Jun 22, 2026 Christopher SloboginCriminal Law
In Criminal Justice in Divided America, David Sklansky argues that populist democracy has been a significant cause of our criminal justice problems and that those problems, in turn, are largely responsible for the continued degradation of American democracy. But he also contends that, if properly defined and implemented, democracy can end this vicious cycle and help remedy both sets of failures.
Those failures are well known. On the criminal justice side, police and prosecutors abuse their authority, plea bargaining has replaced jury trials, crime rates remain constant despite exceedingly harsh sentencing dispositions, and communities of color unfairly bear the brunt of the system’s dysfunction. On the democracy side, we have become a seriously divided nation with seemingly intractable disagreements on a host of issues, and this polarization has, again, inflicted the most suffering on the disadvantaged. Sklansky’s contention is that application of the right democratic principles to policing, adjudication and punishment can not only improve criminal justice but also help reconstruct a healthy democracy. Continue reading "The Role of Democracy in Criminal Justice Policy"
Jun 19, 2026 James E. PfanderCourts Law
Thomas Schmidt & Kellen Funk,
The Equity Docket ___
N.Y.U. L. Rev ___ (forthcoming 2026), available at
SSRN (Mar. 4, 2026).
Like the weather in the Midwest, about which more is said than done, so too with the Supreme Court’s “shadow docket” or, depending on your preferred locution, the “emergency” or “interim” docket. Now that may change. In an engaging paper, Thomas Schmidt and Kellen Funk propose a new name and a new way of conceptualizing the growing and increasingly important power (and predisposition) of the Supreme Court to intervene in ongoing disputes in the lower federal courts.
As a central element of the Court’s response to Trump II, the spate of shadow docket decisions over the past fifteen months has been nothing less than astonishing. The Trump Administration sought emergency relief in twenty significant cases in the second half of the October Term 2024, almost half as many as the forty-one the First Trump Administration sought in four years. Not only has the Court been setting the status quo pending final resolution, in Justice Kavanaugh’s telling, it has been remaking the substantive law along the way. Caught in the crossfire between an impetuous president and a cautious Court that has accommodated and sought to avoid direct conflict, lower federal courts have been whipsawed. Unable to overrule settled precedent, lower courts have applied the law on the books only to find their orders stayed or vacated by a Court that sees the law differently or strikes a different equitable balance. For example, the Court in the officer removal cases rejected lower court applications of Humphrey’s Executor, then circled back to clarify the situation. Continue reading "Equity Emerges from the Shadow (Docket)"
Jun 18, 2026 Robert RosenCorporate Law
In Altering Rules: The New Frontier for Corporate Governance, the non-parties whose interests are to be protected are shareholders. With respect to agreements by some shareholders that alter current corporate governance law’s default arrangements, the authors make the case for rejecting either granting unlimited contractual freedom or imposing mandatory terms, in favor of designing “flexible” bargaining frameworks and environments that “can manage the interests of [insider parties] both signatories and non-signatories alike” (P. 316).
One of the pleasures of this article is its elaboration of the “richness” (P. 329) in how corporate law designs institutions. Another is its elaboration of the mechanisms by which corporate law gives “voice” (P. 300) to unrepresented interests when necessary. Students of corporate law can draw on wisdom about design that applies to organizations generally, not only statutory corporations (Pp. 324-25). The authors call for a realignment of corporate law (for which Delaware is well-positioned) towards (re)designing institutions. They anticipate that such a realignment will “unleash” “private actors and contractual innovation” (P. 306). Corporate lawyers take heed. Continue reading "Protecting the Interests of Non-Parties in Corporate Governance"
Jun 17, 2026 Rosa NewmanProperty
Gentrification occupies an uneasy place in property scholarship. It is often invoked as evidence of property’s distributive failures: market allocation displaces vulnerable residents, concentrates capital, and entrenches inequality. In A Civil Rights Defense of Gentrification, Professor Carol Brown challenges this dominant narrative. Rather than treating gentrification as a phenomenon inherently at odds with civil rights, Brown argues that it can, under the right legal conditions, advance core commitments of the Fair Housing Act and the broader project of residential integration.
The article’s central contribution lies in its dual task of challenging prevailing assumptions and constructively reimagining legal strategies. Continue reading "Is Gentrification Always the Enemy?"
Jun 16, 2026 Pat GudridgeConstitutional Law
Brandon M. Terry, Shattered Dreams, Infinite Hope: A Tragic Vision of the Civil Rights Movement (2025).
