Apr 6, 2026 Leah Litman
Maybell Romero,
Gossip, 115
Geo. L. J. __ (forthcoming, 2026), available at
SSRN (Feb. 1, 2026).
There’s no one like Professor Maybell Romero in the legal academy (I say this, a la Violet Chachki, as a compliment, not a read).
In a searing article from several years ago, Ruined, Romero used her own experiences with rape and sexual assault to critique how the law and legal profession describe survivors as “ruined,” “broken,” or “destroyed.” Then, in Shamed, Romero expanded the lens: She used personal narrative and auto-ethnographic methods and applied them to individuals and institutions within the legal academy. That piece explored how survivors are shamed, in addition to being described as ruined—sometimes by members of the legal academy, as Romero recounts when describing (some of) the reaction to Ruined.
Romero’s latest intervention, Gossip, is even more laser focused on the legal academy. It explains why the legal academy relies on gossip as a governance structure (meaning an informal system of regulation) for addressing sexual misconduct. The piece is, once again, a difficult but necessary read.
Gossip defends (at least some forms of) gossip as a limited, imperfect tool that fills in gaps left by the structure of the legal academy, its inhabitants, the contours of the law, and other factors. As Romero describes, there are several reasons why sexual misconduct may escape formal legal regulation, in which case gossip may be “a rational response to institutional silence and legal voids.” Romero recounts situations that arise “outside the traditional employer-employee context, such as those between mentor and mentee, junior scholars and senior scholar in a same field but not necessarily the same school” and more, which laws might not reach. Romero also notes that professors are intimately familiar with the risks of legal action and that the structure of the legal academy relies heavily on networks, connections, and reputations—all of which might scare someone into not formally or publicly reporting.
Romero defends a role for gossip in small, networked communities, such as the legal profession. She defends “prosocial gossip” in particular, which she describes as evidence-grounded, accurate, and relying on direct experience. You might not think of that as gossip, but part of Romero’s project is to rehabilitate the category of gossip and encourage us to understand that not all gossip is the same. Romero acknowledges the grey area of “secondhand warnings” and encourages us to “learn[] to better evaluate gossip,” in part by evaluating the motives of the gossiper. At the same time, Romero is also clear-eyed about the limitations of gossip. Gossip is looked down upon. Gossip can be wielded against accusers to perpetuate hierarchies, inaccurate, or unavailable to people not in certain networks. And it never delivers real justice or resolution.
I’m sympathetic to Romero’s case and admire this writing.
I do, however, have some additional questions about the limits of gossip. I wonder if some of the issues Romero identifies with formally reporting misconduct also apply to gossip. The risk of retaliation might deter someone from making a formal legal claim. But similar fears about retaliation might impede gossip or repeating gossip: Do you want the powerful, connected, senior person in your field to find out you were gossiping about them? Probably not—especially if you were already worried they might retaliate against you if you filed a formal complaint against them.
Romero touches on the importance of bystander intervention in cases of sexual misconduct—the person who observes misconduct, but maybe isn’t its target, and how they need to exercise their relatively greater ability to speak up. Is gossip appropriate in cases of a failed or unwilling bystander or someone who acts as an enabler? How about someone who is a second-degree retaliator—that is, the person who retaliates against you isn’t the person who engaged in the original sexual misconduct, but someone around them (and you). Perhaps it’s someone who didn’t like the accusations against their friend or colleague, or someone who felt like they were being (unfairly) accused because of their association with the accused. In those cases, there is still a legal vacuum that makes formal complaints difficult; all of the reputational and other considerations that deter formal allegations of misconduct still exist. Is gossip appropriate then?
One potential shortcoming of gossip is also what makes it more appealing than a formal complaint—the lack of a public record. In cases of formal, public allegations of misconduct, it may (counter-intuitively) be easier to protect yourself against retaliation. If there is a record of the allegation, that is potential evidence that could support a claim of retaliation. There isn’t that same record when the remedy is gossip. There, the retaliation might be more invisible—people might not realize that the senior person negging a junior has a potentially nefarious motive for doing so. Worse still, memories tend to be asymmetric (at least in my experience). Memories about how an accuser or gossiper was brave fade. Anger…less so. That mismatch exacerbates the risk of retaliation. If people are angry about gossip or about an accusation of misconduct, they will stay angry five, or ten years later—perhaps continuing to seal off opportunities, connections, and networks to the gossiper or accuser. But the people who may have felt some admiration for the gossiper or accuser may forget. When the memory fades among people who were sympathetic, and they no longer look out for possible retaliation against the gossiper or accuser, the relative risk is fairly lopsided. It’s basically all downside, with little possibility of a safety net to protect or catch you if things go wrong.
The only reason we are even in a position to have this conversation about the limits of gossip, however, is because of Romero’s intervention in Gossip. For that reason alone, the piece is worthy of admiration and the author even more so. Gossip is a needed reminder about the shortcomings of the law – and the structures and systems that pop up in its place. When we’re aware of those dynamics, we may be in a better position to fix them. And Gossip also focuses the legal academy’s attention on a system that is within its power to address—the legal academy itself.
So, dearest gentle readers: If, as Romero persuasively argues, gossip is the legal academy’s second-best solution for sexual misconduct, how do we protect the gossipers?
Mar 6, 2026 Rebecca Roiphe
Many scholars have written about the role of courts in liberal democracies. They grapple with tough questions about how to justify the outsized role that unelected judges play in our democracy. Beginning with Alexander Bickel who famously coined the phrase, “the counter-majoritarian difficulty,” and continuing with scholars like John Hart Ely, Mark Tushnet, and Jeremy Waldron, to name just a few, critics have analyzed what role courts should play in ushering in social change. Ann Southworth has skillfully complemented this literature by arguing that it is not just judges who have power to alter the social and political landscape. Lawyers at legal advocacy organizations play a significant role in this process.
Professor Southworth’s article, Conservative Legal Advocacy: Organizations and the Roberts Court, draws on the example of campaign finance reform to show how conservative legal advocacy organizations engaged in a coordinated effort to change precedent and push an ideological agenda. These organizations consciously followed the example of civil rights groups like the NAACP and the ACLU, occasionally even drawing on precedent established by their liberal predecessors. The article is an important reminder that Supreme Court decisions are not simply a product of judicial appointments but are also affected by well-funded legal advocacy organizations and their lawyers.
One of the most important insights in Southworth’s article comes from her explanation of how conservative organizations contributed to doctrinal change. They responded to signals from the justices, often crafting legal theories and choosing plaintiffs based on those clues. The organized effort may have been a response to a memo Lewis F. Powell, Jr. sent to the U.S. Chamber of Commerce prior to his appointment to the Supreme Court, calling for an organized response to what he believed was a coordinated liberal attack on the American economic system. Powell identified courts as the key engine of social change. Whether in direct response to this call to arms or not, conservative groups organized around this mission.
Southworth draws on campaign finance as an example of the powerful effect conservative advocacy groups and their lawyers have had on the law and society as a whole. For instance, groups like the Pacific Legal Foundation, Northeastern Legal Foundation, and Mid-America Legal Foundation banded together to promote theories that shifted the law and public perception. The Federalist Society Free Speech and Election Law group helped provide a forum to host and encourage new conservative legal theories. Building on language in earlier cases, conservative cause lawyers developed the idea that restrictions on campaign spending amounted to an impermissible intrusion on speech. Tapping into a growing conservative populist distrust of elites, the legal theories were framed as an effort to combat an attack on the “little guy’s” right to free speech. Social conservatives like anti-abortion and gun rights groups were not initially part of the coalition. Recognizing the growing popularity of the movement, however, many of these organizations eventually joined the effort to overturn campaign reform laws.
