Oct 27, 2025 Thomas J. McSweeneyLegal History
In Dobbs v. Jackson Women’s Health Organization, the Supreme Court relied on medieval English legal texts to argue that “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law.” In Context Matters, Sara Butler demonstrates that reading medieval texts shorn of their context can be dangerous. Butler shows us not only that the rationales behind abortion laws were different in the Middle Ages, as we might expect, but also that the term “abortion” itself referred to a broader and different set of practices than those encompassed by the word “abortion” in its contemporary usage. Butler argues that, when we put medieval abortion laws in their context, they appear to be something fundamentally different from modern abortion laws. Rather than an unbroken chain, we see two very different types of practices in modern and medieval abortion law.
Butler, whose scholarship has encompassed topics such as forensic medicine in medieval homicide investigations, the history of peine forte et dure, and, indeed, the treatment of abortion in medieval English law, is well positioned to add important context to the texts Justice Alito cites in Dobbs. She surveys writing on abortion over a period of several centuries and a number of different geographic contexts to illuminate the major themes of medieval thought about abortion. And, as Butler observes, the major problem the court faces in trying to trace the history of abortion back to the twelfth or thirteenth century is that in discussing abortion today and abortion in the Middle Ages “we are not comparing like entities.” (P. 22.) Continue reading "Unbroken Tradition” or Broken Chain? Contextualizing Medieval Abortion Law"
Oct 24, 2025 Eric BiberLexEnvironmental Law
America will probably be using a lot more electricity in the very near future. Demand will increase due to data centers for artificial intelligence, as well as electrification that is a central part of decarbonizing the American economy such as continued adoption of electric vehicles and electrification of home heating and cooking. But increased demand for electricity creates a problem. It will require an expansion of our electricity transmission network, a system that was designed for much lower levels of electricity usage. Moreover, the restructuring of electricity markets in much of the US starting in the 1990s is requiring more transmission capacity because of the integration of electricity generation and demand on a much larger scale than in the day when most electricity was generated and used within the service area of a single public utility. Greater extreme weather events because of climate change will increase the demand for electricity and also increase the risk of failures in the transmission system – larger transmission systems can provide resilience for these situations.
But the process for constructing new US transmission systems is broken. The US has built a fraction of the miles of high-voltage transmission lines that are required to meet our future needs. Building on prior work that has helped identify the problem, Joshua Macey and Elias van Emmerick’s article provides two key contributions. First, they show how the current system incentivizes the construction of transmission projects that do not benefit the grid as a whole. Second, through a thorough analysis of the existing powers of the Federal Energy Regulatory Commission (FERC) and the Department of Energy, they identify a range of legal authorities that those agencies could use to address the problems already identified through administrative action – providing a potential roadmap for at least starting to work on our need for more transmission. Continue reading "Solving our pressing need for more electricity transmission"
Oct 23, 2025 Elizabeth ChamblissLegal Profession
Two recent studies of rural court systems highlight the importance of institutional investment for improving access to justice in rural communities. Rural communities not only need more individual providers, such as lawyers and community justice workers, they also need local nonprofits, community action networks, mental health treatment centers and other institutional infrastructure to support and partner with providers including—critically—more public investment in rural county government and courts.
In Legal Deserts and Spatial Injustice: A Study of Criminal Legal Systems in Rural Washington, Lisa R. Pruitt, Jennifer Sherman, and Jennifer Schwartz document alarming institutional deficits in rural county criminal justice systems. Based on detailed qualitative and quantitative data from six rural counties in central and eastern Washington, they find a growing shortage of lawyers available to prosecute and defend criminal cases, with county vacancy rates for defense attorneys of up to 67% (P. 868); an increasing reliance on remote appearances by defense attorneys who never meet their clients (P. 884); and “a lack of services and infrastructure to support system-involved individuals, from drug treatment programs to public transportation.” (P. 852.) Continue reading "Rural Institutional Loss"
Oct 22, 2025 Barbara LevenbookJurisprudence
A philosophical anarchist believes that law cannot obligate. That means that it cannot impose a genuine obligation, which is a special kind of reason for action. In this article, Kenneth Ehrenberg makes the case that three popular theories about law, legal authority, or practical reason commit their proponents to philosophical anarchism. Though explicitly his discussion is limited to the three, there is enough in his arguments to show that it’s very difficult to avoid philosophical anarchism in your theory about authority, reason-giving, or the normativity of law. If you think that law’s reason-giving force comes ultimately from some non-legal source, you’ve embraced this form of anarchism.
