Apr 24, 2025 Anthony SebokTorts
Recent events offer a grim picture of the future of public law. In particular, President Trump’s assault on the administrative state seems destined to hamper the ability of agencies to protect the public in familiar areas such as drug safety, auto safety, environmental protection, and consumer protection.
It is for this reason that a recent paper by Yotam Kaplan, Adi Libson, and Gideon Parchomovsky, entitled The Renaissance of Private Law, is especially timely. Their thesis is that private law can partially substitute for some of the functions performed by public law, namely the regulation, supervision, and sanctioning of private actors—especially large corporations which typically escape control by the state, and, even when they do not, ignore civil fines and penalties. Continue reading "The Return of Private Law"
Apr 23, 2025 Ifeoma AjunwaTechnology Law
With her recent article, A Products Liability Framework for A.I., Professor Catherine Sharkey may have silenced at least some critics of artificial intelligence (A.I.) regulation. At the very least, the article stands as a sharp retort to anti-regulation advocates who often crow: “But how can we regulate A.I. when we don’t even yet know the full extent of what it can do or how it will be used?” Sharkey’s proposed regulatory framework, which eschews ex-ante pre-approval strategies in favor of post-market regulatory monitoring, may just be the answer to one of the critics’ favorite regulatory dodge.
Sharkey has the savoir faire to be afforded credence for any A.I. regulation proposal. As both an A.I./ML (machine learning) law and tort law scholar, what most stands out about Sharkey’s oeuvre is that she has gained enviable access to observe how A.I./ML systems are deployed in the government and has deployed her admirable analytical skills in dissecting those workings. For example, in Government by Algorithm: Artificial Intelligence in Federal Administrative Agencies, Sharkey (along with other scholars), conducted a rigorous canvass of A.I. use at 142 federal departments, agencies, and sub-agencies. Sharkey et al’s work in Government by Algorithm has been an inspiration for other scholars taking up the mantle to advocate for guardrails to automated governance. Continue reading "Products Liability as the Pragmatic First Step to A.I. Regulation"
Apr 22, 2025 Diane RingTax Law
Regardless of one’s normative perspective, international tax—both its design and its substance—is in great flux. We see this playing out at the United Nations in ongoing debates and maneuvers regarding the UN’s new role in global tax policy making, including during the first week of February 2025, as the UN debated a new framework convention process. Of course, the debate is not just about the UN but rather about the system of global taxation itself, and this debate takes place against a broader backdrop of political and economic history and current tensions beyond tax law. Where global tax policy will land in the medium term, and how much it will change, is not clear. The Global South and the Global North have articulated different visions for where tax policy negotiations should occur (UN, OECD, or other), how those negotiations should be conducted, and what substantive topics should be tackled first.
Frederik Heitmüller’s timely ICTD working paper, Scenarios for Negotiating a UN Framework Convention on International Tax, provides readers a fantastic insight into this unsettled world with an accessible yet sophisticated take on the underlying dynamics. In the face of such momentous uncertainty, with great tax, fiscal and political relevance, governments, taxpayers, researchers, business organizations, media, NGOs, and other actors are all trying to interpret, anticipate, and predict how these dynamics will play out. Not surprisingly, there is a substantial flow of commentary, interpretation, and analysis. (My own co-author and I have contributed to this deluge of material.) But Heitmüller’s January 2025 paper broke through the noise for me. I found it a valuable framing of the players, issues, tensions, and options that was both nuanced and informative. The paper opens a window onto what has occurred, and how to map the future. Continue reading "A Thinking Person’s Guide to Tax Conflict at the UN"
Apr 21, 2025 Sara BroninProperty
As extreme weather and natural hazards increase, policymakers must do a better job of ensuring that people live out of harm’s way, and build in a manner compatible with our changing planet. Land use laws, which in the United States are primarily the province of local governments, could help achieve more rational outcomes. Local zoning laws, in particular, have the potential to ensure that future development avoids risk-prone areas, because zoning dictates much of what gets built in this country. Yet as Professor Jonathan Rosenbloom points out in his latest article, Sacrifice Zones, few local governments have harnessed zoning’s powers to protect people and their places.
