Yearly Archives: 2026
Mar 19, 2026 Jaya Ramji-NogalesLexImmigration
What do we learn by reading the international law of migration from the perspective of migrants from the Global South? Deftly weaving together various strands from legal and social science literature to produce a brilliant new theoretical tapestry, Usha Natarajan’s book chapter, Third World Approaches to International Law (TWAIL) and Migration, offers a relational and contextual take on that question. She suggests three new ways of understanding international law in this sphere: as a harmful relationship between control and protection; as a constructor of categories that limit contestation; and as a phenomenon destructively co-constitutive of migration. This critique lays the groundwork for her proposal to build an international law of migration that is “more expansive, evidence-based and ethically consistent . . . as advocated for by TWAIL scholars.”
TWAIL is a movement of international legal academics that coalesces around a shared critique of the Global North’s domination of knowledge production in the field. TWAILers offer a diverse set of viewpoints and methodologies, yet share a commitment to foregrounding the perspectives of the people of the Third World in international law through policy-making, practice, and scholarship. Prof. Natarajan offers the reader both a useful overview of existing TWAIL literature on international migration law and an important new framing of that work, elucidating the synergies that emerge when the range of TWAIL insights are put in conversation with each other. Continue reading "Beyond the Sovereign Prerogative: TWAILing Global Migration"
Mar 18, 2026 Blake EmersonConstitutional Law
Nathaniel Donahue,
Officers at Common Law, 135
Yale L. J. __ (forthcoming, 2026), available at
SSRN.
The unitary executive is on the march. Since the Founding, there has been ongoing—and sometimes fierce—debate concerning the nature and scope of the President’s powers to control, direct, and fire executive and administrative officials. Proponents of the unitary executive argue for a high, if not complete, degree of presidential control. Proponents of executive pluralism argue that Congress has discretion to insulate various officers, employees, and agencies from presidential direction. Over the past 15 years, the Roberts Court has adopted an increasingly deep commitment to the unitary view.
The second Trump administration has taken advantage of this development to fire executive branch officials and to assert power to transform the bureaucracy and even dismantle administrative agencies. In Trump v. Wilcox, the Court stayed district court injunctions on Trump’s removal of members of the independent National Labor Relations Board and the Merit Systems Protection Board, despite statutory restrictions on their removal. In balancing the equities, the Court concluded that “the Government faces greater risk of harm from an order allowing a removed offer to continue exercising her statutory duty than a wrongfully terminated officer faces from being unable to perform her statutory duty.” The rights and duties of the President to control other officers now apparently outweigh those officers’ rights and duties to carry out the law. The Court thus seems to be preparing, in Trump v. Slaughter, to overrule Humphrey’s Executor and expand the President’s power to fire the heads of independent agencies. Continue reading "Official Responsibility Against the Unitary Executive"
Mar 17, 2026 Daniel WaltersAdministrative Law
When the newly minted Department of Government Efficiency (DOGE) captured headlines in the early part of the new Trump administration for, in Elon Musk’s words, feeding federal programs into the wood chipper, outrage erupted. And it is not hard to see why. Here was a “special government employee” heading a shadowy new office that was apparently burning the midnight oil to make consequential, unilateral decisions about appropriated federal dollars. Concerns began to emerge that Musk was unconstitutionally appointed, but the concerns ultimately did not go anywhere before DOGE apparently disappeared. Part of the reason for that tepid legal response can be chalked up to the Trump administration’s ace in the hole. DOGE didn’t have any actual authority to feed programs into the wood chipper; it needed some other entity with actual authority to rubber-stamp its work. And rubber-stamping of this sort is pervasive.
In a new article, Adam Samaha gives us a helpful framework for thinking about not only DOGE, but also countless other arrangements in modern government where one actor apparently approves, without any serious independent thought or judgment, the work of another actor. Although many of the examples Samaha uses to illustrate rubber-stamping dynamics come to us from administrative law, rubber stamps can be found almost anywhere institutional decisions are made. Continue reading "Rubber Stamps Running Riot"
Mar 16, 2026 Henry L. Chambers, Jr.Work Law
Dallan K. Flake,
Undue Hardship after Groff, available at
SSRN (Aug. 19, 2024).
In Undue Hardship after Groff, Professor Dallan K. Flake considers an issue raised in the Supreme Court’s recent revision of the meaning of undue hardship in Groff v. DeJoy, 600 U.S. 447 (2023). He proposes a corrective to the Court’s requirement that an employer who claims that an accommodation triggers an undue hardship on its business because of the accommodation’s negative effects on the non-accommodated employees must prove those effects have “a negative impact on their business.” (P 3.) Flake suggests courts take judicial notice that lowered employee morale stemming from workplace accommodations for religious practices negatively affects an employer’s business. He argues that social science studies are so clear that lower employee morale leads to negative effects on an employer’s business that the Court’s requirement should essentially be ignored.
Flake’s solution is simple and intriguing. Reading the article will encourage those who care about religious discrimination to wrestle with the changing landscape of workplace accommodation. Students learning the law, lawyers counseling clients, and courts interpreting the law must consider practical issues of proof that the Supreme Court may not have fully considered when reshaping the law. This article takes a big swing at one of the issues. Given the lack of clarity that remains around what constitutes undue hardship, many issues will need to be litigated to flesh out the contours of the new doctrine. If courts take Flake’s proposal seriously, the Supreme Court will need to revisit the relationship between employee morale and harm to an employer’s business. Continue reading "Ignoring Part of the Supreme Court’s New Test on Worker Morale and Undue Hardship"
Mar 13, 2026 Katheleen GuzmanTrusts & Estates
Q: What happens if a joint tenant sues for partition and then dies?
