Yearly Archives: 2025
Dec 5, 2025 Helen NortonConstitutional Law
Guy-Uriel Charles, Luis Fuentes-Rohwer, & Farris Peale,
Reconstructing (The Law of) Democracy (Jun. 25, 2025), available at
SSRN.
Can the law of democracy save democracy? Maybe—but not if we’re counting on the courts to save us, answer Guy Uriel-Charles, Luis Fuentes-Rohwer, and Farris Peale in their thought-provoking (and sobering) article, Reconstructing (The Law of) Democracy. Their paper’s key insight observes that today’s most important election law cases involve questions of “partisan existentialism” that are not only entirely absent from earlier election law disputes, but are also beyond courts’ capacity to resolve.
The authors start by explaining why one might have thought that the courts could help us escape from today’s democratic dysfunctions. They describe the series of mid- to late 20th-century malapportionment, ballot access, and related election law decisions in which the Court was understood as protecting representative democracy from certain democratic dysfunctions. The “perceived success” of that series of cases—which began with Baker v. Carr and continued through Reynolds v. Sims and Williams v. Rhodes, among others—“helped to develop a foundational view: that the Court both could and should intervene to prevent breakdowns in the systems of representative democracy.” Continue reading "Can the Law of Democracy Save Democracy?"
Dec 4, 2025 Richard MurphyAdministrative Law
Recently, for whatever reason, I found myself thinking that it would be helpful to read something that could help me order my scattered thoughts about presidential control of regulatory power. Maybe because of all the executive orders. Fortunately, I ran across just the thing, Presidential Regulation, by Professors Timothy Meyer & Ganesh Sitaraman, which provides a wonderfully illuminating account of the nature, history, implications, and likely future of, well, presidential regulation.
Meyer and Sitaraman explain that presidential regulation “takes place when the President relies on his own powers—whether statutory, constitutional, or a combination thereof—to regulate the U.S. economy in ways not explicitly contemplated or directed by Congress.” (P. 807.) Presidential regulation is thus distinct from “presidential administration,” a la Justice Kagan, which involves presidents “shaping and taking credit for agency actions.” (P. 809.) Rather, presidential regulation involves direct exercise of powers delegated to the president by the Constitution or Congress. Continue reading "The What, When, How, and Why of Presidential Regulation"
Dec 3, 2025 Sandy SteelTorts
Nico Cornell’s terrific book Wrongs and Rights Come Apart rejects the commonly held view that moral wrongs are simply moral right violations. Rather, wrongs and rights ‘come apart’: there can be wrongs without right violations and right violations without wrongs.
The book proceeds by providing a range of powerful examples from law, philosophical writing, and literature to make its case. How can we tell, in these examples, whether a person has been wronged but their rights not violated? Cornell provides an account of the characteristic features of an entity holding a right: (1) the power to waive the correlated duty, (2) the fact that certain conduct can be demanded by that person, (3) enforceability of the correlated duty, (4) the presence of a special kind of reason (a trump or an exclusionary reason), and (5) a distinctive phenomenology. (Pp. 14-15.) Continue reading "Are Wrongs Always Right Violations?"
Dec 2, 2025 Deepa Das AcevedoWork Law
I’m always a little surprised by how rarely debates about academic freedom pay attention to the actual work of academia. Sure, there are anecdotes featuring syllabi wars or lectures gone wrong (or wrongly prevented from going on at all). But those vignettes —used to illustrate and persuade—are always hurried along so that the author can get to their normative argument defending academic freedom or announcing, once again, its demise. The vignettes aren’t really there to make us focus on the “what” and “how” of academic labor.
Archana Sridhar’s recent article isn’t exactly about granular academic labor practices, either. I doubt she’d consider it a “labor” piece at all. But in very refreshing way, she focuses on academic work structures and patterns in ways that generate insights about what makes academic freedom possible. Continue reading "Putting the Work of Academia Back into Academic Freedom Debates"
Dec 1, 2025 Sergio ParejaTrusts & Estates
Professors Allen and Rothman have written an excellent piece that addresses an issue of growing importance. While questions about privacy have always existed, technological changes that are occurring at a lightning-fast pace are creating demand for a consistent and clear legal framework. These technological changes include artificial intelligence, social media and email accounts, as well as the ubiquitousness of cameras and recording devices. This raises new questions regarding rights to a person’s name, image, voice, life history, beliefs, and identity after death.
Postmortem privacy refers to privacy protections that continue after death. The traditional view, which has been repeated for over a century, is that privacy rights end with death. The reality is much more nuanced, and courts sometimes do in fact protect some privacy rights after death. The growing importance of digital legacies and technologies makes reevaluating postmortem privacy critically important. Professor Allen and Professor Rothman’s article aims to build a theoretical and legal foundation for recognizing and shaping privacy rights after death. Continue reading "A Proposed Framework for Privacy Rights After Death"
Nov 28, 2025 James GrimmelmannTechnology Law
Tejas N. Narechania & Scott Shenker,
How to Save the Internet, __
Berkeley Tech. L.J. __ (forthcoming), available at
SSRN (Mar. 18, 2025).
