May 20, 2026 Andrew F. TuchCorporate Law
Ludovic Phalippou & William J. Magnuson,
Private Equity, Public Capital, and Litigation Risk, available at
SSRN (Nov. 14, 2025).
In their recent paper, Private Equity, Public Capital, and Litigation Risk, Professors Ludovic Phalippou and William Magnuson challenge the wisdom of a current trend in finance: retail investors’ increasing access to private equity (PE). The authors make compelling arguments—both about the imminent reality and risks of “retailization” and about the effects of the broader, long-term erosion of the public-private divide embedded in federal securities law.
Retailization, to be clear, is not new. Legislators, regulators, and courts have loosened constraints, allowing retail investors to access private equity through investment funds. Major law firms have engineered fund structures designed to channel retail capital into PE. The result is that PE firms, also known as alternative asset managers, began accepting retail capital through intermediaries more than a decade ago. Continue reading "Private Equity, Retail Investors, and Litigation Risk"
May 19, 2026 Orit GanContracts
Law students study landmark contract law cases; scholars write law review articles on contract law precedents and influential judicial decisions (typically from states’ appellate and supreme courts); and the media covers high-profile, high-value contracts and high-stakes contract disputes between sophisticated parties. However, according to Contract Law and Civil Justice in Local Courts, these represent exceptional examples. The majority of contract disputes (over eighty percent) are adjudicated in local courts. In this fascinating article, Cathy Hwang and Justin Weinstein-Tull examine this understudied domain, shifting the attention from the extraordinary to the mundane.
The authors begin by describing proceedings in local courts. Most judges in local courts do not hold law degrees and have only completed brief training courses that include introductory legal instruction. In many cases, at least one party is not represented by legal counsel. Moreover, most cases in local courts do not result in written opinions, and those that do are typically unpublished, and proceedings are rarely recorded. The disputes themselves often involve non-negotiated contracts that parties signed without legal counsel, and without reading them. These cases frequently concern small amounts in controversy, including debt collection; auto loans; landlords-tenants disputes; contract disputes with general contractors or landscapers; small-scale business-to-business services; and family loans. Continue reading "Ordinary Contract Law"
May 18, 2026 Suzette M. MalveauxCourts Law
Mila Sohoni,
In CASA You Missed It, 78
Stan. L. Rev. ___ (forthcoming 2026), available at
SSRN (Nov. 25, 2025).
The Supreme Court of the United States is poised to make one of the most important decisions this term: the constitutionality of President Trump’s Executive Order challenging birthright citizenship. As the Court considers this substantive question, many scholars, judges, lawyers, and Americans are still grappling with the meaning of its earlier remedial decision, Trump v. CASA. Thankfully, Professor Mila Sohoni’s essay provides an excellent analysis of the case and its implications.
Sohoni provides a thoughtful, fair, and clear-eyed summary of what the opinion does and does not do. She starts by explaining how the Court now forbids district courts from issuing injunctive relief beyond the parties (“universal injunctions”). She flags important interpretive vacuums and questions left in CASA’s aftermath. Having clearly identified CASA’s boundaries, she recognizes the various means through which federal courts can provide broad injunctive relief to those challenging executive branch overreach. Finally, and most importantly, Sohoni contextualizes CASA during these turbulent times. Continue reading "Resilience and Judicial Power in the Aftermath of Trump v. CASA"
May 15, 2026 Emily HammondAdministrative Law
In Second-class Administrative Law, Professor Matthew Lawrence makes a provocative challenge to the presumption of unreviewability announced in Lincoln v. Vigil, 508 U.S. 182 (1993), which applies to agencies’ decisions about how to allocate lump-sum appropriations. Challenging both the opinion’s premise and its potential theoretical bases, Lawrence offers an important rethinking of the doctrine. What really stands out about this piece, however, is that Lawrence melds traditional methods of administrative law scholarship with a human-focused dimension, exploring how it impacts people as applied. And he demonstrates why this seemingly neutral rule of administrative law has a disparate impact on historically marginalized groups, especially Tribes and imprisoned people. In so doing, he answers a broader call to bring a critical lens to administrative law and offers a model for how it can be done.
