Jun 25, 2025 Cesar Rosado MarzánWork Law
Elizabeth Ford’s Alt-Legal Services offers a bold and refreshing take on the role of lawyers in worker movements. Can lawyers empower workers—or do they undermine organizing efforts? Ford tackles this long-standing debate head-on, arguing that the tension stems from competing ideas about what worker power really means. Her perceptive solution: a new model of “alt-legal services” that fuses legal advocacy with grassroots organizing to build worker power.
Ford argues that when people disagree about the role of legal services for worker power, they tend to misunderstand what it entails. Some believe that lawyers undermine worker power by taking control of campaigns and fragmenting workers through individual litigation. Others see litigation as essential for improving workers’ material conditions and securing remedies for workplace harms, such as wage theft. Ford argues that this conflict arises because both sides differ in what they assume worker power is. To resolve this conflict, she introduces an analytical framework that she develops from Galvin that distinguishes between “power over” and “power with.” Continue reading "Lawyers Can Build Worker Power"
Jun 24, 2025 Reid WeisbordTrusts & Estates
When legal scholars identify and analyze a social problem, they usually conclude with law reform recommendations for potential adoption by courts or legislatures. In The Dark Side of Codifying U.S. Trust Law, Professor Thomas Gallanis reboots that familiar template by reversing the inquiry: This superb article evaluates how a reformer’s choice of institutional forum—court versus legislature—can impact the effectiveness of legal intervention. Gallanis presents an intriguing case study that documents the plight of several well-intended trust law reforms which Gallanis contends inadvertently created fertile ground for legislative capture by special interests. Gallanis describes how the political influence of special interests ultimately persuaded state legislatures to alter model legislation in ways that undermined the reformers’ original policy goals.
The article begins by surveying the modern trend of American trust law toward “codification,” which refers to the replacement of traditional judicial doctrines with statutory reforms. Model legislation drafted by the Uniform Law Commission has proven especially impactful. Notable examples of codification include the Uniform Trust Code (2000) (adopted in 35 states), the Uniform Powers of Appointment Act (2013), the Uniform Trust Decanting Act (2015), the Uniform Directed Trust Act (2017), and the updated Uniform Fiduciary Income and Principal Act (2018). As Gallanis explains, “U.S. trust law now is heavily statutory.” (P. 287.) Continue reading "A Minimalist Theory of Trust Law Codification"
Jun 23, 2025 Nora Freeman EngstromTorts
Jonathan Cardi, Ashton Jenne, & Chance Villarreal,
The Paradox of Continuing Risk, available at
SSRN (May 5, 2025).
In The Paradox of Continuing Risk, W. Jonathan Cardi, Ashton Jenne, and Chance Villarreal surface and incisively explore a consequential puzzle. Across the United States, 32 jurisdictions have adopted the continuing-risk rule, which imposes an affirmative duty to warn, protect, or rescue others from continuing risks created by one’s conduct. But despite the multitude of courts that have endorsed the rule—and the rule’s unbroken acceptance in various Torts Restatements—few actual cases apply this principle.
To start, it’s important to understand what exactly the continuing-risk rule does and why it matters. Continue reading "The Continued Neglect of Continuing Risk"
Jun 20, 2025 Nicholson PriceTechnology Law
Boris Babic & I. Glenn Cohen,
The Algorithmic Explainability “Bait and Switch”, available at
SSRN (August 20, 2023).
AI is mysterious and important. It’s important because it’s showing up everywhere and doing lots of things. It’s mysterious because we very often don’t know how it works and why it comes to the conclusions it does. Whether AI should be important is hotly debated, but its mystery is widely regarded as a problem, particularly when AI is making inscrutable decisions that matter to people’s lives. And so there are widespread calls in law, policy, and scholarship for explainable AI—that is, ways to explain just why an AI system came to the conclusion it did. In The Algorithmic Explainability “Bait and Switch”, Boris Babic and Glenn Cohen add to the literature on explainable AI by clearly and convincingly arguing that explainable AI is “fool’s gold”—shiny and exciting on the surface, but not what we need, because it’s post hoc, insincere, tough to judge, and can’t be used to effectively guide actions.
