Yearly Archives: 2026
Mar 5, 2026 Aila HossLexNative Peoples Law
In its foundational Indian law decisions, the U.S. Supreme Court has consistently recognized federal supremacy on all matters regarding Indian affairs. This plenary power can preempt both Tribal and state authorities. SCOTUS granted certiorari in Haaland v. Brackeen to assess the constitutionality of the Indian Child Welfare Act (ICWA), with some of the challenges being on the basis that the law infringes on state authority under the Tenth Amendment’s anticommandeering doctrine. Indian country anxiously awaited to see if the court would once again abandon longstanding Indian law precedent in favor of state rights, as it recently did in Oklahoma v. Castro Huerta. The court concluded that ICWA was valid. But, the decision left me confounded on the continued viability of anticommandeering arguments to strike down federal Indian affairs legislation. Fortunately, Professor Ann Tweedy’s recent article, Anticommandeering & Indian Affairs Legislation, published in the Harvard Journal on Legislation, considers the applicability of anticommandeering to Indian law following Brackeen.
The anticommandeering doctrine holds that when Congress requires states to adopt or enforce federal law, such actions violate the Tenth Amendment. First articulated by the Supreme Court in the 1990s under the Rehnquist court, the doctrine has been successfully used to strike out provisions of various pieces of federal legislation including the Low-Level Radioactive Waste Policy Amendments Act (required states to take title and assume liability for radioactive waste within their borders), the Brady Handgun Violence Protection Act (required state and local law enforcement to conduct background checks on prospective gun buyers), and the Professional and Amateur Sports Protection Act (prohibited states from establishing sports gambling regulatory schemes). Continue reading "Against Anticommandeering in Indian Law"
Mar 4, 2026 Izabela SkoczenJurisprudence
In the article, Lawful, But Not Really: The Dual Character of The Concept of Law, Brian Flanagan and Guilherme de Almeida challenge the traditional divides in jurisprudence as to the definitions of the concept of law as well as the concept of legal validity. The article intends to offer a novel, third-way approach between the two traditionally most populated camps in legal philosophy, namely positivism and natural law theory.
The novelty of the article does not consist only in its theoretical appeal, but also in adopting a relatively new methodology, namely the methodology of experimental jurisprudence (“xjur”). Xjur seeks to shed new light on traditional jurisprudential questions by employing the methodology of the psychological, sociological, or cognitive sciences. The methods include, among others, massive online surveys, corpus studies (analyzing a large collection of texts), neuroimaging, or decision-making in immersive virtual reality. Using these methods permits researchers to achieve a more accurate grasp of how people understand concepts such as, for example, intention, causation, rule, law, or reasonableness. Moreover, using such methods permits us to end speculation as to, for example, what the linguistic or conceptual intuition of a certain population is. See SEP entry on experimental jurisprudence. Continue reading "What is Real Law?"
Mar 3, 2026 David FagundesIntellectual Property Law
Abe Lincoln was fond of relating a story about a lawyer who tried to argue that a calf had five legs by calling its tail a leg. The folksy Lincolnian upshot was that this lawyer not only lost, but also looked foolish in the process, because simply calling a tail a leg does not make it so.
Mark Lemley’s Authoring While Dead spins a copyright version of Abe’s old yarn. Songwriters have recently begun listing as co-authors of their musical works artists who cannot be regarded as “authors” under any remotely plausible reading of the Copyright Act. Lemley’s vivid article explores the origins and rapid ascension of this industry practice. He explains with welcome drollery why this is the copyright equivalent of calling a tail a leg. He further offers a caution why what may seem like mere formalism, in fact, poses serious problems for copyright law. Continue reading "Inspiration versus Authorship"
Mar 2, 2026 Mathilde CohenInternational & Comparative Law
Julie C. Suk, The Shadow Court: Rescuing Democracy from the Supreme Court (2026).
Julie Suk’s forthcoming The Shadow Court: Rescuing Democracy from the Supreme Court is an invigorating intervention in the long-standing question of how to align constitutional lawmaking in the United States with democratic ideals. Suk’s book moves beyond familiar critiques of the Supreme Court’s judicial supremacy to propose a bold, institutionally imaginative solution: the Shadow Court. What makes this proposal particularly compelling is its comparative lens, drawing on constitutional designs across the world to offer concrete inspiration for reform. In an era when the Supreme Court increasingly dominates the constitutional landscape, Suk invites readers to imagine what constitutional law might look like if citizens, legislators, and other institutions could exercise more democratic influence over its creation.
