Feb 16, 2026 Michael E HerzAdministrative Law
A year into the second Trump administration, the 47th president has done a pretty darn impressive job of destroying state capacity. Resources, personnel, expertise, law-following, law-enforcement, ethics, and competence have all been jettisoned. For many observers, the result is a catastrophic inability of the federal government to accomplish basic functions.
In The Secular Decline of the American State, Ganesh Sitaraman has arrived with some good news and some bad news. The good news is that the current administration’s sapping and mining are not that aberrant; Trump’s dismantling project has not, in fact, fundamentally shifted the country from the path it has been on for some time. The crisis is not acute. Whew. Continue reading "The Deep Causes of The Shallow State"
Feb 16, 2026 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 (July 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 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)"
Feb 13, 2026 Joseph SlaterWork Law
A key priority of the second Trump administration has been an unprecedented attack on federal employees’ workplace rights. This includes removing collective bargaining rights, dismantling federal agencies, and working to remove the civil service protections of many federal employees. Catherine Fisk’s Democracy and a Nonpartisan Civil Service focuses on the assault on civil service. The article gives a history of civil service laws and reviews the evidence on the benefits and costs of their protections. It details the assaults on these protections and provides a nuanced defense of them. Fisk convincingly addresses legal, practical, and policy concerns, describing current rules, proposed changes, , theoretical arguments, and relevant empirical data. Her article is a strong contribution to the literature.
Since the Pendleton Act of 1883, civil service rules have been a key component of employment law in federal, state, and local government. Such laws originally aimed to combat political patronage practices by providing “merit” rules for both hiring and firing. By the second half of the mid-20th century, these rules gave most lower- to mid-level public employees just cause discharge protection, at least after a probationary period. While most other industrialized democracies in that period adopted just cause rules as the default for most employees, the United States remained, except for civil service laws, committed to at-will employment. Continue reading "Defending Civil Service Rules from Existential Attacks"
Feb 12, 2026 Charlene D. LukeTax Law
Edward J. McCaffery and Darryll K. Jones offer an engaging explanation for the lack of progress in closing the carried interest loophole in The Curiouser and Curiouser Case of Carried Interests. This well-known loophole—which has been analyzed extensively in the literature—allows top hedge fund and private equity managers to pay tax on service income at the lower rate afforded long-term capital gains. The article draws on earlier scholarship by each of the co-authors and provides an updated account of the decades-long lack of progress in closing the loophole.
In 2006, McCaffery and Linda Cohen published Shakedown at Gucci Gulch: The New Logic of Collective Action, 84 N.C. L. Rev. 1159 (2006). That 2006 article drew on Mancur Olson’s 1965 book, The Logic of Collective Action, which theorized the conditions required for special interest lobbyists to overcome collective action problems and wield outsized legislative influence. McCaffery and Cohen posited that Olson’s framework did not adequately explain the shenanigans surrounding estate tax repeal. Instead of legislators being the dupes of special interest groups, legislators were engaging in extortionate brinkmanship to increase campaign contributions from the special interests with the most to gain (or to lose) from estate tax legislation. As McCaffery and Jones summarize in their article, the game is “reverse” Mancur Olson because “legislators come first, special interests second.” Continue reading "Anatomy of a Shakedown: The Carried Interest Case"
Feb 11, 2026 Victoria J. HanemanTrusts & Estates
Professor Naomi Cahn’s recent article, Trusting Remedies for the Child Influencer Space: Blocked Trust Accounts and Child Beneficiaries, exists at the intersection of centuries-old legal doctrine and the technology-based influencer economy. The family influencer, parent-facilitated influencer, and kidfluencer spaces are thriving (from TikTok sponsorships to YouTube ads), and these are spaces in which federal protections for children are arguably inadequate. Instead, we must rely on limited oversight provided by a patchwork of state privacy and labor laws. A parental conflict of interest is inherent when a child is unable to give informed consent, and parents are overseeing a child who is also a profit center. As with child actors, the question becomes: who is overseeing or regulating the parents? The exploitation of successful children, including actors and athletes, is not a new concern, but current legal infrastructure does not apply neatly to protect child content creators. In her essay, Professor Cahn considers the way the blocked trust account may be reimagined to better protect kidfluencers.
For over a century, the legal system has vacillated between empowering parents as guardians and constraining them as potential exploiters, from child factory labor to Hollywood stardom. The kidfluencer economy heightens this tension: the “workplace” is not a set or a studio but the family living room, and the “manager” is often a parent with a smartphone. The intimacy of this arrangement makes oversight uniquely difficult and the risk of abuse correspondingly high. Cahn draws a straight line from the Coogan laws of the early twentieth century (designed to safeguard child actors’ wages) to the relatively unregulated frontier of contemporary influencer culture. Continue reading "Leveraging Trust Law to Protect Child Influencers"
Feb 10, 2026 Ronen AvrahamTorts
What happens when a self-driving car kills someone and there is no human driver to blame, no detailed public regulation to point to, and a jury that has never heard of ISO 26262 or UL 4600? Who decides what “reasonable care” means when safety choices are embedded in code, sensors, and validation protocols rather than in a driver’s split-second decision?
