Monthly Archives: October 2025
Oct 17, 2025 Tom SimmonsLexElder Law
Nina A. Kohn,
Ageless Law, __ N. Cal. L. Rev. __ (forthcoming 2026), available at
SSRN (April 24, 2025).
Since 2022, voters in both Nevada and New York have overwhelmingly approved state constitutional amendments characterizing age as a protected class. As a result, a host of age-based policies and practices may soon become legally impermissible there. If the enactments in those states are part of a trend, the scrutiny on classifications based on adults’ chronological age will only intensify.
Nina Kohn’s Ageless Law ought to be required reading for any Elder Law class. It constructs a comprehensive intellectual scaffolding on which all the different sorts of age-based classifications and justifications thereof are strung. “Policies that differentiate based on older age are so common in modern America that they are often treated as unremarkable,” (P. 7) she observes. Excavating that which may have become unremarkable is an important and often overlooked academic enterprise. Professor Kohn undertakes this enterprise with remarkably sensitive concision. Continue reading "Calibrating the Convenience and Constitutionalism of Chronological-ism"
Oct 16, 2025 Trudo LemmensHealth Law
Internationally, pressure to legalize or expand euthanasia and assisted suicide is mounting, primarily in industrialized countries. France and the UK are two major jurisdictions that are currently considering legislating some form of what is now often referred to as “assisted dying.” Amid the UK debate on a private member’s assisted suicide bill currently before the House of Lords, Jennifer Hardes Dvorak’s recent article, Is Assisted Dying Really A Matter of Medical Regulation?, raises crucial—yet often overlooked—questions related to the role of medicine: Should assisted suicide and euthanasia be regulated as medical practices? What are the implications of involving medical professionals?
Dvorak offers a nuanced analysis—grounded in empirical evidence from existing regimes—of the problems with medical models of ‘assisted dying’. These are models in which physicians (and in some countries also nurses) play an essential role as prescribers, or as those providing a lethal injection, and in which medical criteria determine whether a person obtains access. She also discusses whether what is often treated as a ‘demedicalized’ model, like Switzerland, where assisted suicide is organized by volunteer organizations with only a limited role for physicians, offers a better approach. Her paper presents a balanced review of regulatory approaches and highlights the complexities of interpreting evidence in this polarized debate. The paper makes a compelling argument about the challenges with medical models of assisted dying, while also acknowledging that a demedicalized system of legalized assisted dying is not unproblematic. Continue reading "The Dangers of Regulating Inducing Death as a Medical Practice"
Oct 15, 2025 Erez AloniEquality
Legal scholarship has long grappled with how to name and remedy discrimination that doesn’t fit neatly into existing legal and conceptual frameworks. We have robust vocabularies for overt bigotry, implicit biases, and increasingly nuanced understandings of microaggressions—those subtle slights that accumulate from interpersonal to structural harm. But what about the moments when someone refuses to use another’s pronouns—not with hostility, but with a shrug? When they double down, explaining they’re “not wired that way,” or that recognizing someone’s genderqueer identity is simply “asking too much”? What happens when misrecognition isn’t hidden, but rather is framed as ordinary, reasonable—even inevitable?
In their revelatory article, Blasé: Deviant Lawyers and the Denial of Discrimination, Swethaa Ballakrishnen names this under-theorized dynamic through interviews with sixty law students and early-career legal professionals from marginalized groups. Ballakrishnen calls it blasé discrimination: a form of bias that arises when emerging or less institutionally legible identities—such as nonbinary gender—are dismissed not as wrong, but as irrelevant. This is not discrimination that hides, but discrimination that shrugs. The harm lies in the casualness of erasure—where certain forms of difference are brushed aside as too trivial or inconvenient to matter. Ballakrishnen traces how identity categories in flux become especially vulnerable to denial. Continue reading "Ordinary Denials: The Shrug of Identity-Based Harm"
Oct 14, 2025 Eric J. MillerCriminal Law
Ekow Yankah’s article, Deputization and Privileged White Violence, makes a stark claim: every state and territory in the United States has a legal-power-conferring norm enabling “violence aimed at racial minorities, particularly Black people, by White people who, as private citizens, take themselves to be innately authorized to police racial minorities.” (P. 709.) He calls this legal authority “deputization.”
Yankah’s article is a work of conceptual-normative criminal law theory. His claim is that deputization is a normative feature of our society, and as such “not easily amenable to empirical verification.” (P. 715.) His methodology is therefore one of “philosophical reconstitution” of the concept of deputization as a “sociologically and historically embedded” legal power. Nonetheless, he wants us to take this claim head on: he really means that deputization is a currently-existing legal norm empowering white people to police Black people using violence to seize Black people they think are dangerous, including by using deadly force. Deputization, Yankah claims, is legal in every jurisdiction in the land. Worse, because that private policing norm is available only to white people it is, in part, constitutive of what it means to be a white person in the United States. Continue reading "The Hidden Customary Criminal Law Endorsing Civilian Acts of Anti-Black Violence"
Oct 13, 2025 Fred O. Smith, Jr.Courts Law
Curtis Bradley & Tara Leigh Grove,
Disfavored Supreme Court Precedent in the Lower Courts, __
Va. L. Rev. __ (forthcoming 2026), available at
SSRN (Dec. 6, 2024).
