Jul 20, 2026 Christine BartholomewCourts Law
How many uninjured plaintiffs are too many? The question–which arises across class action litigation, from consumer to employment cases–sounds simple. But as Tom Flesher demonstrates in his student note, federal courts cannot agree on an answer.
Flesher’s note centers on Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC, a price-fixing case that is hard not to love as a teaching vehicle precisely because the facts are so clean. The defendants were the three largest canned tuna producers in the nation, two of whom had already pled guilty to federal criminal charges; none seriously disputed wrongdoing. Continue reading "Delineating De Minimus"
Jul 17, 2026 Ilya SominConstitutional Law
Anna O. Law, Migration and the Origins of American Citizenship: African Americans, Native Americans, and Immigrants (2026).
Political scientist Anna O. Law is one of the leading experts on the history and development of American immigration policy. Perhaps because of the disciplinary gap, legal scholars and commentators haven’t given her work as much attention as they should. Her new book builds on her previous scholarship and that of others to bring together three interlinked topics that are usually considered separately: the development of immigration law and policy in the early republic, policies on slavery and internal migration, and policy towards Native Americans.
Law makes the by-now familiar point that, during the first century of American history, power over international migration overwhelmingly resided in the hands of state governments, rather than the federal government. In a more novel and distinctive move, she links this to the desire of many Founding-era Americans and subsequent generations to preserve state authority over internal migration, slavery, and dealings with Native Americans. Continue reading "Federalism, Originalism, and Immigration"
Jul 16, 2026 Sergio Alberto Gramitto RicciCorporate Law
As a scholar who has dedicated the past decade to studying how large public companies interact with society, I welcome Matteo Gatti’s new book with pure enthusiasm. The book is scholarly, rigorous, and reads well. Timely, subtle, and insightful, Corporate Power and the Politics of Change provides a lucid framework for analyzing ongoing scholarly debates about the corporate sector’s role as a form of shadow government.
What makes Gatti’s analysis particularly valuable is his clear-eyed examination of the pressures driving corporate governance from both inside and outside the firm. He neither celebrates nor condemns the phenomenon, but instead anatomizes it with precision. Drawing on legal doctrine and insights from the social sciences, Gatti demonstrates how this shift reflects both internal firm dynamics and external institutional dysfunction. This balanced approach allows him to illuminate the legitimacy challenges that corporate governance faces, including the political and cultural backlash that has emerged in response to corporate social activism. Continue reading "When Corporations Govern: Matteo Gatti’s Timely Framework for Understanding Corporate Power"
Jul 15, 2026 Omri Ben-ShaharContracts
Don’t let the title of the Schwarcz paper dull your curiosity! Long and technical, with the sedating word ‘insurance.’ Well, if you survived such charmless (but perfectly informative) invitation, you are up for a treat. You will learn how a minor but creative tweak in a legal rule governing contracts would yield a major breakthrough in climate preparedness.
The contracts are homeowners insurance policies. The question is whether they can create incentives for construction and upkeep of homes resilient to climate disasters such as hurricanes, floods, and wildfires. Obviously, the stakes are colossal. Public law ought to be at the center of this urgent regulatory enterprise, but politics stand in the way. It turns out—surprisingly—that private law could do much of the work, and Schwarcz discovered an important guiding path. Continue reading "How to Contract for Climate Preparedness?"
