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"
Jul 9, 2025 Nora Freeman EngstromLegal Profession
Todd Venook,
Enterprise Justice: Tyler Technologies and the Privatizing Court, available at
SSRN. (June 4, 2025).
In Enterprise Justice: Tyler Technologies and the Privatizing Court, forthcoming in the Yale Law Journal, Todd Venook pulls back the curtain on Tyler Technology, an obscure company headquartered in Plano, Texas that provides the technology to the courts that serve a majority of Americans.
Todd begins by explaining that, however belatedly, courts have entered the digital age, and, faced with a classic “make-or-buy” decision when it comes to building out their data infrastructure, courts have mostly opted for the latter. Having done so, hundreds of courts have inked contracts with Tyler—and, pursuant to these contracts, Tyler performs a range of functions, central to courthouse operations. Tyler’s tools facilitate e-filing, manage calendars, accept payments, store filings, and even (sometimes) run online dispute resolution (“ODR”) platforms. In 2025, in the majority of states, justice is delivered (or not) through Tyler’s tools.
After cataloging the products that Tyler offers and inventorying Tyler’s grip over the relevant marketplace, Todd considers the implications of Tyler’s dominance. Filings—which is to say, pleadings, motions, judgments—are courts’ lifeblood. They are the grist for the courthouse mill. And Tyler, Todd shows, controls these filings. What follows? Continue reading "Tyler Tech and the Perils of Privatization"
Jul 8, 2025 Bill WatsonJurisprudence
An all-too-common misconception of the debate between positivists and non-positivists over the nature of law is that the debate hasn’t progressed since H.L.A. Hart and Ronald Dworkin sparred over the subject in the mid-to-late twentieth century. Emad Atiq’s book Contemporary Non-Positivism dispels that misconception and brings readers up to date on the debate. Published in Cambridge University Press’s “Elements in Philosophy of Law” series, the book provides a concise review of the contemporary literature on non-positivism, while also breaking new ground by articulating and defending a modest “non-positivism without the frills.”
The book’s four chapters address (1) the subject matter and methodology of the positivism/non-positivism debate; (2) arguments against positivism; (3) different versions of non-positivism, including Atiq’s non-frilly non-positivism; and (4) questions for further inquiry. Chapter 1 defines non-positivism as a view about the necessary criteria “for a scheme of social organization to constitute a legal system” (P. 1). According to non-positivism, a legal system “must satisfy not just non-normative criteria … but essentially normative criteria as well, such as being to some extent good, or rational, or just” (id.). Continue reading "Non-Frilly Non-Positivism"
Jul 7, 2025 Michael W. CarrollIntellectual Property Law
In Sedlik v. von Drachenberg, the jury had to decide whether a tattoo featuring Miles Davis was substantially similar to the photograph on which the tattoo was based. To do so, the court instructed the jury to exclude from consideration either work’s concept but to then to make “a holistic comparison that focuses on whether the works are substantially similar in the total concept and feel of the works.” How is a jury to exclude concepts from consideration only to then compare the works’ “total concept and feel?” In his article, Bruce Boyden persuasively explains how we got here and further argues that this is not the way to resolve questions of copyright infringement.
One of the article’s many contributions is to spotlight why developing a “substantial similarity” standard is complex because the issue bundles three distinct questions:
First, there is a question of amount: how much of the plaintiff’s material wound up in the defendant’s work? Second, there is a legal determination to be made: was the borrowed material the sort that the law should categorize as protected? And finally, there is a question of line-drawing: where is the threshold of impermissible borrowing, and did the defendant cross it? (P. 1101.)
Courts traditionally enjoyed great discretion when making these judgments because, prior to the 1950s, most suits sought equitable relief, allowing for case-by-case determinations. The article uses Learned Hand’s opinions in Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930), and Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir. 1936), to illustrate the point. Each opinion provides the reader with an extensive comparison of the narrative elements of the relevant works followed by Hand’s conclusory remarks declaring non-infringement in Nichols and infringement in Sheldon. The article argues that Hand used his expertise to exclude unprotectible elements from consideration before relying on intuition to decide whether the second work had taken too much from the first. Continue reading "How “Total Concept and Feel” Became Copyright Doctrine"
Jul 4, 2025 Zack BuckHealth Law
For better or worse, employers have long had a vital but understated role in health care access and policy in the United States. In Employers and the Privatization of Public Health, Professor Sharona Hoffman draws on this context to catalog and illuminate American employers’ roles during a public health emergency. Recognizing the important work of private employers as part of the public health infrastructure and using the COVID-19 pandemic as a focus of the piece, Hoffman persuasively argues for treating employers as the indispensable partners they are when it comes to public health interventions and goals.
In the piece, Professor Hoffman walks the reader through the traditional role of government in public health efforts and the recently diminished reach of traditional governmental power, and provides examples of domains where employers have traditionally been involved in the goals of generally furthering health. These include the interest in workers’ health, the American employer-based health insurance system, wellness programs,, and employee assistance programs—all areas of sustained employer activity. Continue reading "Enlisting Employers for Health"
Jul 3, 2025 Eliot TraczEquality
It’s rare that an article comes along with the potential to reshape how an entire area of law is litigated. This is particularly true for articles addressing discrimination against the LGBTQ community. Katie Eyer authored such a piece, which influenced the outcome in Bostock v. Clayton County. Now, Zee Scout, in her article Trans Erasure, Intersex Manipulation: The First Amendment and Other Reflections from Women in Struggle v. Bain, has written just such a work, which promises to impact how anti-trans legislation is litigated.
