Nov 26, 2025 Marco JimenezLexRemedies
Whenever I teach remedies, one of the first principles we cover is that compensatory damages should put the plaintiff in their “rightful position” by returning the injured party to the position it would have occupied but for the defendant’s wrongful harm. Students quickly grasp this concept and its corollary, which I sometimes refer to as the “Goldilocks principle”: courts often try to award the amount of damages that is “just right”—neither too much (creating an undeserved windfall for the plaintiff) nor too little (leaving the plaintiff undercompensated). Anything that makes a plaintiff better off than before the injury seems obviously problematic.
In his outstanding article Making Whole, Making Better, and Accommodating Resilience, Professor Erik Encarnacion challenges this conventional wisdom in ways that are both intellectually sophisticated and practically important. The piece makes a compelling case that reflexive avoidance of any “betterment” often leads to systematic undercompensation, and that a more generous approach to compensatory damages is not only doctrinally supported but normatively required. Continue reading "Rethinking the Make-Whole Principle"
Nov 25, 2025 Scott CummingsLegal Profession
There is now a vast international literature on the role of lawyers and law in social movements, on the right and the left. This literature has been enormously generative in illuminating the various ways that lawyers contribute to social struggle—by using litigation and other legal tactics to hold powerful actors to account and inspire social movement resistance—while also spotlighting how sometimes they overreach, and how their tactics and frames are frequently coopted by opponents, who use legal strategies to undermine progress. While this literature has often painted legal liberal lawyers as problematic actors, it also teaches crucial lessons about the importance of sustained legal and political resistance in the face of powerful forces. American democracy has never worked for all people. It has never lived up to its promise of equal justice. And there have been particularly dark moments, the post-Reconstruction era and the rise of Jim Crow being one of them, which have elicited courageous responses from lawyers and nonlawyers alike. As we are living through another dark and dangerous moment, it is crucial to recover stories that deepen understanding of resistance methods and give inspiration to fight back.
Professor Pamela Izvănariu provides precisely this type of analysis in her timely and important article on the unheralded Black labor activist John P. Davis and the organization that he created to fight for racial equality in New Deal labor laws: the Joint Committee for National Recovery (JCNR). Izvănariu’s work on Davis is part of a larger historical project that seeks to elevate Davis in the scholarly canon on the “pre-history” of the civil rights movement, which includes classic works by Ken Mack, Risa Goluboff, and Susan Carle, among others. Those scholars discuss the synergies and tensions between efforts to mobilize cross-racial solidarity in support of Black labor rights and the building momentum in favor of a frontal assault on school segregation culminating in what became the famous high point of civil rights lawyering: Brown v. Board of Education. Continue reading "Looking to History for Contemporary Lessons on Legal Mobilization against Subordination"
Nov 24, 2025 Jonathon BoothLegal History
Over the past decade, histories of American policing have proliferated. Understandably, the majority of these works have focused on policing major American cities in the twentieth century. These works have transformed the field, in particular by revealing important insights about how racism has shaped policing, but they focus only on the tip of the iceberg. Beyond the largest urban centers, there is also a vast and complicated history of policing in smaller cities, rural areas, and special jurisdictions like college campuses that legal scholars have yet to map fully.
Grace Watkins dives into this less-studied realm of criminal justice history with her brilliant article Piety Police. Watkins has emerged as a leading scholar of campus police, and this article presents an entirely original account of the importance of private religious police forces – primarily those affiliated with religious universities. The bulk of the narrative and of Watkins’s archival research focuses on the development of the Brigham Young University Police Department (BYUPD) and its authority to enforce the law and campus rules, both on and off campus. Through her extensive research in a fragmentary archive, Watkins has uncovered a wealth of detail. Most notably, she reveals the extent of the BYUPD’s anti-gay policing, including a shocking 1979 account of the BYUPD employing an undercover student to place advertisements in the local newspaper to entrap a local gay man and arrest him for forcible sexual abuse. Continue reading "Religious Police Forces with Public Powers"
Nov 21, 2025 Julieta RabanosJurisprudence
What lies behind one of our most engrained and persistent assumptions in law – the existence of a specific kind of intention underlying the utterances of an authority?
