Monthly Archives: September 2026
Sep 30, 2026 Eliot TraczEquality
Many books are timely. Quite a few books put forth an interesting and well-supported argument. Few books manage to do both while introducing a thesis that can be construed narrowly towards a specific class- in this case women- while also having a broader application towards the achievements and erasure of other groups. Professor Jill Hasday’s book, We the Men, is just such a book.
Professor Hasday’s book, which deserves to be recognized as a pilar of contemporary feminist legal jurisprudence, comes at a time when it would be particularly easy to argue that women’s rights have once again become hot legal topics. This might seem to be a particularly appealing argument as voter identification laws threaten to take away married women’s voting rights at the same time that the federal government has sought to crack down on disparate impact claims, the Equal Rights Amendment seems caught in the doldrums, and states continue to pass ever-more-repressive abortion laws post Dobbs v. Jackson Women’s Health Organization. Continue reading "Where are the Women?"
Sep 29, 2026 Allan ErbsenCourts Law
Reviewing Aderson Bellegarde François & Helen Hershkoff,
Pennoyer, Due Process, and the End of Reconstruction, __
N.Y.U. L. Rev. __ (forthcoming), available at
SSRN (Aug. 4, 2026).
Imagine that a presenter at an academic conference summarizes the Supreme Court’s recent decisions. The presenter explains that Dobbs v. Jackson Women’s Health Organization addressed regulatory constraints on certain medical procedures and therefore is primarily of interest to health law scholars; that Trump v. United States addressed a defense to certain criminal charges and therefore is primarily of interest to criminal law scholars; and that Students for Fair Admissions v. Harvard addressed university admissions criteria and therefore is primarily of interest to education law scholars. The audience would conclude that the presenter missed the bigger picture. Each decision invoked principles with broad implications beyond the specific context in which the constitutional issue arose. Each should and will interest scholars in many fields.
Now suppose that the same presenter mentions that Pennoyer v. Neff is a famous decision about civil procedure. The audience that rejected the presenter’s prior oversimplifications might nevertheless accept the presenter’s narrow characterization of Pennoyer as a civil procedure case. The academy has relegated constraints on personal jurisdiction to the margins of the constitutional landscape. Pennoyer is a staple of civil procedure courses, but rarely receives substantial coverage in courses about constitutional law. Yet Pennoyer is interesting primarily because the Court sanctified a territorial account of state power with the imprimatur of the Fourteenth Amendment’s Due Process Clause. Pennoyer therefore should feature prominently in discussions of federalism. Marginalizing Pennoyer as a case about civil procedure minutiae makes the same type of mistake as reducing Dobbs to a health law decision, reducing Trump to a criminal law decision, and reducing SFFA to an education law decision. Continue reading "Personal Jurisdiction and the Tapestry of Constitutional Law"
Sep 28, 2026 Da LinCorporate Law
- Luca Enriques, Alessandro Romano, and Andrew F. Tuch, Sustainability Assurance (ECGI Working Paper No. 871/2025)
- Luca Enriques, Alessandro Romano, and Andrew F. Tuch, Green Gatekeepers, 109 Minn. L. Rev. 609 (2024)
Even though climate-related reporting is now near-universal among the world’s largest companies, it remains one of the most contentious, politically-explosive topics in contemporary corporate regulation. Questions surrounding the materiality of climate-related risks, the value of climate-related disclosures, and the regulation of greenwashing have dominated recent scholarly attention. What is less frequently addressed is the practical mechanics of how companies assess their climate risks and then reassure others about the credibility of those assessments.
In fact, there is now a sprawling industry of people and institutions that function to vouch for the quality of climate-related reporting as well as other “green” signals sent by companies. There are obvious parallels between this industry and the traditional “gatekeepers” of corporate financial disclosures, whose failure to function as effective sentries famously contributed to the corporate scandals in the early 2000s and was a central target of the reforms introduced by the Sarbanes-Oxley Act of 2002 (“SOX”). Given the similarities, do we need a “green” SOX, and if so, what should such regulation look like?
A cogent, insightful step toward an answer to this question comes from Professors Luca Enriques, Alessandro Romano, and Andrew Tuch in their recent article, Sustainability Assurance, and an earlier companion, Green Gatekeepers. In the latter, the authors define “green gatekeepers” as entities that perform at least one of two functions: standard-setting (“specify[ing] the requirements for certification” of a sustainability-related claim) and verification (“assuring or validating that these standards have been met in any given instance”). This label broadly encompasses assurance providers, who verify a company’s sustainability disclosures; ESG ratings providers, who assess a company’s operations vis-à-vis societal and environmental factors; and net-zero target certifiers, who evaluate the credibility of a company’s strategy to transition to net-zero emissions; just to name a few examples. Continue reading "Green SOX?"
