Monthly Archives: June 2025
Jun 30, 2025 Martha ErtmanContracts
Sabine Tsuruda’s article Race, Unconscionability, and Contractual Equality illustrates shortcomings of current unconscionability doctrine in contract law and proposes an alternative to enable the contract law to avoid complicity with beneficiaries of race discrimination in credit markets. Her proposed update to unconscionability doctrine, which she dubs a “best interests” approach, essentially makes a contract term substantively unconscionable if it runs contrary to a party’s “basic interests and inalienable rights” such as privacy, having a home, accessing justice, and being free from race and gender discrimination. (P. 206.)
Consistent with unconscionability’s roots in equity – and thus morality or fairness that justice requires –Tsuruda aims to “match unconscionability doctrine to the moral category of objectionable racial subordination.” (P. 192.) As such the article fits within unconscionability’s longstanding role of naming abuses of power that undermine the core assumptions that parties are free and equal. For example, the holding in the canonical unconscionability case of Williams v. Walker Thomas, 350 F.2d 445 (DC Cir 1965), led the drafters of the UCC and federal regulators to ban or sharply limit the blanket security interest that enabled the Walker Thomas Furniture Store to repossess Mrs. Williams’ bureau, bed, and stereo when they were nearly paid off. (UCC § 9-204 & Fed. Trade Comm’n Credit Practices Rule). Continue reading "“Basic Interests” Proposal Does Justice to Unconscionability Doctrine"
Jun 27, 2025 Leah LitmanConstitutional Law
Laura Portuondo,
Gendered Liberty, __
Geo. L.J. __ (forthcoming), available at
SSRN. (March 25, 2024).
In Gendered Liberty, Prof. Laura Portuondo presents a doctrinal puzzle: While claims to individual liberty are in decline in some spaces, they are ascendant in others. As Portuondo describes things, constitutional law has become increasingly hostile to claims by people who seek to defy gendered stereotypes. That includes the women who, for whatever reason, do not want to become mothers when they are pregnant, as well as the women whose lives, health, or fertility would be in jeopardy if they became mothers. The Supreme Court overruled their claims to liberty in Dobbs v. Jackson Women’s Health Organization.
At the same time, however, the Court has embraced the liberty claims of people who seek to enforce gendered stereotypes (and thereby diminish the liberty of those who seek to defy them). Portuondo points to the Court’s decisions in Fulton v. City of Philadelphia and 303 Creative v. Elenis as examples of this phenomenon. Both cases allowed entities that objected to marriage equality to project their opposition to marriage equality onto the queer people who were defying gender stereotypes by marrying a person of the same sex. Portuondo also notes the rising tide of conscientious objector liberty claims to legal protections for the transgender community. In doing so, Portuondo persuasively debunks the Court’s insinuations (which were most apparent in 303 Creative) that regulation of conduct has “nothing to do with gender at all.” Continue reading "Free To Be You But Not Me?"
Jun 26, 2025 Emily BremerAdministrative Law
Emily Hammond,
Agency Amici, 58
U.C. Davis L. Rev. 1669 (2025).
How will the recent, significant changes in administrative law doctrine affect on-the-ground administrative activities of longstanding vintage? This question blooms today in a thousand different places, offering administrative lawyers endless opportunity to give that most favored of lawyerly responses: “It depends.” In Agency Amici, an article recently published in U.C. Davis Law Review, Emily Hammond offers a rich and sophisticated analysis of the question as it relates to the age-old practice of administrative agencies filing amicus briefs in ongoing litigation between other parties. The article contributes to the literature on agency amici with empirical evaluation, in-depth case studies, and normative analysis at a moment of transition from the old regime of judicial deference under Chevron and Auer to the new regime under Loper-Bright and Kisor. The result is a rich and fascinating portrait of an established practice that sheds useful light on the possibilities for its future.