This is the question that Poggi and Ferraro endeavour to address in this article, and in doing so, they embark on a particularly complex enterprise: to show that what we call “legislative intent” is a deception. Or, put differently: that what we call “legislative intent” does not exist as such, but (only) as a construction by the interpreters; and therefore, that the invocation of “legislative intent” to justify a specific interpretation of a legal text is a sleight of hand that conceals – and, even more, amplifies – the interpreters’ discretion. And all this is done under the guise of objective linguistic rationality and strict respect and deference for the legislator’s decisions. Continue reading "The Veil of Legislative Intent"
Nov 20, 2025 Jessica SilbeyIntellectual Property Law
Abraham Drassinower,
The Work of Readership in Copyright, available at
SSRN (May 21, 2024).
In this essay, Abraham Drassinower updates the argument in his 2015 book What’s Wrong With Copying (Harvard University Press) with an elaboration of the nature of copyright’s public domain: it is a domain of unauthorized yet lawful copying. As in his book, Drassinower explains that the public domain is not properly understood as a problem of balancing between copyright’s public benefits and private rewards. Instead, he understands the public domain as part of authorship and thus inseparable from copyright’s construction.
The elaboration in this essay is his introduction of readership to the understanding of copyright’s public domain. As he says in its opening pages, “I will argue that the work of authorship in copyright law and doctrine is radically inseparable from what we may call the work of readership. Setting forth the immanence of readership in authorship will help construe the public domain as a necessary presupposition of, rather than a constraint on, authorship.” (P. 3.) Continue reading "Readers are Authors, Especially in the AI Age"
Nov 19, 2025 Jedidiah KronckeInternational & Comparative Law
Popular dissatisfaction with economic life has emerged as a growing challenge to countries across the globe. Magnified by growing inequality, this dissatisfaction stems from a sense that dominant economic institutions can no longer be relied upon to provide citizens with predictable and meaningful economic lives. Yet, even as nations have rejected left- and right-wing incumbents alike, there has remained only episodic engagement with one of the longest-standing alternative traditions for governing economic activity with a proactively social vision: cooperatives. In his article Investor Shares in Cooperative Financing: A Comparative Legal Analysis, Ville Pönkä provides a revealing primer on the challenges of promoting cooperatives through an incisive comparative analysis of “investor shares” as a means for cooperatives to raise capital.
For those less familiar with the literature on cooperatives, Pönkä provides a compact and effective introduction while outlining its interface with modern comparative corporate governance scholarship. This linkage is inherently valuable, as the particular nature of cooperatives has often led them to fall outside the analytical focus of both corporate and labor law scholars—although their conceptual and normative concerns significantly overlap with those of cooperative governance. And while, for practical and path-dependent reasons, the study of corporate governance has become one of the richest and most sophisticated areas of comparative legal analysis, it still largely omits cooperatives. As such, Pönkä’s survey of the statutory regimes governing cooperative forms is notable as it draws on diverse national examples—especially valuable given that much of the empirical work on cooperatives focuses on domestic audiences in non-English-speaking countries. Moreover, it does so while bringing the issue into direct conversation with classic and contemporary issues in corporate governance on a global scale. Continue reading "The Comparative Challenges of Cooperative Corporate Governance"
Nov 18, 2025 Christina S. HoHealth Law
Himani Bhakuni and Lucas Miotto have teamed up to place a useful concept in our midst, namely the concept of Transitional Health Justice (THJ).
They draw upon the scholarship concerning Transitional Justice, which can be roughly understood as an extension beyond “ordinary justice” to encompass “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses.” Transitional justice is not demanded when a society undergoes a smaller-scale disruptions, such as isolated episodes of disaster or armed conflict. After such events, society’s goal might plausibly be described as restoration after an aberrant event. But other ruptures go to the foundations of collective life, after which justice cannot be done by merely returning to the status quo ante, if indeed there is anything left to return to.
In the wake of the pandemic and rampant health disinformation, amidst the necropolitical horrors of the U.S. carceral security state run amok, given DOGE and the recent reconciliation bill’s plundering of our medical science and health infrastructure top to bottom, Bhakuni and Miotto’s call to train a transitional justice lens onto the crises in our health domain rings particularly urgent. Continue reading "Transitional Health Justice and a Care-First Response to Our Times"
Nov 17, 2025 Philomila TsoukalaFamily Law
Rama Hyeweon Kim, Parents, Kin, and the State: Family and Households Between Functional Parenthood and Child Protection, 33 Geo. J. on Poverty L. & Pol’y ___ (forthcoming, 2025).
