Yearly Archives: 2026
May 26, 2026 André den ExterHealth Law
Caught in Language. The importance of speech and language therapy for the Youth Justice System is the result of a PhD research project examining how juveniles with speech, language, and communication needs participate in the criminal justice system. The research’s findings have important implications for health law, including informed consent and shared decision-making in health care.
The research focuses on combining different perspectives, including criminal law, speech therapy, and health law, also known as forensic speech therapy (science involving speech and language disorders, providing testimony in legal cases on diagnoses, treatment protocols, and patient prognoses). This multidisciplinary approach, combined with the unique findings, makes this book highly relevant to legal professionals in law enforcement, the judiciary, and juvenile care institutions in the Netherlands and abroad. The book’s bilingual approach makes it accessible for non-Dutch readers. For most lawyers, forensic speech therapy is currently uncharted territory. It is a relatively new discipline, primarily known in common-law countries such as Australia and the United Kingdom. Continue reading "Speech Therapy and Juveniles: What’s in it for Health Law?"
May 25, 2026 Luke HerrineEquality
We have become inured to a world of surveillance so pervasive it would make the Stasi blush. Much of this infrastructure is built on our nominal consent in the guise of consumption choices. We carry around tracking and recording devices in the form of “phones” because they also contain navigation tools, music libraries, messages with our intimates, games, cameras, and a huge variety of other tools to make our lives more convenient and connected. We accept that our online lives will be monitored, not always thinking of it, because doing so makes it possible to provide many services for free and makes it easier to find things and people that fit one’s idiosyncrasies. And, as brick-and-mortar stores close and more people stay in touch with each other through networked communication devices, it is increasingly difficult to live one’s life without “opting into” a surveillance architecture. Many (most?) of us would rather that the conveniences and connectivities of modern life not be connected to a network of surveillance—especially as the second Trump administration knits together these networks of commercial surveillance even more closely with state surveillance and repression–but we find ourselves feeling powerless to do much about it.
We association most of the modern infrastructure of nominally opt-in surveillance with the rise of Big Tech, but as Nakita Cuttino’s new article The Presumption of Creditworthiness reminds us, before Big Tech came credit reporting. Over the second half of the Twentieth Century, credit reporting agencies developed the basic approach of collecting data that businesses had on their customers without customer consent and compiling into files that other businesses and law enforcement agencies could buy. Once Fair Isaac Corp. developed its initial credit scoring model, the credit reporting industry also became the first to sell its data to firms with proprietary models that could be used to automate customer evaluation and, eventually, to segment consumer markets (and to target vulnerable customers with the most predatory deals). And as consumer credit became a core part of American life, the data collected by these companies became increasingly valuable for all kinds of businesses (employers, landlords, insurance companies) and the difficulty of opting out of the surveillance dragnet became increasingly high. Continue reading "How Mass Surveillance Imposes Penalties on the Unsurveilled"
May 25, 2026 Luke HerrineEquality
We have become inured to a world of surveillance so pervasive it would make the Stasi blush. Much of this infrastructure is built on our nominal consent in the guise of consumption choices. We carry around tracking and recording devices in the form of “phones” because they also contain navigation tools, music libraries, messages with our intimates, games, cameras, and a huge variety of other tools to make our lives more convenient and connected. We accept that our online lives will be monitored, not always thinking of it, because doing so makes it possible to provide many services for free and makes it easier to find things and people that fit one’s idiosyncrasies. And, as brick-and-mortar stores close and more people stay in touch with each other through networked communication devices, it is increasingly difficult to live one’s life without “opting into” a surveillance architecture. Many (most?) of us would rather that the conveniences and connectivities of modern life not be connected to a network of surveillance—especially as the second Trump administration knits together these networks of commercial surveillance even more closely with state surveillance and repression–but we find ourselves feeling powerless to do much about it.
We association most of the modern infrastructure of nominally opt-in surveillance is associated with the rise of Big Tech, but as Nakita Cuttino’s new article The Presumption of Creditworthiness reminds us, before Big Tech came credit reporting. Over the second half of the Twentieth Century, credit reporting agencies developed the basic approach of collecting data that businesses had on their customers without customer consent and compiling into files that other businesses and law enforcement agencies could buy. Once Fair Isaac Corp. developed its initial credit scoring model, the credit reporting industry also became the first to sell its data to firms with proprietary models that could be used to automate customer evaluation and, eventually, to segment consumer markets (and to target vulnerable customers with the most predatory deals). And as consumer credit became a core part of American life, the data collected by these companies became increasingly valuable for all kinds of businesses (employers, landlords, insurance companies) and the difficulty of opting out of the surveillance dragnet became increasingly high. Continue reading "How Mass Surveillance Imposes Penalties on the Unsurveilled"
May 22, 2026 Leonid SirotaConstitutional Law
It is not difficult to think of constitutional rules that are criticized, defended, or often both, on normative grounds that are more or less fact-free—not for what they actually are, but for what their critics or defenders believe they are or ought to be. In the United States, the Citizens United decision comes to mind. In the United Kingdom, Lewis Graham argues, a similar fate has befallen section 3 of the Human Rights Act 1998 (“HRA”), which provides that “[s]o far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the … rights” protected by the European Convention on Human Rights.
