Monthly Archives: July 2026
Jul 31, 2026 Jaclyn NeoInternational & Comparative Law
There is a renewed wave of scholarship in constitutional law emphasising cooperation and trust rather than conflict and distrust. The latter, associated with American-style constitutionalism, has long dominated our imagination alongside American political and social supremacy, but it now seems to be in decline. Instead, new forms of constitutionalism are being examined and theorised, not as flawed or sub-optimal approaches to constitutional design and practice, but as valid and potentially more effective ways of practising constitutional law. Works such as Aileen Kavanagh’s Collaborative Constitution, Stephen Gardbaum’s New Commonwealth Constitutionalism, and various studies on constitutional dialogue or dialogic constitutionalism stress the importance of studying inter-institutional engagements not only as conflictual but also as productive and consensus-building.
In this regard, Rosalind Dixon’s responsive constitutionalism serves as a crucial point of reference in presenting responsiveness, rather than just constraint of power, as an integral constitutional value. In her article, The New Responsive Constitutionalism, Rosalind Dixon extends her exploration of responsiveness as a constitutional value beyond the narrower canvas of her earlier book on Responsive Judicial Review. In this article, she examines how responsive constitutionalism reinforces institutional pluralism by emphasising overlapping institutional authority, multiple access points for institutions, strong institutional checks and balances, and broad remedial power for relevant institutions, including courts. A responsive constitutional model, Dixon argues, would facilitate dialogue among institutions, including between courts and legislators, to strike a balance between constitutional norms that promote rights-enhancing forms of state action and those that limit state action. Continue reading "Responsiveness as a Constitutional Value"
Jul 30, 2026 Reuel SchillerLegal History
Can you imagine a better-timed piece of legal history than Alma Steingart’s insightful One Person, One Vote? The Gap between Representative Equity and Mathematical Equality after Baker v. Carr”? Published in the March 2026 issue of the Journal of American History, the article landed amidst a frenetic tit for tat of partisan and racial gerrymandering. In August 2025, President Trump demanded that Texas redraw its congressional districts to help keep a Republican majority in the House of Representatives in anticipation of Democratic successes in the 2026 midterms. Republican-dominated legislatures in Missouri, Ohio, and North Carolina followed suit, only to have California and Virginia respond with pro-Democratic gerrymanders, the last of these occurring just weeks after Steingart’s article appeared. Then, the courts got busy. Virginia’s Supreme Court overturned that state’s redistricting, and, most significantly, at the end of April 2026, the United States Supreme Court decided Louisiana v. Callais, eviscerating section 2 of the Voting Rights Act. This set off another burst of redistricting as Republican-controlled state legislatures carved up Democratic-leaning majority-minority districts to further boost their party’s chances in November.
Professor Steingart’s article can’t tell us how to end this grotesque carnival of democratic back-sliding, but it does a fantastic job of explaining how we got here. At the same time, it complicates the conventional narrative of the Warren Court’s landmark malapportionment cases. I’m sure that Jotwell’s readers are familiar with the fight over the justiciability of malapportionment claims in Baker v. Carr (1962) and the emergence of the “one person, one vote” standard that required legislative districts to contain roughly equal populations in Reynolds v. Sims (1964). These cases are often portrayed as the apex of legal liberalism. Earl Warren famously identified them as the Court’s greatest accomplishment during his time as Chief Justice. In the conventional narrative, which focused on the Court’s commitment to political equality and participatory democracy, they were emblematic of legal liberalism’s aspirations for an inclusive, egalitarian society. Steingart shows, however, that this account misses a crucial attribute of these cases. Their most significant legacy, Steingart argues, is that they set the parameters of the debate “about the meaning of representation in a distinctly mathematical idiom” that remains with us today. (P. 703.) Cases that seemed to be about political inclusion turned out to be ones that elevated mathematical reasoning over the facilitation of genuine political participation. Continue reading "Voting Rights, Mathematical Expertise, and the Limits of Legal Liberalism"
Jul 29, 2026 Michael GreenJurisprudence
In his rich and carefully argued book, Rights and Right-Holding: A Philosophical Investigation, Matthew Kramer seeks to articulate the essence of any entitlement (whether legal or moral) that can be classified as a right and the essence of an entity’s holding that right (P. 5). He does so both concerning rights in the capacious sense — which includes all four entitlements identified by Wesley Newcomb Hohfeld (claim-rights, liberties, powers, and immunities) — and concerning rights in the narrower sense of claim-rights only.