The conservative advocacy groups developed rhetoric around freedom that served to popularize an agenda that was not clearly a grassroots cause. They did this to gain popular support and in response to cues from the Supreme Court, producing a fairly quick shift that culminated in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), which held that legislatures cannot restrict corporate spending on elections because these expenditures are protected political speech. Southworth’s description of how doctrinal change was effected in a relatively short amount of time contributes to our understanding of how unelected judges and cause lawyers can determine the course of law and society.
While the article is mostly descriptive, Southworth concludes that the result, at least in the context of campaign finance reform, is a doctrine that is “seriously out of touch with public opinion.” While conservative groups rallied around the popular appeal of free-speech rhetoric, they never gained full support for the ultimate goal—allowing corporations such significant and unchecked power over elections. Lawyers have pushed the Supreme Court to extend the doctrine and embed precedent that makes it almost impossible for legislatures to respond to public calls for reform. Southworth does not explicitly conclude, but it is not a stretch to infer from her research, that legal advocacy organizations can be dangerous. Lawyers, who owe no loyalty to the public as a whole and may have picked a cause based on their own ideology or political leanings, can use their skill to help push the court further away from public opinion, frustrating popular attempts at transparency and reform. Thus, as scholars like Bickel pointed out, lawyers, like unelected judges, have contributed to a process that can undermine institutional legitimacy and destabilize democracies.
In describing how conservative groups consciously borrowed from liberal advocacy organizations, Southworth’s article raises an important question. Is there a danger in this type of advocacy that lawyers have and will contribute to political polarization by pushing an agenda that is not shared by a majority? In doing so, can cause lawyers inadvertently add to the public’s growing disaffection by using the courts to do what the legislatures cannot and would not because of their accountability to the public? Professor Southworth does not explicitly opine beyond the campaign finance example, but her article raises questions about the wisdom of using the courts to achieve a political end and should give pause to movement lawyers on both sides of the aisle. Whose interests are really being served by this sort of concerted effort to effect policy change through law? And even if the outcome is desirable, how durable can the consequences be if it strays, sometimes drastically, from public opinion?
Southworth’s essay contributes to an ongoing conversation among scholars of the law and legal profession. In 1974, Stuart Scheingold argued that Americans place too much faith in courts to secure rights and effect social change. Michael Klarman confirms this thesis in his masterful description of the backlash to the civil rights movement. David Luban argues that the role of cause lawyers is a feature of the system, not a bug. Lawyers can and should serve as moral leaders in a democratic society. Southworth’s work poses a significant challenge to Luban by suggesting that lawyers can and have accelerated social change in opposite ideological directions.
Perhaps, Luban’s thesis was at least in part tied to the time-period he observed. As Laura Kalman argued in The Strange Career of Legal Liberalism, the progressive use of courts to effect social change was linked to the widely accepted judicial philosophy, legal realism, as well the legacy of the Warren Court, which was inclined to read the constitution to protect civil liberties and promote other progressive goals. Southworth’s article adds an important coda to this book and challenges readers to think about some of the problems inherent in using the legal system to effect social change that cannot be achieved through electoral politics. By examining how conservative advocacy groups consciously followed the lead of liberal civil rights organizations, Southworth prompts her readers to reflect on how lawyers use their training, skill, and power to shape society.
Perhaps it is inevitable that future groups on either side of the political spectrum will capitalize on the make-up and judicial philosophy of the Supreme Court and the judiciary as a whole, but Southworth’s piece should at least prompt some thought about the wisdom of this choice. Conservatives may be able to gain influence by deliberately bringing significant divisive social questions to the current Supreme Court, but this can create a destabilizing divide between popular views and the law. By unearthing echoes of the civil rights movement in the current coordinated effort to change the law, Southworth raises the question of whether conservative advocacy groups may achieve a fleeting, if not, Pyrrhic victory.
In sum, Southworth’s article is worth a read for its description of how campaign finance law evolved over time. But it also provides insight into how Supreme Court law is made and it raises important questions about the outsized role legal advocacy organizations and lawyers play in the process.
Feb 24, 2026 Carole Silver
One of the most interesting findings of the After The JD project, which tracked the careers of a nationally-representative sample of US law school graduates who qualified as lawyers in the year 2000, was how many times they changed jobs. Job changes can involve different positions with status implications, as well as differences around factors like flexibility and compensation. The After The JD authors analyzed each of these kinds of moves in the framework of a social capital analysis; among their findings was the role of the prestige associated with US News rankings of law schools and American Lawyer rankings of law firms in shaping moves and opportunities.
In Sida Liu and Anson Au’s new article, Mobility Spaces: Geographical and Professional Distances in Career Mobility, the authors consider analogous questions about lateral moves of lawyers using a different lens—that of mobility spaces. They urge that “[t]he movement of professionals is shaped not only by their social and educational backgrounds but also by the geographical and professional distances between these mobility spaces.” (P. 196.) That is, they see career moves as conveying important information through the physical and social proximity of one position to the next. Further, rather than focusing on the US as did the After The JD project, their study is based in Hong Kong. They utilize data reporting the career moves of law firm partners working in Hong Kong between 1994 and 2021, culled from the official journal of the Law Society of Hong Kong. (P. 204.) The article thus speaks empirically of a particular time and place while aiming to contribute theoretically to “enhancing our understanding of the spatial dimensions in which professional careers evolve.” (P. 196.)
The concept of “mobility spaces” is not limited to the physical; it also includes “social…and legal spaces that professionals navigate while shaping their career trajectories over time.” (P. 196.) Legal spaces might be jurisdictional boundaries or regulatory frameworks about lawyer licensing, while social spaces “refer to the ecologies of work in which professionals practice and develop their careers.” (P. 198.) Spatial trajectories emphasize the process of navigating careers, paying “close attention to boundaries and distance between mobility spaces.” (P. 199.) Further, Liu and Au explore two “corresponding forms of career mobility: “relocation (geographic mobility) and rerouting (interprofessional mobility).” (P. 199, emphasis in original.)
The focus of the article is on partners who left law firms for other positions, either in law firms or other organizations. The data provided a sample of 1,035 lawyers involved in such moves over a 28 year period. To delve into relocation, the authors recorded geographical distance between the location of the job left (in Hong Kong) and the next job into four categories, moving from nearest to farthest: remaining in Hong Kong; moving to mainland China; to elsewhere in the Asia-Pacific region (including Australia and New Zealand); and to Western or other countries. For rerouting, they explored the difference between the position left (law firm partner) and the new position in terms of type of organization and substantive focus, using another four categories: remaining in a private law firm position; moving to an in-house position in a business organization; moving into a public interest or public service position; and pursuing a different career altogether, giving examples of politics or owning a (non-law firm) business. (P. 206.) Demographic information also was collected regarding basic characteristics of gender, “observed race”—meaning whether the lawyer was Asian or not—and age. (P. 205.) Liu and Au also classified the prestige of the law firm being left, and that firm’s geographic headquarters as well as its geographic scope in terms of offices in different countries; this allowed them to distinguish between Western, Hong Kong and China-based firms, as well as between elite and all other firms. Finally, they gathered information about the jurisdictions (specific, and overall number) in which the moving lawyers were admitted to practice.
Overall, just over half of the sample was Asian, nearly three-quarters male, and close to half left positions in law firms based in Hong Kong. (P. 209.)
