Monthly Archives: June 2025
Jun 16, 2025 Kevin WoodsonLegal Profession
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well-intentioned, these reforms may be counterproductive and the underlying understanding of prosecutorial discretion outdated.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. Continue reading "Prosecutors Are Not All Colorblind—and That Can Be a Good Thing"
Jun 13, 2025 Shubha GhoshInternational & Comparative Law
Professor Stavroulaki of Saint Louis University School of Law and a PhD graduate of the European University Institute has made an important contribution to the fields of health law, United States antitrust law, European competition law, and economic analysis of markets in this broad-reaching and potentially game-changing book. For the purposes of the International and Comparative Law JOTWELL section, her book is also a major work of comparative law, setting forth elegantly comparative features of US and European competition laws as applied to health care markets. The book as a whole and the last three chapters that take a deep dive into comparative law make Professor Stavroulaki’s work one I like a lot.
Framing this monograph is a critique of current approaches to competition law in the United States. Professor Stavroulaki starts from the traditional criticism of economic analyses of competition issues as focusing too much on the promotion of efficiency. Not only is efficiency gauged in stark quantitative terms, but it is also shaped in terms of consumer welfare, specifically the benefits to consumers from improved market competition. These benefits, under the current approach, are measured in terms of price reductions which allow for more consumers to be served with larger gains to individual purchasers. Professor Stavroulaki does not fully reject the consumer welfare approach, which has been the object of criticism by the Neo-Brandeisians (a criticism that underlay the alternate approach of the Federal Trade Commission under the Biden Administration). The Biden effort has been stopped by the new Administration, but it is not clear what has come into place. Professor Stavroulaki offers an approach that builds on the consumer welfare to consider the quality of what consumers receive in the marketplace in addition to the market’s ability to generate lower prices. Continue reading "Comparing Health Care Markets"
Jun 12, 2025 Maris KöpckeJurisprudence
The best answers to the questions “who should decide?,” “what should be decided?,” and “how should the decision be taken?” do not always sit easily together. Sound institutional design wrestles with this problem. Procedures for authoritative decision-making ought to minimize the danger of unjust or misguided outcomes. But they also ought to ensure, so far as possible, that those concerned have a say in the decision, lest their self-direction be unjustly curbed by someone else choosing on their behalf.
Over the years, political philosophy and constitutional scholarship have proposed different recipes for distributing political power within a community, by way of responses to the above concerns. Ignacio Guiffré thinks that the currently most extended recipe – strong constitutionalism – is in need of improvement. He also thinks that its supporting theories harbor fundamental inconsistencies. In defending these claims, this thought-provoking article flags a number of soft spots in contemporary political and legal theory, concerning matters that reach beyond institutional design and speak to the foundations of certain strands of liberalism. Continue reading "Justice, Democracy, and Institutional Design"
Jun 11, 2025 Christopher J. BuccafuscoIntellectual Property Law
Benjamin Sobel,
Copyright Accelerationism, 100
Chi.-Kent L. Rev. __ (forthcoming 2025), available at
SSRN (Dec. 8, 2023).
Benjamin Sobel has written a provocative new essay about copyright law’s role in the development of generative artificial intelligence, and I think all IP scholars should read it. His essay, Copyright Accelerationism, is the kind of creative scholarship that our field needs more of. It is being published in the Chicago-Kent Law Review’s “AI Disrupting Law” symposium issue.
As all readers will know, copyright law may stand in the way of further development of generative AI, because AI models are trained on millions (or billions?) of unlicensed copyrighted works. Authors and artists have sued the major AI platforms, and if those lawsuits are successful, they could dramatically hinder AI creation. Continue reading "Copyright Maximalism for the Public Good?"
Jun 10, 2025 Jack Beermann
When the sun sets in New York City, it rises in Tokyo. Okay, maybe not exactly, but you get the idea: setting somewhere, rising somewhere else. Now substitute Chevron for N.Y.C. and the Major Questions Doctrine for Tokyo. For the past forty years, administrative law scholars have been arguing over Chevron, and now that the sun has set on that doctrine, it’s time to turn our attention to the new rising sun, the Major Questions Doctrine (“MQD”). The sudden emergence and prominence of the MQD in administrative law has led scholars to ask just what kind of legal doctrine the MQD is. If the voluminous scholarship on Chevron is any indication, there will be much, much more to come.
Sometimes, to figure out what something is, you first have to figure out what it isn’t. That is what Professor Anita Krishnakumar has helped us do with her excellent article What the New Major Questions Doctrine is Not. In this article, Professor Krishnakumar persuasively argues that neither scholars nor jurists have provided convincing characterizations of the doctrine. After illustrating how all attempts thus far to categorize the MQD have failed, she offers her own tentative characterization, recognizing that a definitive answer is impossible because it’s relatively early in the life of the current MQD and because the Court’s opinions invoking the MQD are somewhat inconsistent and unclear, making a definitive characterization impossible. Remind anyone of Chevron scholarship? Continue reading "What the Hell is the Major Questions Doctrine?"