The book is a (qualified) defense of the fundamentals of the Hohfeldian analysis of rights — in particular, what Kramer calls the correlativity axiom, under which each duty is correlated with at least one claim-right with the same content (and every claim-right is correlated with at least one duty with the same content). And it defends an interest theory of the holding of a claim-right against the so-called will theory. Under the will theory, A holds a claim-right if and only if A has the power to control the existence and enforcement of the correlative duty (through waiver, demand, and the like). Continue reading "Non-Justificatory Theories of Rights"
Jul 28, 2026 Christopher J. BuccafuscoIntellectual Property Law
Katrina Geddes,
Engineering Semiotic Democracy, __
FIU L. Rev. __ (forthcoming 2026), available at
SSRN (June 14, 2024).
Artificial intelligence platforms justify their unauthorized reproduction of copyrighted training data on the expansive creative capacities that their models allow. They argue that generative AI is a “radically transformational tool for creators of many kinds … which enables new expression and innovation to flourish.” In her new paper, Engineering Semiotic Democracy, Katrina Geddes sets out to hold AI firms’ feet to the fire.
To motivate the intervention, Geddes reports asking ChatGPT to produce an image of Captain America as a queer Black man from Brooklyn. The platform refused the request as a violation of its content policy that prohibits generating certain copyrighted characters. Because the output that her request would produce is likely protected as a transformational fair use, Geddes worries that risk-averse AI firms are blocking the creation of content in a manner that is more restrictive than copyright law requires. Doing so, she argues, undermines people’s capacities to engage and create with AI in precisely the sorts of radically generative ways the platforms tout in their litigation. Continue reading "Generative Fair Use for All"
Jul 27, 2026 Zack BuckHealth Law
In Do Nothing Preemption, Professor Lauren Roth takes on the legal thicket of preemption—the all-too-familiar hornet’s nest within the federalism-dominated landscape of health law. Roth’s project is particularly timely. Considering policy goals by the Trump administration as well as the recent assault on the agency-based administrative law order, preemption—where the federal government has largely impeded states from regulating in a particular space—is salient and important during a highly deregulatory era.
While telling a story about preemption, Professor Roth uses as a case study the effort to prevent predatory marketing by agents selling Medicare Advantage plans. This, which she presents as posing a real threat to access to health insurance for Medicare beneficiaries, serves as the lens for deeper observations about the structure and gridlock that produce a regulatory vacuum. Indeed, in this space, the federal government has prevented states from preventing pernicious marketing, but has had its own rules struck down by the judiciary. Continue reading "Preemption in a Deregulatory Era"
Jul 24, 2026 Rachel RebouchéFamily Law
Karen Engle & Jennifer E. Laurin,
Criminalization by Other Means: New Sites and Strategies for Stifling Abortion Access, 69
Ariz. L. Rev.__ (forthcoming 2027), available at
SSRN (May 11, 2026).
Criminalization by Other Means is a richly documented and analytically rigorous article that examines how anti-abortion lawyers and activists in Texas have deployed local government ordinances and civil litigation as vehicles for advancing theories of criminal liability for abortion, even as formal criminal prosecutions remain nearly nonexistent. The article’s central thesis—that the meaning and reach of criminal law have been expanded through civil litigation—is both timely and underexplored in existing scholarship. This article spotlights an emerging way in which criminal law has appeared in the guise of private law, and, in so doing, makes an important addition to the fields of criminal law, family law, reproductive rights, and local government law.
