Recent Faculty Works: Shari Seidman Diamond, Paul Gowder, Michael Kang

Northwestern Pritzker School of Law is home to an incredible group of faculty members working at the intersections of law and many other disciplines. Their research and scholarship has helped advance the understanding of law and legal institutions in a diverse array of fields. Learn more in our “Recent Faculty Works” series about the latest publications and innovations of our faculty.

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How Experts View the Legal System’s Use of Scientific Evidence

126 Columbia Science & Technology Law Review 51 (2025).

By Shari Seidman Diamond, Howard J. Trienens Professor of Law (coauthored with Richard O. Lempert)

Legal scholars and courts frequently write about how scientific evidence is vetted and presented in legal proceedings, but the views of experts themselves have received little attention. Our research aims to fill that gap. This paper reports some of what we learned from a series of surveys we conducted, beginning with a survey in 2016 of scientists who had been elected to membership in the American Academy of Arts and Sciences. Subsequent surveys were directed to subscribers of the journal Science who identified as scientists and engineers and to self-identified experts who advertised their availability as experts to lawyers or appeared in the expert listings on Westlaw. Responses from those surveyed capture how they regard key actors in the legal system (Judges, Jurors, Lawyers, Other Experts) as well as the weaknesses these experts see in how the legal system treats scientists and handles scientific evidence. We also examine the extent to which expert evaluations of these issues are mediated by their experience in testifying in legal proceedings. … Read More

Keywords:
Experts, scientific experts, judges, attorneys, litigation, expert testimony, juries, science and technology, courts, trials and legal procedure

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Against Attorney General Self-Referral in Immigration Law

109 Minnesota Law Review 2331 (2025)

By Paul Gowder, Frederick P. Vose Professor of Law (coauthored with Stella Burch Elias)

The Attorney General’s self-referral power is an under-examined exemplar of the overall challenges to the rule of law presented by executive powers in immigration enforcement. Under the self-referral power, the Attorney General can assign an immigration adjudication to herself at will, and then decide it at will as a matter of state, based solely on political considerations and with no procedural protections or even a requirement to hear from the immigrant whose fate is in her hands. This Article examines the increasing use of the self-referral power in recent years, particularly in the hands of the first Trump Administration, and shows that it is incompatible with basic principles of the rule of law, including predictability, stability, and the right to be heard. The Attorney General’s self-referral power transforms the case of an individual immigrant and any legal arguments they may offer into a mere means for the execution of presidential policy preferences. It must be abolished. … Read More

Keywords:
immigration law, constitutional law, rule of law, immigration, citizenship

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Electoral Due Process

9 Northwestern Public Law Research Paper No. 25-15, 120 Northwestern University Law Review ( 2025)

By Michael Kang, Class of 1940 Professor of Law

Hyperpartisanship has hit century-long highs in American politics and is emboldening state government attempts to undermine election outcomes by using control over state lawmaking structure to strip away authority, and sometimes outright unseat, partisan opponents after they win elected office. And even as traditional norms against such moves have eroded, the Supreme Court itself has taken a pro-partisanship turn in removing judicial checks against such moves under equal protection and constitutional structure. The Article proposes shifting from challenges under those doctrines to a new approach under electoral due process for confronting this new generation of anti-democracy. Federal due process law restricts the government from changing the legal rules of an election after the election is held and underscore the constitutional understanding that the government cannot commit by state law to a set of rules only to change the rules after the election has been held. On these terms, electoral due process similarly restricts the government from meaningfully stripping the authority of an elective office only after the election, and from expelling or impeaching the winning candidate after the election, as an anti-democratic means of changing the legal consequences of the election after a partisan opponent has won. The government commits to an allocation of government lawmaking authority dictated by the election result and must abide by that commitment, as a due process matter, even when a partisan opponent wins and assumes that authority. The Article explains the jurisprudential advantages of shifting from equal protection and constitutional structure to electoral due process as well as details the political context of hyperpartisanship and the multiplying threats to democratic elections.. … Read More

Keywords:
due process, election law, election, election contest, vote counting, election administration, constitutional law, recount