Yearly Archives: 2026
Feb 19, 2026 Caroline BradleyCorporate Law
Curtis J. Milhaupt & Wolf-Georg Ringe,
The Political Economy of Global Stock Exchange Competition (Sep. 08, 2025), available at
SSRN.
States compete with each other to attract business, and this competition often focuses on specific sectors of financial activity. States compete to be centers for asset management, for insurance, for listings, for derivatives markets, or for financial innovation. Private actors also engage in competition: stock exchanges, as for-profit businesses, seek to attract listings and trading activity, competing with other exchanges. Other market operators similarly seek to attract business. Private-sector actors develop standards and documentation to support financial market transactions.
Conventionally, academics and journalists focus on competition between stock exchanges to attract listings, but as Curtis Milhaupt and Wolf-Georg Ringe show in The Political Economy of Global Stock Exchange Competition, this only reflects a part of a much more interesting and important story, which, they argue, calls for “sustained scholarly engagement across law, economics, and international relations.” The paper convincingly shows why this is the case. Continue reading "Stock Exchanges as Strategic Assets"
Feb 18, 2026 David HoffmanContracts
John Coyle & Tanya Monestier
, Limits on Damages for Breach of a Forum Selection Clause, (Sep. 25, 2025), available at
SSRN.
Forum selection clauses are so familiar that they rarely invite fresh questions. Courts mostly enforce them after lawyers litigate motions to dismiss or transfer, and the parties move on. One remedial question, however, has long sat in plain sight: when a party breaches a forum selection clause by suing in the wrong court, why is the remedy limited by default to correcting the venue error rather than compensating the counterparty for the cost of enforcing the clause?
In Limits on Damages for Breach of a Forum Selection Clause, John Coyle and Tanya Monestier take that question seriously—and show that it was never foreclosed for particularly good reasons. The article is valuable precisely because it is doctrinally grounded, methodical, and unspectacular in the best sense: it demonstrates that even in well-trodden territory, there remain basic remedial questions worth asking, and answering, with ordinary tools of contract law. Continue reading "Damages, Doctrine, and the Remedial Life of Forum Selection Clauses"
Feb 17, 2026 Leah LitmanConstitutional Law
Genevieve Lakier,
Enforcing the First Amendment in an Era of Jawboning, __
Univ. Chi. L. Rev. __ (forthcoming, 2026), available at
SSRN (Mar. 01, 2025).
Too often, our “free speech culture” gloms together private censorship and state-sponsored censorship. These things are not the same. Only one of them is prohibited by the First Amendment, and failing to differentiate between the two runs the risk of collapsing the distinction between censorship, on one hand, and on the other, private citizens exercising their own First Amendment rights (sometimes by choosing who to associate with or who to support).
That’s not to say there aren’t “free speech” risks from private power—especially in an era where control of major media outlets is concentrated in the hands of a few. And there are hard cases where it may not be clear who is driving the censorship—state actors or private ones. Continue reading "Throwing the Supreme Court/Free Speech A Bone"
Feb 16, 2026 Michael E HerzAdministrative Law
A year into the second Trump administration, the 47th president has done a pretty darn impressive job of destroying state capacity. Resources, personnel, expertise, law-following, law-enforcement, ethics, and competence have all been jettisoned. For many observers, the result is a catastrophic inability of the federal government to accomplish basic functions.
In The Secular Decline of the American State, Ganesh Sitaraman has arrived with some good news and some bad news. The good news is that the current administration’s sapping and mining are not that aberrant; Trump’s dismantling project has not, in fact, fundamentally shifted the country from the path it has been on for some time. The crisis is not acute. Whew. Continue reading "The Deep Causes of The Shallow State"
Feb 16, 2026 Michael E HerzAdministrative Law
Susan C. Morse,
Time Bars for Administrative Procedure Claims After Corner Post, 114
Calif. L. Rev. ___ (forthcoming, 2026), available at
SSRN (July 18, 2024).
