May 14, 2025 Andrew HalpinJurisprudence
For those interested in the specific subject matter of Norman Ho’s recent article in Jurisprudence, “‘The Confucianization of law’ debate,” it provides an informative read, offering some original insights on the historical evidence for the influence of Confucianism on Chinese law. A wider readership should be attracted to this article for Ho’s stimulating reflections on the interplay between historical and jurisprudential accounts of the topic.
The platform for Ho’s wide-ranging discussion is an examination of Qu Tongzu’s “Confucianization of law” theory and its reception within the literature. Ho suggests that Qu’s theory should not be regarded merely as offering a contribution to legal history. Rather, Ho argues, its jurisprudential qualities should be acknowledged. In Ho’s view, this permits a fuller investigation of Qu’s theory. More than that, Ho produces a general schema to differentiate the impact of historical and jurisprudential perspectives on the debate. In addition, he draws upon a fascinating case study of kinship concealment in Chinese law. Continue reading "CONFUCIUS, HISTORY AND JURISPRUDENCE"
May 13, 2025 Gregory M. SteinProperty
Community Land Trusts (CLTs) form a small but important part of the affordable housing mosaic. Preserving Affordable Homeownership: Municipal Partnerships with Community Land Trusts, a Policy Focus Report of the Lincoln Institute for Land Policy, describes the many ways in which state and local governments can assist CLTs and help maintain the affordability of housing units indefinitely. Co-authored by John Emmeus Davis, an experienced city planner, and Kristin King-Reis, a lawyer whose clients include CLTs and other non-profits, the Report offers a comprehensive and readable guide to how CLTs operate and how state and local governments can increase the likelihood they will succeed.
The Report begins with a history of CLTs and ends by offering a series of policy recommendations. These sections bracket a set of chapters examining various facets of the relationship between CLTs and government bodies. Continue reading "Community Land Trusts and the Long-Term Preservation of Affordable Housing"
May 12, 2025 Pamela SamuelsonIntellectual Property Law
Dave Fagundes & Aaron Perzanowski,
How IP Ends, Emory Legal Studies Research Paper (forthcoming), available at
SSRN (Jan. 24, 2025).
The literature on intellectual property (IP) rights has overwhelmingly focused on their birth, life, and enforcement. Rare indeed have been articles about how and why those rights cease to be enforceable.
In How IP Ends, Fagundes and Perzanowski have written the first comprehensive article about different ways that IP rights can cease to exist for the four most common IP regimes (e.g., patents, copyrights, trademarks, and trade secrets) through what they call “terminal mechanisms”: expiration, abandonment, forfeiture, and two types of invalidations (distinguished below). Continue reading "Taxonomizing Various Mechanisms for Terminating Intellectual Property Rights"
May 9, 2025 Carl ColemanHealth Law
The American system of medical malpractice has long been criticized for failing to achieve either of the two primary goals of tort law: compensating victims or deterring misconduct. For victims of medical error, “[t]he malpractice liability system provides little compensation overall, and what infrequent compensation it provides it does so inefficiently with high transaction costs.” As for deterrence, researchers have found “no association between greater risk of malpractice liability and health care quality.” There has been no shortage of proposals to replace the system with potentially more effective alternatives, ranging from the use of specialized health courts to broader systems of enterprise liability to a wholesale replacement of the system with a no-fault compensation regime. In a provocative new article, Aggregating Liability for Medical Malpractice, Omer Pelled of Bar Ilan University School of Law enriches the debate by introducing a novel new approach he calls “strict liability for unreasonable harm” (SLUH), a creative mashup of negligence and strict liability that shifts the focus from discrete medical injuries to the pattern of outcomes resulting from a provider’s acts and omissions over a specified period of time.
Pellad uses the problem of hospital-acquired infections as a paradigmatic case for the application of SLUH. Some level of such infections is expected even in hospitals that engage in reasonable infection-control measures, but a higher level will occur in hospitals that fail to exercise due care. Suppose that a non-negligent hospital of a particular size and with a particular patient profile can be expected to have 100 infections per year, but one such hospital experiences 150 infections over the same time period. Under existing malpractice law, a patient seeking damages would have to show that her infection was more likely than not one of the 50 that would not have occurred had the hospital acted more reasonably. Because this is often an impossible hurdle, few injured patients even seek compensation through the tort system, and the hospital is therefore under-incentivized to invest in reasonable care. Pelled argues that the hospital’s liability should instead be established in the aggregate for all 150 affected patients, without any need to determine precisely how each of those injuries happened to arise. Each patient would be entitled to partial compensation based on the proportion of the total harm caused by the hospital’s failure to exercise reasonable care over the relevant time period, which in this example would be 50/150, or 1/3 of the total amount. Continue reading "Strict Liability for Unreasonable Harm: Aggregating Liability to Restore Compensation and Deterrence to Medical Malpractice Litigation"
May 8, 2025 Albertina AntogniniFamily Law
Laura Portuondo,
Gendered Liberty, 113
Geo. L. J. __ (forthcoming), available at
SSRN (Mar. 11, 2024).