One of the article’s primary strengths is its empirical foundation. Engle and Laurin read every publicly available “Sanctuary City for the Unborn” ordinance passed in Texas—local laws passed by city or county councils that aim to prohibit abortion within their jurisdictions through civil lawsuits filed by private citizens (and the city or country in some places)—and systematically tracked their provisions over time. They combine this analysis of over 70 such statutes (at the time of writing) with close readings of discovery petitions filed under S.B. 8 (the Texas legislation that operated like an abortion ban before Dobbs), wrongful death complaints, and related court filings. The resulting dataset is organized into three chronological “waves” (2019–2020, 2020–2022, and 2023–2026), which allows the authors to demonstrate how criminal law claims evolved in response to shifts in the legal landscape, including the Dobbs decision and the enactment of the Texas trigger ban after Dobbs. This temporal framework is particularly effective in revealing how anti-abortion advocates coordinated strategies across local government and civil litigation venues. Continue reading "Criminal Claiming in Ban-State Abortion Law"
Jul 23, 2026 Solangel MaldonadoTrusts & Estates
Reid Kress Weisbord, David Horton, & Naomi Cahn,
Secrecy in Trust Litigation, ___
Wake Forest L. Rev. ___ (forthcoming, 2026-27), available at
SSRN (Feb. 12, 2026).
I last taught Wills, Estates, and Trusts in Spring 2025 to a large class with a fair number of students who were taking the course because the topic was likely to be tested on the bar exam. Consequently, I was concerned that students would not be as engaged when we covered trusts which, in my experience, students find more challenging to grasp than intestacy or wills. The media’s Herculean efforts to provide coverage of the Rupert Murdoch family trust litigation despite the parties’ attempts to seal the entire court proceeding, however, brought trusts to life. Many students—especially those who were fans of Succession, the HBO series inspired by the Murdoch family’s power struggles—were fascinated and simultaneously disturbed by the use of trusts to preserve wealth and power with minimal regulation. This glimpse into a real-world Succession drama would not have been possible had the litigation remained cloaked in secrecy as Murdoch (the settlor) intended, and as recently enacted trust privacy statutes seem to authorize. In Secrecy in Trust Litigation, Weisbord, Horton, and Cahn expose the latest trend in the race to attract trust business—statutes that seal trust matters automatically—and conclude that these laws perpetuate wealth inequality, undermine judicial decisionmaking, thwart the development of trust law, and are unlikely to survive constitutional scrutiny.
The Article’s contributions are many but I will focus here on three. First, the Article provides a thorough account of how trust matters are sealed: (1) through a common law petition for a protective order in a specific case, which the Article refers to as “ad hoc sealing”, or (2) through recently enacted statutes that authorize sealing of the entire case as a matter of course or upon request, which the Article refers to as “super-sealing” statutes. Although ad hoc sealing requests are not novel, the Article analyses the conflicting standards applied by appellate courts when determining whether a trust matter should be sealed, specifically whether the parties’ privacy interests outweigh the public’s interest and right of access to court proceedings. It also examines a dataset of 1,431 trust matters filed in San Francisco Superior Court from 2014 to 2020 and finds that ad hoc sealing requests are quite rare (only 8 requests in 1,431 trust matters) and that the majority are denied.
Second, the Article demonstrates that states with super-sealing statutes condone a striking deviation from the norm of public access. While super-sealing statutes are in effect in only a handful of states and their application has only been challenged in one case—the Murdoch litigation in which the Nevada Supreme Court dodged the constitutional question—the Article argues that these statutes are unlikely to survive constitutional scrutiny. It shows that super-sealing statutes may violate the First Amendment, which the Supreme Court has interpreted to prohibit restriction of access to court records that have typically been accessible to the public unless the restriction is narrowly tailored. It further explains how these statutes may violate their respective state constitutions which guarantee open courts. Continue reading "Trusts in Court: The Public’s Right to Know"
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The post Blsky Images appeared first on Jotwell: Zeta-Section.
