Monthly Archives: July 2025
Jul 17, 2025 Neil H. BuchananTax Law
Rebecca Morrow,
The Income Tax as a Market Correction, available at
SSRN (March 28, 2025).
The fundamental problem with orthodox economic analysis of policy issues is the lack of a clear baseline. That is, standard economic arguments revolve around moving the world from its currently impure and benighted “inefficient” equilibrium back to its idyllic efficient state (known technically as Pareto efficiency). Yet, as I have discussed here, we do not and cannot know what that perfectly efficient state looks like – or even how we would know it when we achieved it. In turn, that means that we do not know whether any particular legal change or policy intervention will move us closer to or further away from the efficient state of the world. Indeed, we might already be in that supposedly ideal state, which would mean that any changes would move us into a suboptimal world.
Rebecca Morrow’s The Income Tax as a Market Correction uses the inherent unknowability about what is and is not efficient to offer a profound (and also somewhat cheeky) retort to the many economists who call the income tax inefficient. Professor Morrow is right that having an income tax could be more efficient than not having an income tax – because, again, anything is possible in a world without a known baseline – but she goes further and argues that the income tax in the United States probably is more efficient than the alternative. Continue reading "“I’m Not a Distortion, You’re a Distortion!”"
Jul 16, 2025 Donald KochanProperty
A new work by Professors Daniel Klerman and Stefan Bechtold, Personal Property Servitudes Revisited, is an excellent case study in when and how property rules should and can evolve. Professors Klerman and Bechtold inquire whether those buying and selling personal property (chattels) can write contracts that legally bind purchasers just as those buying and selling real property can use real covenants and equitable servitudes to bind future purchasers.
Equally as important, the authors ask whether buyers and sellers of personal property should be able to write such contracts. The traditional answer has been “no.” For a long time, concerns about notice, tracing, and administrability have limited the recognition and enforcement of servitudes attached to personal property in its transfer. Continue reading "Should Property Law Evolve to Recognize Personal Property Servitudes?"
Jul 15, 2025 Pamela BookmanCourts Law
Myriam Gilles,
Arbitration Exceptionalism, available at
SSRN. (Feb. 27, 2025).
Privatization of traditionally public government functions is all the rage in the second Trump administration. The news is rife with suggestions of privatizing everything from delivering the mail to keeping airplanes aloft to tracking the weather. These developments seem consistent with the Supreme Court’s longtime trends of favoring privatization of their own bread and butter—public adjudication in court. Since 1980, the Court has treated arbitration agreements with special status, pursuing a “liberal federal policy favoring arbitration agreements,” while showcasing a hostility to court litigation. Pro-arbitration policies are popular around the world for commercial contracts. But the Supreme Court’s particular flavor of arbitration favoritism has led to a certain American arbitration exceptionalism—a pro-arbitration policy not just for international commercial contracts and other business-to-business contexts, but for employment and consumer contracts (for which other countries do not countenance arbitration given the imbalance of bargaining power between the parties). Today’s legal environment might lead one to expect Supreme Court support for arbitration and privatization of dispute resolution only to grow.
But Myriam Gilles, who has been tracking and criticizing these trends for a long time, provides some reason for optimism that the Court might reverse course. Gilles’s latest article, Arbitration Exceptionalism, charts the rise and, she suggests, potential coming fall of arbitration exceptionalism, particularly since the Supreme Court’s 2022 opinion in Morgan v. Sundance. Continue reading "An End to Arbitration Exceptionalism?"
Jul 14, 2025 Dara E. PurvisFamily Law
In June of 2025, Secretary of Health and Human Services Robert F. Kennedy, Jr. told a legislative committee that his agency would be working towards a goal of every American wearing a device tracking information about the wearer’s body and health within four years.
