May 30, 2025 Jennifer ChaconCriminal Law
How is criminal law distinct from civil law? Standard criminal law textbook answers focus on the unique role of the state in criminal law. Violations of the criminal law are presented as actions that harm the state. The state is said to maintain a monopoly on punitive power and can deploy it in unique ways to redress these harms. In a democracy, the exercise of punitive state power purportedly channels the will of the people. These propositions are offered as justifications for the imposition of punitive sanctions that have no identical counterparts in the world of civil law, including imprisonment and even death.
Many of these fundamental propositions do not entirely hold up under close scrutiny. The state’s monopoly on punitive power has been heavily outsourced to private actors. The flaws of political and representative processes in the U.S. (and within U.S. states) mean that criminal law is an imperfect expression of the will of the people, with the result that criminal law often both mirrors and replicates the discriminatory impulses of political (and racial) majorities. Immigration detention and civil commitment both undercut the truism that incarceration is unique to the criminal context. But what of criminal prosecution? Should we understand it as the unique province of the government? Standard accounts, and decades of case law, tell us that the answer is yes. But in her immensely readable and engaging article The Past and Persistence of Private Prosecution, Emma Kaufman provides a different, and very intriguing, answer to that question. Continue reading "No Monopoly"
May 29, 2025 Hila KerenContracts
Rebecca Stone,
Putting Freedom of Contract in its Place, 16
J. Legal Analysis 94, available at
Oxford Academic (July 30, 2024).
A few years ago, Jody Kraus and Robert Scott argued that vindicating the sovereignty of parties who make contracts under free and fair conditions is “the most morally compelling explanation” for contract law’s allegiance to the parties’ ex ante intentions. They further claimed that judicial interventions on behalf of justice via ex post doctrines are thus erroneous and “cannot be justified.” Rebecca Stone refutes both points in her brilliant piece, Putting Freedom of Contract in its Place. She first contests the claim that morality is secured by the procedure of contracting under free and fair conditions. She then turns to disprove the claim that judicial ex post interventions “cannot be justified” by offering a powerful argument for setting limits on parties’ ability to control their relationship. Stone’s article puts freedom of contract in its place by no less than crafting a novel account of contract law—one called “the democratic conception.”
Stone develops the democratic conception of contract law by seeking a deeper justification for our lasting commitment to robust freedom of contract. To her, the mere vindication of sovereignty cannot suffice. Rather, freedom of contract is essential because when parties enter a contractual relationship, they face an inevitable normative uncertainty regarding what justice between them would require when challenges arise. Parties, therefore, have the freedom to use their agreement for the purpose of settling this normative uncertainty. Contract law, Stone argues, should respect their usage of this freedom “when and only when” it yielded mechanisms that reflect “plausible, good faith attempts to settle that uncertainty.” Continue reading "Contract Law’s Quest for Justice"
May 28, 2025 Robert RosenCorporate Law
This article explores “normative” agency cost theory. It does so by examining its most discussed prescriptions for making healthy corporations (empowered shareholders, monitoring boards, pay-for-performance, and the market for corporate control). Presenting very impressive evidence, the article concludes that the remedies prescribed don’t work either to minimize managerial self-dealing or increase returns to shareholders. Yet despite the evidence, these remedies are still being prescribed. Professor Tingle’s confrontation with that fact is a singular contribution. Until I read this article, I believed the response “agency cost theory is good, it just has been poorly implemented; the dosages just need adjusting.” Professor Tingle offers a different response, the incontestability of agency theory’s “seductive simplicity” (P. 60).
Tingle reveals that normative agency theory’s continuing power derives from it telling a tale of temptation and seduction that “seems uncontroversial” (P. 15). It provides an account of how self-interested and unrestrained agents would act if given the opportunity to cheat. Without evidence, it assumes that “managers are systematically disloyal” (P. 59). And this assumption is not testable. If corporations were run by monks, the successes of their corporations would confirm the theory, and if their corporations were unsuccessful, the monks would be revealed to be disloyal by how they were selected or by their ignorance (Pp. 10-11). Continue reading "Don’t be Seduced by Agency Cost Theory and its Tales of Managers and their Temptations"
May 27, 2025 Joseph SeinerWork Law
In More Accommodation, Less Technicality for Workplace Whistleblowers, Professor Craig Senn performs an excellent analysis of the vast array of federal whistleblower and retaliation laws. He engages in a much-needed deep dive into the distinctions between these laws and proposes a new standard for worker protections. Professor Senn appropriately critiques the coverage employees receive when blowing the whistle under these laws and proposes a well-considered alternative and unified approach to protect workers.
