Yearly Archives: 2025
Nov 21, 2025 Julieta RabanosJurisprudence
What lies behind one of our most engrained and persistent assumptions in law – the existence of a specific kind of intention underlying the utterances of an authority?
This is the question that Poggi and Ferraro endeavour to address in this article, and in doing so, they embark on a particularly complex enterprise: to show that what we call “legislative intent” is a deception. Or, put differently: that what we call “legislative intent” does not exist as such, but (only) as a construction by the interpreters; and therefore, that the invocation of “legislative intent” to justify a specific interpretation of a legal text is a sleight of hand that conceals – and, even more, amplifies – the interpreters’ discretion. And all this is done under the guise of objective linguistic rationality and strict respect and deference for the legislator’s decisions. Continue reading "The Veil of Legislative Intent"
Nov 20, 2025 Jessica SilbeyIntellectual Property Law
Abraham Drassinower,
The Work of Readership in Copyright, available at
SSRN (May 21, 2024).
In this essay, Abraham Drassinower updates the argument in his 2015 book What’s Wrong With Copying (Harvard University Press) with an elaboration of the nature of copyright’s public domain: it is a domain of unauthorized yet lawful copying. As in his book, Drassinower explains that the public domain is not properly understood as a problem of balancing between copyright’s public benefits and private rewards. Instead, he understands the public domain as part of authorship and thus inseparable from copyright’s construction.
The elaboration in this essay is his introduction of readership to the understanding of copyright’s public domain. As he says in its opening pages, “I will argue that the work of authorship in copyright law and doctrine is radically inseparable from what we may call the work of readership. Setting forth the immanence of readership in authorship will help construe the public domain as a necessary presupposition of, rather than a constraint on, authorship.” (P. 3.) Continue reading "Readers are Authors, Especially in the AI Age"
Nov 19, 2025 Jedidiah KronckeInternational & Comparative Law
Popular dissatisfaction with economic life has emerged as a growing challenge to countries across the globe. Magnified by growing inequality, this dissatisfaction stems from a sense that dominant economic institutions can no longer be relied upon to provide citizens with predictable and meaningful economic lives. Yet, even as nations have rejected left- and right-wing incumbents alike, there has remained only episodic engagement with one of the longest-standing alternative traditions for governing economic activity with a proactively social vision: cooperatives. In his article Investor Shares in Cooperative Financing: A Comparative Legal Analysis, Ville Pönkä provides a revealing primer on the challenges of promoting cooperatives through an incisive comparative analysis of “investor shares” as a means for cooperatives to raise capital.
For those less familiar with the literature on cooperatives, Pönkä provides a compact and effective introduction while outlining its interface with modern comparative corporate governance scholarship. This linkage is inherently valuable, as the particular nature of cooperatives has often led them to fall outside the analytical focus of both corporate and labor law scholars—although their conceptual and normative concerns significantly overlap with those of cooperative governance. And while, for practical and path-dependent reasons, the study of corporate governance has become one of the richest and most sophisticated areas of comparative legal analysis, it still largely omits cooperatives. As such, Pönkä’s survey of the statutory regimes governing cooperative forms is notable as it draws on diverse national examples—especially valuable given that much of the empirical work on cooperatives focuses on domestic audiences in non-English-speaking countries. Moreover, it does so while bringing the issue into direct conversation with classic and contemporary issues in corporate governance on a global scale. Continue reading "The Comparative Challenges of Cooperative Corporate Governance"
Nov 18, 2025 Christina S. HoHealth Law
Himani Bhakuni and Lucas Miotto have teamed up to place a useful concept in our midst, namely the concept of Transitional Health Justice (THJ).
They draw upon the scholarship concerning Transitional Justice, which can be roughly understood as an extension beyond “ordinary justice” to encompass “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses.” Transitional justice is not demanded when a society undergoes a smaller-scale disruptions, such as isolated episodes of disaster or armed conflict. After such events, society’s goal might plausibly be described as restoration after an aberrant event. But other ruptures go to the foundations of collective life, after which justice cannot be done by merely returning to the status quo ante, if indeed there is anything left to return to.
In the wake of the pandemic and rampant health disinformation, amidst the necropolitical horrors of the U.S. carceral security state run amok, given DOGE and the recent reconciliation bill’s plundering of our medical science and health infrastructure top to bottom, Bhakuni and Miotto’s call to train a transitional justice lens onto the crises in our health domain rings particularly urgent. Continue reading "Transitional Health Justice and a Care-First Response to Our Times"
Nov 17, 2025 Philomila TsoukalaFamily Law
Rama Hyeweon Kim, Parents, Kin, and the State: Family and Households Between Functional Parenthood and Child Protection, 33 Geo. J. on Poverty L. & Pol’y ___ (forthcoming, 2025).
