Jul 23, 2025 Matt BodieWork Law
The Yale Law Journal Forum recently hosted a collection of essays under the rubric of “Reimagining and Empowering the Contemporary Workforce.” Two of these works deal specifically with the challenges for workers posed by the dramatically reoriented data landscape: Data Laws at Work by Veena Dubal, and AI and Captured Capital by Ifeoma Ajunwa. Both essays are essential reading for those interested in data protection and regulation within the workplace.
Professors Dubal and Ajunwa present a nice contrast in their approaches to empowering workers within the data revolution. Dubal follows a more traditional privacy-oriented approach, seeking to further restrict employer access to, and use of, employee data through narrow permissions and harsher penalties. Ajunwa, on the other hand, argues that worker data represents business capital, and she contends that employees should have long-term rights to the value generated from that data. These two avenues—inalienability restrictions and property rights—should both play bigger roles in our system of workplace data regulation, especially within the world of algorithms and artificial intelligence. Continue reading "Two Frameworks for Employee Data Empowerment"
Jul 22, 2025 Adam HirschTrusts & Estates
Professor Lawrence M. Friedman has had a remarkable career. Much of his work has focused on legal history, and he has served as president of the American Society for Legal History in recognition of his distinction in that field. He also helped to pioneer empirical legal studies as a subdiscipline of scholarship. And, most fortunately for those of us who work in wills-and-trusts, he has contributed to our area as well, with a stream of articles and one book, beginning in the early 1960s and continuing until today—no fewer than six decades of superb scholarship on inheritance law.
With this extended essay, Friedman returns to the expansive style of some of his early work in the field. His subject is the lengths to which people will go to leave an eternal mark upon the world. As Friedman concludes, it is a fanciful quest. Try as one might, no one can defy the laws of nature—and nothing lasts forever. Nevertheless, in a variety of ways explored in this essay, people keep on trying. Continue reading "Dead Hand Control"
Jul 21, 2025 Anita BernsteinTorts
Writers who study torts tend to engage with liability as a force or vector that imposes consequences on parties accused of injuring others. For most of us in this field, liability means accountability or reckoning. This occupational interest in what tort does in action, or can do when it’s enlisted, can obscure the impacts of shelters from accountability.
Removing Torts marks Betsy Grey’s return to a source of tort nonaccountability that Professor Grey knows backwards and forwards, the statutory kind. This refuge has ample company in the land of shelters. Fortuitousness, for example, also fends off reckoning: Prospective defendants get lucky when prospective plaintiffs don’t know what hit them, run out of time or money, fail to clear the intake criteria of a contingent-fee attorney, on and on. Judge-made immunities of the common law—especially the intrafamily and charitable kind—are more orderly, though they’ve dwindled into something of a quaint oddball relic. Continue reading "BEWARE OF SHELTER"
Jul 18, 2025 Jacob Noti-VictorTechnology Law
Benjamin Sobel,
A Real Account of Deep Fakes, available at
SSRN (May 16, 2024).
With the rapid advancement of photorealistic generative AI technology, the problem of sexually explicit deepfakes has grown more urgent than ever. Thanks to widely available AI systems, users can now easily create images that appear to depict real people engaging in sexual acts. Not only have Taylor Swift and other celebrities been targeted, but deepfakes are also now alarmingly prevalent in American schools.
The government has already started to address the problem. At least 26 states now penalize the creation or distribution of nonconsensual sexually explicit deepfake imagery. And the federal Take It Down Act, which creates criminal penalties and a takedown regime for both real and AI-generated nonconsensual intimate imagery (NCII), was recently signed into law by President Trump. But, as Ben Sobel argues in his excellent (and award winning) new article, A Real Account of Deep Fakes, many of these bans have been passed without first articulating the precise harms posed by sexually explicit deepfakes, leaving the statutes open to free expression challenges. Sobel’s article aims to fill this gap. Through painstaking comparisons between deepfake bans and other areas of law that regulate deception, abuse, privacy invasions, and obscenity, the article crystallizes the normative arguments for deepfake regulation and the First Amendment stakes. Continue reading "Deepfakes Deconstructed"
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"
