Apr 10, 2025 Christina S. HoHealth Law
As shown by the renewed backlash against health insurers, this time unleashed by the United Healthcare CEO’s killing in Manhattan, there seems to be something about health. Those of us who work in health law likely chose this field because we’ve always known that, indeed, there is just something about health. But what exactly is it? What makes it so special, so intractable, so compelling, such a lightning rod? Elizabeth Barnes‘ new book, Health Problems, takes this question squarely on, and concludes that we might never solve the mystery, even if we must continue to probe.
The signature puzzles she picks out are 1) the relationship between health and well-being, 2) the relationship between health’s objective nature and its subjective aspect, and 3) the relationship between health and disability. These puzzles are central to our work. They loom over so much of our scholarship that I am constantly bracketing these questions or relying on rough and provisional stand-ins. My perverse skirting of these central matters so as not to get unproductively mired allows me to make at least some progress on other questions that demand urgent answers. I’ve always felt that perhaps in making progress on adjacent questions, we have a chance of shedding light on these enduring puzzles too. Elizabeth Barnes helps locate this approach: first by mapping the bracketed space through her clean no-nonsense chapters (a division of labor that frees us to tackle other tasks) but also by providing perhaps a rationalization for approaching these questions a bit sideways. Continue reading "The Trouble With Health"
Apr 9, 2025 Kaiponanea MatsumuraFamily Law
The concept of love is not well developed in the law governing adult intimate partnerships despite anodyne pronouncements such as the claim in Obergefell v. Hodges that marriage “embodies the highest ideals of love, fidelity, devotion, sacrifice, and family” (emphasis added). When courts have attempted to operationalize love, they have often done so in offensive or unsophisticated ways, suggesting, for example, that the spousal duty of support includes the obligation to perform nursing-type care “in loving and devoted ministrations,” or that nonmarital partners who admit to being “lovers” are necessarily engaging in an illicit, sexual transaction. In other words, when it is invoked, love—at least in partnered relationships—usually works against the more economically vulnerable partner, who is often a woman. Scholars have primarily pushed back by developing alternative justifications for their desired outcomes, like securing partners’ economic rights through implied partnership or advocating for more careful consideration of partners’ contributions to the relationship. Few have attempted to counteract these decisions by providing an alternative account of love that is more descriptively accurate, normatively justified, and produces improved legal outcomes, despite the widely held intuition that love matters.
James Toomey’s fascinating article, Love, Liberalism, Substituted Judgment, reveals the benefits of careful thinking about how love can impact a particular area of the law, in this case, decision-making on behalf of incapacitated adults. Toomey considers a puzzle lying at the heart of the substituted judgment standard that the law has adopted for cases of incapacity. When individuals can no longer make decisions for themselves, the law directs the surrogate decision-makers to make the decision that the individuals “would have made for themselves if they could.” (P. 1290.) Yet those individuals may have experienced such a significant degree of irreversible decline or change that they can no longer connect their past to present selves, and are therefore not “themselves” in a meaningful sense. What, then, justifies the legal rule that gives decision-makers the ongoing authority to make decisions on these individuals’ behalf? Love, Toomey argues: “the kind of love between adult friends, family members, or romantic partners” involving “(at a minimum) an intimate knowledge of and deep concern for the personal identity of another.” (P. 1292.) Love is the invisible string that connects decision-makers to incapacitated individuals and ultimately ties those individuals to themselves. Continue reading "Operationalizing Acts of Love"
Apr 8, 2025 Aditi BagchiContracts
It is not every day that we are presented with a new theory of private law that invites us to see the project of private light in a new way.