An amicus, or “friend of the court,” brief is filed in ongoing litigation by someone who, though not a party to the case, has a strong interest in the issues that will be decided. A federal administrative agency may file such a brief in a case that implicates its statutory responsibilities but does not involve judicial review of the agency’s own action. In these cases, the agency may be able to offer the court a well-informed statutory analysis, as well as practical and regulatory context that the parties to the case may not have the ability or incentive to provide. Continue reading "Friendship Under Conditions of Uncertainty"
Jun 25, 2025 Cesar Rosado MarzánWork Law
Elizabeth Ford’s Alt-Legal Services offers a bold and refreshing take on the role of lawyers in worker movements. Can lawyers empower workers—or do they undermine organizing efforts? Ford tackles this long-standing debate head-on, arguing that the tension stems from competing ideas about what worker power really means. Her perceptive solution: a new model of “alt-legal services” that fuses legal advocacy with grassroots organizing to build worker power.
Ford argues that when people disagree about the role of legal services for worker power, they tend to misunderstand what it entails. Some believe that lawyers undermine worker power by taking control of campaigns and fragmenting workers through individual litigation. Others see litigation as essential for improving workers’ material conditions and securing remedies for workplace harms, such as wage theft. Ford argues that this conflict arises because both sides differ in what they assume worker power is. To resolve this conflict, she introduces an analytical framework that she develops from Galvin that distinguishes between “power over” and “power with.” Continue reading "Lawyers Can Build Worker Power"
Jun 24, 2025 Reid WeisbordTrusts & Estates
When legal scholars identify and analyze a social problem, they usually conclude with law reform recommendations for potential adoption by courts or legislatures. In The Dark Side of Codifying U.S. Trust Law, Professor Thomas Gallanis reboots that familiar template by reversing the inquiry: This superb article evaluates how a reformer’s choice of institutional forum—court versus legislature—can impact the effectiveness of legal intervention. Gallanis presents an intriguing case study that documents the plight of several well-intended trust law reforms which Gallanis contends inadvertently created fertile ground for legislative capture by special interests. Gallanis describes how the political influence of special interests ultimately persuaded state legislatures to alter model legislation in ways that undermined the reformers’ original policy goals.
The article begins by surveying the modern trend of American trust law toward “codification,” which refers to the replacement of traditional judicial doctrines with statutory reforms. Model legislation drafted by the Uniform Law Commission has proven especially impactful. Notable examples of codification include the Uniform Trust Code (2000) (adopted in 35 states), the Uniform Powers of Appointment Act (2013), the Uniform Trust Decanting Act (2015), the Uniform Directed Trust Act (2017), and the updated Uniform Fiduciary Income and Principal Act (2018). As Gallanis explains, “U.S. trust law now is heavily statutory.” (P. 287.) Continue reading "A Minimalist Theory of Trust Law Codification"
Jun 23, 2025 Nora Freeman EngstromTorts
Jonathan Cardi, Ashton Jenne, & Chance Villarreal,
The Paradox of Continuing Risk, available at
SSRN (May 5, 2025).
In The Paradox of Continuing Risk, W. Jonathan Cardi, Ashton Jenne, and Chance Villarreal surface and incisively explore a consequential puzzle. Across the United States, 32 jurisdictions have adopted the continuing-risk rule, which imposes an affirmative duty to warn, protect, or rescue others from continuing risks created by one’s conduct. But despite the multitude of courts that have endorsed the rule—and the rule’s unbroken acceptance in various Torts Restatements—few actual cases apply this principle.
To start, it’s important to understand what exactly the continuing-risk rule does and why it matters. Continue reading "The Continued Neglect of Continuing Risk"
Jun 20, 2025 Nicholson PriceTechnology Law
Boris Babic & I. Glenn Cohen,
The Algorithmic Explainability “Bait and Switch”, available at
SSRN (August 20, 2023).
AI is mysterious and important. It’s important because it’s showing up everywhere and doing lots of things. It’s mysterious because we very often don’t know how it works and why it comes to the conclusions it does. Whether AI should be important is hotly debated, but its mystery is widely regarded as a problem, particularly when AI is making inscrutable decisions that matter to people’s lives. And so there are widespread calls in law, policy, and scholarship for explainable AI—that is, ways to explain just why an AI system came to the conclusion it did. In The Algorithmic Explainability “Bait and Switch”, Boris Babic and Glenn Cohen add to the literature on explainable AI by clearly and convincingly arguing that explainable AI is “fool’s gold”—shiny and exciting on the surface, but not what we need, because it’s post hoc, insincere, tough to judge, and can’t be used to effectively guide actions.
