Aug 6, 2025 Sanja PesekInternational & Comparative Law
In an era marked by escalating political polarization, institutional erosion, and mounting threats to democratic governance, the volume Drivers of Authoritarianism: Paths and Developments at the Beginning of the 21st Century, edited by Günter Frankenberg and Wilhelm Heitmeyer, offers a profound and analytically sophisticated examination of contemporary authoritarian dynamics. Grounded in legal, sociological, and political theory, this interdisciplinary collection is particularly timely against the backdrop of what empirical data shows to be a global authoritarian trend.
Throughout its seventeen chapters—covering the theory and empiricism of authoritarianism, in its global, local and state iterations, via media, identity politics, capitalist economy, and social crises, this volume raises fundamental normative and empirical questions: What constitutes legitimate authority in an age of technocratic governance and media-saturated political life? How can democratic polities ensure robust oversight and inclusive participation without lapsing into proceduralism or populist reaction? What forms of institutional imagination and civic mobilization are required to resist authoritarian retrenchment? Continue reading "At the Threshold of Democracy: Understanding the Drivers of Contemporary Authoritarianism"
Aug 5, 2025 Nadia SawickiHealth Law
Maxine Eichner, Mara Buchbinder, Abby Schultz, Cambray Smith & Amy Bryant,
The Inevitable Vagueness of Medical Exceptions to Abortion Bans, __ U.C. Irvine L. Rev. __ (forthcoming), available at
SSRN, (April 22, 2025).
Prof. Maxine Eichner and her co-authors at the University of North Carolina have written a first-of-its kind empirical study and legal analysis that sheds light on the challenges doctors face in interpreting and applying “emergency exceptions” to state abortion bans. In The Inevitable Vagueness of Medical Exceptions to Abortion Bans, they present the findings of in-depth interviews of thirty-five maternal fetal medicine (MFM) physicians in the Southeast United States post-Dobbs, revealing “recurring patterns that create indecision regarding whether statutory exceptions will shield doctors from suit.” They use their empirical findings in support of a robust constitutional argument that state abortion bans with exceptions for medical emergencies are unconstitutionally vague.
Cases like those of Amanda Zurawski in Texas – who experienced preterm premature rupture of membranes (PPROM) at 18 weeks and did not receive an abortion until she developed sepsis three days later and one of her fallopian tubes had closed, compromising her future fertility – and Amber Thurman of Georgia – who died of septic shock because doctors waited 19 hours to remove fetal tissue from a self-managed medication abortion – demonstrate with brutal clarity that abortion ban carveouts for medical emergencies do not effectively protect patients experiencing obstetric emergencies. Troublingly, some legislators and judges in abortion ban states have placed the blame on physicians for these tragedies, arguing that pro-choice doctors are intentionally misinterpreting these laws to make a political point at the expense of patient health and safety. Eichner et al’s robust research demonstrates that this couldn’t be farther from the truth. These statutes, written by legislators with no medical expertise or understanding of the nuances of obstetric emergencies, are so ambiguous that physicians struggle to understand their meaning. And when the penalty for unintentionally violating an abortion ban might be life in prison, it is understandable that these laws have a chilling effect on well-meaning obstetric providers who want to preserve their patients’ health. Continue reading "Emergency Abortion Laws: Vague by Design, Lethal in Practice"
Aug 4, 2025 Andrea FreemanEquality
Professor and scholar-activist Bernadette Atuahene’s meticulous research and riveting writing in Plundered reflect decades of living in communities resisting predatory governance. Over ten years after Professor Atuahene’s powerful first book, We Want What’s Ours: Learning from South Africa’s Land Restitution Program, she turns a spotlight on a Detroit community under siege from its own county. In her heartbreaking exposé of illegal property tax assessments and foreclosures, Professor Atuahene paints a vivid picture of people fighting for the right to keep the homes that rightfully belong to them.
