Yearly Archives: 2025
Jul 25, 2025 Ilya SominConstitutional Law
In the Insular Cases of the early twentieth century, the Supreme Court ruled that much of the Constitution does not apply to America’s “unincorporated” overseas territories, such as Puerto Rico and other territories acquired as a result of the Spanish-American War of 1898. Thus, the federal government could rule the people there without being constrained by a variety of constitutional rights. Only “fundamental” rights were held to constrain the federal government’s powers over the inhabitants of these territories, while other constitutional constraints on federal power did not apply. In a 2022 concurring opinion, Supreme Court Justice Neil Gorsuch urged the Court to overrule these decisions. Prominent originalist legal scholar Michael Ramsey’s important new article explains why Gorsuch was right.
Ramsey compellingly demonstrates that the Insular Cases were wrongly decided, at least from an originalist standpoint. And his argument has potential implications that go beyond the status of people living in “unincorporated” territories. There have been various previous critiques of the Insular Cases. But Ramsey’s is the first systematic scholarly dismantling undertaken from an originalist perspective. Continue reading "Originalism and the Insular Cases"
Jul 24, 2025 Susan Bandes
TEST CITATION.
TEST POST.
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Jul 24, 2025 Jack Beermann
TEST CITATION.
TEST POST.
The post TEST. appeared first on Jotwell: Zeta-Section.
Jul 24, 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?"
Jul 24, 2025 Christopher WalkerAdministrative Law
In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 524 (1978), the Supreme Court famously announced that “[a]gencies are free to grant additional procedural rights [beyond those required by the Administrative Procedure Act] in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them.” In an administrative law course, we focus somewhat myopically on the second half of the statement—that courts cannot impose more procedural requirements on federal agencies than Congress has commanded by statute. But the first part of the sentence is just as important. It is in Vermont Yankee’s “white space,” as Emily Bremer and Sharon Jacobs aptly call it, that so much of the action in administrative law takes place. This is the world of internal administrative law.
Historically, internal administrative law has often been neglected in the literature, with some exceptions such as Jerry Mashaw’s majestic Bureaucratic Justice. In recent years, however, we have seen more scholarly attention, which is chronicled in Gillian Metzger and Kevin Stack’s 2017 article Internal Administrative Law. I have contributed some to this literature, trying to operationalize internal administrative law and exploring how it can constrain and empower regulatory activities outside of courts. A recent addition to the literature is well worth a read and the subject of this review: Professor Stack’s article The Internal Law of Democracy is a spectacular exploration of how internal law works in state and local governments, in the context of election administration. There is so much to like (lots) about this article, and it is a must-read for scholars of administrative law, election law, and local government law as well as political science and public administration. Continue reading "Shifting Attention to Internal Administrative Law in the States"
Jul 23, 2025 Matt BodieWork Law
The Yale Law Journal Forum recently hosted a collection of essays under the rubric of “Reimagining and Empowering the Contemporary Workforce.” Two of these works deal specifically with the challenges for workers posed by the dramatically reoriented data landscape: Data Laws at Work by Veena Dubal, and AI and Captured Capital by Ifeoma Ajunwa. Both essays are essential reading for those interested in data protection and regulation within the workplace.
Professors Dubal and Ajunwa present a nice contrast in their approaches to empowering workers within the data revolution. Dubal follows a more traditional privacy-oriented approach, seeking to further restrict employer access to, and use of, employee data through narrow permissions and harsher penalties. Ajunwa, on the other hand, argues that worker data represents business capital, and she contends that employees should have long-term rights to the value generated from that data. These two avenues—inalienability restrictions and property rights—should both play bigger roles in our system of workplace data regulation, especially within the world of algorithms and artificial intelligence. Continue reading "Two Frameworks for Employee Data Empowerment"
Jul 22, 2025 Adam HirschTrusts & Estates
Professor Lawrence M. Friedman has had a remarkable career. Much of his work has focused on legal history, and he has served as president of the American Society for Legal History in recognition of his distinction in that field. He also helped to pioneer empirical legal studies as a subdiscipline of scholarship. And, most fortunately for those of us who work in wills-and-trusts, he has contributed to our area as well, with a stream of articles and one book, beginning in the early 1960s and continuing until today—no fewer than six decades of superb scholarship on inheritance law.