In terms of relocation, Liu and Au found that the odds of moving farther away were significantly higher for non-Asians, and significantly lower for females. (P. 210.) At the same time, the odds of moving farther geographically also were significantly higher for lawyers moving from firms based outside of mainland China and Hong Kong. Unsurprisingly, more prestigious firms led to significantly higher odds of serving as a jumping off point for greater geographic distance. (P. 211.) Law firm prestige also mediated the differences for non-Asians and women in terms of geographical distance. (P. 211.)
The analysis of rerouting found that gender and race were significant determinants of distance. Men were more likely to remain in law compared to women, as were non-Asians compared to Asians. Further, the odds of moving to a public service or non-profit position were higher for women. (P. 214.)
Putting these analyses together, Liu and Au found that it was more likely for women to move into business or non-profit positions, and women also were less likely to move away from Hong Kong. They found that the opportunities of non-profit and public interest positions were essentially unavailable both to non-Asians and to individuals who were not local to Hong Kong. As Liu and Au explained,
“The advantages provided by foreign credentials and backgrounds to lawyers in the business sector largely turn into disadvantages for localized careers in public service and non-profits. This demonstrates that public service and non-profit sectors are predominantly closed off to non-locals, disproportionately excluding individuals of non-Asian races, non-local credentials, and foreign firm origins. Although professional distance can be an indicator of career flexibility and the pursuit of autonomy, it may also signify constraints faced by the marginalized.” (P. 215.)
Their analysis highlighted that being at a prestigious law firm increased the odds of leaving for another profession—in other words, the platform of prestige increases opportunities for mobility. (P. 217.)
I am curious about what might be hidden within the 28-year span of the data. This period included the reversion of Hong Kong to China in 1997, and the pandemic in 2020, among other events. Both of these had the potential to upend the sense of urgency about career moves, as well as opportunities that were shaped by the perception of Hong Kong’s importance in the global economy. The authors mention the pandemic’s destabilizing force in terms of changing expectations about presence (P. 196), among other things, but did not delve into how this might be reflected in the data, although, admittedly, ending in 2021 likely limits their ability to do a deep dive on pandemic-related issues.
At the same time, there is an undercurrent in the article that suggests the authors perceive greater distance as more prestigious for relocation purposes, but less for rerouting purposes. This is attributed to research on earning potential, among other things. (P. 201.) Still, given the increasing significance of public interest positions both in and outside of Hong Kong over the span of their data, including the period just after the 2008 financial crisis when competition over public interest positions reframed them in terms of prestige, I wish they had addressed these assumptions more directly.
Writing about lawyer mobility with phrases like “seamless[] transitioning” to “boundaryless careers” seemed to speak to another age from where we sit at the moment. Still, even in the context of the constraint of global commerce and trade in legal services emblematic of the current agendas of national populism, this article is worth a close read; Liu and Au offer up a rich and layered analysis of “how…professionals navigate spatial distance in their career moves” and what this can tell us about persistent inequality in the legal profession. (P. 196.)
Jan 6, 2026 Melissa Mortazavi
While there is a growing body of research on rural lawyering and rural access to justice, none approaches the subject with the level of detail and care to individual experiences that Professor Hannah Haksgaard does in her quietly landmark work, The Rural Lawyer: How to Incentivize Rural Law Practice and Help Small Communities Thrive. She sets out the book’s seemingly modest goal with a humility that mirrors the project she describes so lovingly, as an “analysis of how a program can help new rural lawyers.” (P. 8.) However, this deeply intimate account detailing the successes (and failures) of South Dakota’s Rural Attorney Recruitment Program, does far more than that: this book interrogates the relationship between communities, legal practice, lawyer to lawyer mentorship, and law itself. In doing so, it provides vital insights for our turbulent times.
The chapters of the book proceed intuitively and usually begin with an individual lawyer’s story; to Professor Haksgaard, this is always a study of and for people, both lawyers and clients. Even the opening chapter’s broad discussion of historic rural lawyering practices includes a specific illustrative biography: a stubborn lawyer riding circuit decides to “brave the weather” to get home, only to freeze his legs to his stirrups, ultimately causing his untimely death (we learn this is the author’s great grandfather). (Pp. 13, 18.) Providing the reader with the individual narrative first, and then diving into the broader observations and conclusions continuously grounds the reader in the human aspect of practice both for the lawyer and the client. In this way, Professor Haksgaard sidesteps a common flaw in works analyzing the legal profession: writing about it in such a technocratic role-differentiated way that neglects the fact that lawyers are still whole people.
In The Rural Lawyer, Professor Haksgaard makes a compelling case that South Dakota’s Rural Attorney Recruitment Program is one of, if not the most, successful attorney recruitment models being used to address the dearth of lawyers in rural practice. In broad brush strokes, this program provides accepted lawyers who commit to 5 years of rural practice, an annual stipend (roughly keyed to the cost of one year of in-state law school tuition) to support new private practices in rural areas. The stipend is paid through a cost share between the bar (15%), the judicial branch (from state courts’ annual budget) (50%), and the sponsoring local county or municipality (35%). (P. 32.) Professor Haksgaard identifies two key components of this program that have proved to be effective in supporting sustainable ongoing legal practice: attorneys in this program have the flexibility to take on both private and public clients and the local sponsorship element requires early relationship building between the lawyer and community and some grassroots buy in. In some instances, this aspect of the process required public presentations before municipal bodies making the case for why this was a good use of public funds and how the attorney in the program would provide services that were useful to the community. Ten years in, the program is clearly having an impact on participating the rural communities; attorneys in the program overwhelmingly not only served their required five years of rural practice, but 75% of them continued practicing law in their rural communities after their term ended. (P. 9, noting that 24 of 32 lawyers continue to practice in their rural communities.)
Access to lawyers is not the same as access to justice, and Professor Haksgaard is careful not to conflate the two. This is not a starry-eyed account of how the placement of rural lawyers in rural communities is a panacea for all the challenges and ills facing these communities. Many of these lawyers provide low cost and at times pro bono work, but not exclusively so. More commonly, they are cobbling together income from various sources and working with clients through fluid billing structures. Nor does she cherry coat the struggles of the attorneys themselves, who face huge financial challenges, social ostracism where they break with community norms, and the skepticism of local municipalities and counties as they make their various pitches for why this rural county in south Dakota needs a lawyer, let alone them, let alone more than one lawyer (one county ultimately decided to allow multiple lawyers into the program).
Haksgaard is deeply pragmatic, as she wants to not only get lawyers into rural communities, but have them stay. Many of her chapters focus on the logistics and financing of setting up or participating in a rural practice. Here, the hybrid of a baseline of stable government work combined with private work afforded rural attorneys flexibility. (P. 130.) Access to a free or low-cost workspace often made a significant difference in finances as well. Haksgaard also makes a compelling case that “smart rural residents” who have career options can go to law school and return to their communities where they “create their own jobs and act, in many ways, as entrepreneurs.” (P. 137.) Ultimately, lawyers in this space have a “solid career with long-term, stable, incomes” but trade the higher incomes of urban practices for the virtues of a rural life. Some enjoyed this stability, which allowed them to also run a small farm or ranch. (P. 141.)