A mother sits at a Child Protective Services office, surrounded by the scents of coffee and nicotine gum. Notices about food aid, housing forms, and a chart of deadlines blur as she struggles to focus. She is unemployed—not addicted or pathologically unstable—simply unable to find stability without family support and public aid. Her fraught relationship with her mother-in-law, who has provided childcare and now serves as kin care under Kentucky’s child protection system, has shifted. The caseworker explains that the grandmother may be recognized as a de facto parent, which would allow the state to close the neglect case, cease reunification services for the mother and foster care training and resources for the grandmother.
This grandmother’s bureaucratic pivot from helpful kin to potential legal parent provides the starting point for Rama Hyeweon Kim’s analysis in Parents, Kin, and the State: Family and Households Between Functional Parenthood and Child Protection. Kim begins by noticing that much of the literature on LGBTQ families and assisted reproductive technologies advocates for the recognition of functional parenthood as a normative good, without much engagement with the potential downsides of such a development. (P. 5.) Her article provides precisely such an in-depth engagement. Kim suggests that the costs of this model are real and uneven. Specifically, functional parenthood can burden parent–child relationships in poor and racialized communities, often plagued by higher-than-average rates of parental incarceration and substance abuse, which she calls “peripheral families” (P. 11), by reshaping power within the family under state oversight. Thus, her core claim is not that functional recognition is always wrong, but rather that its use in child-protection contexts brings distributional consequences that much of the reform literature has not fully considered, “including potentially severe and negative impacts on parent–child relationships.” (P. 1.) Continue reading "Functional Parenthood As a Bridge Between Family Law and Welfare Law"
Nov 14, 2025 Rakhi RupareliaEquality
Diversity, Equity, and Inclusion (DEI) programs have always sat uneasily with me. While the aspirations of such initiatives are ostensibly noble, their development and execution often present as token efforts to address social inequalities while leaving racial hierarchies intact. Indeed, many institutions express their commitment to such projects to appease political interests and avoid liability rather than to effect meaningful change.
Like many others invested in racial justice, I find it particularly vexing when DEI is used interchangeably with anti-racism, or more recently Critical Race Theory (CRT), as though brief training in cultural competency or individual bias, or a statement welcoming applicants from diverse communities at the end of a job posting are the magic wands that will eradicate systemic inequalities. DEI initiatives can be valuable when implemented properly, but they must complement systemic remedies, not replace them, for progress to be possible.
In her excellent article, law professor Tanya Hernández homes in on the proliferation of DEI programs as a response to the racism that has become increasingly difficult to deny following the unjustified police killings of George Floyd and other Black men and women. As the Black Lives Matter movement surged, organizations and corporations loudly professed their commitment to DEI and doing (or at least appearing to do) the right thing in a climate where so much was evidently wrong. Although their quality and efficacy vary, these programs still attract the ire of those who claim they promote unfairness and discrimination against white people, whom they characterize as the true victims of racism in an overly sensitive era. Sociologist Tressie McMillan Cottom aptly describes this unfounded perception as “race fantasy.” Continue reading "Resuscitating DEI: Using CRT to Breathe Life Back into Diversity, Equity and Inclusion"
Nov 14, 2025 Rakhi RupareliaEquality
Diversity, Equity, and Inclusion (DEI) programs have always sat uneasily with me. While the aspirations of such initiatives are ostensibly noble, their development and execution often present as token efforts to address social inequalities while leaving racial hierarchies intact. Indeed, many institutions express their commitment to such projects to appease political interests and avoid liability rather than to effect meaningful change.
Like many others invested in racial justice, I find it particularly vexing when DEI is used interchangeably with anti-racism, or more recently Critical Race Theory (CRT), as though brief training in cultural competency or individual bias, or a statement welcoming applicants from diverse communities at the end of a job posting are the magic wands that will eradicate systemic inequalities. DEI initiatives can be valuable when implemented properly, but they must complement systemic remedies, not replace them, for progress to be possible.