A: Action ends, survivorship trumps…right? Continue reading "Getting In, Getting Out"
Mar 12, 2026 John C.P. GoldbergTorts
Kenneth S. Abraham,
The Liability Revolution That No One Saw Coming, 78 Fla. L. Rev. __ (forthcoming 2026), available at
SSRN (Mar. 31, 2025).
At the outset of his very interesting article, The Liability Revolution That No One Saw Coming, Kenneth Abraham, one of our most distinguished scholars of tort and insurance law, posits an irony concerning predictions about law. As Holmes famously observed, law practice is all about anticipating judicial decisions. Yet, according to Abraham, lawyers – and adjacent actors including insurers and law professors – are not expected to predict, and have not predicted, broader shifts in the legal landscape, some of which have had huge significance.
The bulk of the article discusses three broad twentieth-century legal developments: (1) the rise of mass tort law; (2) the expansion of insurers’ coverage costs for liabilities generated by environmental and tort law; and (3) the conclusion of the expansionary phase of American accident law. According to Abraham, nobody in law saw these important developments coming. Continue reading "What Can The Reasonable Lawyer (and Law Professor) Foresee?"
Mar 11, 2026 Adam ThimmeschTax Law
Since 2020, many states have been cutting their income tax rates and narrowing their bases, while others have been considering wealth tax proposals and other progressive revenue tools. These divergent actions raise critical questions about modern fiscal federalism. When is subnational redistribution feasible? When does tax competition instead lock states into a uniform tax-cut script? And how does federal tax policy impact states’ choices?
Kirk Stark’s article, Taxation, Redistribution, and the Urban-Rural Divide, offers an interesting and useful evaluation of these questions by assessing modern fiscal federalism through a spatial lens built on insights from a variety of fields, including economic geography, U.S. history, and political science. His article recognizes that the traditional “textbook” model of fiscal federalism often dismisses subnational progressive taxation as implausible. The logic, rooted in the Tiebout model, is simple: if a state tries to “tax the rich,” the rich—or their mobile capital—will simply move. This understanding conventionally leaves the federal government to address equity and progressivity while states instead compete on service quality. Continue reading "The Asymmetric State: The Urban-Rural Divide as Architect of U.S. Tax Policy"
Mar 10, 2026 Hannah Bloch-WehbaTechnology Law
In a congressional hearing over seven years ago, Senator Orrin Hatch asked CEO Mark Zuckerberg a simple question: how did his company, then known as Facebook, make money if users never paid them a dime? Zuckerberg’s brief, smirking answer immediately went viral: “Senator, we run ads.” The exchange seemed to encapsulate both the generational divide between the 84-year-old Hatch and the 33-year-old Zuckerberg and their fundamentally different understandings of how capitalism worked on the ground. That Hatch needed something as basic as the Facebook business model spelled out for him suggested, to some, that he was out of touch.
But Zuckerberg’s deceptively straightforward reply also warrants unpacking, because—as is by now obvious—Meta does far more than simply sell advertising. In The Ordinal Society, sociologists Marion Fourcade and Kieran Healy argue that firms like Meta have remade society and sociality itself. By transforming social activity into a source of profit, firms have gained the ability to control and manipulate interactions and to rank and sort individuals in increasingly precise ways. An ambitious account in the vein of Julie Cohen’s Between Truth and Power, The Ordinal Society offers a crucial rethinking of how technology has reordered society, focusing on how the data economy enables emerging systems of ranking and classification that not only amplify underlying social stratification, but also produce new and unpredictable forms of inequality. Existing legal approaches fail to address the harms wrought by this reordering. Continue reading "Bringing Society Back In: How Tech Remakes Social Relations"
Mar 9, 2026 Shelley Ross SaxerProperty
Understanding the gravity of the problem with water scarcity in the western United States is complex enough before considering the doctrine of Federal Reserved Rights. Professor Alexader Pearl in his recent article, Homelands Not Graveyards, helps readers navigate and understand this complex mix of doctrines, policies, and priorities that help the law develop in this space.
More specifically, Professor Pearl focuses on Federal Reserved Rights that are known as “Winters rights” in the context of federal Indian law water rights jurisprudence. These implied water rights were first recognized by the United States Supreme Court in 1908 in Winters v. United States, 207 U.S. 564, a case involving the Fort Belknap Reservation created by agreement in 1888. Continue reading "The Uncertainty of Water Rights for Tribal Communities"
Mar 6, 2026 Rebecca RoipheLegal Profession
Many scholars have written about the role of courts in liberal democracies. They grapple with tough questions about how to justify the outsized role that unelected judges play in our democracy. Beginning with Alexander Bickel who famously coined the phrase, “the counter-majoritarian difficulty,” and continuing with scholars like John Hart Ely, Mark Tushnet, and Jeremy Waldron, to name just a few, critics have analyzed what role courts should play in ushering in social change. Ann Southworth has skillfully complemented this literature by arguing that it is not just judges who have power to alter the social and political landscape. Lawyers at legal advocacy organizations play a significant role in this process.
Professor Southworth’s article, Conservative Legal Advocacy: Organizations and the Roberts Court, draws on the example of campaign finance reform to show how conservative legal advocacy organizations engaged in a coordinated effort to change precedent and push an ideological agenda. These organizations consciously followed the example of civil rights groups like the NAACP and the ACLU, occasionally even drawing on precedent established by their liberal predecessors. The article is an important reminder that Supreme Court decisions are not simply a product of judicial appointments but are also affected by well-funded legal advocacy organizations and their lawyers. Continue reading "Be Careful What You Wish For: How Conservative Groups Learned from Liberal Cause Lawyers"
