Yearly Archives: 2025
Nov 10, 2025 Eliza MikContracts
Noam Kolt,
Governing AI Agents, 101
Notre Dame L. Rev. __ (forthcoming), available at
SSRN (Feb. 11, 2025).
Let’s start with a cliché: Kolt’s article is a must-read conversation starter. AI agents are proliferating around us, and the opportunities created by those technologies seem infinite. And so are the legal problems. The more powerful the technology and the higher its potential to make our lives easier, the greater the risks of its use. As Kolt puts it, “productivity and efficiency gains may come at the cost of unintended outcomes.” He also provides great illustrations of such risks, ranging from hallucinations (Hello Air Canada!) to unethical behavior in pursuit of the set goals. Ultimately, somebody will have to foot the bill. And it won’t be the AI agent. But – I am running ahead with myself!
If I were to provide a short summary of the article, here it is: Kolt explores the governance challenges presented by autonomous AI agents. The latter differ significantly from language models in their ability to independently plan and execute complex tasks. While established legal and economic frameworks, particularly the principal-agent theory and common law agency doctrine, provide insights into issues like information asymmetry, authority, and loyalty, Kolt shows how all such frameworks hit a wall when applied to non-human entities. Reinterpreting traditional theories and legal doctrines can only get us so far. Can we really speak of fiduciary duties with regard to software? Can we speak of “conflicts of interest” and “loyalty” – or should we speak of ill-defined objective functions, sloppy prompts, or simply bad programming? I can’t help but ask: who (or what!) is easier to control: a human or an AI agent? Of course, Kolts makes an important disclaimer: he uses structures, principles, and vocabulary developed in the common law of agency to shed light on the challenges involved in governing AI agents. The common law of agency is used as an analytic lens, but does not directly examine the legal application of agency law to AI agents. After all, the AI agent is not a discrete legal entity and cannot be held liable. Continue reading "AI Agents: Tools or … Actors?"
Nov 7, 2025 Mae KuykendallConstitutional Law
In her new book The Age of Choice: A History of Freedom in the Modern World (hereinafter Choice), historian Sophia Rosenfeld has added an engaging new book to her body of work tracing “ideas and assumptions” in liberal democracies.” As is her usual approach, Rosenfeld devotes her skills to recovering popular thought that shapes cultures, rather than to the ideas of major thinkers in the canon of liberal thought. In her brief summary of the primary points in The Age of Choice, she calls herself “a historian of the taken-for-granted.” Here, the taken-for-granted phenomenon is the modern tendency to treat “choice” as a guiding light in our individual and collective lives.
Her scholar’s duty persuades Rosenfeld to provide evaluative commentary on the cultural habits she has served up for inspection. Elsewhere, Rosenfeld—perhaps responding to the choice-glutted, time-starved world her readers inhabit—has offered five key insights from the book. In the list, she opens the door to our seeing downsides to “our reliance and faith in choice.” The door to some evaluation of choice is presented by her foregrounding of women as drivers of “the equation between freedom and choice.” More on that opening follows below. Continue reading "A History Lesson"
Nov 6, 2025 Jameson PayneAdministrative Law
As a quick search through JOTWELL’s archives will prove, scholars have given no shortage of attention to universal remedies. And it’s no surprise why: the question of whether courts can grant non-party relief is not just a thorny constitutional matter; its practical effects are also immense. Therefore, the universal remedies debate has enjoyed lively back and forth, with compelling arguments—some historical, some pragmatic—issued from both camps. And while this debate raged on, the Supreme Court sat in patient wait, signaling its views with a concurrence here and there, waiting for the opportune moment to strike. And strike it did.
One might think that SCOTUS’ ruling last term in Trump v. CASA will inter the universal remedies debate, at least practically, since it ruled that “universal injunctions likely exceed the equitable authority that Congress has given to federal courts.” But this is improbable. While injunctions may be off the table, the opinion made an important caveat for alternative types of universal relief. Perhaps the most significant among these alternatives is “vacatur,” which some argue is permitted by the Administrative Procedure Act’s instruction that courts “hold unlawful” and “set aside” agency action. With standard-issue universal injunctions no longer permitted, vacatur must now work overtime to meet the demand for nationwide relief. The focus of the debate, therefore, shifts to vacatur, and all the same problems raised in CASA must now be reconsidered. Does vacatur run afoul of the same Article III principles that nationwide injunctions do? And what are its costs and benefits? Continue reading "Vacatur as Redressability: Towards a New History of Universal Relief"
Nov 5, 2025 Charlotte S. AlexanderWork Law
Michael C. Duff,
Reverberations of Magna Carta: Work Injuries, Inkblots, and Restitution, __
Ne. L. Rev. __ (2025), available at
SSRN (Sept. 17, 2024).