The family law canon is in flux. Much of the conversation has rightly focused on Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022), which narrowed the scope of substantive due process to exclude the right to obtain an abortion. But there is also Fulton v. City of Philadelphia, 593 U.S. 522 (2021), where the Supreme Court found that the city’s decision to terminate its contract with a religious agency for not certifying same-sex parents as foster parents violated the agency’s free exercise rights. And 303 Creative v. Elenis, 600 U.S. 570 (2023), which interpreted the First Amendment’s freedom of expression to protect the religious beliefs of a website designer who refused to create wedding websites for same-sex couples, overriding a state public accommodations law in the process.
These various cases addressing different clauses of the Constitution are broadly united insofar as they portend the Court’s conservative turn in family law and beyond. Yet Laura Portuondo’s forthcoming piece, Gendered Liberty, shows that these cases are more than fellow ideological travelers—rather, they reflect the Supreme Court’s specific and singular understanding of gender. What Dobbs, Fulton, 303 Creative, and others do, is “consistently ensure protections for conduct that enforces traditional gender norms and actively undermine statutory conduct that resists them.” (P. 4.) Continue reading "Whose Liberty?"
May 7, 2025 Ezra RosserLexPoverty Law
Uma Outka,
Energy Law and the Low-Income Household, 54
Envtl. L. 720 __ (forthcoming 2025), available at
SSRN (Jul. 01, 2024).
Uma Outka’s article, Energy Law and the Low-Income Household (forthcoming in Environmental Law), convincingly argues that the affordability challenges related to energy facing poor households should not be treated as external to the field of energy law. As Professor Outka shows, it is tempting to treat the problems faced by low-income households—high energy cost burdens, poor insulation, and vulnerability to service cutoffs—as exogenous to energy law. By sidelining such concerns as matters of poverty law, those within the energy sector, as well as academics working within energy law, can ignore the precariousness of low-income households and neglect the need for innovation and support within the field. Professor Outka succeeds in contributing to the conversation in both the energy law and poverty law spaces by presenting an in-depth history of the principal government program, the Low-Income Home Energy Assistance Program (LIHEAP), supporting the needs of low-income households, and by carefully connecting the poverty and energy law fields.
The article begins with a rich history of the LIHEAP program and then expands slightly to include the Low-Income Weatherization Assistance Program (WAP). This history will be new to many in the poverty law field since energy policy, even programs that help low-income households, is beyond the scope of most work in the field. Yet, as Professor Outka notes, access to reliable energy is often crucial for basic survival in summer or in winter. Inability to pay can leave poor households extremely vulnerable to loss of service. Even when such households can pay their energy bills—Professor Outka highlights research showing that need for money to pay utilities is the number one reason low-income households turn to payday lending—high energy costs relative to income can threaten such households’ other basic needs. The history that Professor Outka includes is presented at just the right level of detail; readers come away understanding how the LIHEAP and WAP programs work as well as the politics shaping their creation and evolution. Continue reading "Bringing Everyone, Including the Poor, in Energy Law and Policy"
May 6, 2025 SpearItCriminal Law
As a decade-long contributing editor at JOTWELL criminal law, my modus operandi is to read legal scholarship with an eye to considering a piece for my annual JOTWELL review. Usually, I have several articles on my shortlist—but that was not the case this year. When I came across The Exigencies of Black Existence: The Blue Gaze, the State of Exception, & Racialized Policing in Carceral Internal Colonies by Ciji Dodds, I was hit with something different, a new prism through which to imagine the bonds between prison life and life in the ’hood; I was forced to read shocking statements that jolted me in poetic ways. It was reminiscent of when I first read Anthony Paul Farley or Angela Harris.
