May 18, 2026 Michael Froomkinzetasec
Putting the Brakes on a No-Drive List, unpubl MS, unavailable.
The constitutional right to travel domestically, though frequently proclaimed as fundamental, remains doctrinally under-theorized and riddled with exceptions. This vulnerability creates an opening for an oppressive new form of domestic movement regulation: a “No Drive” list, modeled after the No Fly list, that bars designated individuals from operating vehicles or traveling as passengers, either across state lines or potentially within states.
The No Fly list rests on four premises that could justify automobile travel restrictions: that flying is a privilege rather than a right; that special circumstances justify prophylactic restrictions on persons neither charged with nor convicted of offenses; that government can identify these individuals through secretive processes; and that administrative procedures with limited judicial review satisfy due process. The long-established principle that driving is a privilege not a right provides immediate doctrinal support, while automated license plate readers, facial recognition, GPS tracking, and comprehensive surveillance systems transform an apparently unenforceable scheme into a feasible regulatory program.
Though recognized for over two centuries, the doctrinal foundations of the right to travel remain uncertain, grounded variously in structural principles, multiple constitutional clauses, and the Fourteenth Amendment. Numerous exceptions already constrain domestic movement. Most significantly, the Supreme Court has never definitively established whether intrastate travel enjoys fundamental constitutional protection.
Enter the No Fly list. Despite constitutional challenges, courts have upheld its basic framework although requiring some enhanced procedural protections. This opens the door to a No Drive list, which could be justified and implemented through congressional authorization, emergency powers, or immigration-related authority. Current political rhetoric designating domestic opponents as “terrorists” provides potential justification mirroring the No Fly list rationale. Continue reading "Three Paragraph Tester"
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"
May 6, 2026 Daniel GervaisTechnology Law
For decades, law-and-tech scholarship has relied on intuition and analogy: a new technology arrives, legal scholars declare it “disruptive,” and commentary proliferates, particularly concerning its governance and affordances. Ryan Calo’s Law and Technology is an ambitious and lucid attempt to give an unruly field a shared intellectual backbone. Calo argues that this ad-hoc mode no longer suffices. Law’s relationship with technology, he insists, is clouded by what he calls “technological fog” (P. 86), which he describes as a recurring set of misconceptions that make technology appear inevitable, obscure human agency, and frustrate regulation. His response is a rigorous, four-step methodical approach (and he stakes his ground without hesitation: “methods are arguably what distinguish scholarship from other modes of inquiry”) designed to help legal analysis catch up with the social fact of technology.
Calo begins by grounding the reader in a deceptively simple insight: technology is not destiny but design. In Chapter One, “Technology as Social Fact,” he dismantles deterministic narratives by showing how law repeatedly mistakes contingent artifacts (driverless cars, AI systems, augmented reality) for unavoidable progress. The problem, he argues, is not that legal scholars fail to grasp how gadgets work, but that they may misunderstand the social contexts in which those gadgets operate. This diagnosis sets the tone for the rest of the book: technology confuses law because law tends to forget that technology is made by people with values and choices. Continue reading "A Method for the Madness of Tech Law"