So what is explainable AI, and why does it matter? Essentially, the problem is that it’s too hard to understand how AI makes decisions; they’re too complicated and don’t make sense, so they’re opaque to us. Explainable AI tries to use another, simpler algorithm to approximate a plausible reason the AI might have come to its conclusion; that explanation is typically specific to the conclusion being questioned. This happens after the initial system does its thing; it’s a post-hoc approximation, not a true accounting of why the initial system actually did what it did. Babic and Cohen illustrate this using an extended hypothetical admissions model for a hypothetical law school which shows the pitfalls and why they matter. Continue reading "The Problem of Insincere, Post-Hoc AI Explanations"
Jun 19, 2025 Dorothy BrownTax Law
Professor Deanna S. Newton’s article, Closing the Opportunity Gap, is an example of the best of legal scholarship, one which provides a thorough critique of a well-known problem, but also engages with unique policy prescriptions designed to actually make a difference. The article discusses Opportunity Zones, introduced by the Tax Cuts and Jobs Act of 2017 and designed to “encourage investment in economically distressed areas by offering investors tax benefits.” (P. 1161.)
Professor Newton begins by acknowledging the most frequent critique of Opportunity Zones, namely “that most benefits from Opportunity Zone legislation go to wealthy investors rather than the residents within Opportunity Zones.” (P. 1161.) Her Introduction includes an anecdote about how then-Florida Governor Rick Scott designated a West Palm Beach area “that houses $100 million superyachts” as an Opportunity Zone area, but left behind “three low-income areas” because they did not receive such a designation. (P. 1162.) Continue reading "Opportunity Zones: A Better Path Forward"
Jun 18, 2025 P. T. BabieProperty
Bram Akkermans & Lorna Fox O’Mahony,
Resilient Property, Climate Change and the Decision in Verein KlimaSeniorinnen Schweiz v Switzerland, 2024
Conveyancer & Prop. Law. 369, available at
Essex Research Repository (embargoed until Dec.1, 2025).
Climate change is a property problem. Exploitation of the world’s resources made possible by the concept of private property causes climate change.
Yet, property forms part of an iterative cycle. Just as it causes climate change, the consequences of global warming change property. So property is also a climate change problem. And because it is, the solutions to the problems it creates lie within the concept of property. In Resilient Property, Climate Change and the Decision in Verein KlimaSeniorinnen Schweiz v Switzerland Bram Akkermans and Lorna Fox O’Mahony show us how that might be. Continue reading "What Climate Change Reveals About Property’s Potential"
Jun 17, 2025 Caprice RobertsLexRemedies
It’s time to get excited about deepening your understanding of the law of remedies. Law schools should deepen their commitment to hiring professors to teach remedies courses, and scholars should add remedies perspectives to their research agendas. (If you are wondering How Remedies Became a Field, Doug Laycock has answers. Its importance is worldwide. It is rich with theory, and it is practical and meaningful.) Professors Katy Barnett and Sirko Harder’s latest book, Private Law Remedies, provides a comprehensive yet accessible resource for jurists, legislators, private litigators, professors, and students. Notably, the book analyzes private law doctrines as a whole and comparatively to aid greater comprehension of the function and goals for each remedy. They diligently examine a wide array of cases to explore private remedies at common law, in equity, and per statutes. The authors meticulously explore unifying principles and identify commonalities and significant differences among private law wrongs. Their project is ambitious, functional, and successful. They candidly interrogate leading scholarly theories and carefully examine key cases. From their insights, readers can peruse a host of remedies for private law wrongs such as contracts, fiduciary duty, torts, and more.
Their work focuses on English law but includes relevant treatment of other common law countries. Without doubt, the import of the analyses will resonate with a much broader audience. The book is timely and makes an important contribution to the field of remedies. The authors artfully distill the complex field of remedies into meaningful, clear chapters that will benefit experts and newcomers. Continue reading "Understanding Private Law Remedies"
Jun 16, 2025 Kevin WoodsonLegal Profession
The scholarship on criminal justice disparities has often cast prosecutors in a harsh light. Prosecutors are among the most powerful actors in the criminal legal process, due to their vast discretion in deciding whether and how to proceed with cases, and researchers have found that they use this discretion in ways that produce racially disparate outcomes, to the detriment of Black defendants. Studies have described prosecutors’ offices with bias-laden cultures that breed contempt and callousness toward poor Black defendants and indifference to systemic racial inequities. Against this backdrop, scholars and other reformers have championed strategies to limit prosecutorial discretion in charging decisions, including by “colorblinding” their cases, to reduce racial disparities in case outcomes.