Sep 25, 2026 Sanford LevinsonConstitutional Law
Let me confess to two personal reasons for being especially interested in this fascinating essay. First, Zalman Rothschild is probably the most interesting single student I have been privileged to interact with in what is now two decades of regularly visiting the Harvard Law School. He is not only brilliant – not such an unusual trait at HLS. More to the point, he has an unusually compelling personal history, as someone who left his initial life as a Chasidic Jew and became a member in good standing of the American legal academy. I have suggested to him since first getting to know him that he should write a memoir, as well as standard-form scholarly articles. Though this is no memoir, it is undoubtedly colored by his experience as what might be described as a “refugee” from a community that he now regards as unacceptably insular and, in its own way, abusive of children.
The second reason for my particular interest goes back to my days as a graduate student in government, many decades ago. On those days when I considered actually writing a dissertation in political theory I imagined addressing the difficulty that liberal political theory has in handling children. They are, after all, not the truly autonomous decision-makers so central to traditional liberalism. “Arm’s-length bargaining” and “consent” make no sense for the truly young. They are, as writers going back to Plato and Aristotle recognized, being formed by the communities within which they are raised, with no say over that character formation. I was wise enough not to become a full-fledged political theorist, but perhaps that interest helps to explain why the one job I’ve ever had as a practicing lawyer was a year spent working at the Children’s Defense Fund. Children do indeed need advocates. Not surprisingly, however, those who advocate for children are confronted with the same issues of autonomy and what is correctly called paternalism. One might have children as “clients,” but, for better or worse, it is rare indeed for the representation to be truly guided by the actual wishes of the client, unless the “child” is at the cusp of “adulthood” (whatever exactly we think that might mean). One could advocate for them, but they were often not able to speak or structure the representation in their own behalf. Continue reading "Emigration from Sectarian Religion and the Limits of “Individual Rights”"
Sep 24, 2026 Jodi ShortAdministrative Law
Chad Squitieri,
Congress in the Mouth of a Lawyer, 78
Ala. L. Rev. __ (forthcoming), available at
SSRN (Apr. 07, 2026).
Chad Squitieri’s Congress in the Mouth of a Lawyer is one of the most generative articles I have read this year. His observation that legislation is a multi-branch affair is, at once, trivially obvious and radically unsettling. Centering this observation is an important corrective to the conceptual slippages that result from lawyers’ tendency to speak of “Congress” as the branch that makes law and to speak of legislation as the constitutional prerogative of a single branch—“Congress.” Of course, it is well known that Congress cannot make law alone but must do so in concert with the President. “What follows from that fact of constitutional structure is that, when one speaks of ‘Congress’ as making law, one should be understood as necessarily (albeit implicitly) speaking of the House, Senate, and President working in concert.” (P. 4.) Squitieri refers to this as the “multi-branch definition of ‘Congress.’” (P. 4.)
Squitieri makes structural arguments in support of his multi-branch conception of lawmaking, pointing not only to the presentment requirement in Article I, Section 7, but to the Recommendation Clause and the role of the Vice President in the Senate, which give the President additional means of influencing the lawmaking process. The Recommendation Clause authorizes—arguably commands—the President to participate in the legislative process proactively, stating that the President “shall … recommend to [Congress’s] Consideration such Measures as he shall judge necessary and expedient.” (P. 25.) The Vice President’s tie-breaking vote in the Senate provides a tangible means through which the President can participate in the lawmaking process, and Vice Presidents have not been afraid to use it to advance the agenda of the presidential administration they serve. Squitieri discusses the practical leverage that these mechanisms give to the President in the legislative process. Continue reading "Taking Shared Powers Seriously"
Sep 23, 2026 Kenneth W. SimonsTorts
Christopher Brett Jaeger,
A Two-System Theory of Negligence, 93
U. Chi. L. Rev. __ (forthcoming), available at
SSRN (Sep. 9, 2026).
Tort negligence, like Gaul, is divided into three parts. The first territory is conscious negligence: the actor, aware of the risks, nevertheless chooses to take them, and is unreasonable in doing so. The second is inadvertent negligence: the actor is unaware of the foreseeable and unjustifiable risks, and that ignorance is unreasonable. And the third is a failure to safely execute a task, a failure that is unreasonable. A driver can be negligent for harming another:
- by choosing to run a red light despite recognizing the risk to a pedestrian;
- by looking at her cellphone and not seeing the pedestrian; or
- by making the effort to brake in plenty of time but clumsily failing to press the brake firmly enough.
Most tort scholars who investigate negligence doctrine explore only the first domain, but a few have explored the second and third. Continue reading "If Your Perception, Reaction Time, Or Coordination Is Substandard, Are You Negligent?"
Sep 22, 2026 Deborah WidissWork Law
Lisa M. Fairfax & Veronica Root Martinez,
The Miscalculation of Corporate DEI Risk, __
U. Pa. L. Rev. ___ (forthcoming 2026), available at
SSRN (Jan. 22, 2026).
