The Analytical Routes of Aiding and Abetting Under the Alien Tort Statute

This paper examines whether aiding and abetting liability for corporate involvement in human rights abuses is a cognizable claim under the Alien Tort Statute (ATS). Though the ATS has potential to serve as a powerful mechanism of civil redress for violations of international law, the Supreme Court has increasingly narrowed its scope in recent decades. As a result, critical questions remain unresolved regarding the cognizability of certain claims under the statute. This paper focuses primarily on Doe I et al. v. Cisco Systems, Inc. et al.,, a case emerging from the Ninth Circuit Court of Appeals. In January 2026, following a petition by Cisco Systems, Inc., the Supreme Court granted certiorari, agreeing to review the issue of whether corporations may be held liable for aiding and abetting in violations of international law under the ATS. This paper identifies and analyzes the two competing analytical frameworks the Court may employ in addressing this question. The First Route argues the law of nations, as applied to the ATS, is a developing body of law. Under this approach, aiding and abetting is a well-defined and universally accepted norm of international law and therefore a cognizable claim under the ATS. The Second Route argues that the ATS was enacted with congressional intent to limit its application to a narrow set of historically recognized offenses against the law of nations. Under this approach, recognition of additional causes of action, notably aiding and abetting, raises significant foreign policy and separation-of-powers concerns. In applying these frameworks to the case of Cisco, this paper clarifies the stakes of the court’s impending decision and evaluates its broader implications for corporate accountability

Taxation and the Fair and Equitable Treatment Standard in International Investment Arbitration

The recent decade has witnessed an increase of cases in which foreign investors have challenged host states’ taxation measures in international investment arbitrations, arguing that they violated investment treaty protection standards including fair and equitable treatment (“FET”). After conducting a close examination of cases involving taxation-related claims in international investment arbitration, this article reveals that in the cases involving the host states’ taxation measures, the ability of investors to invoke FET claims is very limited, and the chances of foreign investors succeeding in protecting their investment interests through FET claims are much lower compared to other types of non-taxation-related claims. Tribunals have generally extended uneven deference toward host states’ taxation power, which renders investment treaty protection less meaningful, even insufficient, for foreign investors to protect their interests from host states’ abuse of taxation measures. In addition, due to the generic and vague features of the FET standard, different tribunals have taken a diverging approach to conduct the FET analysis which caused more confusion and uncertainty. To address this situation, this article proposes a new “Balanced Three-Fold” approach to harmonize the chaos in existing jurisprudence: for taxation-related FET analysis, first, the tribunal could assess whether there is a clear prior commitment to taxation stabilization from the host state to the investor through stabilization arrangements or other assurances or guarantees; if there is no prior commitment, then assessment can turn to substantive FET sub-standards and procedural FET sub-standards to decide whether the taxation related claims can be supported or not

Revisiting Robinson: How Courts Can Preserve the Status Crimes Doctrine After Grants Pass

Prior to the Supreme Court’s 2024 decision in City of Grants Pass v. Johnson, legal advocates for the homeless used the status crimes doctrine to successfully argue in multiple cases that anti-homeless laws, which punish life-sustaining acts such as sleeping, camping, or eating in public, are unconstitutional. Under the status crimes doctrine, which comes from the Supreme Court’s 1962 interpretation of the Eighth Amendment’s Cruel and Unusual Punishment Clause in Robinson v. California, it is unconstitutional to punish individuals for having a status they may have contracted innocently or involuntarily. The Robinson Court struck down a law criminalizing the addiction of narcotics because it punished people for having the illness of addiction. In the decades since Robinson, many state and circuit courts have interpreted the status crimes doctrine to extend to laws which criminalize conduct that is involuntary and inextricably intertwined with a status. Courts, including the Ninth Circuit, have held unconstitutional some applications of anti-homeless laws prohibiting camping in public on the grounds that just as people generally cannot help their homelessness, they also cannot help that they need somewhere to sleep at night. In Grants Pass, the Supreme Court reversed the Ninth Circuit’s holding that it was unlawful under Robinson for the city of Grants Pass, Oregon to punish the involuntarily homeless for using bedding supplies to sleep in public when they have no available shelter. The Court imposed a formalistic act-status distinction on its interpretation of Robinson, finding that the status crimes doctrine did not apply because the law criminalized the act of camping in public, not the mere status of being homeless. The majority further stated that it was practically impossible to analyze whether the conduct at issue was truly involuntary, and the legislature may have intended to remedy the homelessness crisis by passing such an ordinance. In her dissent, Justice Sotomayor argued that an act-status distinction may create a loophole for legislatures to exploit, whereby they can criminalize a status by wording their laws to punish conduct that stands in as a proxy for that status. This Comment proposes a narrow interpretation of Grants Pass that can cover up this loophole by preserving the power of the status crimes doctrine to apply to more than challenges to the facial wording of a law. Grants Pass should be construed to only preclude the status crimes doctrine from applying when the involuntariness of a status, and of the criminalized conduct associated with that status, cannot be conclusively shown. The application of the status crimes doctrine should also allow for the legislative intent and practical effect of a law to be considered as factors courts may use to determine whether a law effectively criminalizes a status as applied, even if the law does not criminalize a status on its face

