Oct 2, 2025 Kent D. SchenkelTrusts & Estates
Brian Galle, David Gamage & Bob Lord,
Taxing Dynasties, available at
SSRN (April 11, 2025).
“Only morons pay the estate tax.” That is a bit of hyperbole, of course, from Gary Cohn, the director of the National Economic Council during the first Trump administration. But those paying attention know that the federal transfer taxes don’t work very well. Instead, highly effective estate tax dodges pervade, and these techniques are particularly effective as applied to the largest estates. Brian Galle, David Gamage, and Bob Lord, in their paper, Taxing Dynasties, citing their own empirical study of data culled from the IRS, conclude that these taxes fail to reach at least $4.5 trillion of huge, family-controlled fortunes. And for this, they’ve proposed a meticulous, politically savvy, and technically brilliant prescription.
They point out that most of this $4.5 billion in transferred wealth is held in “dynasty trusts,” which are devices designed to escape wealth transfer tax for generations, if not permanently. Taxing Dynasties proposes an annual “withholding tax” on these trusts. It takes aim at trusts held by those “with more money than they can reasonably spend in a lifetime, the .01% richest citizens,” and would function as a minimum tax on those trusts. The authors’ proposal is not just an academic pipe dream. They are working with at least one Senator to devise legislation incorporating their ideas, which they expect to be introduced in Congress sometime in 2025. Continue reading "A Prescription for Taxation of Dynasty Trusts"
Oct 1, 2025 Natalie RamTechnology Law
- Andrew G. Ferguson, Digital Rummaging, 101 Wash. U. L. Rev. 1473 (2024).
- Andrew G. Ferguson, Everything-Everywhere Searches, _ G.W. J. of L. & Tech. _ (forthcoming), available at SSRN (Feb. 17, 2025).
Advances in digital surveillance technologies have posed difficult questions for Fourth Amendment doctrine. For instance, does the government need a warrant to install cameras on poles along a street to monitor who enters and exits homes? What if the government wants a list of all cell phones near a robbery scene at the time of the crime? Is the answer different if the government wants several days of data, but only about one person? What if the data comes from an app developer like Waze (or your flashlight app) or a smart home device like an Alexa, rather than a cell phone provider?
The Supreme Court has begun to address these issues in cases like Riley (barring warrantless cell phone searches during arrest) and Carpenter (requiring warrants for long-term cell phone location data). But as Andrew G. Ferguson argues in two recent articles—Digital Rummaging and Everything-Everywhere Searches—Fourth Amendment doctrine has nonetheless not kept pace with the scale of digital surveillance. In a turn to history that may prove particularly persuasive to constitutional originalists, Ferguson argues that the Founding generation’s objections to “rummaging” through general warrants provide an appropriate guiding principle for constraining surveillance in the digital age. Continue reading "Rummaging Rebooted"
Sep 30, 2025 Susan MorseTax Law
Marilyn Hajj,
Waiter, Extra Tip, No Tax: A Distributional Analysis, 33
Geo. J. on Poverty L. and Pol’y __ (forthcoming, 2026), available at
SSRN (Feb. 1, 2025).
In Waiter, Extra Tip, No Tax: A Distributional Analysis, Marilyn Hajj offers a poverty law take on a classic and timely tax question: the taxation of tips. Her refreshing article avoids tax law’s knee-jerk opposition to a tax break for tips by offering an analysis that advocates for redistribution to low-income tipped workers. Although she does not give the tip tax breaks in the recently enacted One Big Beautiful Bill Act glowing marks, she explains that the new law would be preferable to the earlier status quo if it were better targeted and more accessible to low-income workers.
Hajj begins with the story of tipping, which traces to the “vails” expected by household staff at English homes in the 1700s. American tipping “seems to have originated in the traveling aristocracy.” After the Civil War, it developed into a custom of class and race bias. Hajj writes that Black workers in service jobs, for instance at restaurants or as railroad porters, received lower wages, and that employers used tips to justify this. The hospitality industry successfully defeated anti-tipping statute statutes; initially obtained an exemption from the federal minimum wage; and continues to take advantage of a “tip credit” rule that results, in some states, in an hourly minimum wage of $2.13 for tipped workers. Of tipped workers, 37% do not make enough to owe any income tax and 11.3% experience poverty, which is more than double the rate for non-tipped workers. Continue reading "Taxing Tips Is Not Just About Tax Law"
Sep 29, 2025 Serena WilliamsProperty
When teaching property law, professors often reference the historical distinction between the freehold estate and the nonfreehold estate. The nobles held the freehold estates; the peasants held the nonfreehold estates.