Sometimes the Supreme Court overrules prior precedents with unmistakable clarity. Think Dobbs overruling Roe. (“We hold that Roe and Casey must be overruled.”) Or Lawrence overruling Bowers. (“Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”) But other precedents die slower deaths, creating a doctrinal twilight zone where lower courts must apply decisions the Supreme Court has undermined without formally overruling. Curtis Bradley and Tara Leigh Grove tackle this judicial limbo in their forthcoming article, asking how lower courts should handle precedents that are neither dead nor fully alive—and what this uncertainty means for a legal system that depends on clear hierarchical commands.
The most common approach to navigating the twilight—which the Supreme Court has repeatedly endorsed—mandates that lower courts treat Supreme Court precedent as fully authoritative regardless of subsequent signals suggesting its demise. As the Court stated in Rodriguez de Quijas v. Shearson/Am. Express, Inc. (1989) and reaffirmed in cases such as Agostini v. Felton (1997): “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Continue reading "Killing Precedent Softly"
Oct 10, 2025 Charles O'KelleyCorporate Law
Zohar Goshen, Assaf Hamdani, & Dorothy Lund,
Fixing MFW: Fairness and Vision in Controller Self-Dealing, __
Harv. Bus. L. Rev. __ (forthcoming), available at
SSRN (Dec. 17, 2024).
In the past 24 months, Delaware’s place as state-corporation-law hegemon has undergone sustained hurricane-force blowback from Court of Chancery and Supreme Court decisions and subsequent legislation, which have shattered the long-standing belief that for most publicly-traded firms, the benefits of incorporating in Delaware exceed the costs, including the costs and risks of stockholder litigation. At the center of Delaware’s existential crisis are the Court of Chancery decision in the Tornetta litigation rescinding Elon Musk’s $57 billion compensation package, the Supreme Court decision in the Match litigation extending MFW to all controlling-shareholder-conflicted transactions, and the Delaware legislature’s February 2025 enactment of Senate Bill 21 in reaction to those and related judicial decisions. Fundamental to a meaningful critique of these cases and Senate Bill 21 is an under-the-radar question: how should entrepreneur-influenced or entrepreneur-controlled transactions and decisions fit in a value-optimizing theory of the business judgment rule? Focus on this question, and the nature and role of the entrepreneur have largely been missing from scholarly commentary. A much-needed antidote is now available in a provocative forthcoming article, Zohar Goshen, Assaf Hamdani, and Dorothy Lund, Fixing MFW: Fairness and Vision in Controller Self-Dealing (hereinafter “Fixing MFW”), available at SSRN and forthcoming in the Harvard Business Law Review.
While Fixing MFW’s title suggests a focus only on controller self-dealing, its actual focus is much broader, including, as its poster child, Elon Musk, a quintessential entrepreneur whose stockholding would not treat him as a controlling stockholder under the safe harbor provided by Senate Bill 21. In other words, a central concern of Fixing MFW is how the business judgment rule should apply whenever a powerful entrepreneur, whether a controlling stockholder or not, receives non-ratable benefits in a transaction with the corporation. Such transactions would include the compensation package Musk received from Tesla, or the merger of Musk’s energy company, SolarCity, into Tesla. As Fixing MFW convincingly demonstrates, these transactions should be analyzed similarly, whether Musk falls within the governing understanding of a controlling stockholder or not, because they both involve the insolvable problem of what the authors call “idiosyncratic value.” Continue reading "Understanding The Nature and Role of The Entrepreneur and Entrepreneur-created Value in Theorizing The Business Judgment Rule"
Oct 9, 2025 Eboni NelsonContracts
Although often eclipsed by the prominence of large companies, small businesses play a critical role in helping to grow our economy. Their size, market footprint, resources, experience, and sophistication levels are as varied as the goods and services they provide. In her thought-provoking article The Small Business Dilemma, Professor Rachel G. Ngo Ntomp argues that contract law fails to take these variances into account when considering the contractual relationships between small businesses and other companies. She asserts that small businesses can find themselves caught in a catch-22 by being perceived and treated as “big fish” in dealings with both consumers and businesses when, in fact, they are “small fish” when contracting with companies with more resources and often more bargaining power. Considering that this bargaining power imbalance can result in unfair terms that harm small businesses, Professor Ntomp convincingly draws upon U.S. and international law to advocate for proposals including “a reformulation of the unconscionability doctrine under Section 2-302 of the UCC [Uniform Commercial Code] to provide a fairer and more equitable treatment of small businesses in their contractual relations with larger entities.”