So what is explainable AI, and why does it matter? Essentially, the problem is that it’s too hard to understand how AI makes decisions; they’re too complicated and don’t make sense, so they’re opaque to us. Explainable AI tries to use another, simpler algorithm to approximate a plausible reason the AI might have come to its conclusion; that explanation is typically specific to the conclusion being questioned. This happens after the initial system does its thing; it’s a post-hoc approximation, not a true accounting of why the initial system actually did what it did. Babic and Cohen illustrate this using an extended hypothetical admissions model for a hypothetical law school which shows the pitfalls and why they matter. Continue reading "The Problem of Insincere, Post-Hoc AI Explanations"
Jun 19, 2025 Dorothy BrownTax Law
Professor Deanna S. Newton’s article, Closing the Opportunity Gap, is an example of the best of legal scholarship, one which provides a thorough critique of a well-known problem, but also engages with unique policy prescriptions designed to actually make a difference. The article discusses Opportunity Zones, introduced by the Tax Cuts and Jobs Act of 2017 and designed to “encourage investment in economically distressed areas by offering investors tax benefits.” (P. 1161.)
Professor Newton begins by acknowledging the most frequent critique of Opportunity Zones, namely “that most benefits from Opportunity Zone legislation go to wealthy investors rather than the residents within Opportunity Zones.” (P. 1161.) Her Introduction includes an anecdote about how then-Florida Governor Rick Scott designated a West Palm Beach area “that houses $100 million superyachts” as an Opportunity Zone area, but left behind “three low-income areas” because they did not receive such a designation. (P. 1162.) Continue reading "Opportunity Zones: A Better Path Forward"
Jun 18, 2025 P. T. BabieProperty
Bram Akkermans & Lorna Fox O’Mahony,
Resilient Property, Climate Change and the Decision in Verein KlimaSeniorinnen Schweiz v Switzerland, 2024
Conveyancer & Prop. Law. 369, available at
Essex Research Repository (embargoed until Dec.1, 2025).
Climate change is a property problem. Exploitation of the world’s resources made possible by the concept of private property causes climate change.
Yet, property forms part of an iterative cycle. Just as it causes climate change, the consequences of global warming change property. So property is also a climate change problem. And because it is, the solutions to the problems it creates lie within the concept of property. In Resilient Property, Climate Change and the Decision in Verein KlimaSeniorinnen Schweiz v Switzerland Bram Akkermans and Lorna Fox O’Mahony show us how that might be. Continue reading "What Climate Change Reveals About Property’s Potential"
Jun 17, 2025 Caprice RobertsLexRemedies
It’s time to get excited about deepening your understanding of the law of remedies. Law schools should deepen their commitment to hiring professors to teach remedies courses, and scholars should add remedies perspectives to their research agendas. (If you are wondering How Remedies Became a Field, Doug Laycock has answers. Its importance is worldwide. It is rich with theory, and it is practical and meaningful.) Professors Katy Barnett and Sirko Harder’s latest book, Private Law Remedies, provides a comprehensive yet accessible resource for jurists, legislators, private litigators, professors, and students. Notably, the book analyzes private law doctrines as a whole and comparatively to aid greater comprehension of the function and goals for each remedy. They diligently examine a wide array of cases to explore private remedies at common law, in equity, and per statutes. The authors meticulously explore unifying principles and identify commonalities and significant differences among private law wrongs. Their project is ambitious, functional, and successful. They candidly interrogate leading scholarly theories and carefully examine key cases. From their insights, readers can peruse a host of remedies for private law wrongs such as contracts, fiduciary duty, torts, and more.
Their work focuses on English law but includes relevant treatment of other common law countries. Without doubt, the import of the analyses will resonate with a much broader audience. The book is timely and makes an important contribution to the field of remedies. The authors artfully distill the complex field of remedies into meaningful, clear chapters that will benefit experts and newcomers. Continue reading "Understanding Private Law Remedies"
