Sep 2, 2025 Christopher J. RobinetteTorts
The vast majority of tort cases are settled, and many of the settlements include confidentiality provisions that prevent the public from learning about the allegedly wrongful conduct. This has been true for decades, but the confidentiality provisions—nondisclosure agreements (“NDAs”)—have become increasingly controversial. The #MeTooMovement provided momentum to criticism of NDAs, and multiple states and even the federal government have passed legislation restricting their use.
But do such “sunshine laws” matter to plaintiffs? Noting the lack of empirical data on the issue, Professor Gilat Juli Bachar fills the void with the first article to examine the “extent to which a confidentiality clause affects plaintiffs…when weighing a settlement offer….” (P. 1260.) Such information is important because “the real-world impact of sunshine laws ultimately depends on the litigants themselves.” (P. 1206.) Not only does Professor Bachar shed light on how NDAs are perceived, but she also delves further to identify other factors affecting a plaintiff’s willingness to settle. Bachar’s excellent article is useful on the prominent issue of NDAs, and her methods have the potential to reveal information crucial to a better-functioning civil justice system. Continue reading "Why Plaintiffs Settle"
Sep 1, 2025 Afton TitusTax Law
This article’s importance lies in its boldness to say the quiet parts out loud–-that tax systems rely on gendered assumptions and reproduce inequality. In doing so, this paper argues that the tax systems in Europe (and others globally) quietly and invisibly discriminate against women. More importantly, this fact is somehow not the focus of comprehensive study in either feminist or political economy research, although this is slowly picking up traction in tax scholarship. This paper asks frankly: Why is taxation not more commonly treated as a site for gendered power? And what do feminist research and political economy scholarship lose by its invisibility? In short, this paper is an appeal for scholars to bring their feminist and political economy insights into the study of taxation.
As such, this paper is mainly addressed to scholars of political economy and feminist public policy. However, tax scholars may find themselves susceptible to this call as well. Tax scholars may see this paper as an invitation to anchor normative tax debates in political theory and feminist institutional analysis. It may also pique their interest to answer the questions Seelkopf very pointedly asks. These are questions like: How does the tax system in your jurisdiction affect women differently? Does your country still have joint filing, and what are its effects on women? What effect do VAT exemptions have on women in your jurisdiction? Seelkopf tackles both issues directly. Drawing on economic literature, she shows that joint taxation substantially raises the marginal tax rate faced by secondary earners, who are overwhelmingly women, thereby deepening gender‐based income disparities. Turning to VAT exemptions for feminine hygiene products, she finds that empirical studies on whether these lower prices or increase corporate profits are inconclusive, although there have been lower prices for non-brand products noted. Continue reading "Invisible, But Taxed: Gender, Power, and the Tax State"
Aug 29, 2025 Carol Necole BrownProperty
Danielle Stokes,
Renewable Energy Federalism 2.0, available at
SSRN (Dec. 2, 2024).
In a time of deepening political polarization and growing judicial skepticism toward administrative power, Professor Danielle Stokes’ essay, Renewable Energy Federalism 2.0, offers a timely, thoughtful, and forward-looking response to the challenges of environmental governance in the United States. By developing the concept of “sustainable collaborative governance,” Professor Stokes updates her earlier work on collaborative federalism and provides a comprehensive framework for navigating the complex legal and political realities surrounding the renewable energy transition.
At the heart of her essay is an important conceptual evolution. Professor Stokes distinguishes between collaborative federalism, which primarily emphasizes formal cooperation between federal, state, and local governments, and collaborative governance, which encompasses a broader spectrum of actors, including private industry and civil society. Continue reading "Bridging Divides: Stokes’ Sustainable Collaborative Governance as a Path Forward for the Energy Transition"
Aug 28, 2025 Bethany BergerLexNative Peoples Law
Alexandra Fay,
Courts of Indian Offenses, Courts of Indian Resistance, __
Mich. L. Rev. __ (forthcoming 2026), available at
SSRN (April 8, 2025).