I really like articles that take big swings. When I read a good one, and Michael C. Duff’s Reverberations of Magna Carta falls into that category, it teaches me something, reveals assumptions that I didn’t know I held, and points the way to new ways of thinking. Reverberations takes as its starting point the fact that state workers’ compensation systems are covering a dwindling share of the costs of work-related illness and injuries. A U.S. Department of Labor study puts the percentage at only 21%, while workers themselves, their families, private insurance, and taxpayer-funded Medicare, Medicaid and Social Security programs are covering the rest. Duff casts this remedial deprivation as a constitutional problem.
Duff roots his argument in the original “Grand Bargain” that produced the workers’ compensation system, where workers give up their right to sue in tort in exchange for a workers’ compensation remedy. He contends that states’ chipping away of workers’ compensation protection through caps, time-limits, and procedural barriers effectively strips workers of the remedies they are due in exchange for the common law rights they relinquished. In Duff’s view, those common law rights are protected from state interference under the Ninth Amendment, which recognizes unenumerated rights “retained by the people,” and Section 1 of the Fourteenth Amendment, which safeguards the “privileges and immunities of citizens of the United States” against state interference. Continue reading "A Constitutional Reckoning for Workers’ Compensation"
Nov 4, 2025 Phyllis C. TaiteTrusts & Estates
James Toomey,
Fiduciary Standards, 51 ACTEC L.J. (forthcoming 2026), available at
SSRN (Apr. 8, 2025).
Professor James Toomey analyzes fiduciary principles by comparing two standards, “best interests” and “substituted judgment.” As defined by Toomey, a fiduciary makes a decision in the principal’s best interest when the fiduciary objectively assesses the circumstances. On the other hand, substituted judgment considers the principal’s subjective intent, and thus asks the fiduciary to make the decision the principal would have wanted under the circumstances. Toomey evaluates both models by considering various applications of fiduciary law and assessing whether either standard adequately articulates the legal obligations imposed on fiduciaries.
To demonstrate the difference between the fiduciary standards, Professor Toomey describes how fiduciary decisions based on substituted judgment focus on probable intent and personal identity of the principal. Alternatively, fiduciary decisions based on best interests do not focus on personal identity, but instead reflect the ideal, efficient choices based on the circumstances. Further, he discusses situations where fiduciaries have blended these two standards. Continue reading "Evaluating Standards for Making Fiduciary Decisions"
Nov 3, 2025 Cristina TilleyTorts
Tom Baker,
What Is Insurance for Tort Law?, 111
Va. L. Rev. __ (forthcoming 2025), available at
SSRN.
It is a truth rarely acknowledged by tort theorists that personal injury lawyers in possession of good plaintiffs must also be in want of insured defendants. Tom Baker acknowledges that truth in What is Insurance for Tort Law?, and follows it to some bracing conclusions. Baker’s article is a welcome rejoinder to Kenneth Abraham and Catherine Sharkey’s recent call to treat insurance as a constitutive part of tort doctrine and practice. Abraham and Sharkey embrace liability insurance as an economically “beneficial” aspect of tort practice that “spreads the risk of tort liability, []helps to promote safety, ensures compensation for some tort victims who would otherwise not be compensated, and enables planning and budgeting . . . by potential defendants.” Not so fast, Baker warns. When an insurance eminence like Baker issues a warning, it’s a good idea to listen. Yes, he agrees, tort and insurance are in the symbiotic business of distributing compensation. But Baker argues that tort should aspire to non-economic goals like corrective justice, and then artfully demonstrates how yoking injury outcomes to insurance pricing mechanisms can hobble that goal.
Baker begins with a frank and comprehensive look at how liability insurance influences tort in action. Because insurance “provides the money that changes hands through tort claiming,” (P. 8) lawyers who earn contingency fees are reluctant to sue uninsured defendants and insured defendants typically cede control over litigation to insurers. And because the universe of tort cases is determined by the infrastructure of insurance, tort doctrine has developed in ways that reflect and amplify the interests of insurers. For example, insurers who manage large pools of litigation are positioned to cherry-pick cases as vehicles for friendly changes to procedural and doctrinal rules. (Pp. 12-15.) Further, by tracing verdicts back to centralized insurers rather than to decentralized defendants, lobbyists can depict plaintiff compensation as an “insurance crisis” that justifies anti-plaintiff legislative reforms like damage caps, the restriction of joint and several liability, and limits to the collateral source rule. (Pp. 17-18.) Most notably, plaintiffs lawyers fill their rosters with clients whose claims can “plead into” existing insurance. Consequently, they prioritize cases involving premises liability, bodily injury, and property damage and devalue cases involving pure emotional or economic loss. (P. 15.) Continue reading "Price and Prejudice"
Oct 31, 2025 Rebecca TushnetTechnology Law
It is rare in legal scholarship to be both novel and clearly correct at the same time. In Servicing Trade Dress: Demystifying the Tertium Quid, Professor Marlan pulls it off. He starts with a puzzling carveout in a key Supreme Court case in 2000, Wal-Mart Stores, Inc. v. Samara Brothers, Inc. That case drew a significant line between product packaging (which is eligible for immediate trademark protection if it is “inherently distinctive”—that is, if the court thinks that consumers would immediately recognize it as indicating the source of a product, not just product descriptions or decorations) and product design (which may only be protected by trademark law if it has gained “secondary meaning” by recognition in the marketplace over time). Product design isn’t as likely to signal source to consumers as words are, the Court reasoned, and, separately, it’s also very likely to provide non-source-related benefits. Most of the time, a cigar is just a cigar. Thus, trademark protection should be given sparingly, only when the claimant proves that the claimed design is actually serving a source-identifying function.