At the heart of Suk’s project is the conviction that “[i]n a healthy and legitimate constitutional democracy, ‘We the People’ should have supremacy and control over constitutional lawmaking.” The book diagnoses a democratic crisis rooted in the Supreme Court’s concentration of power, much of it facilitated by the Court itself. Suk observes that the Court’s eighteenth-century design, as an Article III judiciary primarily intended for dispute resolution, is ill-suited to serve as the principal constitutional-lawmaker for a twenty-first-century, demographically complex nation. Against this backdrop, The Shadow Court pivots toward institutional innovation rather than incremental reform: it sketches out a new body capable of exercising real influence without formal coercive power, borrowing lessons from shadow cabinets in parliamentary democracies and constitutional courts abroad. Continue reading "From Shadow Cabinets to Shadow Justices: Rethinking Constitutional Lawmaking"
Feb 27, 2026 Myrisha LewisHealth Law
The second episode of HBO’s Emmy-winning series, The Pitt, included a storyline where paramedics bring in a woman they describe as “drug-seeking,” “uncooperative,” and “combative” after she was removed from the city bus “for disrupting and disturbing passengers.” After a tense scene in the Emergency Department, where the patient was threatened with a police call, she excruciatingly noted that her pain medicine was not working, and she has sickle cell anemia. Dr. Mohan, unlike the other healthcare professionals that the patient encountered, quickly recognizes a vaso-occlusive crisis and changes the trajectory of the patient’s treatment for the better, while informing fellow healthcare providers of the symptoms of sickle cell anemia.
Hopefully, this episode raises awareness, as shockingly, even today, reports indicate that health care providers and others remain unfamiliar with sickle cell disease, and those with the disease or trait often face mistreatment and racism in the healthcare space, increasing health disparities. Similar to The Pitt episode, Professor Britney Wilson’s article, Predisposed: Race, Disability, and Death Investigations, draws attention to a related context where those with sickle cell and other diseases face discrimination—death investigators’ use of the trait and other related conditions “as a justification for the deaths of Black people who die due to state violence or neglect” even when such a justification is not convincing. Continue reading "The Significant (and Unexpected) Causal Impacts of Common Health Conditions and Genetic Traits in Death Investigations"
Feb 26, 2026 Linda C. McClainFamily Law
What role can civic education play in polarized times? That is the pressing question posed by Civic Education in Polarized Times, edited by Elizabeth Beaumont and Eric Beerbohm. As Beaumont’s introduction explains, “as political polarization has intensified across the world, civic education seems more urgent, but it has also become more challenging.” (P. 1.) The volume brings together an eminent group of education scholars, legal scholars, political theorists, and philosophers to consider challenging questions about how to carry out civic education “in a polarized era” and “for a polarized era.” (P. 2.)
The first set of questions includes the impact of polarization on efforts to teach civic education when “schools, administrators, teachers, parents, and teachers are also operating in a divided world.” (P. 2.) Questions about how to prepare students for a polarized world include determining the aims of civic education amidst hyperpolarization, what types of “civic learning” hold the greatest promise to help students prepare to navigate their way in the current political landscape, and whether civic education should seek to “reduce or counteract polarization.” (P. 2.) Continue reading "Meeting the Challenge of Civic Education in Hyperpolarized Times"
Feb 25, 2026 Chao-Ju ChenEquality
Rachel Bayefsky,
Tradition and Feminism in Constitutional Rights Adjudication, __
Va. L. Rev. __ (forthcoming), available at
SSRN (May 27, 2025).
In the post-Dobbs world, concerns over the Courts’ growing use of “history and tradition” as an interpretative tool and as a constitutional test, particular its invocation in ways that reinforce inequality, have reached an unprecedented high, and with good reason. One of the latest examples is the Supreme Court’s adoption of historical practice as a central interpretative mode in its 2025 birthright citizenship case, Trump v. CASA, which imposes limits on lower-courts’ ability to enter preliminary injunctions and opens up the possibility of discriminatory legal measures being blocked for some but enforced against others, including those in marginalized communities who lack resources to legally challenge them.