Much of the history of federal Indian policy is a story of failed attempts to make Native peoples give up what makes them distinct. The complement of this history is the way Native peoples resisted each of these attempts, often using the implements of federal policy in doing so. Failure of U.S. treaty negotiators to recognize differentiation between tribal groups led some Native peoples to develop centralized political structures to coordinate their response. The devastation of federal boarding schools created a generation of Native people who formed the Society of American Indians, the first modern pan-Indian advocacy group, and communicated their resistance in ways familiar to non-Native policymakers and the public had to acknowledge. Mid-twentieth century relocation of Native people from their tribal homelands into American cities brought together people from many tribes to unite against Termination Policy. This is not a triumphal history—many lives, lands, and lifeways were lost in the process. But it underscores the ways that Native people have transformed the tools designed to destroy them to survive and fight back.
In Courts of Indian Offenses, Courts of Indian Resistance, Professor Fay adds to this history. She examines how Native people transformed the Courts of Indian Offenses created by the Department of Interior in the late nineteenth century. Interior created these courts for the express purpose of “civilizing” the Indians, directing them to punish the practices of medicine men, plural marriage, religious dances, and other “heathenish rites and customs.” Although their judges were tribal members, local federal agent appointed these judges and could remove them. Most tribes have now replaced these courts, and the old rules criminalizing tribal culture no longer exist. But five such courts still exist, serving sixteen tribes; their judges are still appointed by the federal government, and their current title, “CFR Courts,” reflects the federal regulations that govern them. Continue reading "Transforming the Master’s Tools: The History of Courts of Indian Offenses"
Aug 27, 2025 Sida LiuLegal Profession
Jedidiah J. Kroncke,
Legal Complicity in an Age of Resurgent Authoritarianism, 38
Geo. J. Legal Ethics ___ (forthcoming 2025), available at
SSRN (Feb. 24, 2024).
As authoritarianism gains momentum globally, the rule-of-law ideal is increasingly compromised. Lawyers are confronting a wave of attacks, ranging from the persecution of human rights advocates and the restriction of criminal defenders to the suppression of corporate law firms, including some of the most prestigious ones worldwide. Recent actions by the U.S. government against elite law firms like Paul Weiss and Perkins Coie, along with the consequential deals struck by some firms, exemplify the daunting circumstances that lawyers encounter in today’s world.
In this context, Jedidiah Kroncke’s new article on legal complicity is particularly compelling. Written a year before Donald J. Trump’s return to power, Kroncke could not have anticipated the subsequent aggressive actions against U.S. law firms. His primary focus is the ethical dilemmas faced by American lawyers practicing abroad, especially in authoritarian regimes like Russia and China. He critically examines modernization theory, a prevalent late 20th-century view among law and development scholars that posits a connection between economic development and democratization or political liberalization. Nonetheless, the phenomena he observes and the arguments he presents are remarkably pertinent to today’s discussion of legal ethics in both democratic and authoritarian settings. Continue reading "Legal Complicity and the Futile Dream of Resistance"
Aug 26, 2025 Allison Brownell TirresLegal History
In 1958, then-U.S. senator John F. Kennedy published the first version of his influential book A Nation of Immigrants. Kennedy’s account, written to hasten the passage of long-overdue immigration reform, solidified the mythology of the United States as a land of arrival for those looking for democracy, economic security, and the so-called American dream. It reflected a national mythology that centers the U.S. as the most desired destination. In his book Quitting the Nation: Emigrant Rights in North America, historian Eric Schlereth turns this mythology on its head, viewing the U.S. not as a place of destination but as a place of departure. As such, he provides a much-needed corrective to the historical record and enhances our understanding of the legal history of citizenship and migration.