Focused on two families – one Black and one Italian – Plundered: How Racist Policies Undermine Black Homeownership in America shows how government decisions circumscribe the ability to build wealth through generations. The narrative is rife with details that each deserve a book in themselves. Ms. Mae, who Plundered introduces in its opening pages, put up with years of abuse before finally shooting her husband. “He came home and tried to jump on me. I was sitting there watching tv, and he pulled his shotgun to shoot me, and so I got it, and I shot him.” To pay her defense lawyer, Ms. Mae took out a lien on her home. She finally got rid of the lien ten years later but her luck was short-lived. Soon after relieving herself of the debt, she damaged her shoulder while lifting a resident at the nursing home where she worked. Surgery could not fully restore proper use of her shoulder. Then, holes in the roof of her house caused leaks in the kitchen ceilings which made the basement ceiling fall in, unleashing a flood. While trying to drain her flooded basement, Ms. Mae fell, permanently injuring her spine and bringing her working life to an abrupt halt. The flood also destroyed her hot water tank, forcing her to boil water for everything. Instead of coming to her aid, the system repeatedly failed Ms. Mae and families like hers and then turned around and blamed them for their troubles. Continue reading "Predatory Governance in Wayne County and Beyond"
Aug 1, 2025 Sheldon EvansCriminal Law
As a hostage and their kidnapper physically struggle, both desperately trying to pry away a loaded firearm from the other, a police sniper takes the shot. The entire world pauses while looking to their smart phones for an update on this ongoing hostage crisis, and then moves on just as quickly. This surreal climax of the Black Mirror episode “Smitherines” brilliantly sets the visceral stakes of the ongoing transactions between Big Tech and Big Brother. But as Professor Yan Fang uncovered, this arms-length partnership is not as seamless as Big Tech pessimists might believe. There are what she calls “knowledge misalignments” between these two institutions that complicate the picture of the next generation of law enforcement, investigations, and individual privacy rights.
In Internet Technology Companies as Evidence Intermediaries, Fang discusses the reality that tech companies have become evidence intermediaries. This is fictionally illustrated in “Smitherines,” where the kidnapping of a social media company’s employee leads to an unlikely partnership between the social media company and law enforcement as they both try to uncover as much information as possible about the kidnapper. One of eerie takeaways from this on-screen partnership is that the social media company is able to access and leverage far more information about the kidnapper from his social media profiles than police detectives with years of experience. This striking commentary illustrates the real-world truth that tech companies are custodians of petabytes of consumer information that billions of people around the world freely share on their platforms. Thus, Fang describes that when law enforcement agencies (LEAs) seek information about these consumers for a variety of investigatory purposes, tech companies serve as the intermediary between LEAs and the trove of evidence they seek. Continue reading "Big Tech’s Asymmetries with Big Brother"
Jul 31, 2025 Goldburn MaynardTrusts & Estates
Adam Hofri-Winogradow & Mark Bennett,
Looking through Trusts, __
Osgoode Hall L. J. __ (forthcoming), available at
SSRN (Oct. 9, 2024).
The issue of whether trust beneficiaries should be treated differently from individuals who own their assets directly has been a central one in the trusts and estates world for centuries, and it shows no signs of disappearing. While it would be preferable to have a standard, across-the-board response to this matter, its intractable nature reveals a balancing of interests. The trust is a centuries-old fiduciary relationship that is not nefarious in and of itself. Much as they do with corporations, governments find themselves torn between respecting such voluntary arrangements according to their terms or setting them aside to prevent abuse. The purpose of look-through rules is to prevent trusts from undermining other policy goals, such as facilitating debt collection or restricting certain government benefits to individuals who demonstrate financial need.
In a forthcoming article, Professors Adam Hofri-Winogradow & Mark Bennett compare trust look-through approaches taken by five nations: the U.S. (and its states), Canada (and its provinces), England and Wales, Australia, and New Zealand. The authors’ focus is primarily on liability and means-testing avoidance by trust beneficiaries, which they argue is improper. To paint a picture of how weighty and emotion-provoking these issues can be in the real world, consider three examples featuring Gary, a hypothetical trust beneficiary of a $10 million trust set up by his mother Gwen before her death from a terminal illness. Gary’s father, as trustee, in entitled to make distributions to Gary in his sole discretion: Continue reading "Placing Limits on Trust Asset Protection"
Jul 30, 2025 Ann LiptonCorporate Law
Recent high-profile business implosions such as FTX and WeWork introduced the world to the notion of the business cult. In these firms, a charismatic founder created pressure-cooker working conditions where dissent was stifled and a grandiose business philosophy – such as the “We” in WeWork and the effective altruism of FTX – fueled employee devotion.
In her book, Little Bosses Everywhere: How the Pyramid Scheme Shaped America, New York magazine reporter Bridget Read excavates a much older, and much larger business cult: the cult of multilevel marketing. Multilevel marketing is a model whereby a network of independent “sellers” buy products from a manufacturer, for the ostensible purpose of reselling to end-users at a profit, but sellers also earn commissions based on the purchases of new sellers who they bring into the network. Beginning with its origins with the Nutrilite Company and tracing through to its modern form in companies like Mary Kay, Amway, and Herbalife, Read convincingly demonstrates that the model is, fundamentally, a pyramid scheme: sales to actual customers are negligible and rarely even tracked; profits accrue only to those very few members (in the vicinity of 1% or less) who have built a large “downline” of new recruits who kickback commissions when they make their own purchases. Continue reading "When Business is a Cult"
Jul 29, 2025 Robert HillmanContracts
Danielle D’Onfro & Cathy Hwang,
Tortious Interference Revisited, __
U. Penn. L. Rev. __ (forthcoming), available at
SSRN (Feb. 19, 2025).