One assumption underlying RFK Jr.’s campaign is that more information is always helpful – but what if the health information you learn warns of elevated risks that you can do nothing to prevent? Even further, what if you never asked for the information at all? In Poked, Prodded, and Privacy: Parents, Children, and Pediatric Genetic Testing, Allison M. Whelan incisively explores these questions in the context of genetic testing, explaining multiple ways that the privacy rights of children can be violated if their parents consent to genetic testing on their behalf. Professor Whelan’s analysis also illuminates broader dilemmas about the rights of children and authority of parents playing out in multiple troubling ways, including denials of gender affirming care to transgender youth. Continue reading "The Right to Children’s Future Privacy"
Jul 11, 2025 Anita KrishnakumarLexLegislation
James J. Brudney & Lawrence Baum,
Does Textualism Constrain Supreme Court Justices?, available at
SSRN (Feb. 3, 2025).
Textualist jurists and scholars have long contended that their preferred interpretive approach is superior to competing approaches because text-based analysis limits judicial discretion and constrains judges. Indeed, the late Justice Scalia declared in his book, Reading Law: The Interpretation of Legal Texts, that a textualist interpretive approach would “narrow the range of acceptable judicial decision-making” and “curb—even reverse—the tendency of judges to imbue authoritative texts with their own policy preferences.” Correspondingly, textualists long have criticized legislative history as an illegitimate interpretive tool that “has something for everyone” and “greatly increases the scope” of judicial manipulation of statutory meaning to suit the judge’s ideological preferences. To date, these claims have gone largely untested, although several scholars have offered anecdotal evidence suggesting that textualism does not, in fact, constrain judges all that much.
Enter Professors Brudney and Baum, who marshal an impressive dataset of 660 statutory decisions involving labor and employment law statutes decided between 1969 and 2024 in order to measure empirically how well textualist interpretive tools constrain judicial decision making. The result is an article rich in both empirical and doctrinal analysis of liberal and conservative justices’ use of textual canons, legislative history, and legislative purpose to reach interpretive outcomes consistent (or inconsistent) with their ideological preferences. Because their dataset is so broad—covering 54 terms’ worth of cases—Brudney and Baum are able to document historical changes and draw historical comparisons that other scholars have only been able to gesture at anecdotally. Continue reading "Is Textualism Akin to Letting Judges Look Over a Crowd and Pick Out their Friends?"
Jul 10, 2025 Dalindyebo ShabalalaInternational & Comparative Law
The first thing I read by Stephen R. Munzer was an article that he had done with Kal Raustiala, The Uneasy Case for Intellectual Property Rights in Traditional Knowledge, 27 Cardozo Arts & Ent. L.J. 37 (2009). There had been plenty of arguments made against providing protection for traditional knowledge (TK) and traditional cultural expressions, but that article provided a clear and challenging analysis for WHY providing protection was such a challenging theoretical problem, not just in the Global North but also in the Global South. In the most fascinating way, Munzer does this again in this article, once again providing a new and challenging reframing of the problem of resolving disputes relating to indigenous and traditional knowledge.
In reading this article Munzer does two things here that I especially appreciate. The first is that he brings the issue of disputes between indigenous communities and their member/citizens and disputes between one indigenous community and another up to the same level of analysis and concern as that of indigenous communities and non-member/non-citizens. I believe that due to the focus on current negotiations at the World Intellectual Property Organization (WIPO) on new instruments for protection of traditional knowledge and traditional cultural expressions the tendency has been to focus on misappropriation across borders by non-members/non-citizens, perhaps missing other avenues for enforcement. Continue reading "Not just Politics: Traditional Knowledge Disputes through a Comparative Lens"
Jul 9, 2025 Nora Freeman EngstromLegal Profession
Todd Venook,
Enterprise Justice: Tyler Technologies and the Privatizing Court, available at
SSRN. (June 4, 2025).
In Enterprise Justice: Tyler Technologies and the Privatizing Court, forthcoming in the Yale Law Journal, Todd Venook pulls back the curtain on Tyler Technology, an obscure company headquartered in Plano, Texas that provides the technology to the courts that serve a majority of Americans.
Todd begins by explaining that, however belatedly, courts have entered the digital age, and, faced with a classic “make-or-buy” decision when it comes to building out their data infrastructure, courts have mostly opted for the latter. Having done so, hundreds of courts have inked contracts with Tyler—and, pursuant to these contracts, Tyler performs a range of functions, central to courthouse operations. Tyler’s tools facilitate e-filing, manage calendars, accept payments, store filings, and even (sometimes) run online dispute resolution (“ODR”) platforms. In 2025, in the majority of states, justice is delivered (or not) through Tyler’s tools.