Though well-intentioned, these reforms may be counterproductive and the underlying understanding of prosecutorial discretion outdated. In her important new article, Prosecutors, Race, and the Criminal Pipeline, law professor Hannah Shaffer demonstrates that limiting prosecutorial discretion may not only fail to alleviate racial disparities but may actually make them much worse. Through evidence from her original empirical research project, a 2020 survey capturing 203 North Carolina prosecutors’ views about criminal justice disparities that Shaffer links to comprehensive data from their real-life cases from 2010 to 2019, Shaffer reveals that prosecutors who attribute racial sentencing disparities to racial bias are significantly less likely to incarcerate Black defendants compared to White defendants with similar criminal records. In other words, prosecutors use their discretion to discount the prior convictions of Black defendants—records that may be inflated as a result of discriminatory policing practices—and thereby reduce racial disparities in sentencing outcomes. And this tendency is not just limited to attorneys working in progressive prosecutors’ offices: Shaffer’s findings hold across different types of jurisdictions—conservative and liberal, urban and rural, and for politically liberal and conservative prosecutors alike. Further, between 2010-2019 prosecutors increasingly gave less weight to Black defendants’ prior records, suggesting that their race-conscious decisionmaking may be an enduring and growing source of racial progress. The fact that newer cohorts of prosecutors express far greater awareness of racial bias in the criminal legal process also bodes well for the racially equitable use of prosecutorial discretion in the future. Continue reading "Prosecutors Are Not All Colorblind—and That Can Be a Good Thing"
Jun 13, 2025 Shubha GhoshInternational & Comparative Law
Professor Stavroulaki of Saint Louis University School of Law and a PhD graduate of the European University Institute has made an important contribution to the fields of health law, United States antitrust law, European competition law, and economic analysis of markets in this broad-reaching and potentially game-changing book. For the purposes of the International and Comparative Law JOTWELL section, her book is also a major work of comparative law, setting forth elegantly comparative features of US and European competition laws as applied to health care markets. The book as a whole and the last three chapters that take a deep dive into comparative law make Professor Stavroulaki’s work one I like a lot.
Framing this monograph is a critique of current approaches to competition law in the United States. Professor Stavroulaki starts from the traditional criticism of economic analyses of competition issues as focusing too much on the promotion of efficiency. Not only is efficiency gauged in stark quantitative terms, but it is also shaped in terms of consumer welfare, specifically the benefits to consumers from improved market competition. These benefits, under the current approach, are measured in terms of price reductions which allow for more consumers to be served with larger gains to individual purchasers. Professor Stavroulaki does not fully reject the consumer welfare approach, which has been the object of criticism by the Neo-Brandeisians (a criticism that underlay the alternate approach of the Federal Trade Commission under the Biden Administration). The Biden effort has been stopped by the new Administration, but it is not clear what has come into place. Professor Stavroulaki offers an approach that builds on the consumer welfare to consider the quality of what consumers receive in the marketplace in addition to the market’s ability to generate lower prices. Continue reading "Comparing Health Care Markets"
Jun 12, 2025 Maris KöpckeJurisprudence
The best answers to the questions “who should decide?,” “what should be decided?,” and “how should the decision be taken?” do not always sit easily together. Sound institutional design wrestles with this problem. Procedures for authoritative decision-making ought to minimize the danger of unjust or misguided outcomes. But they also ought to ensure, so far as possible, that those concerned have a say in the decision, lest their self-direction be unjustly curbed by someone else choosing on their behalf.
Over the years, political philosophy and constitutional scholarship have proposed different recipes for distributing political power within a community, by way of responses to the above concerns. Ignacio Guiffré thinks that the currently most extended recipe – strong constitutionalism – is in need of improvement. He also thinks that its supporting theories harbor fundamental inconsistencies. In defending these claims, this thought-provoking article flags a number of soft spots in contemporary political and legal theory, concerning matters that reach beyond institutional design and speak to the foundations of certain strands of liberalism. Continue reading "Justice, Democracy, and Institutional Design"