Jul 22, 2026 Doron DorfmanEquality
Not long ago, a friend in his late thirties confided that coming out as gay had been unexpectedly difficult for him. He is the son of one of the first lesbian couples to raise children in the Southern state where he grew up. I was initially surprised—having always known him as confidently and openly queer, and as someone who had even worked for a Jewish LGBTQ organization. In his words, he feared disappointing his parents and failing to live up to the expectations shaped by their long struggle for LGBTQ parental rights. His disclosure stayed with me. It prompted me to reflect more deeply on the dynamics and complexities of intergenerational queer families—an issue thoughtfully explored in an illuminating article by Bella Mancini Pori and Edward Stein, Foregrounding the LGBTQIA+ Children of LGBTQIA+ People.
Many anti-LGBTQ laws currently under consideration or already in force rest on the premise that simply encountering LGBTQ people, ideas, or representation can influence a child’s sexual orientation or gender identity. This faulty premise was described nearly 15 years ago by Cliford Rosky as the Fear of the Queer Child. It animates legislative efforts to restrict drag performances and drag story times attended by children, remove children’s and young adult books with LGBTQ content from libraries, and permit parents to opt their children out of classroom discussion of LGBTQ content in schools, a policy the Supreme Court endorsed in Mahmoud v. Taylor (2025). Indeed, in the words of Mancini Pori and Stein: “The myth of indoctrination––the idea that queer adults would turn straight children queer––looms large in the struggle for LGBTQIA+ rights.” (P. 66.) Continue reading "Gay Son of a Gay? That’s Perfectly OK!"
Jul 21, 2026 Sheldon EvansCriminal Law
Puerto Rico is more than a territory; it is a mirror that reflects American values of sovereignty, race, and exclusion. Professor Emmanuel Arnaud explores these values in a powerful project that considers how criminal justice in Puerto Rico tells a distinct story about colonialism, federalism, and prosecutorial power that resonates far beyond the shores of the Caribbean. In Colonizing by Contract, Arnaud describes the nuances of Puerto Rico’s perpetual purgatory between territorial status and statehood, and how federal and local law interact to create a unique exceptionalism in criminal jurisdiction on the island. In Arnaud’s words, these realities ultimately tell “a story about how the most powerful democracy on earth continues to perpetuate a colonial system that delegitimizes local authority and deprives Puerto Ricans of democracy and self-determination.” (P. 2252.)
History serves as a foundation to Arnaud’s analysis, starting with the United States’ imperial acquisition of Puerto Rico in 1898 after the Spanish-American War. As a territory, the island was subject to federal oversight similar to other territorial lands that the country had acquired throughout its history. Congress enjoyed plenary power over these territorial lands until they were deemed eligible for Congress to confer the sovereignty, political representation, and rights of statehood. But unlike the Northwest Territory, the Dakota Territory, Hawaii, and Alaska, Puerto Rico was never put on the pathway to statehood. One of the foremost reasons for this exclusion was racial. Congress had consistently required that these territories meet a certain threshold of White residents before they were considered eligible for statehood. Undoubtedly, this practical threshold was rooted in White supremacist logic, which reasoned that White residents were necessary to serve as voters and leaders before Congress could entrust that territory with the privilege of joining the Union as a sovereign state. In the Insular Cases (a series of cases decided by the Court during the turn of the twentieth century), the Supreme Court established that places like Puerto Rico could be held as territories in perpetuity. This meant that the island, and its mostly non-white Latine population, could be subject to the plenary power of Congress indefinitely. Thus, the sovereignty and political representation that statehood would bring was legally out of reach. For legal historians, this should come as no surprise. During the same time the Court was separating people and determining their political rights on the basis of race—including Chae Chan Ping that upheld Chinese exclusion (1893), and Plessy v. Ferguson that justified the separate but equal doctrine (1896)—the Insular Cases (1901-1922) continued this racialized trend of exclusion and second-class citizenship. Continue reading "Crime as Colonization"