After cataloging the products that Tyler offers and inventorying Tyler’s grip over the relevant marketplace, Todd considers the implications of Tyler’s dominance. Filings—which is to say, pleadings, motions, judgments—are courts’ lifeblood. They are the grist for the courthouse mill. And Tyler, Todd shows, controls these filings. What follows? Continue reading "Tyler Tech and the Perils of Privatization"
Jul 8, 2025 Bill WatsonJurisprudence
An all-too-common misconception of the debate between positivists and non-positivists over the nature of law is that the debate hasn’t progressed since H.L.A. Hart and Ronald Dworkin sparred over the subject in the mid-to-late twentieth century. Emad Atiq’s book Contemporary Non-Positivism dispels that misconception and brings readers up to date on the debate. Published in Cambridge University Press’s “Elements in Philosophy of Law” series, the book provides a concise review of the contemporary literature on non-positivism, while also breaking new ground by articulating and defending a modest “non-positivism without the frills.”
The book’s four chapters address (1) the subject matter and methodology of the positivism/non-positivism debate; (2) arguments against positivism; (3) different versions of non-positivism, including Atiq’s non-frilly non-positivism; and (4) questions for further inquiry. Chapter 1 defines non-positivism as a view about the necessary criteria “for a scheme of social organization to constitute a legal system” (P. 1). According to non-positivism, a legal system “must satisfy not just non-normative criteria … but essentially normative criteria as well, such as being to some extent good, or rational, or just” (id.). Continue reading "Non-Frilly Non-Positivism"
Jul 7, 2025 Michael W. CarrollIntellectual Property Law
In Sedlik v. von Drachenberg, the jury had to decide whether a tattoo featuring Miles Davis was substantially similar to the photograph on which the tattoo was based. To do so, the court instructed the jury to exclude from consideration either work’s concept but to then to make “a holistic comparison that focuses on whether the works are substantially similar in the total concept and feel of the works.” How is a jury to exclude concepts from consideration only to then compare the works’ “total concept and feel?” In his article, Bruce Boyden persuasively explains how we got here and further argues that this is not the way to resolve questions of copyright infringement.
One of the article’s many contributions is to spotlight why developing a “substantial similarity” standard is complex because the issue bundles three distinct questions:
First, there is a question of amount: how much of the plaintiff’s material wound up in the defendant’s work? Second, there is a legal determination to be made: was the borrowed material the sort that the law should categorize as protected? And finally, there is a question of line-drawing: where is the threshold of impermissible borrowing, and did the defendant cross it? (P. 1101.)
Courts traditionally enjoyed great discretion when making these judgments because, prior to the 1950s, most suits sought equitable relief, allowing for case-by-case determinations. The article uses Learned Hand’s opinions in Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930), and Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir. 1936), to illustrate the point. Each opinion provides the reader with an extensive comparison of the narrative elements of the relevant works followed by Hand’s conclusory remarks declaring non-infringement in Nichols and infringement in Sheldon. The article argues that Hand used his expertise to exclude unprotectible elements from consideration before relying on intuition to decide whether the second work had taken too much from the first. Continue reading "How “Total Concept and Feel” Became Copyright Doctrine"
Jul 4, 2025 Zack BuckHealth Law
For better or worse, employers have long had a vital but understated role in health care access and policy in the United States. In Employers and the Privatization of Public Health, Professor Sharona Hoffman draws on this context to catalog and illuminate American employers’ roles during a public health emergency. Recognizing the important work of private employers as part of the public health infrastructure and using the COVID-19 pandemic as a focus of the piece, Hoffman persuasively argues for treating employers as the indispensable partners they are when it comes to public health interventions and goals.
In the piece, Professor Hoffman walks the reader through the traditional role of government in public health efforts and the recently diminished reach of traditional governmental power, and provides examples of domains where employers have traditionally been involved in the goals of generally furthering health. These include the interest in workers’ health, the American employer-based health insurance system, wellness programs,, and employee assistance programs—all areas of sustained employer activity. Continue reading "Enlisting Employers for Health"