Readers will not be surprised to learn that those who deny that law has practical authority, insisting instead that its authority is only theoretical, are philosophical anarchists. They acknowledge that law cannot create novel reasons for action. It follows that law cannot create obligations, either. It only provides reasons for belief. The big surprise is that natural law theory of the Mark Murphy variety falls into this category. The appeal of such a theory has long been that it vindicates the law’s normative language of rights and obligations. It does so by vindicating the intuition, held by many, that legal rights and obligations are real rights and obligations, and thus, genuine reasons for action. It might seem, then, that law – that is, human or positive law — creates such reasons. But Ehrenberg makes a persuasive case that, given the standard natural lawyer commitment to the unity of value, any genuineness in the obligation stems from pre-existing or background principles (of the natural law, of reason, or directly from God). (Positive) law does not, then, generate genuine reasons for action; and so, it cannot obligate. Something else is doing the work. Continue reading "How to Be an Anarchist Without Really Trying"
Oct 21, 2025 Alexandra RobertsIntellectual Property Law
What do CHEROKEE cars, the Atlanta Braves baseball team, and Urban Outfitters’ “Navajo” panties have in common? All are examples of brands and teams adopting Native American tribal names, terms, and stereotypes as their trademarks. What does that practice reflect about the complex relationship between trademark law and native peoples?
In Tradition Is a Trap, Professor Jessica Kiser argues that US trademark law has been, and remains, ineffective and biased when it comes to acknowledging, let alone protecting, the interests of Native Americans as individuals and as a people. Kiser’s article examines how trademark law has treated Native American tribal names and culture, including through application of the Lanham Act’s former bar on registration of disparaging marks, its prohibition on the registration of trademarks that falsely suggest a connection with institutions, and its standards around rights acquisition. It builds on and contributes to other important work in Critical Race Theory, Decolonial Theory, and Race/IP fields. Continue reading "Have Tribes Been Robbed by Trademark Law?"
Oct 20, 2025 Rosalind DixonInternational & Comparative Law
In her important new book, The Failures of Others: Justifying Institutional Expansion in Comparative Public and International Law, Michaela Hailbronner turns her attention from constitutional transformation to its absence, or from the idea of large-scale, successful constitutional change to that of “Institutional failure … as a shorthand for a range of other terms such as policy or state failure, dysfunction and state failure, dysfunction, and structural or systemic deficits.” (P. 3.)
Institutional failure, Hailbronner argues, has been a focus of other disciplines such as economics and public policy for a long time—but lawyers, she suggests, are “as usual, late to the party.” (P. 3.) This is an omission to be rectified: By paying attention to discourses around institutional failure, we gain new insights about public understandings, “relationships and institutional self-perception.” (P. 5.) With a focus on institutional failure, new justifications for the expansion of institutional authority or action likewise come into view. This is true, Hailbronner suggests, whether those arguments are made explicitly or implicitly: the choice surely depends on who is talking and in what context. Continue reading "Arguments from Failure: A New Theory of Judicial Review and Restraint"
Oct 17, 2025 Tom SimmonsLexElder Law
Nina A. Kohn,
Ageless Law, __ N. Cal. L. Rev. __ (forthcoming 2026), available at
SSRN (April 24, 2025).
Since 2022, voters in both Nevada and New York have overwhelmingly approved state constitutional amendments characterizing age as a protected class. As a result, a host of age-based policies and practices may soon become legally impermissible there. If the enactments in those states are part of a trend, the scrutiny on classifications based on adults’ chronological age will only intensify.