Some readers might wonder if the Vigil slice of administrative law is worth the fuss. But as Lawrence notes, about a fifth of the federal budget is theoretically shielded by Vigil as non-defense, discretionary spending. (P. 1067.) And, as exemplified by the Fall 2025 shutdown impacting SNAP benefits, it bears noting that many of the kinds of programs funded this way are those that offer safety nets to those with the least power and most vulnerability. Indeed, Lawrence’s treatment is rich with the separation-of-powers and human-impact dimensions that are of extraordinary importance in the United States today. Continue reading "Putting a Human Face on Administrative Law"
May 14, 2026 Verity WinshipInternational & Comparative Law
Mariana Pargendler & Olivia Pasqualeto,
Overcoming Corporate Separateness: The Early Origins of Group Liability for Workers and Beyond,
Am. J. Comp. L. (forthcoming 2026),
available at SSRN (Jan. 22, 2026).
In 2024, the Brazilian Supreme Court froze assets of a Starlink subsidiary because of non-compliance by X (formerly Twitter). What do Starlink and X have in common? The Brazilian Supreme Court’s answer was “Elon Musk.” His control, according to the court, made this a de facto economic group (grupo econômico de fato). In many contexts, that answer wouldn’t make legal sense; X and the Starlink sub were separately organized legal entities, whose boundaries are generally respected. Or are they? Read Overcoming Corporate Separateness to find out.
Multinational corporations are often organized into corporate groups or conglomerates, but these groups are not always formally defined in the law. US corporate law orthodoxy is that respecting the formal boundaries between corporations, parents and subsidiaries, etc. offers risk partitioning, predictability, and ease of compliance. Under this account, it makes sense to respect and even encourage organization of separate entities by jurisdiction, by company, by market. Continue reading "Corporate Groups & the Principle of Reality"
May 13, 2026 Kerri Lynn StoneWork Law
In this provocative article, Bill Corbett traces recent developments in Title VII employment discrimination law by analyzing two Supreme Court decisions, Ames v. Ohio Department of Youth Services, 605 U.S. 303 (2025), and Muldrow v. City of St. Louis, 601 U.S. 346 (2024), as well as how textualism has imperiled the McDonnell Douglas doctrine. (Courts have used this three-part burden-shifting framework to decide the issue of discrimination under various statutes since the early 1970’s. The McDonnell Douglas doctrine puts the burden on the plaintiff to create an inference of discrimination, then permits the defendant to offer a legitimate, nondiscriminatory reason for its action. The plaintiff shoulders the ultimate burden of persuasion by proving pretext, and thus, the ultimate fact of the discrimination.) Corbett concludes that an “escalating textualist purge of employment discrimination law is fashioning a body of law that differs significantly from the one that has developed over six decades.” (P. 37.) He predicts that, as a result, courts will be less likely to grant employer-defendants’ motions for summary judgment on plaintiffs’ Title VII claims.
In his analysis, Corbett reads Muldrow as a case in which the Court deploys textualism to eschew “heightened standards for actionable adverse employment actions,” and Ames as further confirming that Title VII exists to protect individuals and not groups. (P. 36.) From this, he infers Muldrow and Ames will cause more Title VII cases to make it to trial, and more filing of discrimination claims, especially so-called “reverse discrimination” claims. Continue reading "Textualism’s Trajectory"
May 12, 2026 Sarah WaldeckTrusts & Estates
You should read Reimagining Marital Property At Death because it challenges the conventional conception that death ends the economic partnership between spouses. The authors’ insight that a marriage might (sort of) continue post-mortem prompts a reevaluation of how property is divided between spouses and of what it means to be married.
