Jun 5, 2025 Maneesha DeckhaEquality
Although still perched on the periphery, scholarship asking how the law can remedy human harms against animals and other nonhuman life is proliferating. A foundational question is how legal systems can embed equality and justice as values that would apply across species and not simply among humans. A corollary is how to influence more humans to support a legal system that regards animals as beings or entities whose interests matter alongside humans’.
When fashioning dramatic reform like this, we may be tempted to focus on the present as we hope for a much less anthropocentric future. But it also helps to look to the past. Jesse Arsenault and Rosemary-Claire Collard’s Crimes Against Reproduction: Domesticating Life in the Animal Trials is instructive in this regard. It helps readers understand how the earliest instances of European human-animal legal regulation centuries ago can shed light today on the need to see the legal treatment of animals and marginalized humans as entwined, and anthropocentrism as an all-species gendered equality problem. Continue reading "Learning from the Animal Trials in the Anthropocene"
Jun 4, 2025 Leonid SirotaConstitutional Law
Preston Jordan Lim
, The Great Depression and Canada’s Major Originalist Decade, __
Osgoode Hall L.J. __ (forthcoming). available at
SSRN. (November 22, 2024).
If, as Adam Dodek once put it, originalism was long a “dirty word” in Canadian constitutional law, one reason for that was its perceived foreignness. Another was politics. As Colin Feasby has observed, for the judges and academics of the formative period after the enactment of the Canadian Charter of Rights and Freedoms in 1982, originalism was “a tool of conservative United States legal thinkers.” Preston Jordan Lim shows that they were quite wrong—and ignorant of their own history. Long before it was a gleam in Paul Brest’s eye, originalism was the method by which Great Depression-era Canadian scholars hoped to take their constitution back from the courts—or, more precisely, from the Judicial Committee of the Privy Council (effectively the British Empire’s supreme court, staffed mostly by the United Kingdom’s most senior judges), then the court of last resort for Canada.
Lim shows that “originalism constituted the primary theory of constitutional interpretation through which legal reformers” argued about the interpretation of what today is known as the Constitution Act, 1867—the text that contains most of the Canadian constitution’s key structural provisions. Admittedly, they did not have an especially clear theory of originalism. But it was their practice just the same. And one hardly needs to have parsed the interpretation-construction distinction or pondered whether there is something that interpretation just is to be an originalist—as the development of originalism in American law itself shows. Continue reading "Originalism, Eh?"
Jun 3, 2025 Allan ErbsenCourts Law
Civil Protection Orders (CPOs) empower targets of domestic violence to enlist the state as an ally. Streamlined procedures enable plaintiffs to avert abuse that public institutions might otherwise be unable to address. In contrast to criminal remedies, civil remedies focus on protecting victims rather than punishing abusers, rely on robed magistrates rather than armed officers, and require proof by a preponderance of the evidence rather than beyond a reasonable doubt. Despite creating only a parchment barrier, CPOs often have sufficient gravitas to deter abusers. When deterrence fails, CPOs facilitate arrest and prosecution.
Inadequate public knowledge about CPOs blunts their utility. Virtually all victims of domestic violence know that they can dial 911. Fewer know that they can apply for a CPO. Reformers seeking to protect victims while reducing dependence on the criminal justice system have therefore considered how to expand awareness of civil remedies.
Lisa Martin’s The Importance of Civil Pathways to Protection Orders provides valuable insight into the underuse of CPOs. The article reports the results of an empirical study reviewing nearly every CPO application filed in South Carolina’s family courts in 2019. Martin analyzed more than 3,400 files from forty-five of the state’s forty-six counties, coding for more than forty variables. Continue reading "Expanding Access to Civil Remedies for Domestic Violence"
Jun 2, 2025 Jodi ShortAdministrative Law
Julie E. Cohen,
Oligarchy, State, and Cryptopia, available at
SSRN. (March 10, 2025).
In Oligarchy, State, and Cryptopia, Julie Cohen lays the groundwork for re-theorizing the administrative state in the age of Trump II, DOGE (otherwise known as the Department of Government Efficiency), and their unparalleled assault on the institutions of government. Before now, generations of deregulatory politics and rhetoric have tended paradoxically to produce more rules rather than less, and they have decidedly not produced any radical restructuring of government regulatory institutions. The settled explanation from scholarship in a variety of fields is that while businesses often spout the rhetoric of deregulation, they actually want—perhaps need—regulation for reasons including competition control, market making, and firm survival and stability. The extensive and unprecedented dismantling of government institutions spearheaded by DOGE radically unsettles those understandings, which begs questions about why this time is different.
Cohen’s article begins to address those questions and, more broadly, sets the terms for future theorizing about administrative law and regulation in a cogent, meticulous, and frankly chilling account of the tech oligarchy and its relationship to, and ambitions for, state power. Cohen starts from the premise that existing theories of administrative law and regulation give too little attention to oligarchy as a phenomenon that shapes the use of state power and regulatory authority in ways that go beyond the familiar industry capture story. Based on influential research in political science, she defines oligarchy as “a particular form of concentrated power based on the accumulation of extreme material wealth and the use of such wealth to obtain systemic, inescapable advantage within a political system or community” (P. 6). Cohen argues that the principal difference between tech oligarchs and capitalist oligarchs of yore is that the former are becoming increasingly unwilling to submit to a rule-of-law system to advance and protect their dominance. Instead, tech oligarchs increasingly seek to move towards a system in which they displace the state and exercise coercive power directly—including by individual fiat. Continue reading "Re-theorizing Administrative Law in the Great Unsettling"
May 30, 2025 Jennifer ChaconCriminal Law
How is criminal law distinct from civil law? Standard criminal law textbook answers focus on the unique role of the state in criminal law. Violations of the criminal law are presented as actions that harm the state. The state is said to maintain a monopoly on punitive power and can deploy it in unique ways to redress these harms. In a democracy, the exercise of punitive state power purportedly channels the will of the people. These propositions are offered as justifications for the imposition of punitive sanctions that have no identical counterparts in the world of civil law, including imprisonment and even death.