Beyond the immediate economic challenges of financing law practice, mentorship of lawyers new to rural practice comes to the fore as pivotal to success. (P. 18.) According to Haksgarrd, these mentorship relationships bridge the gap between her observations that law schools generally appear more geared towards training lawyers for complex appellate practice skills than direct client services to members of the public. Mentorship takes a multiplicity of forms: from district attorneys’ offices providing support, to one to one transfers of small practices, to an entire law firm in a nearby city mentoring a solo practitioner (the solo practitioner’s parent was a partner there). It is clear throughout that mentorship given by senior attorneys did not financially benefit them. Rather, it was an act of service that often-caused hardship for mentor lawyers but was done out of a sense of duty and care not only for the ongoing legal needs of the community but for the junior lawyers themselves.
The case this book makes is that the work of rural lawyers, hard though as it is, is important. Professor Haksgaard’s account shows rural lawyers serving as mentors, prosecutors, transactional counsel aiding in property conveyances, advocates in civil suits, vital community and municipal touchpoints, and even effective grant writers. The legal profession as a whole, and law schools, sometimes imply that direct client-services to poor or middle-income communities is a low-prestige career path, best fit for the graduates of lesser skill or from lesser law schools. However, the reality is that the work that these lawyers do to help common citizens and small businesses address the challenges of day-to-day life through the law calls into the light the relevance of the legal system and lawyers themselves. This is critical work.
Here is where The Rural Lawyer is the most broadly gripping, as the legal profession, let alone rule of law, teeters in precarity. While lawyers view assaults on rule of law as fundamentally threatening to the American democracy, the public at large appears only mildly perturbed. Apparently, for too many Americans, it is unclear what work rule of law is doing for them. In this historical moment, American society holds in the balance the question, “Do we want, value, or believe in law?” Next steps for lawyers, indeed any steps, to help the public answer this question in the affirmative and then fight for the protection of system of laws, appear obscure and daunting. However, not unlike the advice of Anne Lamott’s seminal writing manifesto, Bird by Bird, Professor Haksgaard shows the reader, tenderly yet unflinchingly, a path: go lawyer by lawyer, client by client, and person by person. If she is right that rural lawyers can be viewed as “great equalizers in American society,” then perhaps, in this moment, that is some of the most profound work of all. (P. 19.)
Nov 25, 2025 Scott Cummings
There is now a vast international literature on the role of lawyers and law in social movements, on the right and the left. This literature has been enormously generative in illuminating the various ways that lawyers contribute to social struggle—by using litigation and other legal tactics to hold powerful actors to account and inspire social movement resistance—while also spotlighting how sometimes they overreach, and how their tactics and frames are frequently coopted by opponents, who use legal strategies to undermine progress. While this literature has often painted legal liberal lawyers as problematic actors, it also teaches crucial lessons about the importance of sustained legal and political resistance in the face of powerful forces. American democracy has never worked for all people. It has never lived up to its promise of equal justice. And there have been particularly dark moments, the post-Reconstruction era and the rise of Jim Crow being one of them, which have elicited courageous responses from lawyers and nonlawyers alike. As we are living through another dark and dangerous moment, it is crucial to recover stories that deepen understanding of resistance methods and give inspiration to fight back.
Professor Pamela Izvănariu provides precisely this type of analysis in her timely and important article on the unheralded Black labor activist John P. Davis and the organization that he created to fight for racial equality in New Deal labor laws: the Joint Committee for National Recovery (JCNR). Izvănariu’s work on Davis is part of a larger historical project that seeks to elevate Davis in the scholarly canon on the “pre-history” of the civil rights movement, which includes classic works by Ken Mack, Risa Goluboff, and Susan Carle, among others. Those scholars discuss the synergies and tensions between efforts to mobilize cross-racial solidarity in support of Black labor rights and the building momentum in favor of a frontal assault on school segregation culminating in what became the famous high point of civil rights lawyering: Brown v. Board of Education.
Izvănariu breaks new ground in this field. She uses archival research to show how Davis pioneered new legal advocacy strategies by using investigative tactics to unearth evidence of discriminatory intent in the design of National Recovery Act’s fair competition codes. She explores Davis’s “modes of engagement and arguments” to reveal how the act purposively discriminated against Black workers by targeting industries and geographies in a strategic effort to exempt Black labor from the protections of the New Deal. Izvănariu drills down deep into advocacy strategies, illuminating “how Davis, through his work in the organizations he founded—the Negro Industrial League and JCNR—exposed and challenged the race discrimination that shaped the National Recovery Administration codes and broader New Deal.” (P. 220.) As Izvănariu notes, this project goes beyond documentation to correct the historical record since Davis is commonly written out of history or given less credit than is due. In addition, the article recasts historical understanding of JCNR by presenting it “as a Black-led, Black-funded, and grassroots-based movement organization network dedicated to building power” (P. 221), while introducing “Davis’s multidimensional model of advocacy and identify[ing] him as a hidden but central figure in the long history of movement lawyering.” (P. 221.)
The first part of the article is devoted to establishing the origins of JCNR “as a loosely structured social movement organization” (P. 227), which was “much more than an interest group or clearinghouse.” (P. 229.) Izvănariu explains the “emergence” of JCNR, noting the importance of key factors (P. 230), including Davis’s ability to “immediately diagnose the problem, frame the situation, [and] take advantage of a fleeting opportunity bubble” to build resources and craft innovative tactics. She places emphasis on Davis’s leadership qualities (P. 231) in building connections and coalitions with diverse partners, like the YWCA, AFL, and NAACP. (P. 242) The second part canvasses the Davis-JCNR model of advocacy, which “strategically integrated deployment” of “coordinated empirical research and legal and political advocacy” (P. 245), along with “disruptive tactics and field research” to combat Jim Crow in the workplace. (P. 247)
In my view, the most fascinating piece of this investigation is Izvănariu’s discussion of Davis’s innovative use of interdisciplinary research and Black sociology to expose racial discrimination in New Deal labor laws. (P. 248) Davis drew upon novel traditions flowing from the Atlanta Sociological Laboratory and W.E.B. DuBois at Fisk University to develop mixed-method data collection that was essential to demonstrating workplace abuse among Black workers otherwise hidden from view. In Davis’s hands, “Black sociology [was] a tactic” (P. 250), used to collect data incorporated into legal briefs that combined law and statistical analyses in a precursor to the famous LDF brief demonstrating segregation’s harmful effects on children in Brown. Moreover, the “widespread dissemination of JCNR data established the organization and its leadership as reliable and expert sources of information” (P. 259), which it leveraged in administrative advocacy to eliminate discrimination in codes, pass new laws, promote enforcement. (P. 260.) This discussion provides new evidence of the importance of sociological research to Black legal mobilization in the pre-Brown period, adding important new details to the advent of Black legal realism documented by Ken Mack.
In terms of legal mobilization, the final part of the article puts to rest any doubts that the type of multidimensional advocacy associated with contemporary movement lawyering had origins well before the civil rights movement—with Davis offering a pioneering example. (P. 273) Once again, Izvănariu shows the value of her investigation into JCNR’s coordinated approach to organizing and legal mobilization. (P. 274.) She brings this coordination to life in her study of the Maid-Well case, which vividly reveals the incredible story of Davis’s commitment, courage, ingenuity, and advocacy. Davis collected data on discrimination against Black women garment workers and persuasively debunked employer claims by showing that their lower productivity relative to white workers was the result of poor conditions. When the employer would not budge, Davis took to the media, writing an article in The Crisis magazine based on empirical research from surveys, letters, and ethnographic study. (P. 283.) He succeeded in generating enough attention to prosecute the case against the recalcitrant owner, winning several thousand dollars for the workers, despite forum switching and death threats, before the Supreme Court invalidated the National Industrial Recovery Act, nullifying the case. Nonetheless, Izvănariu shows how there is success in this apparent failure, sending a powerful symbolic message that a Black-led grassroots group could “win justice for Negro workers.” (P. 290.) I thought this was a strong and fitting conclusion and appreciated Izvănariu’s commitment to letting the history speak for itself, although I was curious about how this conclusion ties to larger debates over the efficacy of law as a tool of social change and how the type of multidimensional advocacy Davis pioneered has continued relevance in our current political environment, with increasing echoes of the era she depicts.