Jul 14, 2026 Thomas BustamanteJurisprudence
Bentham’s account of political authority is often deeply misunderstood. Legal theorists too easily buy Hart’s critique of imperativist jurisprudence, as presented in The Concept of Law, without bothering to check what Bentham said about language, perception, fictitious entities, analysis, paraphrasis, inference, judgment, universals, norm expression per adoptionem, the logic of imperatives, or the very notion of a “habit” of obedience. Nonetheless, in recent years, we have seen more careful reconstructions of Bentham’s work. In one of these works, Postema highlighted the connection between Bentham’s epistemology and the expressivist theory of language on the one hand and the principle of publicity and the rule of law on the other. Given Bentham’s departure from the Cartesian representationalism that is still found in several accounts of meaning and reference, I have argued that “Postema interprets Bentham … as a linguistic pragmatist avant la lettre.” But anticipating a substantial part of the most sophisticated forms of linguistic pragmatism is not the only remarkable achievement of Bentham’s philosophy of law and politics. The notions of command and political authority, for Bentham, cannot be understood apart from the practice of criticizing the acts of those in power and keeping the code of laws of a political community under a “perpetual commentary of reasons.” The legitimacy of a legal system rests on the existence of accountability mechanisms, such as the Public Opinion Tribunal (POT) and certain institutional structures for the appropriate interpretation and criticism of law – not only through court procedures and governmental acts, but fundamentally through the judgments of ordinary people. According to Bentham, “the catechism of reasons is worthless, if it cannot be made the catechism of the people.”
Crucial for this public critical scrutiny of the law is Bentham’s notion of laws in principem – the laws that apply to the sovereigns, or those in power. Xiaobo Zhai’s recent essay, Bentham on Laws in Principem, Judicial Review, and the Public Opinion Tribunal, shows that the idea of laws in principem is not only immune to Hart’s objection that imperativist theories of law are unable to make sense of power-conferring rules and laws imposing official duties, but also gives form and determinate content to a republican ideal that is usually overlooked. Continue reading "Bentham on the Citizen’s Duty to Hold Political Authorities Accountable"
Jul 13, 2026 Nicholas ParrilloAdministrative Law
The election of Donald Trump to a second term has brought to power a political coalition that is alienated from—and distrustful of—the federal bureaucracy, by which I mean career officials in federal agencies (a.k.a., civil servants). The second Trump Administration has been carrying out a historic campaign to remove civil servants from their posts and to disempower those who remain. In this context, Nicholas Bednar’s excellent article, Presidential Control of the Civil Service, is essential reading.
Bednar’s analysis of the civil service goes against two familiar narratives. The first is that career officials are so entrenched that nobody can effectively defy them—a view that seems less plausible than it once did, in light of the second Trump Administration’s apparent impact. That impact may trigger a reflex in many of us to interpret current events in terms of a second familiar narrative: the Roberts Court’s embrace of unitary executive theory, allowing the President to assert greater vertical control over agency officials, notwithstanding statutory constraints to the contrary. To Bednar, both narratives are inadequate. He proposes a third. The civil service has never been terribly entrenched (at least not as a legal matter) because Congress has long delegated broad power to the President to shape the career officialdom. If a President distrusts the civil service and seeks to tame it, this can be done—and it can be done primarily through the President’s statutory powers. The constitutional theory of the unitary executive isn’t much needed for the task. Continue reading "The Administrative Law of the Civil Service"
Jul 10, 2026 Michael C. DuffWork Law
Elizabeth Ford,
Thin Blue Advantage: Police Exceptionalism and the Two-Tier System of Public Sector Collective Bargaining, available at
SSRN (Feb. 11, 2026).
I really “like lots” Elizabeth Ford’s recently posted work-in-progress, Thin Blue Advantage: Police Exceptionalism and the Two-Tier System of Public Sector Collective Bargaining. The article is engaging as a careful empirical explanation of the great variety of collective bargaining agreements in use in the United States. But that is only the beginning of its accomplishments. At a deeper level, the article bravely takes on and reckons with the question that every union organizer in communities of color has faced: “why do police unions get away with so much?” (P. 45.)
Imagine you are a young worker of color who believes that white cops routinely get off the hook for brutalizing communities of color based on “technicalities” contained in “union contracts” about which you otherwise know little. Your initial exposure to the entire idea of collective bargaining is as a shelter for the exercise of illegitimate power. It is one thing for proponents of unions to argue, factually and correctly, that cops are workers, too. And people of good faith realize that the job of a police officer is horrendously dangerous. But many workers of color may still believe at the most basic level that union contracts protect racist cops. Telling them that they are simply wrong can make a bad situation worse. Continue reading "An Honest Look at Police Union Contracts – Beat Them or Join Them?"