In her excellent article, law professor Tanya Hernández homes in on the proliferation of DEI programs as a response to the racism that has become increasingly difficult to deny following the unjustified police killings of George Floyd and other Black men and women. As the Black Lives Matter movement surged, organizations and corporations loudly professed their commitment to DEI and doing (or at least appearing to do) the right thing in a climate where so much was evidently wrong. Although their quality and efficacy vary, these programs still attract the ire of those who claim they promote unfairness and discrimination against white people, whom they characterize as the true victims of racism in an overly sensitive era. Sociologist Tressie McMillan Cottom aptly describes this unfounded perception as “race fantasy.” Continue reading "Resuscitating DEI: Using CRT to Breathe Life Back into Diversity, Equity and Inclusion"
Nov 13, 2025 Jessica M. EaglinCriminal Law
Data-driven policing technologies. By now, you can probably name a few off the top of your head. Facial recognition technology, GPS location monitoring devices, Automated License Plate Readers, ShotSpotter, and of course, predictive policing software. All are common examples of surveillance tools used by police which rely on algorithms to process large amounts of data. But what are these tools? Traditionally, we understand them as “technology.” In her recent article, Police Technology Experiments, Elizabeth Joh considers whether and how legal engagement with these tools might change if we conceptualize these technologies as “experiments.” Because her novel framework begs important questions at the intersection of law, technology, and science in contemporary society, this is a must-read essay for legal scholars interested in policing, criminal law, and beyond.
Joh begins by explaining the current legal and social framework in which police technologies are evaluated. She defines police surveillance technologies as tools that make use of vast amounts of data and utilize algorithmic tools to sort, classify, analyze and produce inferences from that information for criminal investigation. These tools, she explains, exist within a scant regulatory environment. Investigative police surveillance does not trigger many (if any) Fourth Amendment restrictions. Further, data-driven policing is an increasingly dominant model of policing across the United States. Whether due to federal funding support and/or marketing and incentives from proprietary vendors, this model is expanding. Despite standout U.S. Supreme Court decisions like Carpenter v. United States and Riley v. California, very little exists in the way of comprehensive regulation on police departments’ use of these technologies. Continue reading "Science or Technology? The Regulation of Police Surveillance Tools"
Nov 12, 2025 Sergio J. CamposCourts Law
Litigation is expensive and requires time, money, and resources to put together a good case. One well-recognized downside of percentage fees, such as the contingency fees used by plaintiffs’ attorneys in personal injury cases, is that they tend to cause underinvestment in litigation. In a typical percentage fee arrangement, the lawyer will bear the full costs of litigation but only get a fraction (around 20% to 30%) of the gains. This leads lawyers to invest less than if they had a greater share of the recovery.
The underinvestment problem has been empirically observed in nonlitigation contexts. For example, real estate agents typically receive a percentage of a sale; studies show that agents invest more marketing their own properties (where they get 100% of the gains) as compared to their clients’ properties. But few empirical studies have been conducted to demonstrate this common-sense result in litigation.
Expert Asymmetry: Evidence from Securities Litigation fills that gap. Co-authors Andrew Granato, Adam Callister, and Belisa Pang seek to measure the underinvestment caused by percentage fees in securities class actions, an ideal context to study underinvestment. Class attorneys receive a percentage of any recovery and front all costs. The court must approve any settlement. Databases collect settlements and relevant filings. Most importantly, the parties share one common expense – the cost of an expert to show that an alleged misrepresentation had a material effect (or not) on the stock price. Continue reading "You Get What You Pay For: Experts in Securities Class Actions"
Nov 11, 2025 Matteo GattiCorporate Law
In Getting to Yes: The Role of Coercion in Debt Renegotiations, Professors Vincent Buccola and Marcel Kahan offer a deep and clarifying intervention in a murky but critical corner of modern corporate finance. Despite the surge in controversial out-of-court restructurings—where debtors use increasingly aggressive tactics to sidestep unanimity and rewrite deal terms—the legal framework for evaluating such moves remains surprisingly underdeveloped. Judges tend to treat these fights as disputes among sophisticated players and very rarely imply covenants or override textual language. Buccola and Kahan step into this vacuum with an elegant conceptual framework for understanding coercion in debt alteration and, crucially, when courts should push back.
This is an important piece, both for its ambition and its pragmatism. Its core insight is that many renegotiation techniques may induce “consent” from creditors while leaving them collectively worse off. Buccola and Kahan offer a systematic account for understanding how this happens, identifying four key structural features—ranking, conditionality, exclusivity, and voting variability—that shape the coerciveness of any consent solicitation. They then show how these features combine in real-world practices such as exchange offers, exit consents, dual conditionalities, ballot stuffing, and exclusive uptiers, many of which have gained prominence in recent years. Some of these strategies resemble classic coordination problems or even prisoner’s dilemmas, in which individual creditors are pressured to accept a deal that, in aggregate, harms the group. By rigorously mapping the mechanics and incentives at play, the authors create a typology of coercive tactics that can push transactions over the finish line even when they diminish overall creditor value. This roadmap will be essential not only for academics but for practitioners and judges navigating these increasingly frequent and complex contests. Continue reading "Saying Yes, But Meaning No—Rethinking Coercion in Debt Reorganizations"