In a move familiar to philosophers of contract and tort but perhaps surprising to American scholars of those subjects from other traditions and methods, Hanoch Dagan and Avihay Dorfman take “private law” as the operative unit of analysis. Like theories of corrective justice, they aim to identify foundational principles that apply across contract and tort. The language of “relationality” is also familiar from the corrective justice literature. However, Dagan and Dorfman offer us a new way to understand the moral demands that flow from ordinary relationships. Continue reading "A New Account of the Whole Picture of Private Law"
Apr 7, 2025 Elena LarrauriCriminal Law
It has become sort of a truism to say that prisoners have rights, that is, they are ‘citizens behind bars’ and no longer slaves of the state. Much less attention has been devoted to how they can protect these rights. Although prisoners have access to justice, litigating from inside prison is difficult. Incarceration impedes access to counsel and access to courts, and requires substantial time, economic means, and certain knowledge. In their paper The Dutch Complaint Procedure: A ‘Picture Perfect’ Procedure?, authors Tessa Van Der Rijst and Pauline Jacobs provide a brief and clear explanation of how ‘the picture-perfect procedure’ works in practice in Dutch prisons.
Calavita’s and Jeness (2015) seminal work Appealing to Justice exhorted us to look at mechanisms inside prisons that prisoners could use to present their grievances and defend their rights in the United States. A ‘Picture Perfect’ Procedure? takes up that challenge in the Dutch context. Although in Europe there is no need to exhaust the administrative procedure before going to the Courts, the internal system of lodging a complaint still matters. Van Der Rijst and Jacobs are among the European scholars who have turned their attention to these procedures. (See also Daems and Larrauri, 2024). Continue reading "Administering Justice in Prisons"
Apr 4, 2025 Linda S. MullenixCourts Law
In 1976, a decade after the complete overhaul of Rule 26 class action procedure, Abram Chayes observed that the amended rule had accomplished a significant paradigm shift from “traditional” litigation to a new model of public law adjudication. Chayes described five characteristics of traditional litigation: (1) the lawsuit is bipolar, (2) the litigation is retrospective, (3) the right and remedy are interdependent, (4) the lawsuit is a self-contained episode, and (5) the process is party-initiated and party-controlled. The new public law model is sprawling and amorphous, subject to change over the course of the litigation, suffused and intermixed with negotiating and mediating processes at every point, with the judge as the dominant figure in organizing, guiding, administering, and implementing relief. Arthur Miller observed the same paradigm shift that year, noting that critics of the new procedural model characterized it as a Frankenstein’s monster. The label has stuck.
Professor Maya Steinitz introduces a new appellation into the lexicon of aggregate dispute resolution: “Zombie litigation.” Continue reading "From Frankenstein’s Monster to Zombie Litigation"
Apr 3, 2025 Anna GelpernCorporate Law
Jeremy C. Kress, “
Least-Cost” Resolution, 43
Yale J. on Reg. __ (forthcoming, 2026), available at
SSRN (Sep. 03, 2024).
Banks have magic powers: they can conjure money out of thin air, send it across the street or around the world instantly, make your startup dreams come true, and these days, even make you a cappuccino. They are also fragile and toxic: liable to fail suddenly and bring people, firms, other banks, and entire economies down with them. Generations of reformers have tried to make bank failure more orderly, less destructive, and less costly to the public. Judging by the crop of papers inspired by the crop of bank failures in 2023, they have failed again.
Why do we keep failing at bank failure? This article by Jeremy Kress suggests a piece of the puzzle: we mismeasure success. Continue reading "A Costly Cost Test"
Apr 2, 2025 Paul HorwitzConstitutional Law
Ethan J. Leib,
Good Faith in U.S. Constitutional Law (Jan. 8, 2025), available at
SSRN.
Every era gets the constitutional scholarship it needs—after the fact. The Burger Court era saw elaborate efforts to justify the Warren Court. The rise of history and tradition on the Supreme Court has been met by new defenses and criticisms of…standard originalism. The tyro leadership of leading law reviews committed themselves to running constant “Abolish Everything” articles just as abolitionism transitioned from interesting-but-highly-unlikely to politically disastrous fantasy. The bell tolls the end of the fight just as the scholars climb into the ring.
