Sep 24, 2025 Sara MayeuxLegal History
Joseph Blocher & Brandon L. Garrett,
Applying History as Law: The Role of Historical Facts in Implementing Constitutional Doctrine, 104
Tex. L. Rev. __ (forthcoming 2026), available at
SSRN (Jan. 16, 2025).
In New York State Rifle & Pistol Ass’n., Inc. v. Bruen, 597 U.S. 1 (2022), the Supreme Court instructed lower courts to apply a “history and tradition” test when evaluating the constitutionality of gun laws. For example, if considering an age limit on gun possession, the court must determine whether states imposed sufficiently analogous age limits in the past. Since Bruen, I have occasionally received inquiries from trial lawyers around Tennessee. Inevitably they have a looming deadline and need a legal historian to help out with a gun case, and inevitably I have to decline. I can understand why my name might pop up in a Google search: I live in Tennessee, I teach constitutional law (including cases like Bruen), and I’m a legal historian by training. But I don’t have any particular expertise in the history of gun laws, at least not as historians define expertise (i.e., years of immersion in the relevant primary and secondary sources).
When reading Joseph Blocher and Brandon L. Garrett’s forthcoming article, “Applying History as Law,” I realized my experience illustrates a larger phenomenon: “In the wake of Bruen, it quickly became apparent that the number of historians who seriously study gun laws is actually quite small; it would be impossible for them to serve as experts in every case, even if the litigants consistently had adequate resources to retain them.” (P. 46.) Continue reading "How Should History Be Put on Trial?"
Sep 23, 2025 Jeffrey PojanowskiJurisprudence
Intentionalism in contemporary legal interpretation is unloved, at least in my United States. Textualists, purposivists, and dynamic interpreters disagree on much, but they tend to agree that any rich form of legislative intent is not a proper—or even possible—quarry for readers pursuing a statute’s legal meaning. At most, they will concede that legislative authors have the minimal intent to make law when voting on the authoritative text.
Yet a moment’s reflection raises worries about this consensus. Intentionalist legal and literary theorists contend, with plausibility, that all texts presuppose a communicating author; that is why you regard what you see on your screen as words, rather than stray marks that happen to fall into an uncannily familiar pattern. If that is so, and if legislative intent is out of bounds, we are either following statutes that have no author or whose authorship is attributable to the interpreter (who constructs the reasonable reader of legal English, the reasonable person pursuing reasonable purposes reasonably, or the chain novelist who makes the law the best it could be). Invoking authorless texts to impose damages, fines, jail, or death sentences is troubling. Treating the interpreter as the re-author, by contrast, raises worrisome problems about separation of powers and legislative supremacy. Hence, a kind of transcendental argument for the necessity of legislative intent.
But wishing does not make it so, and intention-skeptics have marshalled an army of arguments against legislative intent. We can stylize intentionalist challenges in three ways: (i) a “many minds” problem, which makes it hard, if not impossible, to aggregative individual legislators’ intentions around a particular problem; (ii) a “one mind” problem of attributing a single, intending subject somehow wafting up from the collective group like a Hegelian mist; and (iii) a “no mind” problem, when it is likely that nobody in the legislature even considered a particular question. So, are we at an impasse?
Perhaps, but perhaps not. Enter Stephanie Collins (Monash University), David Tan (Deakin University) and their 2024 article Legislative Intent and Agency: A Rational Unity Account. (When you consider Australian academics Professors Collins and Tan alongside Richard Ekins (a Kiwi at Oxford), Jeffrey Goldsworthy (Monash), and Philip Pettit (once a longtime professor at Australian National University), it appears that the Antipodes are quite the hotspot for sophisticated theorization about legislative intention and group agency.) Continue reading "Rethinking Legislative Intent"
Sep 22, 2025 Graeme DinwoodieIntellectual Property Law
Michael Goodyear,
Common Law Notice-and-Takedown, __
NYU J. Intell. Prop. & Ent. L. __ (forthcoming), available at
SSRN (April 25, 2025).
As Michael Goodyear notes in Common Law Notice-and-Takedown, immunity for online platforms is very much on the legislative agenda after many years of relative stability. Politicians from the left and right in the United States have reacted for ostensibly different reasons to the surfeit of misinformation online by suggesting that existing statutory regimes that provide (conditional) immunity for platforms need revisiting. But elimination or modification of specific statutory safe harbors for platforms will not of itself render platforms liable for the sins of their wrongdoing customers.