Professor Ntomp situates the issue of small business protection within the broader context of consumer protection. She notes that the weaker party rationale for protecting consumers in contractual relationships is rarely applied to small businesses when they engage in commercial dealings with other businesses even though many small businesses find themselves in vulnerable positions with a lack of bargaining power similar to consumers. Continue reading "“Consumer” Protection for Small Businesses"
Oct 8, 2025 Andrea KatzConstitutional Law
Christine Kexel Chabot,
Rejecting the Unitary Executive, __
Utah L. Rev. __ (forthcoming, 2025), available at
SSRN (Sept. 21, 2024).
It’s no secret that the President is having a great run in court. Over the last two decades, the Roberts Court has protected the office from legal process; built out presidential control over foreign affairs, national security, and the hiring, firing, and oversight of officers; and recently hinted it would go further by extending the president’s power to independent agencies. Behind these cases lurks the theory of the unitary executive, which reads the Constitution to give the President far-reaching powers over the executive branch, including the power to fire officers at will. First advanced in modern form by lawyers in the Reagan administration, the theory inspired a generation of originalist scholars who claimed it as an authentic account of the Framers’ thought. Since then, scholars have sharply pushed back, pointing out that the theory is anachronistic, an overreading of the text, and contradicted by early American history and practice. Despite the controversy, the Roberts Court, untroubled, continues to apply it.
Enter Christine Kexel Chabot’s forthcoming article Rejecting the Unitary Executive, which poses the provocative question: What if we required proof that the Founding generation actually believed in a unitary executive? Rejecting does just that, with illuminating results. Applying philosopher Karl Popper’s theory of empirical falsifiability to the realm of legal history, Professor Chabot subjects unitary theory to a rigorous test. In her words, the theory’s main claim is that Continue reading "Falsifying the Unitary Executive: Popperian Empiricism and History’s Uses and Misuses"
Oct 7, 2025 Margaret KwokaAdministrative Law
Jonathan David Shaub,
White House Inspection, 103
Wash. U. L. Rev. __ (forthcoming 2026) available
at SSRN (Feb. 25, 2025).
Allegations of illegality—sometimes quite serious in nature—are, sadly, no stranger to the presidency. Nearly every recent President has faced some sort of scandal and attendant inquiry. They all sound familiar. Obviously, there is Nixon’s benchmark Watergate scandal. But then there is also the Iran-Contra affair of Reagan’s presidency. Clinton’s extramarital activities. George W. Bush’s involvement in outing Valerie Plame as an undercover CIA officer. Biden’s personal possession of classified documents. Trump’s involvement in the January 6 attacks on the Capitol. Safe to say, these matters show no sign of abating. The theater of investigations that follow these scandals is also familiar, all promising some version of accountability. Special prosecutors are appointed. Inquiries are launched. Grand juries are sometimes convened. Congress may even bring articles of impeachment or hold an actual impeachment trial.
But the political fight often focuses on the investigation itself. Claims of executive privilege prevent access to key documents, allegations of partisanship color the investigations, and constitutional constraints abound, all while accountability remains elusive. In an incredible read and a fantastic example of one of my favorite forms of scholarship, Professor Jonathan Shaub sketches a vision for reforms that parts the muddy waters of our current practices and shows us a practical and meaningful path to accountability at the highest levels of the executive branch. Indeed, the best part of Professor Shaub’s vision, laid out in White House Inspection, is that he divorces the trickier consequences—actual enforcement or legal peril—from the kind of accountability that frankly has often had greater effect, the watchful eye of an independent party empowered to inspect the actions of the President. Continue reading "Informational Accountability for the President"
Oct 6, 2025 Kenneth W. SimonsTorts
Emad H. Atiq,
The Disaggregated Hand Formula, 114
Cal. L. Rev. __ (forthcoming 2026), available at
SSRN (Mar. 1, 2025).
The Learned Hand test is both famous and infamous. The main source of its fame is the law and economics movement, which drew attention to the test in the 1970’s. According to Richard Posner and other scholars in that movement, the test is both a descriptively accurate account of how legal fact-finders understand negligence, and a normatively attractive account of why tort law imposes liability for harms caused by negligence—namely, to promote efficiency and minimize the aggregate costs of precautions and the harms that precautions could avoid.
But the Hand test is also infamous. The test provides that an actor is negligent just in case the burden of taking a precaution (B) is less than the probability of the harm that the precaution would have avoided multiplied by the severity of that harm (PxL). Critics protest that the test is not an accurate account of how the law defines negligence. And more fundamentally, they object that treating this formula as the test of negligence is normatively objectionable, indeed abhorrent. If the burden is only slightly more than the expected harm (the harm’s severity discounted by its probability), the formula declares that the actor may freely impose the risk without fear of tort liability if the risk generates harms–even very serious harms–to others. Continue reading "Does the Hand Formula Express Efficiency or Justice? Or Both?"
