Oct 22, 2025 Barbara LevenbookJurisprudence
A philosophical anarchist believes that law cannot obligate. That means that it cannot impose a genuine obligation, which is a special kind of reason for action. In this article, Kenneth Ehrenberg makes the case that three popular theories about law, legal authority, or practical reason commit their proponents to philosophical anarchism. Though explicitly his discussion is limited to the three, there is enough in his arguments to show that it’s very difficult to avoid philosophical anarchism in your theory about authority, reason-giving, or the normativity of law. If you think that law’s reason-giving force comes ultimately from some non-legal source, you’ve embraced this form of anarchism.
Readers will not be surprised to learn that those who deny that law has practical authority, insisting instead that its authority is only theoretical, are philosophical anarchists. They acknowledge that law cannot create novel reasons for action. It follows that law cannot create obligations, either. It only provides reasons for belief. The big surprise is that natural law theory of the Mark Murphy variety falls into this category. The appeal of such a theory has long been that it vindicates the law’s normative language of rights and obligations. It does so by vindicating the intuition, held by many, that legal rights and obligations are real rights and obligations, and thus, genuine reasons for action. It might seem, then, that law – that is, human or positive law — creates such reasons. But Ehrenberg makes a persuasive case that, given the standard natural lawyer commitment to the unity of value, any genuineness in the obligation stems from pre-existing or background principles (of the natural law, of reason, or directly from God). (Positive) law does not, then, generate genuine reasons for action; and so, it cannot obligate. Something else is doing the work. Continue reading "How to Be an Anarchist Without Really Trying"
Oct 21, 2025 Alexandra RobertsIntellectual Property Law
What do CHEROKEE cars, the Atlanta Braves baseball team, and Urban Outfitters’ “Navajo” panties have in common? All are examples of brands and teams adopting Native American tribal names, terms, and stereotypes as their trademarks. What does that practice reflect about the complex relationship between trademark law and native peoples?
In Tradition Is a Trap, Professor Jessica Kiser argues that US trademark law has been, and remains, ineffective and biased when it comes to acknowledging, let alone protecting, the interests of Native Americans as individuals and as a people. Kiser’s article examines how trademark law has treated Native American tribal names and culture, including through application of the Lanham Act’s former bar on registration of disparaging marks, its prohibition on the registration of trademarks that falsely suggest a connection with institutions, and its standards around rights acquisition. It builds on and contributes to other important work in Critical Race Theory, Decolonial Theory, and Race/IP fields. Continue reading "Have Tribes Been Robbed by Trademark Law?"
Oct 20, 2025 Rosalind DixonInternational & Comparative Law
In her important new book, The Failures of Others: Justifying Institutional Expansion in Comparative Public and International Law, Michaela Hailbronner turns her attention from constitutional transformation to its absence, or from the idea of large-scale, successful constitutional change to that of “Institutional failure … as a shorthand for a range of other terms such as policy or state failure, dysfunction and state failure, dysfunction, and structural or systemic deficits.” (P. 3.)
Institutional failure, Hailbronner argues, has been a focus of other disciplines such as economics and public policy for a long time—but lawyers, she suggests, are “as usual, late to the party.” (P. 3.) This is an omission to be rectified: By paying attention to discourses around institutional failure, we gain new insights about public understandings, “relationships and institutional self-perception.” (P. 5.) With a focus on institutional failure, new justifications for the expansion of institutional authority or action likewise come into view. This is true, Hailbronner suggests, whether those arguments are made explicitly or implicitly: the choice surely depends on who is talking and in what context. Continue reading "Arguments from Failure: A New Theory of Judicial Review and Restraint"
Oct 17, 2025 Tom SimmonsLexElder Law
Nina A. Kohn,
Ageless Law, __ N. Cal. L. Rev. __ (forthcoming 2026), available at
SSRN (April 24, 2025).
Since 2022, voters in both Nevada and New York have overwhelmingly approved state constitutional amendments characterizing age as a protected class. As a result, a host of age-based policies and practices may soon become legally impermissible there. If the enactments in those states are part of a trend, the scrutiny on classifications based on adults’ chronological age will only intensify.