Thus, “from the beginning, the nonfreehold estate was seen as less important and less prestigious than the freehold estate.” Because the landlord/tenant relationship evolved from the nonfreehold estate, one might deduce that tenants are “less important and less prestigious” than property owners and thus, are less deserving of legal protections than owners of a fee simple. Continue reading "Freeing the Nonfreehold Estate: Climate Change and Tenant Protections"
Sep 26, 2025 Felix MormannLexEnergy Law
It is all but impossible for government to adopt industrial policies and regulations without creating winners and losers. The Obama administration’s support, for example, turned Tesla, SolarCity, and other cleantech ventures into regulatory winners, while its “war on coal” relegated fossil fuel companies to regulatory losers. The first Trump administration sought to reverse this trend by dialing back clean energy policies and using emergency powers to prop up the nation’s ailing coal industry. And the regulatory pendulum has continued swinging back and forth during the Biden presidency and under Trump 2.0. When changes in policy and regulation interfere with corporate interests, regulatory losers are quick to call foul and demand compensation for their regulatory burdens. But what about those who find themselves on the losing end not by virtue of regulatory activism and change but, rather, due to a persistent lack of regulation? In his excellent new article, Compensating Regulatory Losers, professor Todd Aagaard asks this provocative question and develops thoughtful answers drawing on case studies from climate and energy regulation, among others.
A robust literature grapples with the question of whether and when regulatory losers deserve to be compensated. Some have attempted to frame and answer this question based on the welfare impacts of regulation, while others have turned to (other) notions of fairness in search of answers. Some scholars advocate for replacing regulation-specific compensation with more comprehensive redistribution programs carried out via income taxes. Libertarian entitlement theorists, meanwhile, argue that regulatory losers should be compensated when their reliance expectations are thwarted by changes in regulation. And if fairness arguments do not sway you, leave it to economists to reframe the debate along Pareto and Kaldor-Hicks efficiency metrics. Continue reading "Should Government Pay Victims of Regulatory Inaction?"
Sep 25, 2025 Eli WaldLegal Profession
According to the American Bar Association Model Rules of Profesisonal Conduct, a lawyer is “a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” As Deborah Rhode has astutely pointed out, however, lawyers’ duties as public citizens have long been more of a rhetorical ploy than an actual commitment, in need of elaboration and exposition. In the twenty-first century, lawyers have been forced to come to terms with their asserted role as public citizens in the face of the #MeToo and the Black Lives Matter movements, reform calls for the deregulation of the legal profession designed to increase access to legal services for those who cannot afford to pay for them, and attacks on the rule of law. Professor Robert Katz’ new casebook, Antisemitism and the Law, constitutes an important contribution sure to help those aiming to understand the obligations of lawyers to pursue justice and combat discrimination.
Antisemitism and the Law is organized thoughtfully and effectively. It begins with two introductory sections. Part I lays out a legal foundation, introducing anti-discrimination law and explaining, in particular, how laws designed to combat racial discrimination against non-whites have gradually been construed to apply to groups not defined by race, such as Latinos and Jews. Part II then turns to antisemitism or anti-Judaism by exploring the meaning and definition of Jewish identity, namely who is Jew, from both Jewish and non-Jewish perspectives. It establishes that Judaism is a religion with cultural and ethnoreligious underpinnings, but not a racial category. Read together, Parts I and II compellingly show why legally (as opposed to by other means—more on that below) antisemitism could and should be addressed by vigorously enforcing anti-discrimination laws. With these fundamental building blocks in place, Part III and IV, respectively, study antisemitic speech and antisemitic activities as well as legal responses to them. Part V concludes on a high note of sorts, studying secular and religious allies, their relevance, and importance in the ongoing battle against antisemitism. Continue reading "Law, Lawyers and the Battle Against Antisemitism"
Sep 24, 2025 Sara MayeuxLegal History
Joseph Blocher & Brandon L. Garrett,
Applying History as Law: The Role of Historical Facts in Implementing Constitutional Doctrine, 104
Tex. L. Rev. __ (forthcoming 2026), available at
SSRN (Jan. 16, 2025).
In New York State Rifle & Pistol Ass’n., Inc. v. Bruen, 597 U.S. 1 (2022), the Supreme Court instructed lower courts to apply a “history and tradition” test when evaluating the constitutionality of gun laws. For example, if considering an age limit on gun possession, the court must determine whether states imposed sufficiently analogous age limits in the past. Since Bruen, I have occasionally received inquiries from trial lawyers around Tennessee. Inevitably they have a looming deadline and need a legal historian to help out with a gun case, and inevitably I have to decline. I can understand why my name might pop up in a Google search: I live in Tennessee, I teach constitutional law (including cases like Bruen), and I’m a legal historian by training. But I don’t have any particular expertise in the history of gun laws, at least not as historians define expertise (i.e., years of immersion in the relevant primary and secondary sources).
When reading Joseph Blocher and Brandon L. Garrett’s forthcoming article, “Applying History as Law,” I realized my experience illustrates a larger phenomenon: “In the wake of Bruen, it quickly became apparent that the number of historians who seriously study gun laws is actually quite small; it would be impossible for them to serve as experts in every case, even if the litigants consistently had adequate resources to retain them.” (P. 46.) Continue reading "How Should History Be Put on Trial?"