The Establishment that Time Forgot: The Historical Understanding of Religious Offenses and Their Unconstitutionality in Modern Law

This Note argues that religious offenses, meaning laws which penalize conduct for religious purposes, should be barred by the Establishment Clause of the Constitution, as the Clause was interpreted in Kennedy v. Bremerton School District. This is because Kennedy interpreted the Establishment Clause to prohibit each of the several types of laws which early Americans associated with religious establishment—the historical practice wherein early states would adopt a religion as the state religion and pass various types of laws for its support. And religious offenses, this Note argues, were amongst the types of laws which early Americans so associated with religious establishment. This Note performs an extensive analysis of historical evidence to support this conclusion, relying upon early American statutes and the writings of William Blackstone, Joseph Story, and Richard Mentor Johnson. Because early Americans understood religious offenses to be linked to religious establishment, this Note argues that the Establishment Clause should also prohibit contemporary religious offenses, which similarly penalize conduct for religious purposes. Such contemporary offenses include, amongst others, laws penalizing the teaching of evolution in public schools

True Threats, Public Safety, and Free Speech: An Empirical Analysis of Counterman\u27s Consequences

Many scholars expected the Supreme Court’s Counterman decision to significantly reshape true threat law, undermining public safety while expanding protections for caustic political speech. Counterman required that a speaker consciously disregard a substantial risk that their communications would be viewed as threatening violence to give rise to liability. This created a concern that it would be difficult to convict harassers and stalkers who were, or claimed to be, delusional, and thus unaware of their speech’s likely impact. Scholars also feared the invalidation of some stalking and harassment statutes and increased difficulty in obtaining protective orders, which play a major role in preventing intimate partner and workplace violence. This first empirical study on Counterman’s effects finds that, while these concerns have largely not materialized, considerable uncertainty remains. In federal courts, Counterman has had a minimal impact on jury instructions, has not resulted in any convictions being overturned, and has even been cited to justify admitting probative but damaging evidence of defendant intent. In sum, it has not benefited federal defendants. At the state level, by contrast, some courts have vacated convictions due to constitutionally deficient jury instructions, and a minority of states have applied Counterman’s recklessness standard to civil cases, potentially signaling a shift in how those jurisdictions will address protective orders. No state stalking or harassment statutes have been invalidated, however, and the majority rule is to not apply Counterman to protective orders. But this status quo rests precariously on state courts deciding to minimize the sweep of Counterman. Many courts assume that Counterman does not apply to civil cases and that a large class of stalking and harassment laws exist independently of true threats doctrine. These conclusions are debatable and jurisdictional splits on them are already emerging. If the Supreme Court revisits these issues, the fears of Counterman’s critics may yet be realized

The Double-Edged Rhetoric of Parental Rights: Conflicts between Freedom and Control in Cases Concerning Transgender Youth

This Article examines the rhetorical structures courts and advocates deploy in two distinct lines of cases adjudicating parental rights claims affecting transgender youth: cases challenging state bans on gender-affirming care, and cases challenging school policies supportive of transgender students. Although the legal basis for the parental rights claims in each set of cases is the same—substantive due process rights under the Fourteenth Amendment—the alignment of parental interests with those of their children diverges between the two sets. In the gender-affirming care cases, parents act in concert with their children’s expressed interests; in the school policy cases, parents seek to override them. Despite this difference, the Article demonstrates that courts and advocates in both sets of cases deploy similar rhetorical motifs of freedom and constraint, and they adjust the characterization of the asserted parental rights to fit those motifs. Courts that reject parental rights claims valorize the freedom of the legislature or school district to act and narrow the asserted right; courts that vindicate parental rights claims cast the government actor as an agent of constraint and broaden the asserted right. These rhetorical structures limit the capacity of courts to think more expansively about the parent-child relationship.  They also place the two lines of cases on a doctrinal collision course, a tension already visible in the Supreme Court\u27s recent decisions in U.S. v. Skrmetti, Mahmoud v. Taylor, and Mirabelli v. Bonta. The Article further argues that the alignment between parental and child interests offers an underutilized analytical framework that judges could deploy to help resolve this tension and to better promote the dignity and well-being of transgender youth

