Monthly Archives: October 2026
Oct 30, 2026 Natsu Taylor SaitoEquality
“Decolonization and reparations are distinct paradigms and projects that cannot be collapsed into one another. But the project of reparations entails decolonization.” (P. 421.)
A former UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia, and Related Intolerance (2017-2022), E. Tendayi Achiume has seen the global reach of racialized harm in ways few of us ever will. Her work has highlighted opportunities for reparations offered by the international legal system and challenged its constraints. Drawing on this rich background, Achiume, now a Stanford law professor, shares her deeply thoughtful and thought-provoking analysis of reparations in this short but very powerful piece.
Achiume’s writing is beautifully clear and brilliantly comprehensive. She tackles the hardest questions and refuses to pretend they will be resolved easily. Reflecting these strengths, Race, Reparations, and International Law critiques the ability of contemporary international law to meaningfully redress the harm deriving from centuries of colonialism and, particularly, the transatlantic trade in enslaved Africans. She raises questions that should be confronted by all international law scholars, but what really caught my attention is that virtually everything Achiume says about reparations in international law applies with equal force to redress for persons of African descent (as well as Indigenous nations) within the United States. Continue reading "Reparations And Decolonization"
Oct 29, 2026 Jessica M. EaglinCriminal Law
The criminal justice system is rife with junk forensics. From bitemark comparisons to firearm examinations and more, police and prosecutors secure arrests and convictions by presenting numerous techniques and methodologies as scientific though the techniques lack indicia of reliability that are the hallmark of science. While legal scholars and policymakers make headway to contain or eliminate such practices in criminal trials, new techniques emerge in clandestine ways throughout the criminal process. Professor Christopher Lau illuminates this development in his recent article, Shadow Forensics: 911 Uncovering 911 Call Analysis. Because his piece imagines the implications of forensic evidence beyond the scope of individual trials, this article is a must read for anyone interested in the juncture of science, technology, and criminal law.
Professor Lau defines “shadow forensics” as the introduction of forensic evidence into the criminal process in ways that elide evidentiary oversight through judicial gatekeeping. So while much research considers the concerns of “junk” forensics, meaning the techniques and methods used to secure criminal convictions that lack indicia of scientific support, this article identifies an overlapping but distinct concern. Even if there is consensus on how to identify junk forensics, the way that evidence enters the criminal process is increasingly obscured. This development undermines efforts to reduce junk forensics in the criminal process. Continue reading "Contesting “Trust Me, Bro’” Forensics Beyond the Trial Process"
Oct 28, 2026 Adam N. SteinmanCourts Law
Maureen Carroll & Madena Mustafa,
The Trouble with Ascertainability, 77
Case W. Rsrv. L. Rev. __ (forthcoming 2027), available at
SSRN (July 7, 2026).
Class actions have long been an important and controversial weapon in the civil justice arsenal. And those who teach, study, and litigate class actions are well aware of the myriad obstacles that federal courts have erected in recent years that can block class certification—even when a class action would be the most effective way to hold powerful entities accountable for illegal conduct with broad societal consequences. One such obstacle (although it appears nowhere in the text of Rule 23) goes by the moniker ascertainability. Maureen Carroll and Madena Mustafa’s terrific article provides a timely account and critique of how courts are interpreting and applying this often-muddled concept.
The authors begin by disentangling three distinct inquiries that courts have placed under the ascertainability label. One is Definitional Clarity, which is the requirement that a class definition be clear and (usually) objective. It screens out vague definitions, subjective definitions that turn on state of mind, and (at times) “fail-safe” classes defined by success on the merits. Another version, Individual Provability, demands that a court be able to determine, by reference to objective criteria and records, whether any particular person standing before it is a class member. The third variant is Enumerability, which requires a reliable and administratively feasible mechanism for generating a list of absent class members (an approach associated with the Third Circuit’s decisions in Marcus v. BMW and Carrera v. Bayer). Continue reading "Ascertaining Ascertainability"
Oct 27, 2026 Joan MacLeod HeminwayCorporate Law
Technological advancements add new wrinkles to business law and practice at an unforgivingly rapid pace. As a result, the work of legal scholars (including my own research and writing) increasingly grapples more intensely with the possible and optimal roles of technology in business governance and finance. For example, blockchain technology has many actual and potential applications in the management and control of businesses, and fintech (as the term suggests) exists at technology’s intersection with finance, including business finance.