Schlereth’s account focuses on the pivotal era between the American Revolution and the Civil War, when citizenship rights were both highly contested and minimally regulated. The American Revolution itself, as Schlereth reminds us, was fought in part over rights to emigrate from Great Britain and ultimately to expatriate to the new American republic. Colonists seeking independence rejected the English legal tradition of “perpetual allegiance,” which assumed that subjects could not choose to give up their allegiance to the King. Rejecting perpetual allegiance was simple, but deciding what would replace it was not. Was it possible to have a free right of emigration and expatriation from the fledgling United States without threatening the future of the political union, or embroiling the country in unwanted foreign conflicts? How should the new nation regulate the loss of citizenship, and what should be the obligations of those seeking to give it up? These were among the questions that individuals, courts, legislators, and the press took up in the decades after the founding and which Schlereth explores in fascinating detail. Continue reading "A Nation of Emigrants: Understanding Citizenship from the Inside Out"
Aug 25, 2025 Thomas BustamanteJurisprudence
Some legal theorists suppose political authorities make laws for us and facilitate our access to correct reasons. Authorities play an instrumental role because they are better positioned to balance reasons for action and create second-order reasons to guide our behavior while alleviating our burden of judgment. This is a service only authorities can provide. Other theorists offer a different story. Authoritative pronouncements make an impact in our moral world that is not merely epistemic. They are part of what constitutes a moral obligation, such that the content of political morality depends on the pronouncements an authority has made. Dorfman and Harel, in their recent book, Reclaiming the Public, call the first view the “add-on conception” of political authority, and the second view the “constitutive conception.” (Pp. 45-49.) They claim these conceptions fail to provide a satisfactory account of the normativity of law, in that they purport to explain how law becomes binding via an account of the law’s contribution to the content of our moral obligations. This content-based strategy is wrong, for the authors, because “the moral difference that law makes is essentially one of standing, agency, identity, status, or some such concept”; in other words, it is “not a matter of what the law is, but of whose pronouncements can count as law.” (P. 50.) Law makes a content-independent difference even when people have no moral disagreement. Suppose an aggressor punches the face of an innocent person. Although most people converge on the wrongness of such action, they would still resist the thought that the aggressor can be punished through the efforts of a private person. To make the use of coercion appropriate, it must be the case that the legal norms that command such punishment count as ours, in a way that we can be held responsible for and accountable to those norms.
Reclaiming the Public is not primarily focused on jurisprudence, although it offers a jurisprudence that is part of the larger project of offering a noninstrumental account of “the public” (the “public institutions and the officials that run them”). What makes public institutions special is that they are not simply entities which act for us, but rather that they are able to “speak and act in our name.” (P. 1.) The gist of the book is the claim that political authority must be nonhierarchical. (P. 16.) At the center of the project lies a theory of representation that provides a “linking mechanism between institutions and the people whom they govern.” (P. 1.) When the mechanism of representation works well, rules pronounced by an official can be attributed to the citizens of a political community, who can in turn regard themselves as authors of these rules. But how can a representative’s decision count as a decision of the subjects? The proposed answer is that these rules must “reflect the perspective” of citizens. Representatives must endorse the worldview of the subjects, base their own decisions on these subjects’ preferences and judgments, to act in their name. Perspective-taking, in this view, entails attributability, because “ultimately it is the perspective of its subjects that dictate the rules.” (P. 17.) Continue reading "Towards Nonhierarchical Public Authority"
Aug 11, 2025 JotwellJotwell
Jotwell is taking a short summer break. We’ll be back on Monday, August 25. However, even while we’re on break, we’ll be accepting submissions, editing them, and updating various technical parts of the site.
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Aug 8, 2025 Christophe GeigerIntellectual Property Law
While climate change brings unprecedented consequences for the environment, impacting the life of everyone through natural catastrophes and the dramatic alteration of the living conditions in entire regions, increasing attention has been paid by scholars in recent times to intellectual property and particular how it should be rethought to foster -or at least not to hinder- innovations that would have positive impact on the environment. In this context, calls for more sustainable intellectual property legislation and judicial applications thereof have become frequent.
In this context, Elena Izyumenko’s new article, Intellectual Property in the Age of the Environmental Crisis: How Trademarks and Copyright Challenge the Human Right to a Healthy Environment, is particularly timely and explores ways that sustainable development and environmental concerns could be better integrated within the intellectual property framework. Continue reading "“Greening” Intellectual Property via Human Rights"
Aug 7, 2025 Rachel RebouchéFamily Law
Yvonne Lindgren & Michelle Oberman,
Recalibrating Risk Under Dobbs, available at
SSRN (November 5, 2024).
Readers familiar with the popular South Korean television program, Squid Game, will appreciate the Jot title’s reference to a child’s game turned into a fictional life-or-death contest. When a light is green, players are free to advance across a field toward a finish line. When the light is red, players must freeze in their positions, as one movement leads to “elimination” from the game.
In their important and novel article, Professors Lindgren and Oberman deploy the terms “green light” and “red light” to help describe physician decision-making with respect to pregnant patients in states that ban almost all abortion – green light decisions are those that are legal; red light decisions are those that would fall afoul of the law. The consequences of acting in “the red,” according to ban states’ laws, can include prison sentences, hefty fines, and loss of professional license. Though not death, as in the program Squid Game, contravening an abortion ban can have severe consequences. Continue reading "Red Light, Green Light: Risk and Abortion Care in Ban States"