Rosenbloom contends that local governments have neglected zoning instead of changing and updating their codes as conditions change. I would probably go a little farther than Rosenbloom. When they have amended zoning rules, local governments often made the problem worse by permitting more development in areas prone to floods, wildfires, or extreme temperatures. Overall, poor land use planning, epitomized and reinforced by ill-conceived zoning rules, has accelerated disaster impacts and myriad losses of life, livelihoods, homes, neighborhoods, cultural resources, and communities. Continue reading "No Change Without Sacrifice (Zones)?"
Apr 18, 2025 Steve VladeckCourts Law
Most of what lawyers learn about the “Interbellum Constitution”–i.e., constitutional law between the end of the War of 1812 and the beginning of the Civil War—comes from the handful of major Supreme Court decisions of that era that law schools still teach as part of the required first-year curriculum. McCulloch v. Maryland for the supremacy of the federal government vis-à-vis the states; Gibbons v. Ogden for Congress’s power over interstate commerce; Dred Scott (and maybe Prigg v. Pennsylvania) for slavery; Martin v. Hunter’s Lessee for the relations between state and federal courts; and maybe, if a professor is ambitious enough, more complicated fare like the Passenger Cases. Through modern eyes, we view the great constitutional debates of the era largely (if not exclusively) as those that played out in the pages of the relevant Supreme Court reports—as compiled by Henry Wheaton (1816–27), Richard Peters (1828–42), or Benjamin Chew Howard (1843–60).
But in her magisterial new history of the constitutional debates of the era, legal historian Alison LaCroix expands her (and our) horizons beyond the modest contributions of the Supreme Court of the era and to the broader debates that played out on the ground—including, critically, in the justices’ rulings and opinions while riding circuit. On everything from the nature of the union to the scope of Congress’s power under the Commerce Clause to the status of Native American tribes to the intractable moral, political, and legal debates over slavery, our understanding of the debate over “federalism” during the interbellum period has been unhelpfully binary—pitching everything in stark “federal” vs. “state” terms. LaCroix’s book documents the reality of a “federalism of fractals” that was far more nuanced and jurisdictionally interdependent than the most famous Supreme Court decisions might suggest—where states and the federal government were not the only players and where the contest for power was more complicated than a constant antipodean tug-of-war between state capitals and Washington. Continue reading "The Interbellum Circuit Justices"
Apr 17, 2025 Rachel RosenbloomLexImmigration
With the Trump Administration threatening to carry out a wave of mass deportations, understanding the history of federal attempts to secure state and local cooperation in immigration enforcement feels more urgent than ever. Immigration law scholars have devoted considerable attention in recent years to the federal government’s deepening cooperation with state, county, and local law enforcement agencies, part of a growing focus within immigration law scholarship on the intersection of immigration law and criminal law (or “crimmigration law”). In large part, the story that legal scholars have told centers on the past three decades, a period in which both immigration detention and federal-state cooperation have dramatically expanded.
A new book from historian Brianna Nofil, The Migrant’s Jail: An American History of Mass Incarceration, makes a persuasive case for understanding such cooperation along a much longer timeline. Centering on the county jail, the book tells “a national story about local institutions” (P. 14), one that offers new insights into the dynamics of immigration federalism and the symbiotic relationship between the criminal legal system and the ostensibly civil regime of immigration law. Continue reading "Immigration Detention Through the Lens of the County Jail"
Apr 16, 2025 Rebecca RoipheLegal Profession
Maya Steinitz,
Zombie Litigation: Claim Aggregation, Litigant Autonomy, and Funders’ Intermeddling, __
Cornell L. Rev. __ (forthcoming, 2025), available at
SSRN (Nov. 1, 2024).
There has been so much enthusiasm for litigation funding. Scholars have sung its praises: it will solve the access to justice problem; it is no different from insurance; if you find yourself balking at litigation funding it is probably because you secretly want big powerful corporations to get away with misconduct. I was always one of those shamed observers who had inchoate concerns about litigation funding but felt embarrassed to take the side of Goliath over David. In Zombie Litigation: Claim Aggregation, Litigant Autonomy, and Funder’s Intermeddling, Maya Steinitz has skillfully articulated these concerns and explained how the litigation funders themselves are often the Goliath, not the defendants whom they sue.