Jun 10, 2025 Sarah WaldeckTrusts & Estates
In The Curious Case of the James Brown Estate, Lee-ford Tritt explores how certain provisions of the Copyright Act of 1976 can upend an artist’s estate plan. Professor Tritt makes a persuasive case for legal reform and documents a messy disconnect between the fields of copyright law and estates law. This disconnect is particularly unfortunate because the havoc-wreaking provisions of the Copyright Act were enacted to help ensure that artists are fairly compensated for their creations. Congress could not have intended a loss of testamentary freedom—and in some cases, prolonged and expensive estate litigation—to be the price artists pay for this protection.
Professor Tritt writes that many copyright experts are unaware of relevant estate planning techniques, and that many estates experts are unaware of the termination rights provided in the Copyright Act. (P. 778.) Prior to reading Professor Tritt’s article, I fell into the second category. The same may be true of some of the readers of this review, so let’s start with the Copyright Act of 1976. Continue reading "The Conflict Between Copyright Law and Donative Freedom"
Jun 9, 2025 Test User
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The post BLUESKY TEST POST. appeared first on Jotwell: Zeta-Section. Continue reading "BLUESKY TEST POST."
Jun 9, 2025 Emma CaveHealth Law
Dr Rageshri Dhairyawan calls on health professionals to improve their capacity to listen to patients. Published on the front page of the Lancet in February 2025, NHS consultant and researcher Dhairyawan’s essay ‘Reflect, Collaborate and Listen’ draws on some of the key ideas set out in her book: Unheard: the Medical Practice of Silencing (2024).
I grew up in a small village in England, which boasts its own surgery thanks to my father and his practice. There was a strong pastoral element to his and his team’s clinical roles. My childhood recollection of the waiting room was of people chatting and laughing, leaving me wondering if there was anything the matter with them at all. Sometimes, patients would come to the house and seek advice in our front room. Once or twice, they even brought poorly animals. Sometimes he’d receive a phone call and rush out to a remote farm because he’d likely arrive before the ambulance. By listening to his patients and building relationships with them and their families over time, he gained trust and respect, and was, in turn, listened to. Continue reading "Listening to Patients"
Jun 6, 2025 Naomi R. CahnFamily Law
Shanta Trivedi,
The Hidden Pain of Family Policing, available at
SSRN. (February 6, 2024).
In one of my first jobs after law school, I worked in a legal services office, representing parents who had been accused of abuse and neglect. Throughout my time, I witnessed their struggle to navigate the complexities of legal proceedings, the inability of the public welfare system to provide the requisite support to the entire family, the pain that my clients experienced in losing their children, and the overall trauma inflicted on parents by a system that claimed to protect their children.
When I read Shanta Trivedi’s The Hidden Pain of Family Policing, I found it to be a powerful intervention in ongoing conversations about, and critiques of, family regulation, justice, and systemic reform precisely because of the article’s focus on parents. Others have argued that, as currently structured, the child welfare system (or what is now frequently labelled the “family policing system”) functions less as a protector of children and more as a carceral technique for surveillance and separation of marginalized families. Trivedi observes that the system relies on an overly simplistic demonization of parents. She calls for a radical rethinking of this system to change attitudes towards parents, emphasizing community-based support, the importance of meeting basic material needs for families, and the adoption of alternative perspectives, including transformative justice and abolition. (P. 51.) Trivedi achieves the article’s goal to “comprehensively examine the wide-ranging effects that family policing intervention can have” by examining “the behavioral, emotional, mental, physical, and social health of parents.” (P. 7.) Continue reading "Harm to Parents"
Jun 5, 2025 Maneesha DeckhaEquality
Although still perched on the periphery, scholarship asking how the law can remedy human harms against animals and other nonhuman life is proliferating. A foundational question is how legal systems can embed equality and justice as values that would apply across species and not simply among humans. A corollary is how to influence more humans to support a legal system that regards animals as beings or entities whose interests matter alongside humans’.
When fashioning dramatic reform like this, we may be tempted to focus on the present as we hope for a much less anthropocentric future. But it also helps to look to the past. Jesse Arsenault and Rosemary-Claire Collard’s Crimes Against Reproduction: Domesticating Life in the Animal Trials is instructive in this regard. It helps readers understand how the earliest instances of European human-animal legal regulation centuries ago can shed light today on the need to see the legal treatment of animals and marginalized humans as entwined, and anthropocentrism as an all-species gendered equality problem. Continue reading "Learning from the Animal Trials in the Anthropocene"