Graham notes that section 3, “perhaps more than any other provision in the HRA, has been subject to serious criticism in the literature.” He does not mention the Bill of Rights Bill, which the last Conservative government introduced in an ultimately failed attempt to replace the HRA; if enacted, it would have eliminated section 3. For the record, although very critical of the Bill as a whole, I was sympathetic to that aspect of it at the time. Continue reading "Doctrine by the Numbers"
May 21, 2026 Aya GruberCriminal Law
Not a day goes by without someone remarking that social media is a “cesspool.” The internet overflows with misogynist, anti-LGBT, racist, fascist, and even openly genocidal sentiments, some coming from the highest reaches of government. Snarky male right-wing influencers edgelord over popular discourse, claiming to say the bigoted and cruel things that “everyone is thinking.” Still, there has been something conspicuously absent from this execrable miasma: “smut”—that is, commercial sexuality, sexual imagery or just nudity, and sexual remarks. On Parler, which has served as a clearinghouse for far-right and neo-fascist ideology, one can post effusive praise for Andrew Tate and his pro-rape female-slavery agenda, but one cannot post a topless photo of a feminist protesting the shirt-wearing double standard.
Free-speech-absolutist platform Parler’s prohibition of content involving “nudity” and “explicit adult material or language” is one of myriad examples of the “sexual safety” default in online regulatory governance explored by Brenda Dvoskin and Thomas Kadri in their consequential article, Safe Sex in the Age of Big Tech Feminism. Now, sex exceptionalism in media regulation is hardly a modern phenomenon. In the traditional movie-rating context, one could always more easily see bodies being riddled with bullets than bodies coming together in sexual activity. Nor is it a novel question whether the agenda of broadening the reach of criminal law over sexual conduct is a “feminist” one, having been debated since the famous 1980s “sex wars” between anti-pornography and sex-radical feminists. On that debate, Kathy Abrams and Brenda Cossman provide excellent accounts, or one can go back to a classic book on the topic, Carole Vance’s edited collection, Pleasure and Danger.
Still, Safe Sex provides something new and desperately needed: a meticulous accounting of the complicated regulatory infrastructure governing sex in cyberspace and how its web of privileges and punishments reflect and reinforce certain ideas about sexuality and gender. The past decade has seen legal reforms addressing technology-enabled sexual misconduct—and conduct—amass at a dizzying pace with relatively little criticism outside of the civil libertarian free-speech arena. And, as the Parler anecdote suggests, the freest right-wing free-speakers have offered limited resistance to sexual censorship. Continue reading "Sex and Tech"
May 20, 2026 Andrew F. TuchCorporate Law
Ludovic Phalippou & William J. Magnuson,
Private Equity, Public Capital, and Litigation Risk, available at
SSRN (Nov. 14, 2025).
In their recent paper, Private Equity, Public Capital, and Litigation Risk, Professors Ludovic Phalippou and William Magnuson challenge the wisdom of a current trend in finance: retail investors’ increasing access to private equity (PE). The authors make compelling arguments—both about the imminent reality and risks of “retailization” and about the effects of the broader, long-term erosion of the public-private divide embedded in federal securities law.
Retailization, to be clear, is not new. Legislators, regulators, and courts have loosened constraints, allowing retail investors to access private equity through investment funds. Major law firms have engineered fund structures designed to channel retail capital into PE. The result is that PE firms, also known as alternative asset managers, began accepting retail capital through intermediaries more than a decade ago. Continue reading "Private Equity, Retail Investors, and Litigation Risk"
May 19, 2026 Orit GanContracts
Law students study landmark contract law cases; scholars write law review articles on contract law precedents and influential judicial decisions (typically from states’ appellate and supreme courts); and the media covers high-profile, high-value contracts and high-stakes contract disputes between sophisticated parties. However, according to Contract Law and Civil Justice in Local Courts, these represent exceptional examples. The majority of contract disputes (over eighty percent) are adjudicated in local courts. In this fascinating article, Cathy Hwang and Justin Weinstein-Tull examine this understudied domain, shifting the attention from the extraordinary to the mundane.