Every time I teach Internet Law, I start by lying to my students about how the Internet works. I tell them the finely crafted story of how routing, packet-switching, and layering combine to produce a profoundly modular, decentralized, and standardized worldwide network. The only problem is that the Internet doesn’t work that way anymore, and hasn’t for years. Companies like Akamai, Cloudflare, and Amazon operate such massive networking infrastructure that they have warped Internet spacetime around them. The services they offer, and on which much of the Internet now depends, are integrated, centralized, and proprietary—the very opposite of what I tell my students.
Tejas N. Narechania and Scott Shenker’s How to Save the Internet brings the stories we tell about the Internet back into line with the Internet as it actually is. Narechania is a law professor and Shenker a computer scientist. Their article is a seamless fusion of their expertise—and a cogent guide to the Internet’s new normal and what it means for telecommunications policy and law. Continue reading "The Edge of Tomorrow"
Nov 27, 2025 Ezra RosserProperty
Professor Sara Bronin’s book, Key to the City, pulls back the curtain on how urban zoning works. And through in-depth city case studies, it shows how communities can be improved through zoning changes.
For those who write and teach in the property law space, the most interesting part of the book is probably how Professor Bronin pushes for major deregulatory changes without falling into the trap of arguing for the scrapping of all rules. And all readers who care about urban spaces will appreciate the breadth and depth of the community profiles used to both illustrate and inform Professor Bronin’s arguments.
This is a book that should be read by those who teach Property and by everyone who cares about the future of cities. Continue reading "Unlocking Dynamic Growth"
Nov 26, 2025 Marco JimenezLexRemedies
Whenever I teach remedies, one of the first principles we cover is that compensatory damages should put the plaintiff in their “rightful position” by returning the injured party to the position it would have occupied but for the defendant’s wrongful harm. Students quickly grasp this concept and its corollary, which I sometimes refer to as the “Goldilocks principle”: courts often try to award the amount of damages that is “just right”—neither too much (creating an undeserved windfall for the plaintiff) nor too little (leaving the plaintiff undercompensated). Anything that makes a plaintiff better off than before the injury seems obviously problematic.
In his outstanding article Making Whole, Making Better, and Accommodating Resilience, Professor Erik Encarnacion challenges this conventional wisdom in ways that are both intellectually sophisticated and practically important. The piece makes a compelling case that reflexive avoidance of any “betterment” often leads to systematic undercompensation, and that a more generous approach to compensatory damages is not only doctrinally supported but normatively required. Continue reading "Rethinking the Make-Whole Principle"
Nov 25, 2025 Scott CummingsLegal Profession
There is now a vast international literature on the role of lawyers and law in social movements, on the right and the left. This literature has been enormously generative in illuminating the various ways that lawyers contribute to social struggle—by using litigation and other legal tactics to hold powerful actors to account and inspire social movement resistance—while also spotlighting how sometimes they overreach, and how their tactics and frames are frequently coopted by opponents, who use legal strategies to undermine progress. While this literature has often painted legal liberal lawyers as problematic actors, it also teaches crucial lessons about the importance of sustained legal and political resistance in the face of powerful forces. American democracy has never worked for all people. It has never lived up to its promise of equal justice. And there have been particularly dark moments, the post-Reconstruction era and the rise of Jim Crow being one of them, which have elicited courageous responses from lawyers and nonlawyers alike. As we are living through another dark and dangerous moment, it is crucial to recover stories that deepen understanding of resistance methods and give inspiration to fight back.
Professor Pamela Izvănariu provides precisely this type of analysis in her timely and important article on the unheralded Black labor activist John P. Davis and the organization that he created to fight for racial equality in New Deal labor laws: the Joint Committee for National Recovery (JCNR). Izvănariu’s work on Davis is part of a larger historical project that seeks to elevate Davis in the scholarly canon on the “pre-history” of the civil rights movement, which includes classic works by Ken Mack, Risa Goluboff, and Susan Carle, among others. Those scholars discuss the synergies and tensions between efforts to mobilize cross-racial solidarity in support of Black labor rights and the building momentum in favor of a frontal assault on school segregation culminating in what became the famous high point of civil rights lawyering: Brown v. Board of Education. Continue reading "Looking to History for Contemporary Lessons on Legal Mobilization against Subordination"
Nov 24, 2025 Jonathon BoothLegal History
Over the past decade, histories of American policing have proliferated. Understandably, the majority of these works have focused on policing major American cities in the twentieth century. These works have transformed the field, in particular by revealing important insights about how racism has shaped policing, but they focus only on the tip of the iceberg. Beyond the largest urban centers, there is also a vast and complicated history of policing in smaller cities, rural areas, and special jurisdictions like college campuses that legal scholars have yet to map fully.
Grace Watkins dives into this less-studied realm of criminal justice history with her brilliant article Piety Police. Watkins has emerged as a leading scholar of campus police, and this article presents an entirely original account of the importance of private religious police forces – primarily those affiliated with religious universities. The bulk of the narrative and of Watkins’s archival research focuses on the development of the Brigham Young University Police Department (BYUPD) and its authority to enforce the law and campus rules, both on and off campus. Through her extensive research in a fragmentary archive, Watkins has uncovered a wealth of detail. Most notably, she reveals the extent of the BYUPD’s anti-gay policing, including a shocking 1979 account of the BYUPD employing an undercover student to place advertisements in the local newspaper to entrap a local gay man and arrest him for forcible sexual abuse. Continue reading "Religious Police Forces with Public Powers"