In recent terms, the Supreme Court has had its nose to the grindstone, transforming American administrative law. In a series of striking decisions, it has created the major questions doctrine, overruled Chevron and reined in Auer, shifted toward the elimination of independent agencies and a full-throated endorsement of the unitary executive theory, come close to remaking the nondelegation doctrine, reinvigorated arbitrary-and-capricious review, and opened the courthouse doors to challenges to regulations issued long ago. Most of these developments have spawned a flurry of academic commentary. The major questions doctrine in particular has created an itch it seems everyone needs to scratch. And overruling Chevron has given all those who had written about the case in the past (which is practically everyone) a chance now to write about its demise.
In the face of this tsunami, what is a poor JOTWELL reviewer to do? How select the best from among them? It can’t be done. (Though, as Jack Beermann has written, if you want to understand the major questions doctrine you can’t go wrong by starting with Anita Krishnakumar.) But there is one exception. When it comes to Corner Post, there is a standout article. While others have been hypnotized by the shiny new objects of the MQD and Loper Bright, an undistracted Susan Morse has kept her attention focused where it has been for a couple of years. Her latest, Time Bars for Administrative Procedure Claims After Corner Post is a standout not only because, let’s be honest, there is not a lot of competition, but because it is so good. Continue reading "Avoiding the Demon Lurking Around the Corner (Post)"
Feb 13, 2026 Joseph SlaterWork Law
A key priority of the second Trump administration has been an unprecedented attack on federal employees’ workplace rights. This includes removing collective bargaining rights, dismantling federal agencies, and working to remove the civil service protections of many federal employees. Catherine Fisk’s Democracy and a Nonpartisan Civil Service focuses on the assault on civil service. The article gives a history of civil service laws and reviews the evidence on the benefits and costs of their protections. It details the assaults on these protections and provides a nuanced defense of them. Fisk convincingly addresses legal, practical, and policy concerns, describing current rules, proposed changes, , theoretical arguments, and relevant empirical data. Her article is a strong contribution to the literature.
Since the Pendleton Act of 1883, civil service rules have been a key component of employment law in federal, state, and local government. Such laws originally aimed to combat political patronage practices by providing “merit” rules for both hiring and firing. By the second half of the mid-20th century, these rules gave most lower- to mid-level public employees just cause discharge protection, at least after a probationary period. While most other industrialized democracies in that period adopted just cause rules as the default for most employees, the United States remained, except for civil service laws, committed to at-will employment. Continue reading "Defending Civil Service Rules from Existential Attacks"
Feb 12, 2026 Charlene D. LukeTax Law
Edward J. McCaffery and Darryll K. Jones offer an engaging explanation for the lack of progress in closing the carried interest loophole in The Curiouser and Curiouser Case of Carried Interests. This well-known loophole—which has been analyzed extensively in the literature—allows top hedge fund and private equity managers to pay tax on service income at the lower rate afforded long-term capital gains. The article draws on earlier scholarship by each of the co-authors and provides an updated account of the decades-long lack of progress in closing the loophole.
In 2006, McCaffery and Linda Cohen published Shakedown at Gucci Gulch: The New Logic of Collective Action, 84 N.C. L. Rev. 1159 (2006). That 2006 article drew on Mancur Olson’s 1965 book, The Logic of Collective Action, which theorized the conditions required for special interest lobbyists to overcome collective action problems and wield outsized legislative influence. McCaffery and Cohen posited that Olson’s framework did not adequately explain the shenanigans surrounding estate tax repeal. Instead of legislators being the dupes of special interest groups, legislators were engaging in extortionate brinkmanship to increase campaign contributions from the special interests with the most to gain (or to lose) from estate tax legislation. As McCaffery and Jones summarize in their article, the game is “reverse” Mancur Olson because “legislators come first, special interests second.” Continue reading "Anatomy of a Shakedown: The Carried Interest Case"
Feb 11, 2026 Victoria J. HanemanTrusts & Estates
Professor Naomi Cahn’s recent article, Trusting Remedies for the Child Influencer Space: Blocked Trust Accounts and Child Beneficiaries, exists at the intersection of centuries-old legal doctrine and the technology-based influencer economy. The family influencer, parent-facilitated influencer, and kidfluencer spaces are thriving (from TikTok sponsorships to YouTube ads), and these are spaces in which federal protections for children are arguably inadequate. Instead, we must rely on limited oversight provided by a patchwork of state privacy and labor laws. A parental conflict of interest is inherent when a child is unable to give informed consent, and parents are overseeing a child who is also a profit center. As with child actors, the question becomes: who is overseeing or regulating the parents? The exploitation of successful children, including actors and athletes, is not a new concern, but current legal infrastructure does not apply neatly to protect child content creators. In her essay, Professor Cahn considers the way the blocked trust account may be reimagined to better protect kidfluencers.