Instead, that will turn on whether a platform’s conduct falls within existing causes of action, most likely (but perhaps not exclusively) under theories of secondary liability. Indeed, even complete elimination of statutory safe harbors will not signal the end of notice and takedown systems. The roots of notice and takedown in the copyright context can be found in Judge Whyte’s 1995 Netcom decision, which to some extent was implemented three years later in greater detail by the Digital Millennium Copyright Act (DMCA). Continue reading "The Future of Notice and Takedown?"
Sep 19, 2025 Hoi KongInternational & Comparative Law
Erin Delaney’s Mapping Power: Constitutionalism and Its Colonial Legacy provides a novel and compelling conceptual framework for thinking about the relationship between constitutionalism and colonialism. Professor Delaney labels this framework “coercive constitutionalism” and situates it in a body of comparative scholarship that (1) calls for constitutional law to be decolonized (P. 385) and (2) understands decolonization to be an ongoing process, rather than a “once-off political event marked by physical withdrawal of the colonial administration.” (Justin Ngambu Wanki & Carol C. Ngang, Unsettling Colonial Paradigms: Right to Development Governance as Framework Model for African Constitutionalism, 18 Afr. Stud. Quart. 67, 67 (2019), quoted at 385.)
As is appropriate for a text that appears in a collection honoring Mark Tushnet, Delaney draws on aspects of Tushnet’s scholarship to develop her framework. First, she invokes Tushnet’s “understanding of law as power and social structure” (P. 386) and its attendant methodology of rich description. Second, she adopts an approach that Tushnet labelled “adjectival constitutionalism,” which seeks to identify various kinds of constitutionalism, rather than accepting that “liberal constitutionalism simply is constitutionalism.” (Mark Tushnet, Editorial, Varieties of Constitutionalism, 14 Int’l J. Const. L. 1 (2016), quoted at 387.) These two aspects of Tushnet’s scholarship inform how Delaney develops the idea of coercive constitutionalism. Continue reading "Coercive Constitutionalism: Between Agency and Coercion"
Sep 18, 2025 Amy MonahanHealth Law
Wendy Netter Epstein & Christopher T. Robertson,
Can Legal Knowledge Save Lives? A Randomized Experiment in Preventative Health Screenings, available at
SSRN (June 25, 2025).
Despite the Affordable Care Act’s fifteen-year-old mandate for full coverage of preventive care, potentially life-saving cancer screenings remain persistently underutilized. In Can Legal Knowledge Save Lives? A Randomized Experiment in Preventive Health Screenings, Professors Christopher Robertson and Wendy Netter Epstein delve into this critical health policy puzzle and present the results of a survey that aims to uncover the extent to which ignorance about the legal requirement for free preventive care contributes to underutilization and whether experience with medical debt might also play a role.
The literature has long established that individuals in the United States receive recommended cancer screenings at suboptimal rates and that cost concerns play a role in that outcome. The ACA’s preventive care mandate was explicitly designed to address this piece of suboptimal utilization by removing cost from the equation. It is doubtful that free coverage would entirely remove barriers to care, as the screenings themselves often come with some discomfort and inconveniences. Yet, it is crucial for lawmakers and health policy stakeholders to understand whether and to what extent law can help move patients toward optimal utilization by examining the extent to which individuals covered by health insurance actually understand the coverage terms that might influence their care decisions. Continue reading "Preventive Care Utilization and Health Insurance Literacy"
Sep 17, 2025 Aníbal Rosario-LebrónFamily Law
Clare Ryan,
The Public/Private Home,
110 Cornell L. Rev. __ (forthcoming 2025), available at
SSRN (August 10, 2024).
This past June, when the Supreme Court delivered its opinions in United States v. Skrmetti and Mahmoud v. Taylor, it entered a new era in the weaponization of rights against sex, sexual orientation, and gender identity and expression (SSOGIE) equality. In this new era, the Court is advancing its anti-equality agenda by co-opting parental rights to the detriment of minors’ wellbeing and autonomy. It did so by ruling on parental rights in Mahmoud while pointedly refusing to engage them in Skrmetti, thereby reinforcing the law’s entrenched treatment of children as property. To understand how this new weaponization emerged, how its advancement can be halted, and how children’s rights can be advanced, it is indispensable to examine the theoretical foundations and shifts in the doctrine of parental rights that have led to its current form. Clare Ryan’s The Public/Private Home precisely provides such a framework.