Nina Kohn’s Ageless Law ought to be required reading for any Elder Law class. It constructs a comprehensive intellectual scaffolding on which all the different sorts of age-based classifications and justifications thereof are strung. “Policies that differentiate based on older age are so common in modern America that they are often treated as unremarkable,” (P. 7) she observes. Excavating that which may have become unremarkable is an important and often overlooked academic enterprise. Professor Kohn undertakes this enterprise with remarkably sensitive concision. Continue reading "Calibrating the Convenience and Constitutionalism of Chronological-ism"
Oct 16, 2025 Trudo LemmensHealth Law
Internationally, pressure to legalize or expand euthanasia and assisted suicide is mounting, primarily in industrialized countries. France and the UK are two major jurisdictions that are currently considering legislating some form of what is now often referred to as “assisted dying.” Amid the UK debate on a private member’s assisted suicide bill currently before the House of Lords, Jennifer Hardes Dvorak’s recent article, Is Assisted Dying Really A Matter of Medical Regulation?, raises crucial—yet often overlooked—questions related to the role of medicine: Should assisted suicide and euthanasia be regulated as medical practices? What are the implications of involving medical professionals?
Dvorak offers a nuanced analysis—grounded in empirical evidence from existing regimes—of the problems with medical models of ‘assisted dying’. These are models in which physicians (and in some countries also nurses) play an essential role as prescribers, or as those providing a lethal injection, and in which medical criteria determine whether a person obtains access. She also discusses whether what is often treated as a ‘demedicalized’ model, like Switzerland, where assisted suicide is organized by volunteer organizations with only a limited role for physicians, offers a better approach. Her paper presents a balanced review of regulatory approaches and highlights the complexities of interpreting evidence in this polarized debate. The paper makes a compelling argument about the challenges with medical models of assisted dying, while also acknowledging that a demedicalized system of legalized assisted dying is not unproblematic. Continue reading "The Dangers of Regulating Inducing Death as a Medical Practice"
Oct 15, 2025 Erez AloniEquality
Legal scholarship has long grappled with how to name and remedy discrimination that doesn’t fit neatly into existing legal and conceptual frameworks. We have robust vocabularies for overt bigotry, implicit biases, and increasingly nuanced understandings of microaggressions—those subtle slights that accumulate from interpersonal to structural harm. But what about the moments when someone refuses to use another’s pronouns—not with hostility, but with a shrug? When they double down, explaining they’re “not wired that way,” or that recognizing someone’s genderqueer identity is simply “asking too much”? What happens when misrecognition isn’t hidden, but rather is framed as ordinary, reasonable—even inevitable?
In their revelatory article, Blasé: Deviant Lawyers and the Denial of Discrimination, Swethaa Ballakrishnen names this under-theorized dynamic through interviews with sixty law students and early-career legal professionals from marginalized groups. Ballakrishnen calls it blasé discrimination: a form of bias that arises when emerging or less institutionally legible identities—such as nonbinary gender—are dismissed not as wrong, but as irrelevant. This is not discrimination that hides, but discrimination that shrugs. The harm lies in the casualness of erasure—where certain forms of difference are brushed aside as too trivial or inconvenient to matter. Ballakrishnen traces how identity categories in flux become especially vulnerable to denial. Continue reading "Ordinary Denials: The Shrug of Identity-Based Harm"
Oct 14, 2025 Eric J. MillerCriminal Law
Ekow Yankah’s article, Deputization and Privileged White Violence, makes a stark claim: every state and territory in the United States has a legal-power-conferring norm enabling “violence aimed at racial minorities, particularly Black people, by White people who, as private citizens, take themselves to be innately authorized to police racial minorities.” (P. 709.) He calls this legal authority “deputization.”
Yankah’s article is a work of conceptual-normative criminal law theory. His claim is that deputization is a normative feature of our society, and as such “not easily amenable to empirical verification.” (P. 715.) His methodology is therefore one of “philosophical reconstitution” of the concept of deputization as a “sociologically and historically embedded” legal power. Nonetheless, he wants us to take this claim head on: he really means that deputization is a currently-existing legal norm empowering white people to police Black people using violence to seize Black people they think are dangerous, including by using deadly force. Deputization, Yankah claims, is legal in every jurisdiction in the land. Worse, because that private policing norm is available only to white people it is, in part, constitutive of what it means to be a white person in the United States. Continue reading "The Hidden Customary Criminal Law Endorsing Civilian Acts of Anti-Black Violence"
Oct 13, 2025 Fred O. Smith, Jr.Courts Law
Curtis Bradley & Tara Leigh Grove,
Disfavored Supreme Court Precedent in the Lower Courts, __
Va. L. Rev. __ (forthcoming 2026), available at
SSRN (Dec. 6, 2024).
Sometimes the Supreme Court overrules prior precedents with unmistakable clarity. Think Dobbs overruling Roe. (“We hold that Roe and Casey must be overruled.”) Or Lawrence overruling Bowers. (“Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”) But other precedents die slower deaths, creating a doctrinal twilight zone where lower courts must apply decisions the Supreme Court has undermined without formally overruling. Curtis Bradley and Tara Leigh Grove tackle this judicial limbo in their forthcoming article, asking how lower courts should handle precedents that are neither dead nor fully alive—and what this uncertainty means for a legal system that depends on clear hierarchical commands.
The most common approach to navigating the twilight—which the Supreme Court has repeatedly endorsed—mandates that lower courts treat Supreme Court precedent as fully authoritative regardless of subsequent signals suggesting its demise. As the Court stated in Rodriguez de Quijas v. Shearson/Am. Express, Inc. (1989) and reaffirmed in cases such as Agostini v. Felton (1997): “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Continue reading "Killing Precedent Softly"
Oct 10, 2025 Charles O'KelleyCorporate Law
Zohar Goshen, Assaf Hamdani, & Dorothy Lund,
Fixing MFW: Fairness and Vision in Controller Self-Dealing, __
Harv. Bus. L. Rev. __ (forthcoming), available at
SSRN (Dec. 17, 2024).
In the past 24 months, Delaware’s place as state-corporation-law hegemon has undergone sustained hurricane-force blowback from Court of Chancery and Supreme Court decisions and subsequent legislation, which have shattered the long-standing belief that for most publicly-traded firms, the benefits of incorporating in Delaware exceed the costs, including the costs and risks of stockholder litigation. At the center of Delaware’s existential crisis are the Court of Chancery decision in the Tornetta litigation rescinding Elon Musk’s $57 billion compensation package, the Supreme Court decision in the Match litigation extending MFW to all controlling-shareholder-conflicted transactions, and the Delaware legislature’s February 2025 enactment of Senate Bill 21 in reaction to those and related judicial decisions. Fundamental to a meaningful critique of these cases and Senate Bill 21 is an under-the-radar question: how should entrepreneur-influenced or entrepreneur-controlled transactions and decisions fit in a value-optimizing theory of the business judgment rule? Focus on this question, and the nature and role of the entrepreneur have largely been missing from scholarly commentary. A much-needed antidote is now available in a provocative forthcoming article, Zohar Goshen, Assaf Hamdani, and Dorothy Lund, Fixing MFW: Fairness and Vision in Controller Self-Dealing (hereinafter “Fixing MFW”), available at SSRN and forthcoming in the Harvard Business Law Review.
While Fixing MFW’s title suggests a focus only on controller self-dealing, its actual focus is much broader, including, as its poster child, Elon Musk, a quintessential entrepreneur whose stockholding would not treat him as a controlling stockholder under the safe harbor provided by Senate Bill 21. In other words, a central concern of Fixing MFW is how the business judgment rule should apply whenever a powerful entrepreneur, whether a controlling stockholder or not, receives non-ratable benefits in a transaction with the corporation. Such transactions would include the compensation package Musk received from Tesla, or the merger of Musk’s energy company, SolarCity, into Tesla. As Fixing MFW convincingly demonstrates, these transactions should be analyzed similarly, whether Musk falls within the governing understanding of a controlling stockholder or not, because they both involve the insolvable problem of what the authors call “idiosyncratic value.” Continue reading "Understanding The Nature and Role of The Entrepreneur and Entrepreneur-created Value in Theorizing The Business Judgment Rule"
Oct 9, 2025 Eboni NelsonContracts
Although often eclipsed by the prominence of large companies, small businesses play a critical role in helping to grow our economy. Their size, market footprint, resources, experience, and sophistication levels are as varied as the goods and services they provide. In her thought-provoking article The Small Business Dilemma, Professor Rachel G. Ngo Ntomp argues that contract law fails to take these variances into account when considering the contractual relationships between small businesses and other companies. She asserts that small businesses can find themselves caught in a catch-22 by being perceived and treated as “big fish” in dealings with both consumers and businesses when, in fact, they are “small fish” when contracting with companies with more resources and often more bargaining power. Considering that this bargaining power imbalance can result in unfair terms that harm small businesses, Professor Ntomp convincingly draws upon U.S. and international law to advocate for proposals including “a reformulation of the unconscionability doctrine under Section 2-302 of the UCC [Uniform Commercial Code] to provide a fairer and more equitable treatment of small businesses in their contractual relations with larger entities.”
Professor Ntomp situates the issue of small business protection within the broader context of consumer protection. She notes that the weaker party rationale for protecting consumers in contractual relationships is rarely applied to small businesses when they engage in commercial dealings with other businesses even though many small businesses find themselves in vulnerable positions with a lack of bargaining power similar to consumers. Continue reading "“Consumer” Protection for Small Businesses"