Izvănariu has produced an enormously important piece of historical scholarship on a previously underappreciate sector of the Black bar, which rigorously demonstrates how Davis contributed to the struggle against segregation and the rise of movement lawyering. It is carefully researched, elegantly written, and contains important payoffs for historians and scholars of contemporary social movements alike. Most importantly, it teaches us that the struggle for equal justice is an unfinished project that each generation must do its part to sustain, walking along paths forged by earlier lawyers who held fast to the belief that the rule of law mattered even as they fought to make law better.
Oct 23, 2025 Elizabeth Chambliss
Two recent studies of rural court systems highlight the importance of institutional investment for improving access to justice in rural communities. Rural communities not only need more individual providers, such as lawyers and community justice workers, they also need local nonprofits, community action networks, mental health treatment centers and other institutional infrastructure to support and partner with providers including—critically—more public investment in rural county government and courts.
In Legal Deserts and Spatial Injustice: A Study of Criminal Legal Systems in Rural Washington, Lisa R. Pruitt, Jennifer Sherman, and Jennifer Schwartz document alarming institutional deficits in rural county criminal justice systems. Based on detailed qualitative and quantitative data from six rural counties in central and eastern Washington, they find a growing shortage of lawyers available to prosecute and defend criminal cases, with county vacancy rates for defense attorneys of up to 67% (P. 868); an increasing reliance on remote appearances by defense attorneys who never meet their clients (P. 884); and “a lack of services and infrastructure to support system-involved individuals, from drug treatment programs to public transportation.” (P. 852.)
These deficits significantly undermine the quality of rural indigent defense. Many system-involved individuals report being detained for lengthy periods before appearing before a judge—systematically longer than in urban counties. (P. 906.) Many indigent defendants have no contact with their attorneys before their appearance, even by phone, and thus no opportunity for confidential communication. (P. 908.) The problem is exacerbated by courts’ increasing reliance on remote appearances by defense counsel while defendants typically are required to appear in person, inhibiting confidential attorney-client communication in court (P. 911) and raising constitutional concerns about the effective assistance of counsel. (P. 912.) The study finds that “[d]eputy prosecutors, too, are increasingly physically absent from rural courthouses.” (P. 848.)
A key source of the problem is funding. Over 80% of criminal defendants in Washington are indigent and county governments are primarily responsible for funding indigent defense. (P. 875.) Counties also are responsible for funding “substantial portions of the prosecutorial and judicial functions.” (P. 893.) Yet it costs more per capita to deliver these services in rural counties than urban ones and the costs of indigent defense are on the rise, placing rural counties with weaker tax bases under significant financial strain. (P. 894.) These fiscal constraints “not only hamstring counties’ ability to recruit indigent-defense attorneys and prosecutors, but they also prevent counties from making other criminal legal system investments that could enhance procedural fairness,” such as electronic reminders of court appearances, which are standard in urban counties. (Pp. 895, 898.) Despite widespread awareness of the problem, the legislature has declined to increase state funding to support rural indigent defense. As a result, there are significant “spatial inequalities” in the operation of criminal justice systems in rural versus urban counties. (P. 847.)
In addition to the injustices that defendants experience, the degradation of rural justice systems profoundly affects the well-being of the local judges and lawyers who struggle to work within them. In A World-Threatening Feeling: Grief, Moral Injury, and Institutional Loss in Rural Courts, Michele Statz examines how courtroom dynamics in rural Minnesota and Wisconsin have changed since the COVID-19 pandemic, with a particular focus on the impacts of the transition to remote hearings. Drawing on more than seven years of mixed methods research on active judging in state and Tribal courts, including repeated interviews with the same judges over time, Statz reports “a noticeable shift” in judges’ perspective and affect since the move to remote hearings (P. 1261) and “an acute sense of betrayal” and loss of meaning in their work. (P. 1259.)
She finds that, since the widespread adoption of remote hearings, judges feel “tired and overwhelmed” (P. 1260) and increasingly inadequate in their roles. (P. 1263.) They miss the opportunity to connect and engage with the people appearing before them and the “routine interactions, informal camaraderie, and shared knowledge and ethos” with other court actors. (P. 1265.) They feel like they are “just … processing cases” and “not making a big difference.” As one judge said, “I don’t feel like people are getting justice right now.” (P. 1261.) Another said: “what I realized from Zoom is actually how little of what I actually do [as a judge]” is possible to do over Zoom. “At some point when you’re dealing with a little face on the screen, you kind of give up.” (P. 1264.) Many are thinking of stepping down or retiring early. (P. 1261.)
Statz argues these findings are not simply evidence of individual stress and burnout but rather point to a collective, institutional loss of connection and vocation that is a “spatially distinct occupational hazard” for practitioners in geographically isolated communities. (P. 1259.)
The institutional loss that rural legal practitioners are experiencing is one of physical space but also the intimacy within it …. Many of the legal professionals I have interviewed over the years have deep, long-standing ties to the court and the people who move through it, whether as colleagues, mentors, or litigants whose families are personally known in rural sovereign nations and other communities. To lose this intimacy threatens connections that prove pivotal to getting good facts, giving sound advice, making informed decisions, building confidence in the courts, and maintaining procedural fairness. (P. 1265.)
Statz argues this loss goes unacknowledged in the highly individualistic framework of the lawyer wellness literature, which puts the burden of recovery on individual practitioners rather than addressing external sources such as “mandated Zoom hearings, an expedited docket, funding allocations that do not correspond with growing caseloads…and the shuttering of treatment facilities.” (P. 1272.) She calls for the profession to engage in an “institutional reckoning” to acknowledge the unique losses experienced by rural practitioners. (P. 1275.)
Read together, these studies have two broad takeaways for rural access to justice advocacy and research. First, while in the short term, allowing remote appearances by defense counsel may increase (inadequate, remote) access to counsel by rural defendants, states’ increasing reliance on remote appearances as a solution to funding and staffing shortages promises to exacerbate inequalities between rural and urban justice systems and to further destabilize the rural legal workforce. Policymakers’ embrace of remote appearances takes the pressure off calls to increase state funding for rural justice systems and personnel. Such funding not only is essential for delivering public services in rural counties; it also plays a vital role in supporting local private practice. Many rural private practitioners work as part-time county prosecutors, contract indigent defense attorneys, or town attorneys to subsidize their practice and may play other important roles in their communities.
A second takeaway is that the problem goes beyond the legal labor supply. It is not just lawyers and other justice workers that we lack in rural areas. “Across the United States and around the world, rural areas have suffered from brain drain” that has played out across generations, “with young people leaving rural spaces to seek education or opportunity in urban areas and never returning. The result is not just towns without lawyers, but also towns without doctors, accountants, teachers” or the institutional supports for such providers, such as hospitals, businesses, and schools. While increasing funding for individual providers is important, addressing these deficits at scale will require “broader revitalization efforts” including sustained public investment in rural institutions and infrastructure.