Ryan’s forthcoming piece in the Cornell Law Review calls for reexamining the concept of family autonomy and privacy and its derivative doctrine of parental rights in light of the profound transformations in contemporary family life. She argues that the assumptions underpinning the public/private divide that shaped these doctrines no longer hold as they do not reflect lived reality. Ryan highlights that the law’s assumptions regarding where the provision of public goods falls on the family/public dichotomy have been subverted by family practices that have moved many activities, such as work, schooling, and healthcare, into what the law still considers the private sphere and vice versa. For instance, on the other side of the spectrum, through social media platforms, homes have become sites of intense surveillance, data collection, and profit by making private life more visible to the public, including the state. Such transformations, Ryan contends, have profound implications for the doctrine of parental rights. Continue reading "Blurring the Boundaries of the Public/Private Home in the Era of the Weaponization of Parental Rights"
Sep 16, 2025 Natsu Taylor SaitoEquality
Enslaved Africans occasionally poisoned those who abused them. As legal scholars, how do we process this? You may have jumped, as I did, to drafting a mental list of legal justifications that could apply in a poisoning case. Or you may have assumed, as I did, that such legal defenses would be the focus of Angi Porter’s analysis in her new article “POISON! An Africana Legal Studies Investigation into Enslaved Africans and their Deadly Roots.” In fact, however, Porter, an assistant professor at American University’s Washington College of Law, does something wildly, brilliantly, courageously different.
POISON! moves outside of the framework of the enslavers and their legal system to assess the use of poisons by enslaved Africans from the perspective of indigenous African governance. With this shift, Porter confirms that the emergence of Africana Legal Studies brings us a new methodology, not just an expansion of the subject matter at hand. Utilizing her meticulous research on poisonings, the knowledge held by African healers, and what she terms the governing Protocol of West African Akan speakers, Porter helps us see that these enslaved Africans may best be understood not as individuals forced to act in self-defense but, instead, the enforcers of a collective Protocol that governed and protected their communities. Continue reading "Roots of Freedom"
Sep 15, 2025 Mila SohoniAdministrative Law
Looming over our law, or lurking beneath it, are theoretical frameworks that guide how we think about it. With respect to administrative law, there are two such influential frameworks that will immediately spring to mind and that share much in common: originalism and cost-benefit analysis.
What? Readers might already be scratching their heads. This strange pairing would seem to be worlds apart. Originalism is the stuff of lofty theory and founding-era history and hard-fought debates concerning the nature of fundamental rights and the separation of powers. Cost-benefit analysis, in contrast, is the stuff of pocket protectors and green eyeshades and hard-fought debates concerning discount rates and valuations. Originalism is for lawyers; cost-benefit analysis is for economists. But as Professors Jonathan Masur and Eric Posner demonstrate in a recent article, The Common Political Foundations of Originalism and Cost-Benefit Analysis, the two have more kinship than meets the eye. Continue reading "Twins Separated at Birth"
Sep 12, 2025 Maartje van der WoudeCriminal Law
Legal scholars in the United States may be tempted to see the British immigration system as distant or parochial, marked by its own bureaucratic idiosyncrasies and Commonwealth-era legacies. But Mary Bosworth’s Supply Chain Justice makes clear that this is a mistake. This searing ethnographic analysis of immigration detention in the United Kingdom reveals not just a national policy architecture, but a global paradigm of border enforcement—one that resonates powerfully with ongoing developments in the United States.
At its heart, Supply Chain Justice is a meditation on outsourced state power: what happens when liberal democracies turn over core functions—especially the coercive task of incarceration—to private corporations, acting under performance-based contracts with limited oversight and diffuse responsibility. Bosworth uses the concept of the “supply chain” to describe the web of public and private actors—guards, managers, administrators, NGOs, civil servants—who collectively operate the UK’s immigration detention system. Continue reading "Outsourcing the Border, Outsourcing Justice"
Sep 11, 2025 Maureen CarrollCourts Law
Daniel Wilf-Townsend,
Deterring Unenforceable Terms, 111
Va. L. Rev. __ (forthcoming 2025), available at
SSRN (June 6, 2024).
Most of us (if not all) have entered a contract with one or more terms that a court would not enforce. From non-compete agreements in states that prohibit them, to leases that purport to limit the implied warranty of habitability, to waivers that disclaim liability for injuries resulting from the drafting party’s negligence, contracts containing clearly unenforceable terms have become ubiquitous. The usual remedy (such as it is) for the inclusion of such a term is for a court to decline to enforce it.
That remedy, Daniel Wilf-Townsend argues, is woefully inadequate. In Deterring Unenforceable Terms, he proposes to supplement it with “a general, affirmative prohibition on clearly unenforceable terms in contracts offered by a sophisticated drafter to large numbers of unsophisticated counterparties.” That proposal might seem bold, but over the course of the article, it starts to appear quite restrained. Continue reading "Should drafters be penalized for clearly unenforceable terms?"