For over a century, the legal system has vacillated between empowering parents as guardians and constraining them as potential exploiters, from child factory labor to Hollywood stardom. The kidfluencer economy heightens this tension: the “workplace” is not a set or a studio but the family living room, and the “manager” is often a parent with a smartphone. The intimacy of this arrangement makes oversight uniquely difficult and the risk of abuse correspondingly high. Cahn draws a straight line from the Coogan laws of the early twentieth century (designed to safeguard child actors’ wages) to the relatively unregulated frontier of contemporary influencer culture. Continue reading "Leveraging Trust Law to Protect Child Influencers"
Feb 10, 2026 Ronen AvrahamTorts
What happens when a self-driving car kills someone and there is no human driver to blame, no detailed public regulation to point to, and a jury that has never heard of ISO 26262 or UL 4600? Who decides what “reasonable care” means when safety choices are embedded in code, sensors, and validation protocols rather than in a driver’s split-second decision?
In his insightful paper Swords and Shields, Gary Marchant argues that in this world, private technical standards will quietly become the real baseline for tort law. Standards written by SAE, ISO, UL, IEEE, and other standard-setting organizations—largely unfamiliar to most people—will serve as shields for autonomous-vehicle (AV) manufacturers who comply with them, and as swords for plaintiffs when manufacturers ignore them. Continue reading "Private Standards as Swords and Shields for Autonomous Vehicles"
Feb 9, 2026 Stacy-Ann ElvyTechnology Law
Alicia Solow-Niederman,
AI and Doctrinal Collapse, 78
Stan. L. Rev. ___ (forthcoming 2026), available at
SSRN (Aug. 08, 2025).
Government actors across the globe have responded to the rapid uptake of artificial intelligence by adopting or proposing various forms of legislation. For instance, on September 29, 2025, California adopted the Transparency in Frontier Artificial Intelligence Act, which imposes transparency and safety obligations on artificial intelligence companies in the state. Other states, such as Colorado, have also responded by enacting laws addressing artificial intelligence. At the federal level, the proposed Generative AI Copyright Disclosure Act would impose disclosure requirements on artificial intelligence developers that use copyrighted works to train their systems. In 2024 the European Parliament adopted the Artificial Intelligence Act—a comprehensive framework for the regulation of artificial intelligence in European Union countries. Despite domestic and international legislative responses, the rapid rise of artificial intelligence continues to pose significant challenges for several established areas of law, including privacy law and intellectual property law.
In her article AI and Doctrinal Collapse, Professor Alicia Solow-Niederman offers an impressive contribution to both the privacy law and intellectual property law fields by exposing the various pressures placed on these two legal regimes by artificial intelligence. Solow-Niederman contends that artificial intelligence has blurred the boundaries between privacy law and copyright law—a phenomenon she aptly labels as “inter-regime doctrinal collapse.” She convincingly posits that without sufficient intervention, corporate actors will continue to implement “exploitation tactics” to profit from this doctrinal collapse and further undermine the rule of law. Continue reading "Crossroads: Privacy Law and Copyright Law in the Age of Artificial Intelligence"
