in Immigration Law,” published in the UC Davis Law Review, Catherine Y. Kim, professor at Brooklyn Law School, analyzed changes in the constitutional status of noncitizens in immigration law over the past two decades. The article argues “far from moving toward a full recognition of the constitutional rights of noncitizens, the modern Court has been moving in the opposite direction.” Kim outlines recommendations for a path forward.
In a Yale Law Journal essay titled “Transformative Immigration Lawyering“ Professor of Law and Director of the Immigrant Justice Clinic at American University Washington College of Law, Jayesh Rathod, discussed two factors obstructing reforms in U.S. immigration law: “incrementalism and path dependence.” The essay outlines recommendations for law clinics to help counter these forces “by setting ambitious goals for structural change and by equipping students with knowledge and skills needed for transformative lawyering.”
The Georgetown Immigration Law Journal also featured a note titled “Deportable Until Essential: How the Neoliberal U.S. Immigration System Furthers Racial Capitalism and Operates as a Negative Social Determinant of Health” by J.D. Candidate Prashasti Bhatnagar. The note argues that the U.S. immigration system is a threat to the health and well-being of immigrants, “particularly laborers and agricultural workers — through racialized expropriation and exploitation of their labor.” Bhatnagar discusses examples of racialized patterns of economic inequities, state-sanctioned violence, and exploitation of immigrants and calls for system reforms to reflect that immigrant lives are as essential as their work.
Privacy was also among timely topics of interest, including analysis of violations of the 4th Amendment. In “Police Ignorance and (Un)Reasonable Fourth Amendment Exclusion“ published by Vanderbilt Law Review, Nadia Banteka, assistant professor at the University of the Pacific McGeorge School of Law, discussed ambiguities in the interpretation of the 4th Amendment that can lead to unlawful search and seizure. The article “offers a new approach to the ‘good faith’ exception doctrine based on a revisionist reading stemming from the Supreme Court’s recent decision in Heien v. North Carolina.”
Laurent Sacharoff, professor at the University of Arkansas School of Law, also analyzed ambiguities in the 4th Amendment regarding the requirement for warrants to be supported by an “oath or affirmation” in “The Broken Fourth Amendment Oath“ published by the Stanford Law Review. Sacharoff argues that “we should return to the original understanding that the oath requirement bans third-hand accounts.”
Analyzing privacy rights in our increasingly digital world, Justin Iverson, assistant professor at the University of Nevada William S. Boyd School of Law, also discussed the use of Artificial Intelligence (AI) in prisons. In “Surveilling Potential Uses and Abuses of Artificial Intelligence in Correctional Spaces,” published by Lincoln Memorial University Law Review, Iverson calls for those outside the correctional system to serve as allies to monitor for abuses of inmate data and advocate for transparency in AI data usage and protocols.
Scholars also considered privacy in the context of business regulation, including in “Accidental Wiretaps: The Implications of False Positives by Always-Listening Devices for Privacy Law & Policy,” published in the Oklahoma Law Review. The article by Lindsey Barrett, telecommunications policy analyst with the National Telecommunications and Information Administration, and Ilaria Liccardi, research scientist at the Computer Science and Artificial Intelligence Laboratory at MIT, argues that always-on devices are a direct violation of the right to privacy that regulators have yet to meaningfully constrain.
In “The Hidden Harms of Privacy Penalties,” published by UC Davis Law Review, Mary D. Fan, the Jack R. MacDonald Endowed Chair at the University of Washington School of Law, offered a counterpoint to pushes for widespread privacy regulations as it pertains to small businesses. The article argues that privacy penalties targeted at large corporations fail to acknowledge the “potential harms of expanding privacy penalties for small-fry individuals and entities, especially from disfavored or marginalized groups.” Fan outlines proposals to protect individuals and small businesses against targeting harms.
In addition to analyzing privacy rights in relation to corporations, scholars have been writing on various other aspects of corporate law and regulation in 2022. Of course, specialty business law journals were covering these topics, but a focus of note that we saw this year was antitrust reform. For example, in “Time for a New Sherman Act? The Debate on Antitrust Reform in Historical Perspective,” published by Columbia Business Law Review, William H. Rooney, partner in Willkie’s Litigation Department and co-chair of the Antitrust & Competition Practice Group, and Timothy G. Fleming, an associate at Willkie Farr & Gallagher, discussed antitrust law. The article argues that the U.S. is nearing an inflection point for new antitrust legislation to reign in Big Tech.
In “Less Restrictive Alternatives and the Ancillary Restraints Doctrine,” published by Seattle University Law Review, Thomas B. Nachbar, professor at the University of Virginia School of Law, considered the present-day ramifications of Ohio v. American Express Co.. The article discusses “how antitrust should treat ‘two-sided markets,’ a question of considerable importance as large tech platforms are receiving increasing attention in antitrust.”
In “Software v. Software: How Section 230 of the Communications Decency Act Threatens to Undermine Antitrust Law,” published by Oklahoma Law Review, Bailey S. Barnes also discussed antitrust issues posed by the current language of Section 230 of the Communications Decency Act. The article calls for Congress to amend the Good Samaritan provision.
Finally, as in 2021, myriad law reviews covered pressing issues related to climate change. For example, in “Pricing Plastics Pollution: Lessons from Three Decades of Climate Policy,” Jonas J. Monast, assistant professor at the University of North Carolina School of Law, and John Virdin, director of the Oceans & Coastal Policy Program at the Nicholas Institute for Environmental Policy Solutions, explored the potential for plastic “pollution pricing” to help combat climate change. The article argues that policymakers could design pricing policies to complement other measures to reduce plastic pollution.
Alexander Gouzoules, Westerfield Fellow at Loyola University New Orleans College of Law, also explored how legislative reforms to the Bankruptcy Code could support efforts to counter climate change in “Going Concerns and Environmental Concerns: Mitigating Climate Change Through Bankruptcy Reform,” published by Boston College Law Review. Gouzoules calls for revisions to “Chapter 11 of the Bankruptcy Code, which allows firms that extract fossil fuels to survive boom-and-bust cycles caused by volatile oil and gas prices.”
California Law Review also published multiple articles related to climate change and its effects on marginalized communities, including “The Dysgenic State: Environmental Injustice and Disability-Selective Abortion Bans.” The article by Khiara M. Bridges, professor at UC Berkeley School of Law, discusses disability-selective abortion bans in relation to environmental injustices and argues that people of color in low-income communities are at greater risk of having health impairments and disabilities due to concerning environmental conditions.
In the note “Addressing the United States Climate Crisis and Climate Displacement: A Transition from the ‘Otherization’ of Climate Change to a Focus on Domestic Solutions,” J.D. Candidate at UC Berkeley School of Law Isabel Tahir also discussed how the tendency in U.S. discourse to associate climate change with poorer countries leads to “otherization” of the issues. Tahir argues that this results in evading domestic responsibility, which has serious ramifications for the entire planet because the effects of climate change in the U.S. disproportionately affect people in low-income countries, poorer communities, rural communities, and people of color.
Like last year, legal scholars have been writing on topics related to current issues and events. This blog post highlights a small sample of the many timely and thought-provoking law review articles published in 2022.
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!