Generative artificial intelligence (AI) is a bit of a new kid on the block in this regard. Although legal academics and practitioners have focused significant attention on important questions involving the use of AI in law teaching and lawyering, legal research and writing regarding AI’s applications to business entity governance and finance is just emerging. Zhaoyi Li’s Artificial Fiduciaries makes foundational contributions to this developing literature by suggesting that an AI agent could effectively serve in a human-like decision making role in corporate governance. Li’s work is especially salient in light of Delaware’s recent public announcement to move forward with legislative validation of a new form of entity, the Artificial Intelligence Company (“AIC”)—a legal entity directed by artificial intelligence rather than human agents. Continue reading "Bots as Corporate Directors? An Exploration of AI in Corporate Governance"
Oct 26, 2026 Brandon DukeConstitutional Law
Formalism has won. Textualism is now the Supreme Court’s dominant language of statutory interpretation, and originalism is its main vocabulary of constitutional interpretation. Yet victory has produced strange discontent. In Bostock v. Clayton County, three opinions each claimed fidelity to original public meaning textualism and reached opposite conclusions. Originalism has fractured the same way—interpreters who agree that what binds them was fixed at ratification divide over what counts as evidence of that fixed meaning. Formalists and their critics alike observe that the ascendant methods now generate as much interpretive leeway as the purposivism they displaced. Something has gone sideways, and until now nobody has explained precisely what.
Jeffrey Pojanowski has. In Faces of Formalism, he identifies a fault line: Formalism embodies two distinct, sometimes conflicting conceptions of interpretive constraint. Formalism of authority binds interpreters to original sources of law—the reasoned choice of an authoritative lawmaker fixed in the past. Formalism of method constrains interpreters through predictable, rule-bound techniques that ensure notice, coordination, and judicial impersonality. The formalist who spearheaded the current surge, the late Justice Antonin Scalia, assumed the two ran together. (P. 117.) Pojanowski shows that this assumption was wrong. As he explains, “a careful search for an original, authoritative source is not amenable to mechanical methods,” while “interpretive simplicity risks interpretive drift from original, authoritative norms.” (P. 100.) Constraint anchored in authority “is open to methodological complexity that would surprise the first wave of formalists.” (P. 100.) This distinction is the article’s central insight. Recognize it, and many long-running debates suddenly look different. Continue reading "Two Ways to Be Bound"
Oct 23, 2026 Sachin S. PandyaWork Law
In 1978, federal agencies enforcing employment discrimination law agreed to a “rule of thumb” to keep agency “attention on serious discrepancies” in rates of hiring, promotion and other employee selection decisions. 44 Fed. Reg. 11996, 11998 (March 2, 1979) (Question 11(A)). Absent certain conditions, if the selection rate for any race, sex, or ethnic group “is less than four-fifths (4⁄5) (or eighty percent) of the rate for the group with the highest rate,” take that as “evidence of adverse impact”, and thus possible illegal job discrimination. If not, then “generally” don’t. 29 C.F.R. § 1607.4(D). This rule is deliberately simple. But many have argued that this simplicity comes with a price: lower accuracy as compared to more complex statistical tests (e.g. Gastwirth and Miao 2009; Switzer et al. 2016; Raghavan and Kim 2024; Courey and Oswald 2025; but cf. Meier et al. 1984).
In a recent paper, Johann D. Gaebler & Sharad Goel offer the “robust outcome” test: a new simple statistical test of discrimination for cases where (1) a person makes a decision (e.g., a bank grants a loan) based on their prediction of a successful outcome (e.g. the grantee repays the loan); and (2) we later know the decision’s actual outcome (e.g. whether the grantee repaid the loan). Continue reading "In Search of A Simple Test for Job Discrimination"
Oct 22, 2026 Christopher WalkerAdministrative Law
Eric S. Fish,
Deportation in the Deep State, __
Stan. L. Rev. __ (forthcoming), available at
SSRN (Apr. 11, 2026).
At the end of the Term in Trump v. Slaughter, the Supreme Court overruled Humphrey’s Executor—the bedrock precedent that upheld statutory limitations on the President’s removal power over leaders of so-called independent agencies. The formal logic of this unitary executive theory, some have argued, could apply to any other government official who exercises even a sliver of executive power. Indeed, dissenting in Slaughter, Justice Sotomayor argued that the decision could “have major implications for inferior officers and civil-service employees, which the majority studiously ignores.” I remain unconvinced that Slaughter will reach inferior officers like administrative law judges or most of the civil service. That said, Trump v. Slaughter, of course, will not be the final word on the unitary executive. Open questions remain, especially when it comes to inferior officers and others who exercise a significant amount of policymaking authority.
