College of Law Faculty Place Scholarship in Top Law Journals

Reaffirming the College of Law’s position as a leader in cutting-edge legal research, several top 50 law journals have accepted or published Syracuse Law faculty articles during 2020-2021. Addressing a spectrum of topics—including criminal justice reform, disability, health care, long-term care, constitutional law, climate change and zoning—among the College of Law’s recent notable placements are:

Doron Dorfman

• “The PrEP Penalty,” Boston College Law Review (forthcoming 2022) Using the example of PrEP—a highly effective, FDA-approved HIV-prevention treatment—Dorfman demonstrates how moral judgments around sexuality, which are unsupported by clear data, color public health decisions at both the policy and patient levels.
• “Suspicious Species,” University of Illinois Law Review (2021) Taking an empirical law and psychology approach, Dorfman assesses the “moral panic” and “assistance-animal disability con” surrounding the perceived misrepresentation of pets as assistance animals and how people with disabilities who use service dogs are compelled to signal compliance to avoid harassment, questioning or exclusion.

David Driesen

• “The Political Remedies Doctrine,” Emory Law Journal (forthcoming 2021) The “political remedies doctrine” maintains that courts ought not adjudicate separation of powers claims until both political branches of government have asserted their rights. By arguing that courts should not apply this doctrine—except perhaps to avoid adjudication of challenges to bipartisan legislation signed by the president—Driesen also provides new insights about the proper role of bargaining in resolving separation of powers, general theory about the relationship between law and politics, and understandings about how courts should approach justiciability.
• “The Unitary Executive Theory in Comparative Context,” Hastings Law Journal (2020) Driesen analyzes the debate in the United States over the unitary executive theory in light of other countries’ experiences, primarily through case studies of recent democratic decline in Hungary, Poland, and Turkey. Driesen urges rejection of the unitary executive theory, which he maintains is a potential pathway to autocracy. An appreciation of the dangers that unitary theory poses to democracy should reframe the debate.

Nina Kohn

• “Nursing Homes, COVID-19 and the Consequences of Regulatory Failures,” Georgetown Law Journal Online (2021) Kohn explores the COVID-19 crisis in America’s nursing homes and its lessons for the future of long-term care. Her essay discusses how regulatory approaches employed in other parts of the U.S. health care system could be used to create a more humane and resilient long-term care system.
• “Legislating Supported Decision-Making,” Harvard Journal on Legislation (forthcoming 2021) Fueled by the promise of supported decision-making and mounting concerns about guardianship, states are rapidly adopting statutes that purport to enable and promote supported decision-making and advance the rights of persons with disabilities. Kohn observes that these statutes typically do neither. She further explains that the gap between the concept of supported decision-making and state legislation is the result of a confluence of political agendas. Kohn argues a person-centered approach is essential to empower individuals with disabilities.

Lauryn P. Gouldin

• “Reforming Pretrial Decision-Making,” Wake Forest Law Review (2020) Professor Gouldin argues that pretrial reform efforts aimed at shrinking the country’s swollen jail populations do too little to change fundamental aspects of judicial decision-making that have been a persistent source of pretrial dysfunction. She analyzes the decision-making processes that have historically led judges to rely too heavily on pretrial detention and overly restrictive release and outlines the costs of these flawed decisions. Gouldin calls for greater emphasis on judges’ obligations to mitigate harm and promote successful pretrial release.

Mark Nevitt

• “Is Climate Change a National Emergency?” UC Davis Law Review (forthcoming 2021) Nevitt asks whether climate change—and its multifaceted impacts—is an emergency that warrants using supplemental legal authorities. If so, what federal emergency authorities are available, and what are the normative stakes to democratic governance if a president declares a climate emergency?
• “The Remaking of the Supreme Court: Implications for Climate Change Litigation and Regulation,” Cardozo Law Review (2020) With the accession of Justice Amy Coney Barrett to the Supreme Court, a conservative judicial majority appears cemented for decades to come. Nevitt addresses how this transformed Supreme Court might impact future environmental and climate change cases, what influence it will have on policymaking and how it will affect the ability of plaintiffs to address challenges.

Danielle Stokes

• “Zoning for Climate Change,” Minnesota Law Review (2021) Stokes draws upon a substantial body of scholarly work that advocates for federal or regional collaboration in renewable energy policymaking and for more balanced and dynamic federalism in the energy sector. She argues that the current fragmented and localized system of energy governance—including zoning and land use planning—can delay and even deter renewable energy project development.