Joining a growing body of legal scholars addressing “history and tradition’s equality problem,” Rachel Bayefsky has now made a timely feminist intervention that brings conceptual clarity, methodological rigor, hope for change, and a persuasive appeal to both liberals and conservatives to move beyond the adversarial relationship between tradition and equality. In a world of intensified polarizations, Bayefsky’s constructive and philosophically nuanced engagement with traditionalists is especially commendable. Her proposed theory of dialectical traditionalism reconciles the tensions between traditionalism and feminism by providing a framework for adjudicators to engage with traditionalist reasoning without replicating and justifying the unequal past, regardless of whether they identify as “traditionalists.” A recent study examining the role of history and tradition in state court abortion decisions supports Bayefsky’s hope, as some of these courts have adopted a critical approach to history and tradition in protecting reproductive rights. Continue reading "Tradition versus Equality: A feminist intervention"
Feb 24, 2026 Carole SilverLegal Profession
One of the most interesting findings of the After The JD project, which tracked the careers of a nationally-representative sample of US law school graduates who qualified as lawyers in the year 2000, was how many times they changed jobs. Job changes can involve different positions with status implications, as well as differences around factors like flexibility and compensation. The After The JD authors analyzed each of these kinds of moves in the framework of a social capital analysis; among their findings was the role of the prestige associated with US News rankings of law schools and American Lawyer rankings of law firms in shaping moves and opportunities.
In Sida Liu and Anson Au’s new article, Mobility Spaces: Geographical and Professional Distances in Career Mobility, the authors consider analogous questions about lateral moves of lawyers using a different lens—that of mobility spaces. They urge that “[t]he movement of professionals is shaped not only by their social and educational backgrounds but also by the geographical and professional distances between these mobility spaces.” (P. 196.) That is, they see career moves as conveying important information through the physical and social proximity of one position to the next. Further, rather than focusing on the US as did the After The JD project, their study is based in Hong Kong. They utilize data reporting the career moves of law firm partners working in Hong Kong between 1994 and 2021, culled from the official journal of the Law Society of Hong Kong. (P. 204.) The article thus speaks empirically of a particular time and place while aiming to contribute theoretically to “enhancing our understanding of the spatial dimensions in which professional careers evolve.” (P. 196.) Continue reading "Rethinking Legal Careers Through the Lens of Relocation and Rerouting"
Feb 23, 2026 Jonathan SimonCriminal Law
In Franz Kafka’s haunting short story, Before the Law, an ordinary person (described as a “countryman”) seeks to enter the law only to discover a gatekeeper whose formidable personal presence and vague threats of even fiercer gatekeepers keep him stalled at the law’s entrance. The seeker spends his entire life imploring the gatekeeper to let him in, never daring to attempt to evade him. In the end, he comes to know (spoiler here) that this gate, from which he was denied entry, was made only for him.
Modern students of the legal system have long studied the role of gatekeepers, both the intermediaries like lawyers whose help is crucial to accessing justice, and institutional rules and norms that favor repeat players over first time users of the courts. Rarely, (but see, Nicole Gonzalez Van Cleve, Crook County (2016)), however, do we, like Kafka, explore the physical (and perhaps metaphysical) barriers to equal justice. In an important analysis of data from a broader ethnographic and qualitative interview based study of ordinary people’s experiences with accessing courts, Spatial Burdens of State Institutions: The Case of Criminal Courthouses, Matthew Clair, Jesus Orozco and Iris Zhang spotlight the spatial environments of court houses and how they contribute to complex patterns of inequality and paternalistic and punitive forms of poverty governance. The authors highlight two kinds of power effects of court spatial conditions. There is the direct effect on court users of the environment in and around the courthouse and how that can shape the emotional experience of accessing justice institutions. There is also a secondary effect when court-based burdens cause a person to have to seek additional state institutional intervention (like a person who loses their job because of the time involved in attending court hearings and must apply for unemployment or food support). Together, these create a distinctively spatial dimension to poverty governance. Continue reading "Burden in the Court! The Spatial Powers of Courts and Their Environment"
Feb 20, 2026 Marin K. LevyCourts Law
Melville’s Ishmael declares in the opening chapter of Moby Dick, “Whenever I find myself growing grim about the mouth; whenever it is a damp, drizzly November in my soul . . . then, I account it high time to get to sea as soon as I can.” In this dark February, the timing is right to take to sea—and Kevin Arlyck’s new book, The Nation at Sea: The Federal Courts and American Sovereignty, 1789–1825—is just the thing to take us there.
The Nation at Sea provides a new historical account of the federal judiciary’s early days—one that shifts the way we understand how our country took its place in the world, and how the federal courts took their place in our country. The story so often told is that the federal courts were rather quiet after they were established. They began to find their voice with Chief Justice Marshall at the Court’s helm in cases such as Marbury v. Madison and McCulloch v. Maryland. And through such cases, the story goes, the Court began establishing its role in the constitutional order and its role in American nation-building. Continue reading "Judicial Sovereignty-Making at the Country’s Start"