Professors Ram Rivlin and Shahar Lifshitz begin with mutuality and symmetry, two principles that inform how states divide property between spouses at death. (P. 364.) Symmetry dictates that the division of property should be the same regardless of whether a marriage ends in death or divorce. Because marital assets are divided equally in divorce, they should also be divided equally between the surviving spouse and the dead spouse’s estate. Mutuality dictates that both spouses should be able to devise half the proceeds from the economic partnership, regardless of which spouse dies first. States with an elective share that allows the surviving spouse to claim roughly half of the marital assets accept the principle of symmetry but reject mutuality because they do not provide a mechanism to transfer property from the surviving spouse to the dead spouse’s estate, even if the surviving spouse has a greater share of marital assets. Community property jurisdictions, on the other hand, embrace both symmetry and mutuality. These jurisdictions give spouses equal ownership of property earned during the marriage, thereby enabling each spouse to devise half of the marital property at death. Continue reading "Maybe Death Doesn’t Part Us"
May 11, 2026 Sarah SwanTorts
To truly understand all the nuances and textures in Verónica Rodríguez-Blanco’s rich argument in her recent book, Responsibility for Negligence in Ethics and Law: Aspiration, Perspective, and Civic Maturity, a reader would likely need full fluency with the methodology and language of moral and ethical philosophy: terms like akrasia, proleptic, and phenomenology dance with Hume, Aristotle, and Kant throughout the chapters. Yet the book has much to offer even the non-philosopher kings and queens of tort law. It takes on the perpetually vexing question of whether there is an actual moral justification (as opposed to a mere policy one) for negligence liability, and, through nine chapters of careful argumentation, offers its own distinct answer. Eschewing previous theories, Rodríguez-Blanco argues that negligence liability is justifiably grounded in a defendant’s failure to adopt a deliberative-aspirational perspective, when that failure has caused injury to another.
Negligence has long been a bugaboo for theories of responsibility. By definition, negligence assigns legal liability even to those whose mere inadvertence has caused injury. Whereas culpability is relatively easy to assign in the case of intentional torts— purposefully or knowingly causing injury is clearly blameworthy and deserving of deterrence and sanction—the basis for ascribing blame and liability to inadvertent actions and results is less clear, and theorists have spilled much ink offering various attempts at justifications—and refutations —of the practice. Continue reading "An Aspirational Theory of Negligence Responsibility"
May 8, 2026 Kevin WoodsonLegal Profession
Nikia Gray, Kyle Rozema, & Danielle Taylor, Who Enters the Pipeline to Partnership at Leading American Law Firms? (Dec. 13, 2025), available at SSRN.
Equity partners at America’s leading law firms occupy positions of extraordinary wealth, influence, and prestige atop the legal profession. Who reaches those positions, and through which pathways, is a revealing measure of how open and inclusive the profession is and has accordingly received extensive attention in both legal scholarship and the popular press. There has been less attention, however, to which new attorneys land the types of positions that plausibly place them on the path to partnership.
Gray, Rozema, and Taylor’s important new study, Who Enters the Pipeline to Partnership at Leading American Law Firms?, addresses this gap, using three decades of data from the National Association for Law Placement (NALP) to track the first jobs of over 1.2 million law school graduates between 1992 and 2023. They focus on the elite entry-level “pipeline” positions in which a large majority of partners at top law firms begin their careers—a set that primarily consists of associate positions at firms with more than 250 attorneys, but also similar positions at mid-sized firms that pay comparable salaries and federal judicial clerkships. The result is the most comprehensive empirical portrait yet assembled of who enters the pipeline to elite legal leadership and how the pipeline has changed over time. Continue reading "Access to Elite Legal Careers"
May 7, 2026 Sara BroninProperty
Scholarship that highlights the far-reaching consequences of the failure of American land use law to address climate change deserves our attention. That’s why, for the second year in a row, my JOTWELL review covers this critical issue. My choice last year, Jonathan Rosenbloom’s “Sacrifice Zones,” explained how local governments could deploy a variety of zoning strategies to reduce development in areas prone to natural hazards—including relocating residents.
This year, I recommend “Land Law Localism and the Climate Resilience Paradox” by Sarah J. Adams. Adams argues that we should not count on localities to reconcile their parochial motivations with the broader imperative to adapt governance frameworks to address climate change. Her detailed, expansive article urges us to recalibrate local land use regulations before we zone ourselves out of existence. Continue reading "Exposing Zoning’s Failure to Address Climate Hazards"