The law in this field is confusing, at best. The various federal whistleblower statutes are articulated differently and have been applied in many ways. Without sufficient protection for those who appropriately complain, the statutes can lose all meaning and impact. Indeed, workers will be chilled from blowing the whistle if their careers and employment hang in the balance. Over the years, many courts have applied rigid standards for gaining protection, often holding employees to overly high standards and expectations in their knowledge and understanding of the law and statutes. Continue reading "Whistleblowing, Revisited"
May 26, 2025 Allison Anna TaitTrusts & Estates
Masayuki Tamaruya,
Trust Law and Colonialism,
in The Oxford Handbook of Comparative Trust Laws (Adam S. Hofri-Winogradow et al. eds, forthcoming), available at
SSRN (Sept. 1, 2024).
Tethered to and inextricably linked with the absence or decline of democratic governance, there has always been empire. Empires rise and fall, as they say, but the imperial impulse is perennial and new iterations of old empires emerge with dismal regularity, showing us that imperial formations are hard to erase.
The relationship between empire and trust law is one that is gaining increased attention, particularly in the context of offshore financial centers and the inescapable historical force of British colonialism. Popular books like Butler to the World and, more recently, The Hidden Globe have brought the topic of colonialism into a wider conversation about wealth inequality and legal imperialism. Both historians and sociologists have dug into the subject, with excellent results like those of Vanessa Ogle and Brooke Harrington. And legal scholars are also joining the conversation, talking about colonial aftermaths and the ghosts of colonialism that persist in our systems of wealth transfer.
A new contribution to the literature—and our understanding—of trust law and colonialism is Masayuki Tamaruya’s chapter in the forthcoming Oxford Handbook of Comparative Trust Laws, aptly entitled Trust Law and Colonialism. Tamaruya takes the reader on a historical adventure through diverse empires and their spheres of influence. Tamaruya focuses in particular on the British empire, the Americas, and Asia explaining that “distinct patterns of colonialism naturally engender different dynamisms in using trust and trust laws.” Continue reading "Trust Law and the Tides of Colonialism"
May 23, 2025 Sarah SwanTorts
Deborah N. Archer & Joseph Schottenfeld,
Defending Home: Toward a Theory of Community Equity, __
U. Chi. L. Rev. __ (forthcoming, 2025), available at
SSRN (Sept. 30, 2024).
For communities suffering the harms of long-standing neglect and callous infrastructure decisions that dump highways, landfills, and the like in the middle of them, legal remedies have been few and far between. In their illuminating article, Defending Home: Toward a Theory of Community Equity, Deborah Archer and Joseph R. Schottenfeld offer a new framework to render such community-based harms legally cognizable, and call on tort law as an important conceptual piece of this project.
Archer and Schottenfeld begin by telling the story of Sandridge, a small, unincorporated, historically Black community in South Carolina. When the surrounding county decided it was time for a new four-lane road project to connect two pre-existing highways and make it easier for vacationers to travel to the beach, numerous road placement options were proposed. The county determined that the best path forward would be to lay the highway down right in the middle of Sandridge, even though the road would functionally destroy the community, devouring multiple homes, businesses, and the community park, and isolating the heart and soul of the community, the church, from its many attendees. Continue reading "Building a Community Equity Framework from the Tort of Public Nuisance"
May 22, 2025 Scott Skinner-ThompsonTechnology Law
For American lawyers, the concept of data protection can seem overly bureaucratic and even a bit obtuse. American legal scholars, in general, prefer to think in terms of privacy, with its manifold methods of potential protection of the liberal individual subject via tort causes of action, criminal law, consumer protection, and, occasionally some actual command and control regulation. In other words, the concept of data protection can—again, particularly for American audiences—seem question begging: protection of what data, whose data, and from whom? (Clearly the same questions can and are asked about privacy protections).