Sep 23, 2025 Jeffrey PojanowskiJurisprudence
Intentionalism in contemporary legal interpretation is unloved, at least in my United States. Textualists, purposivists, and dynamic interpreters disagree on much, but they tend to agree that any rich form of legislative intent is not a proper—or even possible—quarry for readers pursuing a statute’s legal meaning. At most, they will concede that legislative authors have the minimal intent to make law when voting on the authoritative text.
Yet a moment’s reflection raises worries about this consensus. Intentionalist legal and literary theorists contend, with plausibility, that all texts presuppose a communicating author; that is why you regard what you see on your screen as words, rather than stray marks that happen to fall into an uncannily familiar pattern. If that is so, and if legislative intent is out of bounds, we are either following statutes that have no author or whose authorship is attributable to the interpreter (who constructs the reasonable reader of legal English, the reasonable person pursuing reasonable purposes reasonably, or the chain novelist who makes the law the best it could be). Invoking authorless texts to impose damages, fines, jail, or death sentences is troubling. Treating the interpreter as the re-author, by contrast, raises worrisome problems about separation of powers and legislative supremacy. Hence, a kind of transcendental argument for the necessity of legislative intent.
But wishing does not make it so, and intention-skeptics have marshalled an army of arguments against legislative intent. We can stylize intentionalist challenges in three ways: (i) a “many minds” problem, which makes it hard, if not impossible, to aggregative individual legislators’ intentions around a particular problem; (ii) a “one mind” problem of attributing a single, intending subject somehow wafting up from the collective group like a Hegelian mist; and (iii) a “no mind” problem, when it is likely that nobody in the legislature even considered a particular question. So, are we at an impasse?
Perhaps, but perhaps not. Enter Stephanie Collins (Monash University), David Tan (Deakin University) and their 2024 article Legislative Intent and Agency: A Rational Unity Account. (When you consider Australian academics Professors Collins and Tan alongside Richard Ekins (a Kiwi at Oxford), Jeffrey Goldsworthy (Monash), and Philip Pettit (once a longtime professor at Australian National University), it appears that the Antipodes are quite the hotspot for sophisticated theorization about legislative intention and group agency.) Continue reading "Rethinking Legislative Intent"
Sep 22, 2025 Graeme DinwoodieIntellectual Property Law
Michael Goodyear,
Common Law Notice-and-Takedown, __
NYU J. Intell. Prop. & Ent. L. __ (forthcoming), available at
SSRN (April 25, 2025).
As Michael Goodyear notes in Common Law Notice-and-Takedown, immunity for online platforms is very much on the legislative agenda after many years of relative stability. Politicians from the left and right in the United States have reacted for ostensibly different reasons to the surfeit of misinformation online by suggesting that existing statutory regimes that provide (conditional) immunity for platforms need revisiting. But elimination or modification of specific statutory safe harbors for platforms will not of itself render platforms liable for the sins of their wrongdoing customers.
Instead, that will turn on whether a platform’s conduct falls within existing causes of action, most likely (but perhaps not exclusively) under theories of secondary liability. Indeed, even complete elimination of statutory safe harbors will not signal the end of notice and takedown systems. The roots of notice and takedown in the copyright context can be found in Judge Whyte’s 1995 Netcom decision, which to some extent was implemented three years later in greater detail by the Digital Millennium Copyright Act (DMCA). Continue reading "The Future of Notice and Takedown?"
Sep 19, 2025 Hoi KongInternational & Comparative Law
Erin Delaney’s Mapping Power: Constitutionalism and Its Colonial Legacy provides a novel and compelling conceptual framework for thinking about the relationship between constitutionalism and colonialism. Professor Delaney labels this framework “coercive constitutionalism” and situates it in a body of comparative scholarship that (1) calls for constitutional law to be decolonized (P. 385) and (2) understands decolonization to be an ongoing process, rather than a “once-off political event marked by physical withdrawal of the colonial administration.” (Justin Ngambu Wanki & Carol C. Ngang, Unsettling Colonial Paradigms: Right to Development Governance as Framework Model for African Constitutionalism, 18 Afr. Stud. Quart. 67, 67 (2019), quoted at 385.)
As is appropriate for a text that appears in a collection honoring Mark Tushnet, Delaney draws on aspects of Tushnet’s scholarship to develop her framework. First, she invokes Tushnet’s “understanding of law as power and social structure” (P. 386) and its attendant methodology of rich description. Second, she adopts an approach that Tushnet labelled “adjectival constitutionalism,” which seeks to identify various kinds of constitutionalism, rather than accepting that “liberal constitutionalism simply is constitutionalism.” (Mark Tushnet, Editorial, Varieties of Constitutionalism, 14 Int’l J. Const. L. 1 (2016), quoted at 387.) These two aspects of Tushnet’s scholarship inform how Delaney develops the idea of coercive constitutionalism. Continue reading "Coercive Constitutionalism: Between Agency and Coercion"