The authors begin by describing proceedings in local courts. Most judges in local courts do not hold law degrees and have only completed brief training courses that include introductory legal instruction. In many cases, at least one party is not represented by legal counsel. Moreover, most cases in local courts do not result in written opinions, and those that do are typically unpublished, and proceedings are rarely recorded. The disputes themselves often involve non-negotiated contracts that parties signed without legal counsel, and without reading them. These cases frequently concern small amounts in controversy, including debt collection; auto loans; landlords-tenants disputes; contract disputes with general contractors or landscapers; small-scale business-to-business services; and family loans. Continue reading "Ordinary Contract Law"
May 18, 2026 Michael Froomkinzetasec
Putting the Brakes on a No-Drive List, unpubl MS, unavailable.
The constitutional right to travel domestically, though frequently proclaimed as fundamental, remains doctrinally under-theorized and riddled with exceptions. This vulnerability creates an opening for an oppressive new form of domestic movement regulation: a “No Drive” list, modeled after the No Fly list, that bars designated individuals from operating vehicles or traveling as passengers, either across state lines or potentially within states.
The No Fly list rests on four premises that could justify automobile travel restrictions: that flying is a privilege rather than a right; that special circumstances justify prophylactic restrictions on persons neither charged with nor convicted of offenses; that government can identify these individuals through secretive processes; and that administrative procedures with limited judicial review satisfy due process. The long-established principle that driving is a privilege not a right provides immediate doctrinal support, while automated license plate readers, facial recognition, GPS tracking, and comprehensive surveillance systems transform an apparently unenforceable scheme into a feasible regulatory program.
Though recognized for over two centuries, the doctrinal foundations of the right to travel remain uncertain, grounded variously in structural principles, multiple constitutional clauses, and the Fourteenth Amendment. Numerous exceptions already constrain domestic movement. Most significantly, the Supreme Court has never definitively established whether intrastate travel enjoys fundamental constitutional protection.
Enter the No Fly list. Despite constitutional challenges, courts have upheld its basic framework although requiring some enhanced procedural protections. This opens the door to a No Drive list, which could be justified and implemented through congressional authorization, emergency powers, or immigration-related authority. Current political rhetoric designating domestic opponents as “terrorists” provides potential justification mirroring the No Fly list rationale. Continue reading "Three Paragraph Tester"
May 18, 2026 Suzette M. MalveauxCourts Law
Mila Sohoni,
In CASA You Missed It, 78
Stan. L. Rev. ___ (forthcoming 2026), available at
SSRN (Nov. 25, 2025).
The Supreme Court of the United States is poised to make one of the most important decisions this term: the constitutionality of President Trump’s Executive Order challenging birthright citizenship. As the Court considers this substantive question, many scholars, judges, lawyers, and Americans are still grappling with the meaning of its earlier remedial decision, Trump v. CASA. Thankfully, Professor Mila Sohoni’s essay provides an excellent analysis of the case and its implications.
Sohoni provides a thoughtful, fair, and clear-eyed summary of what the opinion does and does not do. She starts by explaining how the Court now forbids district courts from issuing injunctive relief beyond the parties (“universal injunctions”). She flags important interpretive vacuums and questions left in CASA’s aftermath. Having clearly identified CASA’s boundaries, she recognizes the various means through which federal courts can provide broad injunctive relief to those challenging executive branch overreach. Finally, and most importantly, Sohoni contextualizes CASA during these turbulent times. Continue reading "Resilience and Judicial Power in the Aftermath of Trump v. CASA"
May 15, 2026 Emily HammondAdministrative Law
In Second-class Administrative Law, Professor Matthew Lawrence makes a provocative challenge to the presumption of unreviewability announced in Lincoln v. Vigil, 508 U.S. 182 (1993), which applies to agencies’ decisions about how to allocate lump-sum appropriations. Challenging both the opinion’s premise and its potential theoretical bases, Lawrence offers an important rethinking of the doctrine. What really stands out about this piece, however, is that Lawrence melds traditional methods of administrative law scholarship with a human-focused dimension, exploring how it impacts people as applied. And he demonstrates why this seemingly neutral rule of administrative law has a disparate impact on historically marginalized groups, especially Tribes and imprisoned people. In so doing, he answers a broader call to bring a critical lens to administrative law and offers a model for how it can be done.
Some readers might wonder if the Vigil slice of administrative law is worth the fuss. But as Lawrence notes, about a fifth of the federal budget is theoretically shielded by Vigil as non-defense, discretionary spending. (P. 1067.) And, as exemplified by the Fall 2025 shutdown impacting SNAP benefits, it bears noting that many of the kinds of programs funded this way are those that offer safety nets to those with the least power and most vulnerability. Indeed, Lawrence’s treatment is rich with the separation-of-powers and human-impact dimensions that are of extraordinary importance in the United States today. Continue reading "Putting a Human Face on Administrative Law"
