Faculty | Highlights
The following are selected highlights of recent faculty scholarship. To learn more, visit www.brooklaw.edu/facultyscholarship →
William Araiza

The Contributions of William Funk to American Constitutional Law Scholarship, 23 Lewis & Clark Law Review 1417 (2020)

Araiza discusses the contributions of Professor William Funk to American constitutional law scholarship. Funk’s scholarship, Araiza argues, seeks justification for rules in the results they generate, rejects all-or-nothing approaches to constitutional principles, and recognizes that the surest foundations of imperative legal evolution lie in what had come before.
Dana Brakman Reiser

Progress Is Possible: Sustainability in U.S. Corporate Law and Corporate Governance, in The Cambridge Handbook of Corporate Law, Corporate Governance and Sustainability (B. Sjåfjell & C. Bruner, eds., Cambridge University Press, 2019)

BRAKMAN REISER EXPLAINS how legal innovations, such as benefit corporations and sustainability disclosures, can incorporate sustainability as part of broader corporate practice. She argues that although there are few legal barriers to U.S. corporations pursuing sustainability, the shareholder-oriented corporate and business environment will require that the drive for pursuing such changes come from asset owners and the markets themselves.
Miriam H. Baer

Designing Corporate Leniency Programs, in The Cambridge Handbook on Compliance (D. Sokol & B. van Rooij, eds., Cambridge University Press, forthcoming)

BAER EXAMINES recent developments in the Department of Justice’s stance toward corporate offenders to illustrate how the framing and design of a corporate leniency program influence its performance. She finds that a program’s close ties between corporate targets and government enforcers, while generating trust, may simultaneously create credibility problems in the eyes of the public.
Robin J. Effron

Taking Law School Musicals Seriously, in The Law Of Hamilton: An American Musical (L.A. Tucker, ed., Cornell University Press, forthcoming 2020)

EFFRON PROPOSES that the Broadway musical Hamilton’s success in making arcane legal issues accessible comes from writer/composer/performer Lin-Manuel Miranda’s intuition that the rhythm and drama inherent in the language of law can be transformed by using a different set of melodic, rhythmic, and linguistic tools. Not only does this make the story accessible, but the act of interpretation awakens the legal insider to new ideas.
Heidi Gilchrist

The Vast Gulf Between Attempted Mass Shooting and Attempted Material Support, 81 University of Pittsburgh Law Review 63 (2019)

GILCHRIST EXAMINES the “murky” laws of attempted material support for terrorism, explaining how the laws criminalize minor actions or even speech. She contrasts the lack of preemptive law enforcement action taken against domestic terrorists with the treatment of young people, often of Muslim or of Arab descent, who, through noncriminal online behavior, can be found guilty of attempted material support and sentenced to up to 20 years in prison.
Cynthia Godsoe

#MeToo and the Myth of the Juvenile Sex Offender, 17 Ohio State Journal of Criminal Law __ (forthcoming 2020)

WHILE THE #METOO MOVEMENT has brought attention to the systemic nature of women’s and girls’ victimization, Godsoe cautions that by doubling down on a criminal approach to sexual harms and focusing on individual blame and punishment, the movement risks reinforcing the gendered and racialized hierarchies it seeks to eradicate. She argues for the effectiveness of expanding the conversation to include meaningful survivor healing and offender accountability.

Andrew Gold

The Right of Redress (Oxford University Press, forthcoming 2020)

GOLD OFFERS a pathbreaking account of the rights of victims to seek redress in private law, including the underlying political theory and the contemporary features that shape our rights of redress today. He makes sense of tort, contract, and fiduciary law, and unjust enrichment doctrine, and draws on public fiduciary theory to develop a distinctive account of the state’s role and responsibilities in redress.
Minna J. Kotkin

Clinical Legal Education and the Replication of Hierarchy, 26 Clinical Law Review 287 (2019); reprinted in 6 The Practice (Harvard Law School Center on the Legal Profession, 2020)

KOTKIN EXPLORES the collateral damage caused by the growth and institutionalization of clinical legal education: the creation of a new underclass of short-term instructors within faculties, without job security or long-term academic prospects; and the reduction in programs serving groups with critical needs, due to the demand for “glamorous” practice settings in startup, entrepreneurial, and intellectual property clinics.
James A. Macleod

Reporting Certainty, 2019 BYU Law Review 473 (2020)

LEGAL THEORISTS, judges, and legal writing instructors persistently decry the assertions of certainty—“obviously X,” “undoubtedly Y,” etc.—that litter judicial opinions, claiming such assertions actually sound disingenuous. Using empirical evidence and “social epistemology,” Macleod argues that the practice of reporting relative certainty is not only efficient, but also epistemically valuable, facilitating the judiciary’s truth-discovery goals. Judges should report their attendant degree of certainty more often, not less.
K. Sabeel Rahman
Jocelyn Simonson

The Institutional Design of Community Control, 108 California Law Review__ (forthcoming 2020)

A growing set of social movements have revived interest in “community control,” the idea that local residents should exercise power over government services. Rahman and Simonson look at two current proposals—community control of the police and community control of local economic development—to develop a broader framework for analyzing how local governance institutions might shift power and attempt to redress inequality.
Alice Ristroph

Criminal Law as Public Ordering, 70 University of Toronto Law Journal 1 (2020)

RISTROPH EXPLORES the meaning and interpretations of the familiar phrase “law and order.” She argues that by viewing “order” as a verb instead of a noun, one can see criminal law as the ongoing activity of constructing, maintaining, and revising, which, she suggests, is more descriptively accurate than prevailing theories of criminal law, and which may provide greater leverage for critiques of existing legal practices.