Monthly Archives: November 2026
Nov 6, 2026 Aníbal Rosario-LebrónFamily Law
Inspired by poet and playwright Federico García Lorca’s unfinished work of the same name, Spain’s recent selection for the Oscars, the critically acclaimed La bola negra, has generated discussions that go well beyond cinema. Questions of belonging and exclusion are embedded in the very symbol that gives the work its name.The black ball at the center of Lorca’s unfinished work – a vote of exclusion from a social club cast against a young man because of his homosexuality – symbolizes not only rejection but also the power to decide who belongs and who does not. The power to cast it matters as much as the rejection it signifies.
Parental-rights controversies center on a similarly contested authority: who has the power to cast the black ball and determine which groups merit recognition, accommodation, and protection. Recently, battles over abortion-related assistance, gender-affirming care, school disclosure policies involving LGBTQ+ students, curricular disputes concerning sexual orientation and gender identity and expression, and the treatment of LGBTQ+ youth in foster care have been framed as conflicts about parental rights. Yet an increasing body of scholarship pierces the parental-rights veil to reveal that these disputes are fundamentally contests over equality, democratic belonging, and the authority to decide whose identities receive recognition. Two recent articles, Mary Ziegler, Maxine Eichner, and Naomi Cahn’s Retrenchment by Diversion, and Susan Etta Keller’s The Double-Edged Rhetoric of Parental Rights, offer powerful frameworks for understanding and evaluating these increasingly consequential conflicts. Continue reading "Casting the Black Ball: Parental Rights, Equality & Belonging"
Nov 5, 2026 Charlotte S. AlexanderWork Law
For years, worker advocates have argued that “wage theft is theft.” Increasingly, legislators and prosecutors have agreed. If an employer intentionally fails to pay workers’ wages, why shouldn’t the law regard that conduct as a crime? A growing movement to criminalize wage theft, with laws on the books in thirty-seven states and Washington, D.C., now does just that. However, in More Harm Than Good, Alia Al-Khatib asks a deceptively simple question: What if criminal prosecution for wage theft is solving the wrong problem(s)?
Al-Khatib starts by cataloging three interconnected “spheres” in which wage theft causes harm: (1) the lives of the workers whose wages are stolen, (2) labor standards across workplaces, and (3) the communities in which workers live. She then analyzes the ways in which criminal penalties fall short of providing an adequate response. Continue reading "Should Wage Theft be Theft?"
Nov 4, 2026 Barbara LevenbookJurisprudence
Law-creation, goes the received wisdom, requires an intentional act by a legal authority. This authority is the author of the legal utterance creating a legal norm. Many legal theorists nowadays, including Rabanos and Spaić, hold that law is an artifact. An artifact, it is claimed, is intentionally created — for some purpose, which is its function (regulating behavior in a specific way). It follows that institutions, such as legislatures, can act intentionally. Unintentional legislation is impossible. At the minimum, there must be an intention to make law and an intention to make a certain text or utterance pass into law. Further, if laws are artifacts, the author must intend its function, which is a conduct-guiding intention. That intention, in the case of imperatives, is accompanied by a will or desire to regulate behavior of the addressees in the specified way. Searching for this intention is either useful in interpreting the law that is created, normatively required in interpreting it, or conceptually necessary because constitutive of the activity of interpreting. In these ways, authorial intention is held to be central to law-creation and law-interpretation.
Rabanos and Spaić deny this picture. Unlike previous challengers of the intentionalist picture (on law-creation or law-interpretation or both), Rabanos and Spaić motivate their arguments by GenAI’s ability to create law-looking statutory texts that can function in law subjects’ lives and in judicial opinions exactly as statutes with more orthodox origins do. This isn’t an entirely new approach. More than half a century ago, Richard Wollheim described a fictional machine that would generate a piece of legislation once legislators fed in their individual choices on various issues. “The point of this thought-experiment,” remarked Jeremy Waldron, “. . . is that it enables us to envisage a piece of legislation that cannot be conceived as . . . . something produced `by an intentional being [for a purpose] . . .’” Rabanos and Spaić in effect replace this thought-experiment with the real-life case of a Brazilian city council legislative act written entirely by ChatGPT in response to a 49-word prompt. Continue reading "Another Nail in the Coffin of Intentionalism"
Nov 3, 2026 Alexandra RobertsIntellectual Property Law
Are you an entrepreneur who sells t-shirts for dogs? If you want to register your logo as a trademark with the USPTO, you’ll need to include in your application an acceptable description of the goods you sell. But you’re in luck: if you pull up the Trademark Office’s ID Manual and type in “dog shirts,” you’ll get “Animal clothing for {specify type of animal, e.g., pigs, dogs, etc.}, namely, {indicate specific item, e.g., shirts, skirts, scarves, etc.}.” You can fill in the information in brackets—“Animal clothing for dogs, namely, shirts”—and proceed with confidence that the examining attorney will accept your description, because it already has the USPTO’s seal of approval.
But if you’re a psychologist who specializes in gender-affirming therapy and wants to register your service mark, your search of the ID Manual won’t be as fruitful. The Manual contains zero identifications relating to gender-affirming healthcare. You’ll have to craft your own description of services and hope it passes muster. The ID Manual is a searchable database that includes more than 70,000 pre-approved identifications of goods and services for trademark registrations. But what it excludes may be just as important as what it contains. In Discrimination in the Trademark ID Manual, Professor Rachael Dickson explains that while the USPTO created the ID Manual to offer a helpful guide for trademark applicants and attorneys, it also serves as “a powerful gatekeeping device—one that quietly but systematically disadvantages entire industries.” Continue reading "Identifying Inequality"
Nov 2, 2026 Rosalind DixonInternational & Comparative Law
Julius Yam’s Judging for Democracy: Principles and Strategies in Hybrid Regimes is a deeply impressive book by a scholar taken far too soon from his family and the global constitutional community. Re-reading the book in its final published form, I was again struck by the intellect, energy and optimism of our late friend Julius Yam; and of the importance of his work and ideas. His analysis is deeply clear eyed and realistic, and yet still fundamentally optimistic. (Pp. 7-8; 73-87.) His account of constitutional judicial review in hybrid regimes is also bound to inform debates on the question for years to come, and in ways that suggest the possibility of a more democratic future for at least some regimes of this kind.
Judging for Democracy explores the role of constitutional courts in protecting and promoting democracy in the distinctive context of a hybrid regime – or a regime that is neither fully democratic nor authoritarian. Specifically, it outlines 5 potential roles courts can play in this context: a referee role, participatory role, quasi-representative role, representation-reinforcing role and educative role. (Pp. 114-26.) Continue reading "Hope and Possibility: Julius Yam and Judging for Democracy "