Cite as: Elizabeth Chambliss, Rural Institutional Loss, JOTWELL (October 24, 2025) (reviewing Lisa R. Pruitt, Jennifer Sherman, & Jennifer Schwartz, Legal Deserts and Spatial Injustice: A Study of Criminal Legal Systems in Rural Washington, 134 Yale L.J. Forum 847 (2025); Michele Statz, A World-Threatening Feeling: Grief, Moral Injury, and Institutional Loss in Rural Courts, 93 Fordham L. Rev. 1257 (2025)), https://legalpro.jotwell.com/rural-institutional-loss.
Sep 25, 2025 Eli Wald
According to the American Bar Association Model Rules of Profesisonal Conduct, a lawyer is “a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” As Deborah Rhode has astutely pointed out, however, lawyers’ duties as public citizens have long been more of a rhetorical ploy than an actual commitment, in need of elaboration and exposition. In the twenty-first century, lawyers have been forced to come to terms with their asserted role as public citizens in the face of the #MeToo and the Black Lives Matter movements, reform calls for the deregulation of the legal profession designed to increase access to legal services for those who cannot afford to pay for them, and attacks on the rule of law. Professor Robert Katz’ new casebook, Antisemitism and the Law, constitutes an important contribution sure to help those aiming to understand the obligations of lawyers to pursue justice and combat discrimination.
Antisemitism and the Law is organized thoughtfully and effectively. It begins with two introductory sections. Part I lays out a legal foundation, introducing anti-discrimination law and explaining, in particular, how laws designed to combat racial discrimination against non-whites have gradually been construed to apply to groups not defined by race, such as Latinos and Jews. Part II then turns to antisemitism or anti-Judaism by exploring the meaning and definition of Jewish identity, namely who is Jew, from both Jewish and non-Jewish perspectives. It establishes that Judaism is a religion with cultural and ethnoreligious underpinnings, but not a racial category. Read together, Parts I and II compellingly show why legally (as opposed to by other means—more on that below) antisemitism could and should be addressed by vigorously enforcing anti-discrimination laws. With these fundamental building blocks in place, Part III and IV, respectively, study antisemitic speech and antisemitic activities as well as legal responses to them. Part V concludes on a high note of sorts, studying secular and religious allies, their relevance, and importance in the ongoing battle against antisemitism.
Of the book’s many well-written chapters, I found chapter 12 on campus antisemitism particularly intriguing and timely. Following the manuscript’s sensible overall approach of grounding itself in anti-discrimination law before turning to examine instances of antisemitism, the chapter begins by explaining how Title VI of the Civil Rights Act of 1964 has been construed to protect Jewish students from antisemitic harassment on campuses, despite not explicitly mentioning religion-based discrimination. It then presents a case study, examining the anti-Jewish environment and culture at the University of Vermont in the early 2020s. The case study reveals the complexity of defining, debating and combating discrimination. Success depends not only on the availability of applicable laws and courts willing to enforce them, but also on the dedication and persistence of courageous plaintiffs committed to airing the wrongs, and on actions (and inactions) of other actors on campus, including administrators tasked with creating inclusive and welcoming culture for all students and vigorously investigating allegations of hostile environment and abuse, see, for example, here.
Moreover, as Katz, Professor of Law and John S. Grimes Fellow at Indiana University McKinney School of Law and Founder and Director of the Center for the Study of Law and Antisemitism, thoughtfully explains, battling campus discrimination necessitates distinguishing between antisemitism and anti-Zionism and acknowledging the tension between combatting antisemitic harassment on campus and protecting the free speech rights of anti-Zionist activists. Striking this important and delicate balance has gotten even more challenging now that the federal government has become an active actor in the debate through impending settlements with leading universities over their handling of campus protests following the October 7, 2023, Hamas-led attack on Israel and the Israeli government’s response in Gaza.
Chapter 13, in Part V, titled Émile Zola: Antisemitism Is Antithetical to Liberal Democracy, is another must-read. A detailed reexamination of the Dreyfus Affair, in which a high-ranking Jewish officer in the French army was wrongfully convicted of treason based on forged evidence, it demonstrates convincingly that law, legal action, and lawyers alone are unlikely to defeat discrimination. Exactly because antisemitism and other forms of discrimination are fueled by societal ignorance and deep-seeded bias and hatred, a successful campaign to overcome them will be a long-term project which will depend on the formation of a diverse coalition of allies and contributions by brave supporters drawn from a cross-section of society, like Émile Zola, a leading author and public intellectual who famously defended Dreyfus in an op-ed piece titled J’accuse! (I accuse!). Whereas Parts I-IV allow readers to immerse themselves in the multifaceted relationship between the law, equality, and discrimination, Part V, which also includes a fascinating chapter on the relationship between Jews and the Roman Catholic church especially in the twentieth century, serves as an important reminder to lawyers that we cannot and should not attempt to solve difficult societal problem by legal means alone.
Katz explains that Antisemitism and the Law’s goal is to make the subject of antisemitism and the law widely known, accessible within the legal community and beyond it.” He accurately and modestly suggests using selected chapters to “augment courses on race and the law, the First Amendment, cyberlaw, trusts and estates, torts, criminal law, international human rights law, comparative law, education law, law and religion, and Catholic law” (xvii). I suggest adding professional responsibility and legal ethics classes to the mix. Lawyers are public citizens, who have a special responsibility for the quality of justice. Yet, it is hard to understand the meaning of justice in the abstract, let alone articulate specific obligations to it, without appreciating the meaning of injustice and discrimination in context. Antisemitism and the Law is an essential reading in this regard – a manuscript which can help law students (and lawyers) understand a complex problem, its history, causes, possible legal solutions, as well as their limitations.
Aug 27, 2025 Sida Liu
Jedidiah J. Kroncke,
Legal Complicity in an Age of Resurgent Authoritarianism, 38
Geo. J. Legal Ethics ___ (forthcoming 2025), available at
SSRN (Feb. 24, 2024).
As authoritarianism gains momentum globally, the rule-of-law ideal is increasingly compromised. Lawyers are confronting a wave of attacks, ranging from the persecution of human rights advocates and the restriction of criminal defenders to the suppression of corporate law firms, including some of the most prestigious ones worldwide. Recent actions by the U.S. government against elite law firms like Paul Weiss and Perkins Coie, along with the consequential deals struck by some firms, exemplify the daunting circumstances that lawyers encounter in today’s world.
In this context, Jedidiah Kroncke’s new article on legal complicity is particularly compelling. Written a year before Donald J. Trump’s return to power, Kroncke could not have anticipated the subsequent aggressive actions against U.S. law firms. His primary focus is the ethical dilemmas faced by American lawyers practicing abroad, especially in authoritarian regimes like Russia and China. He critically examines modernization theory, a prevalent late 20th-century view among law and development scholars that posits a connection between economic development and democratization or political liberalization. Nonetheless, the phenomena he observes and the arguments he presents are remarkably pertinent to today’s discussion of legal ethics in both democratic and authoritarian settings.
Kroncke opens his discussion with a classic proposition in legal ethics: the amorality of a lawyer’s civic virtue. He draws upon the theory of French sociologist Émile Durkheim, who viewed professions as distinct groups tasked with upholding public values within their work, shielded from the influence and control of market forces. This autonomy is maintained not by the state, but by the profession itself, through a set of collective norms. Within the common law tradition, there has been a longstanding argument that lawyers should self-regulate to preserve their independence. This self-regulation enables them to “inject liberal ideals and a special fidelity to the law into their practice without coercion by the state and without being beholden to raw commercialism.” (P. 9.) The amorality of legal ethics, as Kroncke highlights, is epitomized by Justice Oliver Wendell Holmes Jr.’s influential discussion of the “bad man” who “manipulates the law as an amoral technician, guided solely by his client’s objectives.” (Pp. 9-10.) This perspective has shaped the ethical framework of the legal profession for over a century and continues to exert considerable influence today.