I was initially struck by the introduction, which pointed to the irony of Martin Luther King boulevards, which line practically every major city in the country. The ironic part is that although Dr. King was a fierce advocate of non-violence, his namesake streets are associated with violence and other vices of the ’hood, as she rhymes “[e]veryone knows to stay away from MLK.” (P. 235.) While such streets may also be associated with urban redevelopment projects in the wake of destroyed traditional Black business communities, this grim reality begins a journey into the dynamics of prison culture and its influence in preparing people for a life in prison. Statistically, it is in fact the neighborhoods where such streets are named that supply many of the people who will eventually find themselves in prison. Continue reading "Colonizing the ’Hood Through Incarceration"
May 5, 2025 Adam N. SteinmanCourts Law
Nitisha Baronia, Jared Lucky, & Diego A. Zambrano,
Private Enforcement at the Founding and Article II, 114
Calif. L. Rev. __ (forthcoming, 2026), available at
SSRN (May 8, 2024).
If we were on Family Feud and the question was “Name a constitutional obstacle to private enforcement of federal substantive law,” the #1 answer on the board would probably be Article III standing—most notably its requirement that any plaintiff suing in federal court must have suffered a concrete, particularized “injury in fact” as a result of the alleged violation of federal law. After TransUnion v. Ramirez, however, a new answer is moving up the survey: Article II. Although most of TransUnion’s rationale was grounded in Article III, Justice Kavanaugh’s majority opinion also observed that private litigation by ostensibly “unharmed” plaintiffs “would infringe on the Executive Branch’s Article II authority.” TransUnion’s invocation of Article II has accelerated challenges to a host of federal private enforcement regimes, prompting one district court judge in Florida to declare the qui tam provisions of the False Claims Act unconstitutional.
In their excellent article, Nitisha Baronia, Jared Lucky, and Diego Zambrano interrogate this Article II challenge to private enforcement by taking us back in history. Long before Richard Dawson was hosting Family Feud. All the way back to Richard Harrison, the Auditor of the U.S. Treasury Department whose correspondence with Alexander Hamilton sheds light on Founding Era understandings of private enforcement regimes. Baronia, Lucky, and Zambrano marshal a host of historical sources to show that the new weaponization of Article II stands in stark contrast to a “tradition of private enforcement” that existed before, during, and immediately following the Founding. In an age when “history and tradition” dominate so much of the legal landscape, this is an invaluable contribution. Continue reading "What History Really Says About the New Article II Assault on Private Enforcement"
May 2, 2025 Brett McDonnellCorporate Law
Ann Lipton,
The Legitimation of Shareholder Primacy,
__ J. Corp. L. __ (forthcoming, 2025), available at
SSRN (Feb. 03, 2025).
The United States is going through a moment of extreme political strife and uncertainty. Delaware’s corporate law ecosystem is going through its own moment of strife and uncertainty, albeit with less stratospheric—but still high—stakes. Significant connections exist between the conflict occurring within these two systems, including but not limited to the techno-king himself, Elon Musk.
Ann Lipton explores some of those connections in The Legitimation of Shareholder Primacy. Lipton argues that the central corporate law norm of shareholder primacy was intended to shield Delaware law from political debate, but internal tensions within the concept combined with the political polarization of our times have battered that shield. The development of that argument features Lipton’s deep knowledge of corporate law and governance, which is tied here to an interesting political story. Continue reading "A Legitimation Crisis Strikes Delaware Corporate Law"
May 1, 2025 Orit GanContracts
A fascinating new article by Andrew Keane Woods examines contracts in the digital age. These contracts are society-wide in scope, and their scale surpasses other massive contracts we use. Moreover, they set the rules for digital society and govern the digital world. Furthermore, they determine constitutional rights such as privacy rights, speech rights and Fourth Amendment rights.
The internet, digital platforms, and social media are heavily governed by private law. However, courts generally apply contract law to enforce these contracts without due regard for their public aspects, as outlined above. Courts emphasize procedural fairness and assent rather than substantive justice and the contract’s social impact. Furthermore, courts usually allow parties to contract away their public rights, such as the right to sue in a court of law, and regularly enforce liability waivers. Moreover, courts commonly overlook the public interests, social costs, and harms these contracts entail, and only rarely invalidate contracts on grounds of public policy. Similarly, scholars and reformers mainly focus on procedural fairness and mutual assent, for example by promoting better disclosure, while neglecting the public aspects of these contracts. Continue reading "Contracts in The Digital Age"