Paying Financial Sanctions via Incarceration: A Case Study of “Sitting Out”

This Article provides a comprehensive statewide study of a practice by which courts order defendants to pay financial sanctions—fines, costs, and probation fees—by serving terms of incarceration. Though several states authorize these practices, to date, very little is known about the extent to which payment via incarceration occurs and the different ways it is employed. This Article examines the use of the practice in Nebraska, where it is colloquially referred to as “sitting out.” Our study specifically focuses on all misdemeanor cases in Nebraska county courts with judgments (an adjudication of guilt and/or sentencing) during the year 2019. This study examines the ways in which payment via incarceration is consistent with and diverges from the archetypal “modern debtors’ prison,” in which penalties related to the nonpayment of fines are widespread, imposed against people of limited means and particularly people of color, and which carry the risk that the inherent revenue-generating qualities of financial sanctions will pervert crime policy. We find that Nebraska’s practices are consistent with that archetype in that payment via incarceration is deeply integrated into the jurisdiction’s legal systems as evident through its widespread use. We discover that courts ordered 10,027 defendants to pay financial sanctions via incarceration in over a quarter of all misdemeanor cases in our dataset, an alarmingly high rate. Those defendants also sat out a notably high amount of financial debt—$2,105,462 in the aggregate. At$150 per day (the rate at which Nebraska credits incarceration against financial debt), the defendants in our study spent a minimum of 14,036 days in Nebraska county jails to pay off fines, costs, and probation fees. The results of the study are also consistent with a second archetype— that in modern debtors’ prisons, people of limited means, and particularly people of color, are subjected to financial sanctions they have no meaningful ability to pay and punished for their poverty when payment is not forthcoming. Our findings illustrate that many defendants who were subjected to sitting out were convicted for offenses frequently linked to poverty and many were declared indigent by the court for the purposes of appointing counsel. Further, the cases in our database exhibit troubling racial disparities. Other findings, however, complicate the narrative surrounding modern debtors’ prisons, especially with regard to revenue-generation incentives of government actors. On its face, sitting out appears to undermine the idea that government actors are motivated by revenue generation. Unlike systems in which the debt remains outstanding, when a defendant is ordered to sit out financial sanctions, the debt is paid off by the incarceration. This ensures that revenues are never secured, while leaving the jurisdiction to bear the expense of incarceration. To investigate this issue and track how money moves into and out of government coffers when sitting out is employed, we create an original typology of the various forms of payment via incarceration useful for studying Nebraska’s system and those in other jurisdictions. What we find is geographic diversity in the mechanisms for sitting out that carry different fiscal implications. After presenting the study’s results, we conclude by discussing the key takeaways of our research, its limitations, and several law and policy implications that open potential avenues for future research

Beyond Algorithmic Equality

Algorithms can predict the risk that a given offender will reoffend, on the basis of statistical observations about the relationship between certain attributes and proxies for criminal behavior (e.g., arrest or conviction). These predictions inform a range of decisions within the realm of criminal justice across the world, including sentencing, security classification, and parole. The variables that can increase an individual’s risk score, which are not widely publicized by those who develop or use risk tools, include financial stress, the criminality of friends or family, parental neglect, and experiences of domestic violence. In this way, algorithms may treat individuals as predestined to commit crime because of factors that they cannot influence. For many of us, policies of predictive punishment cause an intuitive discomfort, which is often captured through the language of “algorithmic inequality.” I argue here that this focus reveals only part of what is at stake for individuals when risk tools are used to dispense criminal justice. There are both instrumental and non-instrumental reasons to want decisions about institutional punishment to be responsive to our choices—specifically, to how we behave when faced with different options that we have the knowledge and resources to pursue. These reasons constitute a powerful case for limiting the variables that can influence punitive decisions