In Deportation in the Deep State, Eric Fish does a terrific job exploring some of these open questions in the context of immigration law. He focuses on what Jennifer Koh calls “shadow removals” (and Shoba Wadhia calls “speedy deportation”). Shadow removals refer to the deportation of noncitizens without review by an immigration judge, much less an Article III federal judge. Continue reading "The Unitary Executive at the Border (and Beyond)"
Oct 21, 2026 Bridget CrawfordTrusts & Estates
When I teach asset protection trusts, my students often imagine that I am talking about activities that occur in faraway places. The word offshore does a great deal of imaginative work: it makes wealth planning sound exotic, remote, and faintly illicit. One of the many gifts of Allison Anna Tait’s superb new book, The House That Family Money Built, is to show that foreign jurisdictions offering special protections for trusts have siblings much closer to home: the payday-loan storefront on the corner, the check-casher in the strip mall, the rent-to-own outlet two bus stops away. These consumer-oriented vehicles, Tait shows, are forms of fringe finance, and once you see them on the same map, you cannot unsee their resemblance to special legal protections for sophisticated estate planning.
The book pairs the financial lives of the very rich and the very poor. It asks what separates them and, more unsettlingly, what commonalities they share. Tait opens her chapter on the two populations with a line attributed to J. Paul Getty: “If you owe the bank $100 the bank owns you. If you owe the bank $1 million, you own the bank.” (P. 62.) Much of the book is an extended meditation on the distance between the hundred-dollar debtor and the million-dollar debtor, and on the legal architecture that makes the first ruinous and the second a source of power. What I admire most is that Tait rejects the disciplinary wall that usually keeps “wealth management” and “consumer debt” in separate rooms, taught by different professors and theorized in different literatures. She insightfully shows that they are one subject. The link is structural. The same debtor-creditor law that lets the wealthy place assets beyond their creditors’ reach, through trusts and exemptions, delivers low-income borrowers to creditors largely unprotected. As Tait shows, asset protection for the one is the mirror image of debt collection for the other. Continue reading "When Offshore is Everywhere"
Oct 20, 2026 Cristina TilleyTorts
Robert Prevost has many alter egos. He is a world-famous Chicago White Sox fan; the 267th Pontiff of the Roman Catholic Church; and, it seems, something of a torts scholar. Pope Leo’s 2026 encyclical letter, Magnifica Humanitas, sounded a global alarm about the coming wave of artificially intelligent injuries to humanity and demanded that communities of men and women operating outside the infrastructures of government, market, and academy take a lead in stanching that tide. Magnifica is a theological offering, but its secular format and ambitions are unmistakable. The Pontiff’s 38,000-word publication begins with a literature review, articulates a theory of social rights and duties, applies that theory to AI, and is larded with footnotes. Except for the fact that millions of people have actually read it, the manuscript has all the intellectual earmarks of a traditional law review article.
The piece begins with a brief history of Church social doctrine. In 1891, the first truly modern pope announced that he had an ecclesiastical “right and duty to examine social realities, make pronouncements about them, and indicate paths for finding just solutions.” The Church has since weighed in on issues ranging from the relationship between capital and labor to the crisis of climate change. (¶ 3 n.4, ¶ 4 n.6.) Over the course of these studies, it has been guided by a set of core principles including the equal worth of all individuals and the need for policymaking to serve the common good. (¶ 97.) Most important – and most relevant to Leo’s tort bona fides – it has insisted that social problems are best handled by those closest to the problem, a concept known as “subsidiarity.” Continue reading "In Praise of Pontification"
Oct 19, 2026 Woodrow HartzogTechnology Law
Readers of law journal articles wouldn’t be out of line for thinking that we legal scholars take ourselves too seriously and write too obtusely. We know it’s a problem and we wouldn’t blame you if you never wanted to pick up a law review again. Maybe it’s the jargon or our fixation on minutiae. Thankfully, every now and then someone in the legal academy has the foresight and skill to simply, powerfully, and hilariously explain and critique an industry that has long had it coming. This time, the object of scorn is the financial technology industry, or “fintech” for short. Hilary Allen’s FinTech Dystopia: A Summer Beach Read About Silicon Valley Ruining Things is the best kind of polemic, because it is informative, fun to read, and free. This book and its companion law review article seek to break through all the hype, smoke, and mirrors around fintech by breaking each tool, practice, or narrative into their component parts.
In doing so, Allen shows that the emperor has no clothes. Over nine chapters, she takes on a litany of financial solutions in search of problems—payday loan apps, cryptocurrency, and all the related claims of “democratizing finance” and “banking the unbanked.” Her goal is to “empower you to ask questions,” and she delivers. Come for clear explanations of how blockchains work, stay for the sardonic pop culture references. Continue reading "You Have to Laugh at Fintech, Or You’ll Cry"