In recent decades, two alternative perspectives on legal ethics have gained prominence. The first, advocated by legal historians like Jerold Auerbach and Richard Abel, challenges the idea of a liberal and altruistic legal practice within the American legal profession. They contend that the profession functions as a self-interested group, using its professional autonomy and market monopoly to boost the income and status of its members. This orientation has been further reinforced by the increasing commercialization of corporate legal practice in recent years. The second perspective, exemplified by the “empirical turn in Canadian legal ethics” (P. 18), advocates for the imposition of more substantial social responsibilities on Canadian lawyers. Similar appeals for enhanced social duties are also evident in other common law jurisdictions, including Australia, New Zealand, and the U.K.
In the era of globalization, legal ethics underwent another transformation, as Kroncke argues. American lawyers venturing abroad to support the expansion of the United States’s global economic influence became increasingly aligned with the law and development agenda, which is rooted in modernization theory. This agenda views legal reform as a pivotal tool for achieving development objectives and promoting the rule of law worldwide. For instance, in China, since its reform and opening up in the 1980s, American lawyers and firms have not only assisted their clients with investments and cross-border transactions but have also actively contributed to rule-of-law initiatives such as legal clinics, judicial training programs, and legislative reforms, all aimed at making Chinese governance more rules-based and democratic.
This is where the concept of legal complicity becomes relevant. After four decades, it is evident that China has evolved into a more rules-based society, yet its governance remains highly authoritarian. In other words, the development of a more mature and functional legal system has not led to democratization, at least not in the Western sense. On the contrary, as the Chinese state has grown more powerful and resourceful in its governing capabilities, foreign lawyers working in China have become less outspoken in their criticism of Chinese governance. For the Chinese government, lawyers are expected to act as market facilitators rather than champions of democracy. When Chinese human rights activists were arrested and persecuted, there was scarcely any response from international law firms in Beijing, Shanghai, or even Hong Kong. According to Kroncke, this silence is a clear indication of the complicity of these foreign lawyers, including Americans, in supporting authoritarianism.
Legal complicity is closely linked to another concept, legal hypocrisy, which Kroncke adopts from Ekow Yankah. Legal hypocrisy refers to situations where the legal system becomes a scarcely concealed instrument of power, thereby eroding the rule of law and exacerbating concerns about the fidelity of lawyers, who are increasingly driven by market imperatives. With the global surge in authoritarianism in recent years, legal hypocrisy has taken on various forms across the world, from legislation and constitutional amendments aimed at consolidating power in China to the manipulation of trade and immigration laws under the banner of “Make America Great Again.” Laws are increasingly utilized instrumentally for the pursuit of political power and national interests. In this new era of anti-globalization and democratic backsliding, international law firms and their lawyers are no longer united by “a collective understanding that we are heading towards a more just world.” (P. 36.) Instead, they might find themselves better suited to serving merely as “sanctifiers” of corporate transactions – a role identified by John Flood two decades ago during the peak of economic globalization.
Kroncke views this development as an ethical dilemma for transnational lawyering, noting that for American lawyers, it represents “not just a loss of their special status at home, but also a loss of the special status they have enjoyed in the international world for most of modern history” (p. 40). However, the notion that American lawyers hold an exceptional global role as both market facilitators and champions of political liberalism has always been fraught with hypocrisy. Even during the height of globalization, elite corporate law firms primarily focused on facilitating capital investments and corporate transactions. The responsibility for advancing human rights and the rule of law fell to other lawyers, those who resisted the core principles of corporate law.
In other words, the argument of legal complicity does not fully recognize the substantial internal divide within the American legal profession, where commercial lawyering and political lawyering have long operated as separate spheres, both domestically and internationally. Indeed, much of the criticism directed at Paul Weiss for its recent dealings with the Trump administration stems from an unrealistic – and arguably hypocritical – expectation of elite corporate law firms: that they should serve not only as business champions but also as defenders of the rule of law. Personally, I have never subscribed to the latter part of this belief. Big Law firms may undertake pro bono work, but typically only when it does not conflict with their business interests.
Instead of accusing corporate law firms of complicity with authoritarianism, whether at home or abroad, it may be more impactful to channel resources and reinforce capacities in other areas of the legal profession, specifically among lawyers guided by distinct political ideals and ethical principles. Corporate lawyers, now entrenched within the global corporate elite alongside investment bankers, accountants, and business consultants, are unlikely to shift from their increasingly commercialized roles. Faced with the stark choice between business and the rule of law, it is hardly surprising that they put business first. Consequently, questioning their legal ethics seems like a futile dream of resistance.
Jul 9, 2025 Nora Freeman Engstrom
Todd Venook,
Enterprise Justice: Tyler Technologies and the Privatizing Court, available at
SSRN. (June 4, 2025).
In Enterprise Justice: Tyler Technologies and the Privatizing Court, forthcoming in the Yale Law Journal, Todd Venook pulls back the curtain on Tyler Technology, an obscure company headquartered in Plano, Texas that provides the technology to the courts that serve a majority of Americans.
Todd begins by explaining that, however belatedly, courts have entered the digital age, and, faced with a classic “make-or-buy” decision when it comes to building out their data infrastructure, courts have mostly opted for the latter. Having done so, hundreds of courts have inked contracts with Tyler—and, pursuant to these contracts, Tyler performs a range of functions, central to courthouse operations. Tyler’s tools facilitate e-filing, manage calendars, accept payments, store filings, and even (sometimes) run online dispute resolution (“ODR”) platforms. In 2025, in the majority of states, justice is delivered (or not) through Tyler’s tools.
After cataloging the products that Tyler offers and inventorying Tyler’s grip over the relevant marketplace, Todd considers the implications of Tyler’s dominance. Filings—which is to say, pleadings, motions, judgments—are courts’ lifeblood. They are the grist for the courthouse mill. And Tyler, Todd shows, controls these filings. What follows?
Todd raises several concerns—but here I’ll highlight four. One of these is fully fleshed out in Enterprise Justice. The others, I think, would benefit from somewhat further study.
The first involves market concentration. Tyler has cornered the market on courthouse technology, and, as any user of Google or Apple well knows, that cornering is, itself, concerning. As Tyler eclipses competitors, courts that are in the market for case management and filing systems have fewer options to choose from, and that reality brings with it a host of problems that typically flow from monopoly status. Consumers (here, courts) may ultimately face higher prices and lower quality. Without competition to drive innovation, Tyler may become complacent and less incentivized to invest in R&D. And we ought to worry about entrenchment. Given Tyler’s stranglehold, will new competitors be able to get a foot in the door?
Bundling exacerbates this concentration concern. As Todd shows, Tyler combines its market-dominating case-management software with other offerings, such as its ODR platform. But where those other offerings are not profit centers, they remain woefully underdeveloped, even while their very presence stymies other would-be providers.
A second concern involves what Todd calls “homogenization.” Todd explains that Tyler “serves as a hub of a hub-and-spoke policy replication mechanism, created through individual contracts.” (P. 64.) And this, Todd points out, results in a striking “convergence of policy across state courts.” Id.
This convergence, Todd suggests, is worrisome. He points out that, under the hoary “laboratories of democracy” idea, state-level experimentation is supposed to spur smart innovation because state X can look over state Y’s shoulder, see what works and what doesn’t, and learn from past mistakes. However, when states just contract with a single provider, those federalism advantages dissipate. The result, Todd says, is similarity across states, without “concomitant shared oversight or purposeful unity.” (P. 66.)