Apologies to Nina Simone …
Brandon Terry’s extensively developed, very intense book recasts how we think about the “Civil Rights Movement,” a sequence of confrontations beginning in 1960 with black college student sit-ins in declaredly whites-only lunch counters in Greensboro, North Carolina, Nashville, and other cities in the South. This nonviolent theater inspired demonstrators and sometimes provoked very violent white opponents. Other efforts (marches too, maybe most notably later in Birmingham and Selma, Alabama, and in Washington, D.C., among many other places) also multiplied rapidly and widely, spreading nationally. These various happenings were celebratory, controversial, transformative, resisted: epochal seemingly. Terry treats this civil rights movement as separate from the earlier NAACP constitutional law and litigation campaign by Thurgood Marshall. Brown v. Board of Education or Cooper v. Aaron do not figure much in Shattered Dreams Infinite Hope.
Professor Terry is a social sciences savant well-read across many fields, complicatedly writing here often as if a socially and politically preoccupied literary critic (not a law professor or historian, for example). He closely deploys three orienting frames – romance, irony, and tragedy. He also makes insistent, provocative use of the idea of “exemplar.” Was and is the civil rights movement exemplary? To what point or purpose? Terry depicts his explorations as immersed in thinking of a notably distinguished group: prominently, Immanuel Kant; Hannah Arendt; Martin Luther King, Malcolm X, and Barack Obama; John Rawls; Derrick Bell, and Henry Louis Gates; Calvin Warren and other Afropessimists; Nikhil Pal Singh, W. E. B. DuBois, and ultimately A. Philip Randolph. Professor Terry questions all concerned intensely, builds out his own perspective at length too – takes charge of his crowd of notables. He resists simplifications. No simple romance, happy or harrowing. No irony becomes atmospheric. Continue reading "Mississippi Goddam!"
Jun 15, 2026 Erik EncarnacionJurisprudence
Felipe Jiménez,
The Rule of Law, __
Mich. St. L. Rev. __ (forthcoming 2026), available at
SSRN (Dec. 05, 2025).
The rule of law matters. But what it requires is, as Jeremy Waldron famously observed, “essentially contested.” There’s no shortage of scholarly work on the topic; harder to find are accessible, article-length treatments that accomplish more than map entrenched positions or presuppose mastery of technicalities. We should therefore welcome Felipe Jiménez’s article, The Rule of Law.
The piece’s stated aim is modest. Jiménez seeks to restate and clarify existing ideals that, in his view, explain why the rule of law matters. But this modest enterprise delivers a user-friendly and philosophically serious account that distinguishes the rule of law from nearby concepts and explains why it remains so valuable. Continue reading "The Rule of Law, through Thick and Thin"
Jun 12, 2026 Fred JacobAdministrative Law
Working with Statutes is a love letter to administrative agencies, and, if I may be so bold, to those of us who have been privileged to serve as their custodians.
Anya Bernstein and Cristina Rodriguez make a case for agency legitimacy rooted in loyalty, care, and – in my reading of their fine piece – affection. In contrast to the stereotype of the clockwatching bureaucrat, Bernstein and Rodriguez explain how agency staffers enthusiastically take on the mantle of caretaker, acting zealously to bring their law to bear on problems that fall under the congressional mandate. In this way – through the people who care for it – Congress ensures that a legislative program committed to an administrative agency remains efficacious across time and societal change.
Rejecting an approach that evaluates agency action through prisms of judicial review or legislative drafting, Bernstein and Rodriguez conduct a series of thirty-nine interviews with political and career appointees at eleven federal agencies to better understand agency authority from the inside out. From their extensive interviews, Bernstein and Rodriguez posit that agency superintendents’ commitment to a healthy statute is grounded in twin duties of loyalty and care to their administrative regimes. The duty of loyalty emanates from the agencies’ organic statutory text and the mission that flows from that text. The two are symbiotic: statutory language informs mission, and mission informs statutory construction. In this way, agency personnel distill their statutes to an “overarching set of values and objectives served by the regulatory regimes.” (P. 937.) These values allow agencies to identify problems that enter their statutes’ orbit and are appropriate for their administrative machinery to resolve through regulatory means. Continue reading "Administrative Agencies & the People who Love Them"
Jun 11, 2026 Cesar Rosado MarzánWork Law
How many kinds of hammers can you name? Most people picture a claw hammer. A few might add a rubber mallet, and gamers might imagine a medieval war hammer. Skilled trades and craft persons, however, recognize dozens of designs, each built for a distinct job. A dead-blow hammer absorbs rebound; a tack hammer secures delicate upholstery. In other words, they know their hammers.