With this extended essay, Friedman returns to the expansive style of some of his early work in the field. His subject is the lengths to which people will go to leave an eternal mark upon the world. As Friedman concludes, it is a fanciful quest. Try as one might, no one can defy the laws of nature—and nothing lasts forever. Nevertheless, in a variety of ways explored in this essay, people keep on trying. Continue reading "Dead Hand Control"
Jul 21, 2025 Anita BernsteinTorts
Writers who study torts tend to engage with liability as a force or vector that imposes consequences on parties accused of injuring others. For most of us in this field, liability means accountability or reckoning. This occupational interest in what tort does in action, or can do when it’s enlisted, can obscure the impacts of shelters from accountability.
Removing Torts marks Betsy Grey’s return to a source of tort nonaccountability that Professor Grey knows backwards and forwards, the statutory kind. This refuge has ample company in the land of shelters. Fortuitousness, for example, also fends off reckoning: Prospective defendants get lucky when prospective plaintiffs don’t know what hit them, run out of time or money, fail to clear the intake criteria of a contingent-fee attorney, on and on. Judge-made immunities of the common law—especially the intrafamily and charitable kind—are more orderly, though they’ve dwindled into something of a quaint oddball relic. Continue reading "BEWARE OF SHELTER"
Jul 18, 2025 Jacob Noti-VictorTechnology Law
Benjamin Sobel,
A Real Account of Deep Fakes, available at
SSRN (May 16, 2024).
With the rapid advancement of photorealistic generative AI technology, the problem of sexually explicit deepfakes has grown more urgent than ever. Thanks to widely available AI systems, users can now easily create images that appear to depict real people engaging in sexual acts. Not only have Taylor Swift and other celebrities been targeted, but deepfakes are also now alarmingly prevalent in American schools.
The government has already started to address the problem. At least 26 states now penalize the creation or distribution of nonconsensual sexually explicit deepfake imagery. And the federal Take It Down Act, which creates criminal penalties and a takedown regime for both real and AI-generated nonconsensual intimate imagery (NCII), was recently signed into law by President Trump. But, as Ben Sobel argues in his excellent (and award winning) new article, A Real Account of Deep Fakes, many of these bans have been passed without first articulating the precise harms posed by sexually explicit deepfakes, leaving the statutes open to free expression challenges. Sobel’s article aims to fill this gap. Through painstaking comparisons between deepfake bans and other areas of law that regulate deception, abuse, privacy invasions, and obscenity, the article crystallizes the normative arguments for deepfake regulation and the First Amendment stakes. Continue reading "Deepfakes Deconstructed"
Jul 18, 2025 Jacob Noti-VictorTechnology Law
Benjamin Sobel,
A Real Account of Deep Fakes, available at
SSRN (May 16, 2024).
With the rapid advancement of photorealistic generative AI technology, the problem of sexually explicit deepfakes has grown more urgent than ever. Thanks to widely available AI systems, users can now easily create images that appear to depict real people engaging in sexual acts. Not only have Taylor Swift and other celebrities been targeted, but deepfakes are also now alarmingly prevalent in American schools.
The government has already started to address the problem. At least 26 states now penalize the creation or distribution of nonconsensual sexually explicit deepfake imagery. And the federal Take It Down Act, which creates criminal penalties and a takedown regime for both real and AI-generated nonconsensual intimate imagery (NCII), was recently signed into law by President Trump. But, as Ben Sobel argues in his excellent (and award winning) new article, A Real Account of Deep Fakes, many of these bans have been passed without first articulating the precise harms posed by sexually explicit deepfakes, leaving the statutes open to free expression challenges. Sobel’s article aims to fill this gap. Through painstaking comparisons between deepfake bans and other areas of law that regulate deception, abuse, privacy invasions, and obscenity, the article crystallizes the normative arguments for deepfake regulation and the First Amendment stakes. Continue reading "Deepfakes Deconstructed"