Nina Kohn’s Ageless Law ought to be required reading for any Elder Law class. It constructs a comprehensive intellectual scaffolding on which all the different sorts of age-based classifications and justifications thereof are strung. “Policies that differentiate based on older age are so common in modern America that they are often treated as unremarkable,” (P. 7) she observes. Excavating that which may have become unremarkable is an important and often overlooked academic enterprise. Professor Kohn undertakes this enterprise with remarkably sensitive concision. Continue reading "Calibrating the Convenience and Constitutionalism of Chronological-ism"
Oct 16, 2025 Trudo LemmensHealth Law
Internationally, pressure to legalize or expand euthanasia and assisted suicide is mounting, primarily in industrialized countries. France and the UK are two major jurisdictions that are currently considering legislating some form of what is now often referred to as “assisted dying.” Amid the UK debate on a private member’s assisted suicide bill currently before the House of Lords, Jennifer Hardes Dvorak’s recent article, Is Assisted Dying Really A Matter of Medical Regulation?, raises crucial—yet often overlooked—questions related to the role of medicine: Should assisted suicide and euthanasia be regulated as medical practices? What are the implications of involving medical professionals?
Dvorak offers a nuanced analysis—grounded in empirical evidence from existing regimes—of the problems with medical models of ‘assisted dying’. These are models in which physicians (and in some countries also nurses) play an essential role as prescribers, or as those providing a lethal injection, and in which medical criteria determine whether a person obtains access. She also discusses whether what is often treated as a ‘demedicalized’ model, like Switzerland, where assisted suicide is organized by volunteer organizations with only a limited role for physicians, offers a better approach. Her paper presents a balanced review of regulatory approaches and highlights the complexities of interpreting evidence in this polarized debate. The paper makes a compelling argument about the challenges with medical models of assisted dying, while also acknowledging that a demedicalized system of legalized assisted dying is not unproblematic. Continue reading "The Dangers of Regulating Inducing Death as a Medical Practice"
Oct 15, 2025 Erez AloniEquality
Legal scholarship has long grappled with how to name and remedy discrimination that doesn’t fit neatly into existing legal and conceptual frameworks. We have robust vocabularies for overt bigotry, implicit biases, and increasingly nuanced understandings of microaggressions—those subtle slights that accumulate from interpersonal to structural harm. But what about the moments when someone refuses to use another’s pronouns—not with hostility, but with a shrug? When they double down, explaining they’re “not wired that way,” or that recognizing someone’s genderqueer identity is simply “asking too much”? What happens when misrecognition isn’t hidden, but rather is framed as ordinary, reasonable—even inevitable?
In their revelatory article, Blasé: Deviant Lawyers and the Denial of Discrimination, Swethaa Ballakrishnen names this under-theorized dynamic through interviews with sixty law students and early-career legal professionals from marginalized groups. Ballakrishnen calls it blasé discrimination: a form of bias that arises when emerging or less institutionally legible identities—such as nonbinary gender—are dismissed not as wrong, but as irrelevant. This is not discrimination that hides, but discrimination that shrugs. The harm lies in the casualness of erasure—where certain forms of difference are brushed aside as too trivial or inconvenient to matter. Ballakrishnen traces how identity categories in flux become especially vulnerable to denial. Continue reading "Ordinary Denials: The Shrug of Identity-Based Harm"
Oct 14, 2025 Eric J. MillerCriminal Law
Ekow Yankah’s article, Deputization and Privileged White Violence, makes a stark claim: every state and territory in the United States has a legal-power-conferring norm enabling “violence aimed at racial minorities, particularly Black people, by White people who, as private citizens, take themselves to be innately authorized to police racial minorities.” (P. 709.) He calls this legal authority “deputization.”
Yankah’s article is a work of conceptual-normative criminal law theory. His claim is that deputization is a normative feature of our society, and as such “not easily amenable to empirical verification.” (P. 715.) His methodology is therefore one of “philosophical reconstitution” of the concept of deputization as a “sociologically and historically embedded” legal power. Nonetheless, he wants us to take this claim head on: he really means that deputization is a currently-existing legal norm empowering white people to police Black people using violence to seize Black people they think are dangerous, including by using deadly force. Deputization, Yankah claims, is legal in every jurisdiction in the land. Worse, because that private policing norm is available only to white people it is, in part, constitutive of what it means to be a white person in the United States. Continue reading "The Hidden Customary Criminal Law Endorsing Civilian Acts of Anti-Black Violence"