U.S. labor lawyers, by contrast, tend to reason within a constrained, Wagner Model vocabulary. The familiar, almost provincial categories appear on cue: plant or craft units, exclusive representation or members-only models, and good-faith versus bad-faith bargaining. But recent scholarship has been broadening our imagination. Professor Kate Andrias’s influential work on “sectoral bargaining,” along with contributions from other legal academics, social scientists, one historian, think tanks (both progressive and conservative), and Harvard’s Clean Slate Program, are pushing bargaining beyond the NLRA’s tired categories. A diversity of public figures, from Senator Bernie Sanders, to Lyft President John Zimmer have also called for institutionalizing forms of sectoral bargaining. Yet critics, me included, have questioned whether many concrete examples, such as wage boards, actually involve bargaining at all. Professor Cynthia Estlund asserts they are systems of sectoral regulation, not bargaining.
Enter Professor Sara Slinn. In her upcoming chapter, Analytical Framework for Understanding Broader-Based and Sectoral Bargaining Models, Professor Slinn maps what counts as sectoral bargaining and what other tools exist. She argues that reform debates stall because scholars and policymakers use terms like “multi-employer,” “broader-based,” and “sectoral” interchangeably even though they describe different arrangements. Without a shared vocabulary, reform fragments. In other words, reformers need a clear analytical framework. Continue reading "Tools to Clear the “Sectoral Bargaining” Fog"
Jun 10, 2026 Gerry W. BeyerTrusts & Estates
Who wouldn’t want to control things, even after death? The chance that your surviving family will not obey your wishes after you die is exactly why you create a last will and testament. We all long to control where our money and property goes, but shouldn’t people also be concerned with what for some of us is most important of all—where our body goes? William A. Drennan’s R.I.P.—A Financial Incentive to Protect Your Cadaver?, suggests a clever way for individuals to control the disposition of their body through financial incentives. This is valuable to everyone who wishes to have a body disposition different from what family members want for them as well as those who desire a unique or untraditional disposition. Drennan’s suggestion of financial incentives gives everyone what they want. You choose how to dispose of your final remains while your survivors get your cash.
In this article, Drennan points out although people have substantial control over what happens to their property after death, they have less power over what actually happens in the disposition of their own bodies. The article explains that state laws permit family members to override decedents’ instructions concerning the handling of their corpse. To address this, Drennan proposes the use of a financial incentive clause that gives the living family members a gift when and if they comply with a decedent’s specific disposition method. The article looks at the practicalities, enforceability, and public policy implications of this proposal while also uncovering philosophical tension between the rights of the dead and the interests of the living. Continue reading "Cash For Compliance, Buying Obidience After Death"
Jun 9, 2026 Hila KerenContracts
Sarah Dadush,
Shared Responsibility in American Contract Law,
Tennessee L. Rev.(forthcoming), available at
SSRN (March 1, 2026)>
Emily J. Stolzenberg, Toward a Private Law of Intimates’ Obligations, 111 Iowa L. Rev. (forthcoming), available at SSRN (Feb. 2, 2026).
Under most descriptions, contract law perceives parties as dealing with each other at arm’s length. It assumes the parties seek “to further their economic self-interest,”[1] and thus generally does not expect them to assist each other. As Richard Posner once put it in one of his decisions: “Contract law does not require parties to behave altruistically toward each other; it does not proceed on the philosophy that I am my brother’s keeper.”[2] Two excellent forthcoming articles offer a compelling challenge to this approach: Sarah Dadush’s Shared Responsibility in American Contract Law and Emily Stolzenberg’s Toward a Private Law of Intimates’ Obligations. I review the pair of articles in tandem to highlight the synergy between their significant contributions to contract law scholarship. While Dadush and Stolzenberg focus on contexts that could not be more distinct, I highly appreciate how they both illuminate the value of collaboration and cooperation in contractual relationships and argue that contract law could and should play a role in advancing them.[3] In her article, Dadush analyzes global transactions and complex supply chains at the heart of the market. Stolzenberg, by contrast, zooms in on intimate relationships between cohabitants at the market’s margins. Nevertheless, from those opposing angles, each forcefully emphasizes the collaborative or cooperative dimension of the contractual relationship. Continue reading "Collaboration and Cooperation Under Contract Law"