Many of these fundamental propositions do not entirely hold up under close scrutiny. The state’s monopoly on punitive power has been heavily outsourced to private actors. The flaws of political and representative processes in the U.S. (and within U.S. states) mean that criminal law is an imperfect expression of the will of the people, with the result that criminal law often both mirrors and replicates the discriminatory impulses of political (and racial) majorities. Immigration detention and civil commitment both undercut the truism that incarceration is unique to the criminal context. But what of criminal prosecution? Should we understand it as the unique province of the government? Standard accounts, and decades of case law, tell us that the answer is yes. But in her immensely readable and engaging article The Past and Persistence of Private Prosecution, Emma Kaufman provides a different, and very intriguing, answer to that question. Continue reading "No Monopoly"
May 29, 2025 Hila KerenContracts
Rebecca Stone,
Putting Freedom of Contract in its Place, 16
J. Legal Analysis 94, available at
Oxford Academic (July 30, 2024).
A few years ago, Jody Kraus and Robert Scott argued that vindicating the sovereignty of parties who make contracts under free and fair conditions is “the most morally compelling explanation” for contract law’s allegiance to the parties’ ex ante intentions. They further claimed that judicial interventions on behalf of justice via ex post doctrines are thus erroneous and “cannot be justified.” Rebecca Stone refutes both points in her brilliant piece, Putting Freedom of Contract in its Place. She first contests the claim that morality is secured by the procedure of contracting under free and fair conditions. She then turns to disprove the claim that judicial ex post interventions “cannot be justified” by offering a powerful argument for setting limits on parties’ ability to control their relationship. Stone’s article puts freedom of contract in its place by no less than crafting a novel account of contract law—one called “the democratic conception.”
Stone develops the democratic conception of contract law by seeking a deeper justification for our lasting commitment to robust freedom of contract. To her, the mere vindication of sovereignty cannot suffice. Rather, freedom of contract is essential because when parties enter a contractual relationship, they face an inevitable normative uncertainty regarding what justice between them would require when challenges arise. Parties, therefore, have the freedom to use their agreement for the purpose of settling this normative uncertainty. Contract law, Stone argues, should respect their usage of this freedom “when and only when” it yielded mechanisms that reflect “plausible, good faith attempts to settle that uncertainty.” Continue reading "Contract Law’s Quest for Justice"
May 28, 2025 Robert RosenCorporate Law
This article explores “normative” agency cost theory. It does so by examining its most discussed prescriptions for making healthy corporations (empowered shareholders, monitoring boards, pay-for-performance, and the market for corporate control). Presenting very impressive evidence, the article concludes that the remedies prescribed don’t work either to minimize managerial self-dealing or increase returns to shareholders. Yet despite the evidence, these remedies are still being prescribed. Professor Tingle’s confrontation with that fact is a singular contribution. Until I read this article, I believed the response “agency cost theory is good, it just has been poorly implemented; the dosages just need adjusting.” Professor Tingle offers a different response, the incontestability of agency theory’s “seductive simplicity” (P. 60).
Tingle reveals that normative agency theory’s continuing power derives from it telling a tale of temptation and seduction that “seems uncontroversial” (P. 15). It provides an account of how self-interested and unrestrained agents would act if given the opportunity to cheat. Without evidence, it assumes that “managers are systematically disloyal” (P. 59). And this assumption is not testable. If corporations were run by monks, the successes of their corporations would confirm the theory, and if their corporations were unsuccessful, the monks would be revealed to be disloyal by how they were selected or by their ignorance (Pp. 10-11). Continue reading "Don’t be Seduced by Agency Cost Theory and its Tales of Managers and their Temptations"
May 27, 2025 Joseph SeinerWork Law
In More Accommodation, Less Technicality for Workplace Whistleblowers, Professor Craig Senn performs an excellent analysis of the vast array of federal whistleblower and retaliation laws. He engages in a much-needed deep dive into the distinctions between these laws and proposes a new standard for worker protections. Professor Senn appropriately critiques the coverage employees receive when blowing the whistle under these laws and proposes a well-considered alternative and unified approach to protect workers.
The law in this field is confusing, at best. The various federal whistleblower statutes are articulated differently and have been applied in many ways. Without sufficient protection for those who appropriately complain, the statutes can lose all meaning and impact. Indeed, workers will be chilled from blowing the whistle if their careers and employment hang in the balance. Over the years, many courts have applied rigid standards for gaining protection, often holding employees to overly high standards and expectations in their knowledge and understanding of the law and statutes. Continue reading "Whistleblowing, Revisited"
May 26, 2025 Allison Anna TaitTrusts & Estates
Masayuki Tamaruya,
Trust Law and Colonialism,
in The Oxford Handbook of Comparative Trust Laws (Adam S. Hofri-Winogradow et al. eds, forthcoming), available at
SSRN (Sept. 1, 2024).
Tethered to and inextricably linked with the absence or decline of democratic governance, there has always been empire. Empires rise and fall, as they say, but the imperial impulse is perennial and new iterations of old empires emerge with dismal regularity, showing us that imperial formations are hard to erase.
The relationship between empire and trust law is one that is gaining increased attention, particularly in the context of offshore financial centers and the inescapable historical force of British colonialism. Popular books like Butler to the World and, more recently, The Hidden Globe have brought the topic of colonialism into a wider conversation about wealth inequality and legal imperialism. