Oct 8, 2025 Andrea KatzConstitutional Law
Christine Kexel Chabot,
Rejecting the Unitary Executive, __
Utah L. Rev. __ (forthcoming, 2025), available at
SSRN (Sept. 21, 2024).
It’s no secret that the President is having a great run in court. Over the last two decades, the Roberts Court has protected the office from legal process; built out presidential control over foreign affairs, national security, and the hiring, firing, and oversight of officers; and recently hinted it would go further by extending the president’s power to independent agencies. Behind these cases lurks the theory of the unitary executive, which reads the Constitution to give the President far-reaching powers over the executive branch, including the power to fire officers at will. First advanced in modern form by lawyers in the Reagan administration, the theory inspired a generation of originalist scholars who claimed it as an authentic account of the Framers’ thought. Since then, scholars have sharply pushed back, pointing out that the theory is anachronistic, an overreading of the text, and contradicted by early American history and practice. Despite the controversy, the Roberts Court, untroubled, continues to apply it.
Enter Christine Kexel Chabot’s forthcoming article Rejecting the Unitary Executive, which poses the provocative question: What if we required proof that the Founding generation actually believed in a unitary executive? Rejecting does just that, with illuminating results. Applying philosopher Karl Popper’s theory of empirical falsifiability to the realm of legal history, Professor Chabot subjects unitary theory to a rigorous test. In her words, the theory’s main claim is that Continue reading "Falsifying the Unitary Executive: Popperian Empiricism and History’s Uses and Misuses"
Oct 7, 2025 Margaret KwokaAdministrative Law
Jonathan David Shaub,
White House Inspection, 103
Wash. U. L. Rev. __ (forthcoming 2026) available
at SSRN (Feb. 25, 2025).
Allegations of illegality—sometimes quite serious in nature—are, sadly, no stranger to the presidency. Nearly every recent President has faced some sort of scandal and attendant inquiry. They all sound familiar. Obviously, there is Nixon’s benchmark Watergate scandal. But then there is also the Iran-Contra affair of Reagan’s presidency. Clinton’s extramarital activities. George W. Bush’s involvement in outing Valerie Plame as an undercover CIA officer. Biden’s personal possession of classified documents. Trump’s involvement in the January 6 attacks on the Capitol. Safe to say, these matters show no sign of abating. The theater of investigations that follow these scandals is also familiar, all promising some version of accountability. Special prosecutors are appointed. Inquiries are launched. Grand juries are sometimes convened. Congress may even bring articles of impeachment or hold an actual impeachment trial.
But the political fight often focuses on the investigation itself. Claims of executive privilege prevent access to key documents, allegations of partisanship color the investigations, and constitutional constraints abound, all while accountability remains elusive. In an incredible read and a fantastic example of one of my favorite forms of scholarship, Professor Jonathan Shaub sketches a vision for reforms that parts the muddy waters of our current practices and shows us a practical and meaningful path to accountability at the highest levels of the executive branch. Indeed, the best part of Professor Shaub’s vision, laid out in White House Inspection, is that he divorces the trickier consequences—actual enforcement or legal peril—from the kind of accountability that frankly has often had greater effect, the watchful eye of an independent party empowered to inspect the actions of the President. Continue reading "Informational Accountability for the President"
Oct 6, 2025 Kenneth W. SimonsTorts
Emad H. Atiq,
The Disaggregated Hand Formula, 114
Cal. L. Rev. __ (forthcoming 2026), available at
SSRN (Mar. 1, 2025).
The Learned Hand test is both famous and infamous. The main source of its fame is the law and economics movement, which drew attention to the test in the 1970’s. According to Richard Posner and other scholars in that movement, the test is both a descriptively accurate account of how legal fact-finders understand negligence, and a normatively attractive account of why tort law imposes liability for harms caused by negligence—namely, to promote efficiency and minimize the aggregate costs of precautions and the harms that precautions could avoid.
But the Hand test is also infamous. The test provides that an actor is negligent just in case the burden of taking a precaution (B) is less than the probability of the harm that the precaution would have avoided multiplied by the severity of that harm (PxL). Critics protest that the test is not an accurate account of how the law defines negligence. And more fundamentally, they object that treating this formula as the test of negligence is normatively objectionable, indeed abhorrent. If the burden is only slightly more than the expected harm (the harm’s severity discounted by its probability), the formula declares that the actor may freely impose the risk without fear of tort liability if the risk generates harms–even very serious harms–to others. Continue reading "Does the Hand Formula Express Efficiency or Justice? Or Both?"
Oct 3, 2025 Sachin S. PandyaWork Law
Elizabeth C. Tippett & Jamillah B. Williams,
Misjudging a Reasonable Jury: Evidence that Courts Dismiss Meritorious Harassment Claims, available at
SSRN (May 7, 2025).
How often and why do judges erroneously conclude, in Title VII harassment cases, that there isn’t enough for a reasonable jury to find that the plaintiff suffered “severe or pervasive” enough harassment for Title VII liability? These questions are not easy to answer. No one can directly observe the counterfactual, i.e., how a jury would have ruled had the case gone to trial. And if deciding what a “reasonable” jury might do requires inferring what most juries, or a jury under ideal conditions, would do, then judges could still be good forecasters even if any particular jury would have gone the other way.
Enter Tippett and Williams with a study that provides serious leverage for answering these questions. They first sampled Title VII harassment case opinions in Westlaw between 1995 – 2019 (n = 81, mostly summary judgment motions) in which the court decided whether or not there was “an issue of fact on whether the conduct qualified as ‘severe or pervasive’” enough for a Title VII violation. In 53 of the 81 cases (65%), the court found that no reasonable jury could find that the conduct was severe or pervasive enough. (P. 19.) Continue reading "Deciding Whether A Reasonable Jury Would Find Harassment Severe or Pervasive Enough"
Oct 2, 2025 Kent D. SchenkelTrusts & Estates
Brian Galle, David Gamage & Bob Lord,
Taxing Dynasties, available at
SSRN (April 11, 2025).
“Only morons pay the estate tax.” That is a bit of hyperbole, of course, from Gary Cohn, the director of the National Economic Council during the first Trump administration. But those paying attention know that the federal transfer taxes don’t work very well. Instead, highly effective estate tax dodges pervade, and these techniques are particularly effective as applied to the largest estates. Brian Galle, David Gamage, and Bob Lord, in their paper, Taxing Dynasties, citing their own empirical study of data culled from the IRS, conclude that these taxes fail to reach at least $4.5 trillion of huge, family-controlled fortunes. And for this, they’ve proposed a meticulous, politically savvy, and technically brilliant prescription.
They point out that most of this $4.5 billion in transferred wealth is held in “dynasty trusts,” which are devices designed to escape wealth transfer tax for generations, if not permanently. Taxing Dynasties proposes an annual “withholding tax” on these trusts. It takes aim at trusts held by those “with more money than they can reasonably spend in a lifetime, the .01% richest citizens,” and would function as a minimum tax on those trusts. The authors’ proposal is not just an academic pipe dream. They are working with at least one Senator to devise legislation incorporating their ideas, which they expect to be introduced in Congress sometime in 2025. Continue reading "A Prescription for Taxation of Dynasty Trusts"
Oct 1, 2025 Natalie RamTechnology Law
- Andrew G. Ferguson, Digital Rummaging, 101 Wash. U. L. Rev. 1473 (2024).
- Andrew G. Ferguson, Everything-Everywhere Searches, _ G.W. J. of L. & Tech. _ (forthcoming), available at SSRN (Feb. 17, 2025).
Advances in digital surveillance technologies have posed difficult questions for Fourth Amendment doctrine. For instance, does the government need a warrant to install cameras on poles along a street to monitor who enters and exits homes? What if the government wants a list of all cell phones near a robbery scene at the time of the crime? Is the answer different if the government wants several days of data, but only about one person? What if the data comes from an app developer like Waze (or your flashlight app) or a smart home device like an Alexa, rather than a cell phone provider?
The Supreme Court has begun to address these issues in cases like Riley (barring warrantless cell phone searches during arrest) and Carpenter (requiring warrants for long-term cell phone location data). But as Andrew G. Ferguson argues in two recent articles—Digital Rummaging and Everything-Everywhere Searches—Fourth Amendment doctrine has nonetheless not kept pace with the scale of digital surveillance. In a turn to history that may prove particularly persuasive to constitutional originalists, Ferguson argues that the Founding generation’s objections to “rummaging” through general warrants provide an appropriate guiding principle for constraining surveillance in the digital age. Continue reading "Rummaging Rebooted"
Sep 30, 2025 Susan MorseTax Law
Marilyn Hajj,
Waiter, Extra Tip, No Tax: A Distributional Analysis, 33
Geo. J. on Poverty L. and Pol’y __ (forthcoming, 2026), available at
SSRN (Feb. 1, 2025).
In Waiter, Extra Tip, No Tax: A Distributional Analysis, Marilyn Hajj offers a poverty law take on a classic and timely tax question: the taxation of tips. Her refreshing article avoids tax law’s knee-jerk opposition to a tax break for tips by offering an analysis that advocates for redistribution to low-income tipped workers. Although she does not give the tip tax breaks in the recently enacted One Big Beautiful Bill Act glowing marks, she explains that the new law would be preferable to the earlier status quo if it were better targeted and more accessible to low-income workers.
Hajj begins with the story of tipping, which traces to the “vails” expected by household staff at English homes in the 1700s. American tipping “seems to have originated in the traveling aristocracy.” After the Civil War, it developed into a custom of class and race bias. Hajj writes that Black workers in service jobs, for instance at restaurants or as railroad porters, received lower wages, and that employers used tips to justify this. The hospitality industry successfully defeated anti-tipping statute statutes; initially obtained an exemption from the federal minimum wage; and continues to take advantage of a “tip credit” rule that results, in some states, in an hourly minimum wage of $2.13 for tipped workers. Of tipped workers, 37% do not make enough to owe any income tax and 11.3% experience poverty, which is more than double the rate for non-tipped workers. Continue reading "Taxing Tips Is Not Just About Tax Law"
Sep 29, 2025 Serena WilliamsProperty
When teaching property law, professors often reference the historical distinction between the freehold estate and the nonfreehold estate. The nobles held the freehold estates; the peasants held the nonfreehold estates.
Thus, “from the beginning, the nonfreehold estate was seen as less important and less prestigious than the freehold estate.” Because the landlord/tenant relationship evolved from the nonfreehold estate, one might deduce that tenants are “less important and less prestigious” than property owners and thus, are less deserving of legal protections than owners of a fee simple. Continue reading "Freeing the Nonfreehold Estate: Climate Change and Tenant Protections"
Sep 26, 2025 Felix MormannLexEnergy Law
It is all but impossible for government to adopt industrial policies and regulations without creating winners and losers. The Obama administration’s support, for example, turned Tesla, SolarCity, and other cleantech ventures into regulatory winners, while its “war on coal” relegated fossil fuel companies to regulatory losers. The first Trump administration sought to reverse this trend by dialing back clean energy policies and using emergency powers to prop up the nation’s ailing coal industry. And the regulatory pendulum has continued swinging back and forth during the Biden presidency and under Trump 2.0. When changes in policy and regulation interfere with corporate interests, regulatory losers are quick to call foul and demand compensation for their regulatory burdens. But what about those who find themselves on the losing end not by virtue of regulatory activism and change but, rather, due to a persistent lack of regulation? In his excellent new article, Compensating Regulatory Losers, professor Todd Aagaard asks this provocative question and develops thoughtful answers drawing on case studies from climate and energy regulation, among others.
A robust literature grapples with the question of whether and when regulatory losers deserve to be compensated. Some have attempted to frame and answer this question based on the welfare impacts of regulation, while others have turned to (other) notions of fairness in search of answers. Some scholars advocate for replacing regulation-specific compensation with more comprehensive redistribution programs carried out via income taxes. Libertarian entitlement theorists, meanwhile, argue that regulatory losers should be compensated when their reliance expectations are thwarted by changes in regulation. And if fairness arguments do not sway you, leave it to economists to reframe the debate along Pareto and Kaldor-Hicks efficiency metrics. Continue reading "Should Government Pay Victims of Regulatory Inaction?"
Sep 25, 2025 Eli WaldLegal Profession
According to the American Bar Association Model Rules of Profesisonal Conduct, a lawyer is “a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” As Deborah Rhode has astutely pointed out, however, lawyers’ duties as public citizens have long been more of a rhetorical ploy than an actual commitment, in need of elaboration and exposition. In the twenty-first century, lawyers have been forced to come to terms with their asserted role as public citizens in the face of the #MeToo and the Black Lives Matter movements, reform calls for the deregulation of the legal profession designed to increase access to legal services for those who cannot afford to pay for them, and attacks on the rule of law. Professor Robert Katz’ new casebook, Antisemitism and the Law, constitutes an important contribution sure to help those aiming to understand the obligations of lawyers to pursue justice and combat discrimination.
Antisemitism and the Law is organized thoughtfully and effectively. It begins with two introductory sections. Part I lays out a legal foundation, introducing anti-discrimination law and explaining, in particular, how laws designed to combat racial discrimination against non-whites have gradually been construed to apply to groups not defined by race, such as Latinos and Jews. Part II then turns to antisemitism or anti-Judaism by exploring the meaning and definition of Jewish identity, namely who is Jew, from both Jewish and non-Jewish perspectives. It establishes that Judaism is a religion with cultural and ethnoreligious underpinnings, but not a racial category. Read together, Parts I and II compellingly show why legally (as opposed to by other means—more on that below) antisemitism could and should be addressed by vigorously enforcing anti-discrimination laws. With these fundamental building blocks in place, Part III and IV, respectively, study antisemitic speech and antisemitic activities as well as legal responses to them. Part V concludes on a high note of sorts, studying secular and religious allies, their relevance, and importance in the ongoing battle against antisemitism. Continue reading "Law, Lawyers and the Battle Against Antisemitism"