Given his recrudescence, to go for le mot juste, the study of the—bear with me—constitutional jurisprudence of Donald Trump presents an interesting case. What was too late the first time—a consideration of what American constitutional requires by way of character in its office-holders—might now become newly relevant. Or it might be too late once more: not only practically ineffectual, but also a pathetic plea for behavior that the wider culture now treats with a mixture of indifference and contempt. Nevertheless, there is new cause for this work. In his short but sweet contribution Good Faith in U.S. Constitutional Law, Ethan J. Leib presents a useful summation of one strain of this character-based constitutionalism: officials’ duty to act in good faith. Its conjunction with an administration in which good character is as plentiful as rainfall in the Atacama Desert is, we might say, an act of exquisite lousy timing. Continue reading "“I Love Beating George Washington”"
Apr 1, 2025 Michael E HerzAdministrative Law
Susan C. Morse,
Time Bars for Administrative Procedure Claims After Corner Post, 114
Calif. L. Rev. __ (forthcoming 2026), available at
SSRN (Jul. 18, 2024).
In recent terms, the Supreme Court has had its nose to the grindstone, transforming American administrative law. In a series of striking decisions, it has created the major questions doctrine, overruled Chevron and reined in Auer, shifted toward the elimination of independent agencies and a full-throated endorsement of the unitary executive theory, come close to remaking the nondelegation doctrine, reinvigorated arbitrary-and-capricious review, and opened the courthouse doors to challenges to regulations issued long ago. Most of these developments have spawned a flurry of academic commentary. The major questions doctrine in particular has created an itch it seems everyone needs to scratch. And overruling Chevron has given all those who had written about the case in the past (which is practically everyone) a chance now to write about its demise.
In the face of this tsunami, what is a poor JOTWELL reviewer to do? How to select the best from among them? It can’t be done. (Though, as Jack Beermann has written, if you want to understand the major questions doctrine you can’t go wrong by starting with Anita Krishnakumar.) But there is one exception. When it comes to Corner Post, there is a standout article. While others have been hypnotized by the shiny new objects of the MQD and Loper Bright, an undistracted Susan Morse has kept her attention focused where it has been for a couple of years. Her latest, Time Bars for Administrative Procedure Claims After Corner Post is a standout not only because, let’s be honest, there is not a lot of competition, but because it is so good. Continue reading "Avoiding the Demon Lurking Around the Corner (Post)"
Mar 31, 2025 Michael Z. GreenWork Law
When considering how to prove statutory employment discrimination claims, and in particular those actions relying on so-called reverse discrimination, William R. Corbett has authored a crucial and timely article. In Reverse Discrimination: An Opportunity to Modernize and Improve Employment Discrimination Law, Professor Corbett reveals important and modern-day considerations regarding employment discrimination proof structures.
More importantly, the article identifies key points about those proof structures that the Supreme Court will have to face this term after granting certiorari on October 4, 2024 to hear Ames v. Ohio Dept. of Human Services to determine whether “a majority-group plaintiff must show ‘background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.’” Continue reading "Interpreting Reverse Discrimination Proof"
Mar 28, 2025 Katheleen GuzmanTrusts & Estates
James Toomey,
Executor Discretion, 110
Iowa L. Rev. __ (forthcoming, 2025), available at
SSRN.
I hereby grant my executor the power to alter my will to reflect my most likely recent intent.
Notwithstanding the mysteries that can attend multiple aspects of estate planning, some things—such as the precepts that deeds are not wills, revocation is permitted, and takers must survive—seem plain. The near-absolute supremacy of Testator Intent fits within this rough set of axioms. Cases instruct that, elusive though it may be, it is that intent alone that matters, and not that of any judge, jury, or creditor; disappointed spouse or disinherited heir. Indeed, the principle has become the rhetorical stuff of earth and sky both, with the Testator’s intent cast as the cornerstone, the lodestar, the keystone, the polestar, the crown jewel, the very light that guides. Less often questioned is just how far and brightly that North Star actually shines, and at what temporal and comparative remove.
Professor James Toomey seeks consistency and tests fidelity to Testator Intent in Executor Discretion, admonishing that lawmakers should be every bit as aggrieved by the effectuation of will terms that reflect expired intent as reformers have been, for decades, about the rejection of intended wills on formalistic technicalities. “Whenever a will is probated [that . . .] no longer represents what the testator would have wanted, wills law fails on its own terms.” (P. 1.) If and where so, the autonomy, identity, and freedom that testamentary intent captures also fail, and stars fall to earth. Continue reading "Discretioners"