In his insightful paper Swords and Shields, Gary Marchant argues that in this world, private technical standards will quietly become the real baseline for tort law. Standards written by SAE, ISO, UL, IEEE, and other standard-setting organizations—largely unfamiliar to most people—will serve as shields for autonomous-vehicle (AV) manufacturers who comply with them, and as swords for plaintiffs when manufacturers ignore them. Continue reading "Private Standards as Swords and Shields for Autonomous Vehicles"
Feb 9, 2026 Stacy-Ann ElvyTechnology Law
Alicia Solow-Niederman,
AI and Doctrinal Collapse, 78
Stan. L. Rev. ___ (forthcoming 2026), available at
SSRN (Aug. 08, 2025).
Government actors across the globe have responded to the rapid uptake of artificial intelligence by adopting or proposing various forms of legislation. For instance, on September 29, 2025, California adopted the Transparency in Frontier Artificial Intelligence Act, which imposes transparency and safety obligations on artificial intelligence companies in the state. Other states, such as Colorado, have also responded by enacting laws addressing artificial intelligence. At the federal level, the proposed Generative AI Copyright Disclosure Act would impose disclosure requirements on artificial intelligence developers that use copyrighted works to train their systems. In 2024 the European Parliament adopted the Artificial Intelligence Act—a comprehensive framework for the regulation of artificial intelligence in European Union countries. Despite domestic and international legislative responses, the rapid rise of artificial intelligence continues to pose significant challenges for several established areas of law, including privacy law and intellectual property law.
In her article AI and Doctrinal Collapse, Professor Alicia Solow-Niederman offers an impressive contribution to both the privacy law and intellectual property law fields by exposing the various pressures placed on these two legal regimes by artificial intelligence. Solow-Niederman contends that artificial intelligence has blurred the boundaries between privacy law and copyright law—a phenomenon she aptly labels as “inter-regime doctrinal collapse.” She convincingly posits that without sufficient intervention, corporate actors will continue to implement “exploitation tactics” to profit from this doctrinal collapse and further undermine the rule of law. Continue reading "Crossroads: Privacy Law and Copyright Law in the Age of Artificial Intelligence"
Feb 6, 2026 Shelby D. GreenProperty
The Yellowstone River ecosystem is breathtaking, unparalleled in its wonder and expanse. The river is the longest free-standing river in the United States. But, its transcendent beauty and abundance are threatened by overuse and climate change (rising temperatures, snowmelt, greater runoff, and reduced summer flows).
In Equity Along the Yellowstone, Professor Jason A. Robison laments the myriad of threats to the Yellowstone River, even as more than seventy-five years ago, an interstate compact was entered into for the asserted purpose of ensuring its future. The Yellowstone Compact is a domestic water treaty between Montana, Wyoming, and North Dakota. Ratified in 1951, the Compact aimed to establish a rational regime for allocating uses of the Yellowstone River that would avoid constant litigation in the Supreme Court. These negotiations took over two decades. Continue reading "Infusing an Ethic of Place into the Water"
Feb 5, 2026 Elizabeth D. KatzLegal History
Family law scholars, activists, and practitioners have devoted increasing attention to state actions that separate hundreds of thousands of children from their parents every year in the United States. Many condemn laws that regulate child removal and foster care, finding current approaches insufficiently protective of children’s wellbeing. Commentators consider how reframing and strengthening children’s and parents’ rights may better ensure respect for family integrity. These accounts often include historical context that emphasizes continuity in the harmful, classist, and racist treatment of marginalized families.
In The Origins of Family Rights and Regulations, Professor Laura Savarese identifies a forgotten period in which parents’ habeas corpus litigation prompted the development of formal protections for the parent-child relationship. Predating canonical U.S. Supreme Court cases constitutionalizing parental rights (beginning with Meyer v. State of Nebraska (1923) and Pierce v. Society of Sisters (1925)), parents sued institutions to recover custody of their children and contributed to nascent understandings of parental rights. Continue reading "Developing Legal Protections for Family Integrity"
Feb 4, 2026 Martin GelterInternational & Comparative Law
Royhan Akbar, Nathanial Mangunsong, & Dan W. Puchniak,
The Abolition of Independent Directors in Indonesia: Rationally Autochthonous or Foolishly Idiosyncratic, __
Am. J. of Compar. L. __ (forthcoming, 2026), available at
SSRN.
Over the past 30 years, comparative corporate law scholarship has grown into a worldwide industry with a substantial volume of publications. For an English-speaking scholar, it has become easy to follow debates in (mainly Western) Europe, Japan, China, India, and Brazil, just to name a few hotspots of the field. Indonesia is often overlooked in the literature, which is surprising, given that it is the fourth largest country in the world by population and its status as a Member of the G20 and an Upper-Middle-Income economy (in fact, the seventh largest economy by GDP/PPP).
Royhan Akbar, Nathanial Mangunsong, and Dan W. Puchniak’s forthcoming article, The Abolition of Independent Directors in Indonesia: Rationally Autochthonous or Foolishly Idiosyncratic, is one of very few filling this gap. What at first glance seems like a peculiar development—the abolition of the requirement for publicly traded companies to have independent directors—reveals many parallels to other countries upon closer investigation, which allows the authors to make important points that reveal structural features of comparative corporate governance beyond the country. Continue reading "Finding Familiarity in the Unknown? Independent Directors in Indonesia"