In his recent book, Professor Gianclaudio Malgieri explains why data protection laws matter. The GDPR isn’t an annoying consent regime for internet browsing, but can be mustered to protect people along several axes of vulnerability—including their demographics, yes, but also any power imbalance relative to the data controllers. The GDPR isn’t ideal for guarding against vulnerability because it lacks clear and explicit protections for the precarious and, according to Malgieri, new regimes must be imagined and implemented. But the book’s critically optimistic view helps us see how data protection can be used here and how to guard against vulnerability; in essence, as a form of harm reduction. It is a rigorous book that deftly applies often ethereal (but important) philosophical concepts to a turgid regulatory regime in order to unpack that regime’s anti-subordination potential. Continue reading "Centering the Vulnerable through Data Protection"
May 21, 2025 Jon ChoiTax Law
Work requirements are pervasive in American social safety nets: for example, the federal Earned Income Tax Credit and Child Tax Credit both only kick in after a taxpayer makes a certain level of income. Work requirements are controversial because they exclude the worst-off (including those who are unable to work) from receiving government benefits. One important reason that they remain is that conditioning benefits on employment is thought to encourage labor force participation. But is this really true? A remarkable new paper by Jacob Goldin, Tatiana Homonoff, Neel Lal, Ithai Lurie, Katherine Michelmore, and Matthew Unrath provides compelling evidence that, at least in the context of state child tax credits, the answer is no.
In Work Requirements and Child Tax Benefits, the authors rigorously study the effects of conditioning child tax benefits on work. Their primary focus is a 2022 reform in California that eliminated the work requirement for the state’s Young Child Tax Credit (YCTC). Before this change, families needed at least $1 of earned income to receive the full $1000 credit; afterward, even non-working families qualified. The authors complement this analysis with evidence from five other states with varying child tax credit designs. Continue reading "Do Work Requirements Matter? New Evidence"
May 20, 2025 Verity WinshipInternational & Comparative Law
Luca Enriques, Matteo Gatti & Roy Shapira,
How the EU Sustainability Due Diligence Directive Could Reshape Corporate America, available at
SSRN. (April 27, 2025).
Corporate America may face an unusual pairing in the fight over corporate responsibility for human rights and the environment: EU rules and US enforcement. The potential for this (unintentional) partnership is the subject of How the EU Sustainability Due Diligence Directive Could Reshape Corporate America. The article considers how the EU Directive on Corporate Sustainability Due Diligence (CS3D) will affect US companies, focusing on a “unique combination of the EU ambitious regulation and the US robust private enforcement landscape” (P.1).
The EU directive has a sweeping geographic reach, extending beyond EU boundaries. It requires “every large corporation operating in the EU market” to “conduct due diligence on how its operations affect human rights and the environment” (P. 8). US companies with significant EU revenue are pulled in. The directive’s influence also cascades down to smaller companies as these large multinationals must monitor their “activity chain” worldwide (P. 10). Continue reading "European Rules, American Enforcement"
May 19, 2025 Steve GoldLexEnvironmental Law
In my most recent Jot, I reviewed two articles that explored “The Limits to Law(s)” – more precisely, the inability of United States environmental law to respond quickly and effectively to the global problems of PFAS contamination and plastics pollution. William Boyd’s De-Risking Environmental Law criticizes the law’s ineffectual response to toxic hazards more generally and identifies a surprising culprit. “Environmental law, it seems,” Boyd writes, “suffers from too much science and not enough law.” (P. 156.)
What we need instead, says Boyd, is “a new ethics of regulatory science . . . that recenters law in the commitment to protecting public health.” (P. 153.) This new twist to an old debate about whether ethics or science should serve as the primary justification for environmental law startles the reader. After all, science appeared to have won that debate decisively and long ago. How could any government make policy choices to protect public health or ecosystems without a thorough understanding of the medical and ecological dynamics at stake? We are so accustomed to relying on science to justify regulatory interventions it seems impossible to imagine any other way of thinking.
And that, according to Boyd, is exactly the problem. Continue reading "The Limits to Science"