Jul 9, 2026 Reid WeisbordTrusts & Estates
Inheritance law scholarship usually addresses some form of the question: “Who gets what?” But in their remarkable new article, Uneven Ground: New Mexico as a Case Study of a Growing Rural Estate Planning Crisis, Sergio Pareja and Sophie Rane ask another important question: “Where?” Pareja and Rane’s landmark empirical study reveals that, in rural America, cracks are forming in the foundation of wealth transfer law’s basic infrastructure. The consequences are not merely delays or inconvenience. Societal problems include immobilized property, tangled titles, and, ultimately, the loss of intergenerational wealth.
The article opens with a story that captures the problem with unsettling clarity. A New Mexico couple died intestate. Probate was delayed for a few years but was then further complicated by fractionation of the couple’s property among eleven heirs who couldn’t agree on selection of an estate administrator. The probate proceeding was ultimately abandoned. The conclusion: “Today, a small residential parcel lingers in Elias and Eleanor’s names, likely unable to be sold or used as collateral for lending.”
Unfortunately, the story of Elias and Eleanor’s estates cannot be dismissed by scholars as mere anecdote, as the article goes on to explain. What makes Uneven Ground so Jotworthy is its ambition and methodology. Pareja and Rane’s research is the product of a grant-funded empirical study constructed from obituaries, probate files, Medicaid records, and other public data collected from three New Mexico counties—Chaves, Cibola, and Colfax. In a field where probate remains notoriously under-examined, this kind of on-the-ground data collection is especially useful and revelatory. Continue reading "Empirical Insights into the Rural Estate Planning Crisis"
Jul 8, 2026 Nora Freeman EngstromTorts
In his thoughtful—and bracing—Comment, A Shield for Whom? The Disastrous Hidden Toll of Section 230 on Children, Dominic G. Roschival revisits a familiar statute with fresh urgency. He shows that a statute, enacted to furnish limited protection to fledgling online intermediaries, has, through aggressive judicial interpretation, become something else entirely: a sweeping immunity that displaces core commitments of tort law, discourages common-sense safety mechanisms, and leaves grievously injured plaintiffs without a remedy.
Enacted in 1996, Section 230 of the Communications Decency Act provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This protection, Congress believed, was necessary in order to “maintain the robust nature of Internet communication.” And indeed, absent Section 230, the Internet likely would not exist as it does in its current form. Continue reading "Immunity Run Amok: Section 230 and the Distortion of Tort Law"
Jul 7, 2026 Ari WaldmanTechnology Law
Organizations have long used individuals’ pasts to predict those individuals’ likely future behaviors. Banks look at our credit histories to predict the likelihood of on-time mortgage payments; states look at criminal histories to predict the likelihood of recidivism when making parole decisions. These pasts tell stories, narratives of behavior that, some argue, produce essential knowledge about the future so organizations can make smart decisions today. At the same time, relying too much on our pasts threatens autonomy, makes us prisoners of our worst mistakes, and entrenches discrimination.
One notable difference today is that these and other predictive decisions are now made using algorithms, computer programs, and tools collectively called “artificial intelligence” (AI), all of which can introduce many wrinkles into the age-old story of predictive policymaking. In a masterful article in the American Journal of Sociology, the field’s most respected journal, Barbara Kiviat (Columbia), Sara Sternberg Greene (Duke), and Hesu Yoon (CREST, ENSAE Paris) focus on one wrinkle: the problem of exceptions. When predictive decisions were made exclusively by humans, exceptions were easy to make. Social workers or bankers could look at the numbers and appreciate changes in circumstances; the human touch made that possible. The conventional wisdom is that the algorithmic turn erases that discretion. Kiviat, Greene, and Yoon argue that the algorithmic turn instead complicates discretion, moving it upstream and changing it from an individualizing mechanism to one that problematically relies on cultural archetypes. Continue reading "How Algorithms Make Exceptions"