Scout’s article addresses the onslaught of state legislation targeting what she refers to as transgender, gender nonconforming, intersex, and queer (TGNCI) people. While the Equal Protection Clause has long been the tool of choice to advance TGNCI rights, federal courts have begun rolling back progress. This rollback, according to Scout, is premised on the “real differences” doctrine, which argues that men and women have distinct biological characteristics which in turn permit certain types of distinctions in regulation. (P. 121.) As a result, states have been able to pass legislation as based on binary differences of reproductive anatomy (which of course erases intersex people entirely). Continue reading "Viewpoint Discrimination, Compelled Speech, and Trans Identity"
Jul 2, 2025 Christopher SloboginCriminal Law
Shawn Fields’ The New Public Safety: Police Reform and the Lurking Threat to Civil Liberties, which will be published by the University of California Press in September, is a brave and wise effort to envision a post-DeFund the Police world. While the defund movement has, at best, been a mixed success, some municipalities have experimented with de-policing routine interactions with people who are unhoused and mentally ill, authorizing civilian “violence interrupters” to roam the streets, and handing over traffic enforcement to unarmed officials. In The New Public Safety, Fields endorses these developments but also cautions that, without regulation, they will become simply a new version of policing, one that may look “soft” but in fact is not. At the same time, he argues that, with regulation, soft policing is preferable to the goal of entirely dismantling government-oriented responses, a goal that is currently popular in some circles but, as Field shows, goes too far.
Chapters One and Two of the book summarize current policing disaggregation trends. These chapters are full of statistics and disturbing stories that demonstrate why it is a bad idea to have armed officials—trained in the use of force and charged with detecting and stopping crime—function as first responders for vulnerable people in trouble and as enforcers of low-level infractions. This part of the book also details how specialized agencies charged with handling specific types of crises, such as homelessness, psychiatric emergencies, and social service crises, can, in theory, do a better job than the police at promoting public safety. Chapter Two ends by describing the views of abolitionists, who aver that replacing police with other government officials will simply reintroduce today’s carceral and exploitative responses in a different form. While Fields recognizes that possibility, he disagrees with the abolitionists’ goal of eliminating both traditional and soft policing and outlines what needs to be done to avoid the outcomes they fear. Continue reading "Making the New Public Safety Safe"
Jul 1, 2025 Joan MacLeod HeminwayCorporate Law
Many business law scholars in the United States are attracted to research projects focused on domestic—and more particularly Delaware—corporate legal doctrine and enforcement. Rightly so, given Delaware’s historic prominence as a home for publicly traded and multijurisdictional corporations. Yet even in the throes of tariff wars being waged at the time this post was authored, business—corporate business—is international and often global.
Legal enforcement against corporations in a transnational context proves to be complex. Typically, it is undertaken through traditional approaches ordained by international law—legal actions brought in courts and governmental regulatory processes. These avenues of enforcement are most frequently seen as exclusive and distinct. However, in her article Corporate Governance & International Law, Kishanthi (“Kish”) Parella encourages inspection of a potential third enforcement option that can work with the others: stakeholder enforcement of international law. Her insights inform a fresh look at global corporate legal enforcement mechanisms in an era that tends to value, if not embrace, a more holistic participation of stakeholders in corporate governance. Continue reading "Stakeholder Enforcement of International Law: A Potentially Significant Adjunct to Traditional Enforcement Efforts"
Jun 30, 2025 Martha ErtmanContracts
Sabine Tsuruda’s article Race, Unconscionability, and Contractual Equality illustrates shortcomings of current unconscionability doctrine in contract law and proposes an alternative to enable the contract law to avoid complicity with beneficiaries of race discrimination in credit markets. Her proposed update to unconscionability doctrine, which she dubs a “best interests” approach, essentially makes a contract term substantively unconscionable if it runs contrary to a party’s “basic interests and inalienable rights” such as privacy, having a home, accessing justice, and being free from race and gender discrimination. (P. 206.)
Consistent with unconscionability’s roots in equity – and thus morality or fairness that justice requires –Tsuruda aims to “match unconscionability doctrine to the moral category of objectionable racial subordination.” (P. 192.) As such the article fits within unconscionability’s longstanding role of naming abuses of power that undermine the core assumptions that parties are free and equal. For example, the holding in the canonical unconscionability case of Williams v. Walker Thomas, 350 F.2d 445 (DC Cir 1965), led the drafters of the UCC and federal regulators to ban or sharply limit the blanket security interest that enabled the Walker Thomas Furniture Store to repossess Mrs. Williams’ bureau, bed, and stereo when they were nearly paid off. (UCC § 9-204 & Fed. Trade Comm’n Credit Practices Rule). Continue reading "“Basic Interests” Proposal Does Justice to Unconscionability Doctrine"