A mother sits at a Child Protective Services office, surrounded by the scents of coffee and nicotine gum. Notices about food aid, housing forms, and a chart of deadlines blur as she struggles to focus. She is unemployed—not addicted or pathologically unstable—simply unable to find stability without family support and public aid. Her fraught relationship with her mother-in-law, who has provided childcare and now serves as kin care under Kentucky’s child protection system, has shifted. The caseworker explains that the grandmother may be recognized as a de facto parent, which would allow the state to close the neglect case, cease reunification services for the mother and foster care training and resources for the grandmother.
This grandmother’s bureaucratic pivot from helpful kin to potential legal parent provides the starting point for Rama Hyeweon Kim’s analysis in Parents, Kin, and the State: Family and Households Between Functional Parenthood and Child Protection. Kim begins by noticing that much of the literature on LGBTQ families and assisted reproductive technologies advocates for the recognition of functional parenthood as a normative good, without much engagement with the potential downsides of such a development. (P. 5.) Her article provides precisely such an in-depth engagement. Kim suggests that the costs of this model are real and uneven. Specifically, functional parenthood can burden parent–child relationships in poor and racialized communities, often plagued by higher-than-average rates of parental incarceration and substance abuse, which she calls “peripheral families” (P. 11), by reshaping power within the family under state oversight. Thus, her core claim is not that functional recognition is always wrong, but rather that its use in child-protection contexts brings distributional consequences that much of the reform literature has not fully considered, “including potentially severe and negative impacts on parent–child relationships.” (P. 1.) Continue reading "Functional Parenthood As a Bridge Between Family Law and Welfare Law"
Nov 14, 2025 Rakhi RupareliaEquality
Diversity, Equity, and Inclusion (DEI) programs have always sat uneasily with me. While the aspirations of such initiatives are ostensibly noble, their development and execution often present as token efforts to address social inequalities while leaving racial hierarchies intact. Indeed, many institutions express their commitment to such projects to appease political interests and avoid liability rather than to effect meaningful change.
Like many others invested in racial justice, I find it particularly vexing when DEI is used interchangeably with anti-racism, or more recently Critical Race Theory (CRT), as though brief training in cultural competency or individual bias, or a statement welcoming applicants from diverse communities at the end of a job posting are the magic wands that will eradicate systemic inequalities. DEI initiatives can be valuable when implemented properly, but they must complement systemic remedies, not replace them, for progress to be possible.
In her excellent article, law professor Tanya Hernández homes in on the proliferation of DEI programs as a response to the racism that has become increasingly difficult to deny following the unjustified police killings of George Floyd and other Black men and women. As the Black Lives Matter movement surged, organizations and corporations loudly professed their commitment to DEI and doing (or at least appearing to do) the right thing in a climate where so much was evidently wrong. Although their quality and efficacy vary, these programs still attract the ire of those who claim they promote unfairness and discrimination against white people, whom they characterize as the true victims of racism in an overly sensitive era. Sociologist Tressie McMillan Cottom aptly describes this unfounded perception as “race fantasy.” Continue reading "Resuscitating DEI: Using CRT to Breathe Life Back into Diversity, Equity and Inclusion"
Nov 14, 2025 Rakhi RupareliaEquality
Diversity, Equity, and Inclusion (DEI) programs have always sat uneasily with me. While the aspirations of such initiatives are ostensibly noble, their development and execution often present as token efforts to address social inequalities while leaving racial hierarchies intact. Indeed, many institutions express their commitment to such projects to appease political interests and avoid liability rather than to effect meaningful change.
Like many others invested in racial justice, I find it particularly vexing when DEI is used interchangeably with anti-racism, or more recently Critical Race Theory (CRT), as though brief training in cultural competency or individual bias, or a statement welcoming applicants from diverse communities at the end of a job posting are the magic wands that will eradicate systemic inequalities. DEI initiatives can be valuable when implemented properly, but they must complement systemic remedies, not replace them, for progress to be possible.
In her excellent article, law professor Tanya Hernández homes in on the proliferation of DEI programs as a response to the racism that has become increasingly difficult to deny following the unjustified police killings of George Floyd and other Black men and women. As the Black Lives Matter movement surged, organizations and corporations loudly professed their commitment to DEI and doing (or at least appearing to do) the right thing in a climate where so much was evidently wrong. Although their quality and efficacy vary, these programs still attract the ire of those who claim they promote unfairness and discrimination against white people, whom they characterize as the true victims of racism in an overly sensitive era. Sociologist Tressie McMillan Cottom aptly describes this unfounded perception as “race fantasy.” Continue reading "Resuscitating DEI: Using CRT to Breathe Life Back into Diversity, Equity and Inclusion"