Wal-Mart’s rule makes it harder to bring anticompetitive lawsuits against competitors based on product design—the burden will be on the claimant both to prove that its claimed design is nonfunctional and also to prove that consumers are likely to perceive it as an indicator of source. This is particularly useful because competitors are likely to want to use similar product designs, not to confuse consumers, but to provide consumers with the same benefits. Continue reading "Distinguishing Marks"
Oct 30, 2025 Charlotte CraneTax Law
Reuven Avi-Yonah, Doron Norotzki, & Tamir Shana,
From Relic to Relevance, The Resurgence of Tariffs, 77
U. Cal. L. J. __ (forthcoming, 2026), available at
SSRN (Mar. 10, 2025).
There’s a lot of confusion about the justifications for and the consequences of tariffs in the news these days. The essay by Reuven Avi-Yonah, Doron Norotzki, and Tamir Shana entitled From Relic to Relevance, The Resurgence of Tariffs, attempts to remedy the situation. Its bottom-line conclusion is that it is extremely difficult to imagine a tariff system sufficiently robust to raise revenue adequate to replace the income tax even if revenue were the only concern. Moreover, it is virtually impossible to implement such a tariff without the real possibility of wreaking havoc on both domestic and international economies. The authors of Relic to Relevance (hereinafter “Relic authors”) want us all to understand why reliance on tariffs, especially as a replacement for the income tax, could be so dangerous.
As the Relic authors outline, introducing major changes in tax instruments is tricky business. In peace time, the United States Congress has rarely made such moves. The first time was the expected result of the adoption of the Constitution; expected because the need for a revenue source controlled by Congress and for uniform trade policy had been primary motivations for adopting a constitution to replace the Articles of Confederation. In its first substantive piece of legislation, Congress enacted the Act for Laying a Duty on Goods. This Act became law on the first Fourth of July celebrated under the new Constitution in 1789 (1 Stat. 24). Continue reading "Relics Reevaluated: How to think about Tariffs in a World Dominated by the Income Tax"
Oct 29, 2025 W. Keith RobinsonProperty
In 2020, the Supreme Court’s decision in NCAA v. Alston rocked college athletics by dismantling the NCAA’s amateurism model. In the wake of Alston, the ability of student-athletes to profit from their name, image, and likeness (NIL) has transformed college sports. Athletes are now recruited for their athletic ability and also viewed as economic actors. While the NCAA has revised its policies to allow for athlete compensation tied to NIL, the broader legal and regulatory terrain remains unstable. It is against this backdrop that Professor Mitchell Crusto’s thought-provoking article, What is Property?: A Libertarian Perspective of Name, Image, and Likeness, offers an important intervention.
A longtime leader in exploring how property law intersects with issues of race, class, and power, Professor Crusto turns his attention to the NIL revolution with great depth. His central claim is that NIL should be understood not as a right of publicity but as a form of property. That conceptual shift, he argues, would more effectively enable student-athletes to realize the economic value of their NIL while offering them stronger protection against exploitation. Continue reading "The Case for NIL as Property"
Oct 28, 2025 Seth EndoCourts Law
About thirty years ago, Paul D. Carrington observed that the discovery stage of civil litigation is a “means of correcting imbalances in … power that are productive of injustice.” Two recent articles—one by Miyoko T. Pettit-Toledo and one by James Stone—illustrate the lasting power of that reflection. While each takes on a different aspect of discovery, both pair thoughtful empirical work with probing critical analyses that get at the very real stakes for litigants. And each, in effect, applies a version of the old test for a person’s character by addressing how various discovery systems treat the most vulnerable amongst us.
Pettit-Toledo’s The Politics of Proportionality in State Civil Rulemaking analyzes state responses to the 2015 amendments to Federal Rule of Civil Procedure 26(b)(1), which controversially integrated a proportionality element into the definition of the scope of discovery. Proponents lauded its potential for stemming costly discovery. Critics worried that it would be used to stifle necessary factfinding. But, as Adam Steinman identified, the battle over the amendment ultimately would be fought in its case-by-case application in the lower federal courts. Pettit-Toledo follows a natural corollary flowing from the federal rules’ historical influence on state procedure: how states respond to the rule change also is a significant part of the story. Continue reading "Two New Windows Into Discovery"