The profession has watched as litigation funding has changed the civil justice system, the market for legal services, and the attorney-client relationship. According to one recent study, there are about forty litigation funders worth about ten billion dollars in capital. By creating a market in claims that can be bundled and sold, more people and entities can bring lawsuits, law more closely resembles other commodities, the attorney-client relationship loses its centrality, and judges are increasingly marginalized. Some of these changes are good but others are more concerning. In this article, Steinitz argues that litigation funding and portfolio aggregation, which involves gathering a number of claims together into one funding vehicle, results in clients’ loss of autonomy over their cases. Litigation becomes another market commodity, like the bundled mortgages that contributed to the financial collapse in 2008, with lawyers as brokers and managers. This, Steinitz argues, is not in the interest of the public and inconsistent with core principles of the profession. Continue reading "Stopping the Zombie Apocalypse"
Apr 15, 2025 Nina VarsavaJurisprudence
Bill Watson, The Plain Meaning Fallacy, __ B.C. L. Rev. __ (forthcoming, 2026) available at SSRN. (Feb. 1, 2025).
In The Plain Meaning Fallacy, Bill Watson exposes a problem in what he considers the dominant form of originalism today—original public meaning (OPM) originalism. OPM originalism takes the content of constitutional law to be determined by the communicative meaning of the text at the time of ratification. The problem is that the justifications for OPM originalism as a theory of constitutional interpretation apply only when OPM is plain and OPM is plain relatively rarely.
Watson takes originalism seriously, engaging carefully and thoughtfully with originalist thinkers. He charitably explicates the appeal of OPM originalism while incisively showing that this appeal holds up only when OPM is plain and so supports a much narrower purview for the theory than its adherents want to claim for it. Continue reading "Originalism’s Plain Meaning Problem"
Apr 14, 2025 Christopher J. SprigmanIntellectual Property Law
In Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Supreme Court considered whether the licensing of one of Andy Warhol’s Prince Series works for the purpose of illustrating a magazine story about the musician Prince, was a fair use of the Lynn Goldsmith photograph on which the Warhol work was based. In that opinion, the Court made two important interventions into the law of fair use.
First, the Court held that “[t]he fair-use provision, and the first statutory factor in particular, requires an analysis of the specific use of a copyrighted work that is alleged to be an infringement.” “The same copying may be fair,” the Court said, “when used for one purpose but not another.” Accordingly, the Court focused on the challenged use—the license to Vanity Fair to illustrate a cover story about Prince’s life—and did not rule on whether the particular Warhol work licensed, Orange Prince, or any of the other Warhol Prince Series works, or any other conceivable use of Orange Prince, was or was not fair use. Continue reading "McFarlin on “Infringing Uses” After Warhol"
Apr 11, 2025 Katharine YoungInternational & Comparative Law
It is surely an understatement to observe that global constitutionalism and human rights are under considerable pressure. Central to many of the up-to-the-minute (post-January 2025) challenges, is the age-old question of the role of the apex or supranational court in rights protection. Research into how courts and tribunals react, and should react, to the ever-expanding list of human rights concerns that reach them, is vital, whether one’s concern is human rights inflation, juristocracy, rising authoritarianism, or all three. The default position of judicial restraint and its corollary, deference, often lacks nuance.
Cora Chan’s new book, Deference in Human Rights Adjudication, offers a tightly reasoned and extensive engagement with the premise of deference. Drawing on her home jurisdiction, Hong Kong, Cora Chan also engages cases and commentary from Canada, Ireland, Israel, New Zealand and the United Kingdom. With careful analysis of several lines of caselaw, more analytical than strictly comparative, she presents a grid of guidance notes on the various postures that courts have adopted, in dealing with deference and human rights. The findings are telling, not just for the jurisdictions in question, but for the international and regional human rights tribunals now faced with questions of their own appropriate role, and for other courts supervising the extensive bills of rights and expressly justiciable complaints that have come with the last wave of constitution making and amendment. Continue reading "High Stakes Deference"