In 2020, after the murder of George Floyd, public companies embraced diversity, equity, and inclusion (DEI) initiatives, branding them as essential to productive growth. In 2025, in response to the Trump administration’s attacks on so-called “illegal DEI,” many companies hastily dismantled those initiatives. Lisa Fairfax and Veronica Root Martinez’s insightful article, The Miscalculation of Corporate DEI Risk, assesses these developments from a corporate governance perspective. They argue that the rapid retreat from DEI “amplifies, rather than reduces, firm exposure to risks” (P. 36) and that boards fail in their oversight duties if they “substitute political reflex for fiduciary judgment.” (P. 35.) Instead, corporate leaders should integrate DEI into general risk-management strategies, assessing the risks of abandoning DEI programs alongside the risks of maintaining them.
As Fairfax and Martinez explain, the rise of DEI coincided with a shift in corporate governance principles. In 2019, and again in 2024, the influential Business Roundtable rejected the idea that companies exist solely to maximize shareholder value; instead, it endorsed “stakeholder primacy,” the view that companies’ long-term success depends on considering employees, customers, suppliers, and communities, as well as shareholders. Additionally, in 2020, the SEC promulgated a rule requiring discussion of “human capital resources” in corporate disclosure statements. These developments created new synergies between “work law” scholarship and some corporate governance scholarship. Fairfax and Martinez’s article highlights the benefits of such cross-fertilization. Continue reading "Assessing DEI-Related Risk – and Reward – in the Corporate Boardroom"
Sep 21, 2026 Adam HirschTrusts & Estates
In one dimension, the law of charity is oversimplified. A transfer either meets or fails to meet the definition of charitability. Lawmakers acknowledge no gradations of charity, and a gift to a food bank sustaining indigent citizens is treated in the same way as a gift to the National Mustard Museum. In another dimension, though, the opposite is true. As Nancy McLaughlin shows in a recent article, Donor Standing to Enforce Charitable Gifts in the 21st Century, categorical fragmentation has caused the law of charity to become overcomplicated.
Professor McLaughlin’s article explores donors’ rights to oversee a charitable transfer after they have made it. As a general principle, once donors make a transfer, whether in the form of a trust or an outright gift, they no longer have an interest in the corpus of the transfer. Accordingly, donors lack standing thereafter to bring a cause of action against the beneficiary. Under the common law, even a restricted gift to a charitable entity constitutes a complete transfer, leaving enforcement to the “beneficiary,” viz. the state attorney general, representing society at large. The problem is that waves of codification have splintered the law of charity. The Uniform Trust Code (UTC), currently in effect in thirty-six states, is confined to charitable trusts. The Uniform Prudent Management of Institutional Funds Act (UPMIFA), currently in effect in forty-nine states, covers gifts to charitable organizations—but pertains only to investment funds, not to program-related assets that a charity uses to accomplish its purposes, which continue to be governed by common law. Finally, nonuniform legislation enacted in several states further modifies donors’ rights. Continue reading "Muddled Charity Law"
Sep 18, 2026 Rebecca CrootofTechnology Law
When does a difference in degree become a difference in kind? Answers to this perennial techlaw question inevitably include mentions of “scale”—but what exactly does “scale” mean?
In Taking Scale Seriously in Technology Law, Mark McKenna and Woodrow Hartzog clarify and complicate the concept of “scale.” Certainly, “scale” can simply mean more of something (what the authors refer to as “scale as more”). Social media content moderation is difficult both because of the complexity of the analysis and because of the sheer number of posts to evaluate. But more of something might not just result in more of the associated benefits or harms. One of the article’s main takeaways is that, in some situations, more of something can change the nature of the benefits or harms (“scale as different”). If we are sensitive to these distinctions—let’s call them different kinds of differences in kind—we can better identify harms that might otherwise be ignored and design more effective regulations. Continue reading "Different Kinds of Differences in Kind"
Sep 17, 2026 Emily SatterthwaiteTax Law
Currently, about half of the U.S. labor force is comprised of individuals who are married. And nearly 97 percent of married individuals file their taxes jointly, meaning that the married couple is the so-called “tax unit.” For spouses who earn significantly different amounts of income, one of the benefits of filing jointly is simple: in a progressive system, tax can be saved by income-averaging. Rather than facing two separate marginal tax rates, as would be the case with individual filing, filing jointly means that both spouses face the same marginal rate on their aggregate income. Because the married-filing-jointly brackets are approximately double the individual brackets, the higher-earner’s rate will be lower than her counterfactual individual rate, increasing her return to working. And the lower-earner’s rate will be higher than her counterfactual individual rate, reducing her return to working.
These labor-supply incentives are well-known. What is less-explored, however, is the extent to which the combination of tax unit rules and rate schedule progressivity affects the spouses’ labor supply decisions. A look at Scandinavian countries with highly progressive tax rates presents an intriguing puzzle. One might predict that high tax rates discourage productivity. So how have these countries achieved world-leading employment rates and per-capita output levels? Building on the work of scholars including Borella et al. (2023) (working paper version previously reviewed in Jotwell), a new working paper by Hans A. Holter, Dirk Krueger and Serhiy Stepanchuk (“HKS”) argues that the answer, at least in part, may be hiding in plain sight: the tax unit. Continue reading "Could Tax Unit Reform Improve Labor Supply, Raise Revenue, and Increase Welfare? Yes, Say Macro-Economists!"