Professors D’Onfro and Hwang’s new article, Tortious Interference Revisited, brings the reader almost up to date on the nature of tortious interference and, in doing so, adds to each of their impressive contributions to contract scholarship. I use the word “almost” in the title and the first sentence here advisedly because the final paragraph of their article calls “for more sophisticated empirical treatments” (P. 54) of the subject and announces their intention to investigate recent cases.
Still the reader can learn a lot about tortious interference with contract and with other business relationships and opportunities (as do D’Onfro and Hwang, I will refer to the subject matter, often treated as separate torts, singularly as “tortious inference”). Relying on cases and secondary literature, the article offers numerous insights into the nature of and issues engendered by tortious interference. Continue reading "Everything (Almost) You Wanted to Know About Tortious Interference"
Jul 28, 2025 Jaya Ramji-NogalesLexImmigration
What would a theory of migration that takes seriously the lived expertise of migrants and their families contribute to the scholarly conversation? Drawing from extensive qualitative interviews in Mexico with community members who journeyed to the United States to seek work and those they left behind, Prof. Ragini Shah has a compelling answer: a theory of migration as extraction. The thesis of her new book, Constructed Movements: Extraction and Resistance in Mexican Migrant Communities, builds on prior work on decolonizing migration and migrations as reparations, evolving those critiques into a comprehensive theory of migration.
This brilliant new work begins with the voices of migrants themselves, offering insightful quotes and a firsthand understanding of the journey to El Norte and its impact on individuals, families, and communities. One of the invaluable contributions that this qualitative work offers is a clear description of the emotional cost of migration as extraction. The interviews provide powerful insights into this profound price that families paid and continue to pay, and the ongoing impacts on migrant communities. Prof. Shah describes a vicious cycle of dispossession, dismemberment of family relations, and exploitation, as well as a story of agency on the part of migrants. Continue reading "Migration as Extraction"
Jul 25, 2025 Ilya SominConstitutional Law
In the Insular Cases of the early twentieth century, the Supreme Court ruled that much of the Constitution does not apply to America’s “unincorporated” overseas territories, such as Puerto Rico and other territories acquired as a result of the Spanish-American War of 1898. Thus, the federal government could rule the people there without being constrained by a variety of constitutional rights. Only “fundamental” rights were held to constrain the federal government’s powers over the inhabitants of these territories, while other constitutional constraints on federal power did not apply. In a 2022 concurring opinion, Supreme Court Justice Neil Gorsuch urged the Court to overrule these decisions. Prominent originalist legal scholar Michael Ramsey’s important new article explains why Gorsuch was right.
Ramsey compellingly demonstrates that the Insular Cases were wrongly decided, at least from an originalist standpoint. And his argument has potential implications that go beyond the status of people living in “unincorporated” territories. There have been various previous critiques of the Insular Cases. But Ramsey’s is the first systematic scholarly dismantling undertaken from an originalist perspective. Continue reading "Originalism and the Insular Cases"
Jul 24, 2025 Christopher WalkerAdministrative Law
In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 524 (1978), the Supreme Court famously announced that “[a]gencies are free to grant additional procedural rights [beyond those required by the Administrative Procedure Act] in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them.” In an administrative law course, we focus somewhat myopically on the second half of the statement—that courts cannot impose more procedural requirements on federal agencies than Congress has commanded by statute. But the first part of the sentence is just as important. It is in Vermont Yankee’s “white space,” as Emily Bremer and Sharon Jacobs aptly call it, that so much of the action in administrative law takes place. This is the world of internal administrative law.
Historically, internal administrative law has often been neglected in the literature, with some exceptions such as Jerry Mashaw’s majestic Bureaucratic Justice. In recent years, however, we have seen more scholarly attention, which is chronicled in Gillian Metzger and Kevin Stack’s 2017 article Internal Administrative Law. I have contributed some to this literature, trying to operationalize internal administrative law and exploring how it can constrain and empower regulatory activities outside of courts. A recent addition to the literature is well worth a read and the subject of this review: Professor Stack’s article The Internal Law of Democracy is a spectacular exploration of how internal law works in state and local governments, in the context of election administration. There is so much to like (lots) about this article, and it is a must-read for scholars of administrative law, election law, and local government law as well as political science and public administration. Continue reading "Shifting Attention to Internal Administrative Law in the States"