This concern is powerful, as far as he goes, but, in future work, Todd might spend a bit more time studying the benefit side of the coin. After all, state-level experimentation isn’t inevitably beneficial; instead, it has a “Jekyll-and-Hyde” quality. After all, some state efforts to go it alone fizzle.
More importantly, one person’s worrying homogenization is another person’s salutary standardization. And particularly when it comes to court filing systems, standardization comes with various benefits. Indeed, we at Stanford Law School’s Rhode Center launched the Filing Fairness Project in 2021, at least in part, to promote standardization between state court filing systems—reckoning that, only once there’s sufficient inter-state standardization can tech providers achieve the scale they need to invest in high-quality offerings. Thus, this story, like so many others, is a tale of tradeoffs, and the question becomes whether the resulting standardization is on balance troublesome or beneficial.
A third concern involves accountability. Litigants in a number of jurisdictions have reported problems caused by failures in Tyler’s products, including glitches that have led to wrongful rearrests, prolonged incarceration, and leaks of attorney disciplinary records.
In one notable 2016 case, for instance, plaintiffs in Shelby County, Tennessee claimed that, thanks to a Tyler Tech snafu—specifically, Tyler’s botched installation of a program to track “inmates’ posting of bond, pretrial probable cause determinations, and the release of arrestees”—they were unlawfully detained “beyond the dates set for their release.” The court denied Tyler’s motion to dismiss, finding that “Tyler could reasonably have foreseen that negligently installing, designing, or integrating [its] . . . software would lead to inmates being detained beyond their proper term.
Todd points out that someone should answer for this egregious oversight. But who? Tyler? How about the court that delegated key tasks to a government contractor? If Tyler is on the hook, is the company akin to a state actor, entitled to government immunity for certain tort claims? If so, what kind of immunity?
This accountability point brings up a final—and broader—issue that Todd does not zero in on, but might, in future work. Here, I’m referencing the fact that Tyler’s court takeover isn’t just important in its own right. It also fits into, and enriches, a broader literature concerning governmental contracting and private entities’ incursions into (previously) public domains.
Recent decades have seen an explosion in private contracting, as governmental actors now contract out a wide range of governance tasks and services that were previously performed in-house. Nowadays, it is frequently private contractors (not public employees) who pick up our trash, police our communities, run our prisons, and even fight our wars.
Much ink has been spilled evaluating the benefits and costs of this delegation, and the cost side of the ledger reflects a wide range of concerns. Some scholars worry about responsibility—that “legal and moral norms can never be fully imposed on private contractors because private firms lack the democratic accountability of public agencies.” Others fret about transparency—the fact that, because contractors operate in a FOIA-free zone, “[t]he more government work is taken over by private contractors, the less accessible project information is to the public.” Still others home in on conflicts—the fact that, “[w]hile government employees are subject to strict ethical standards, most of these standards do not apply to contractor personnel.” Sitting atop many of these concerns is a final and more general worry well-articulated by Martha Minow: As civil servants are systematically replaced by private employees, ultimately answerable to corporate shareholders, a steady “dilution of public values” results.
What unites this broad literature is that scholars tend to write about contractors who have stepped in for—and are doing the work of—the executive branch. What Todd is zeroing in on, however, is subtly different. Tyler Tech does not contract with the executive. It’s doing the work of courts. Now, it could be that this wrinkle isn’t meaningful—that, whether for the executive or judiciary, the risks of privatization remain similar. But I think that, in future work, Todd would benefit from considering Tyler Tech’s rise to dominance through this particular lens.
Enterprise Justice is beautifully written, deeply researched, and richly generative. In it, Todd reveals something important, that had, until now, been hiding in plain sight.
Jun 16, 2025 Kevin Woodson
The scholarship on criminal justice disparities has often cast prosecutors in a harsh light. Prosecutors are among the most powerful actors in the criminal legal process, due to their vast discretion in deciding whether and how to proceed with cases, and researchers have found that they use this discretion in ways that produce racially disparate outcomes, to the detriment of Black defendants. Studies have described prosecutors’ offices with bias-laden cultures that breed contempt and callousness toward poor Black defendants and indifference to systemic racial inequities. Against this backdrop, scholars and other reformers have championed strategies to limit prosecutorial discretion in charging decisions, including by “colorblinding” their cases, to reduce racial disparities in case outcomes.
Though well-intentioned, these reforms may be counterproductive and the underlying understanding of prosecutorial discretion outdated. In her important new article, Prosecutors, Race, and the Criminal Pipeline, law professor Hannah Shaffer demonstrates that limiting prosecutorial discretion may not only fail to alleviate racial disparities but may actually make them much worse. Through evidence from her original empirical research project, a 2020 survey capturing 203 North Carolina prosecutors’ views about criminal justice disparities that Shaffer links to comprehensive data from their real-life cases from 2010 to 2019, Shaffer reveals that prosecutors who attribute racial sentencing disparities to racial bias are significantly less likely to incarcerate Black defendants compared to White defendants with similar criminal records. In other words, prosecutors use their discretion to discount the prior convictions of Black defendants—records that may be inflated as a result of discriminatory policing practices—and thereby reduce racial disparities in sentencing outcomes. And this tendency is not just limited to attorneys working in progressive prosecutors’ offices: Shaffer’s findings hold across different types of jurisdictions—conservative and liberal, urban and rural, and for politically liberal and conservative prosecutors alike. Further, between 2010-2019 prosecutors increasingly gave less weight to Black defendants’ prior records, suggesting that their race-conscious decisionmaking may be an enduring and growing source of racial progress. The fact that newer cohorts of prosecutors express far greater awareness of racial bias in the criminal legal process also bodes well for the racially equitable use of prosecutorial discretion in the future.
While the article is dense with empiricism, it is clearly written and highly accessible. Shaffer does not wax poetic about the criminal legal system or advance provocative theoretical claims about the racial disparities therein. Instead, she uses careful language to precisely describe her research methodology and analyses in great detail, both in the text and, helpfully, in extensive online appendices. Impressively, Shaffer anticipates and addresses a wide variety of possible alternative explanations for her findings and runs additional analyses that confirm that her conclusions are robust. Although the research is based solely on data from one state, Shaffer makes the case that the results very likely apply elsewhere and are probably not artifacts of any state-specific dynamics. Still, one hopes that future researchers will confirm that this is so by conducting similarly rigorous studies using data from other states and jurisdictions.
The article’s implications are not only significant for reform efforts that would limit prosecutorial discretion, but also for racial-justice-minded lawyers and law students who might pursue careers in prosecution and for those of us who teach them. Some scholars in the past have argued that “good people” and people who care about racial justice ought not to take jobs as line prosecutors on the view that these lower-level prosecutors, no matter their values and intentions, face constraints that render them powerless to effect meaningful change. This article challenges that view. It affirms instead that line prosecutors can, and in many cases do, use their positions to reduce the over-incarceration of Black people. For law professors, this article’s findings sustain our hope that we may be able to play some small, indirect role in fighting criminal justice disparities by educating lawyers and students about sources of racial inequities in the criminal legal process and means of combating them. This article is essential reading for anyone interested in better understanding prosecutorial behavior and its impact on case outcomes, as well as for anyone concerned about racial disparities in the criminal justice system more broadly. It is a model of rigorous empirical scholarship that contributes meaningfully to academic discourse while informing criminal justice policy and practice.
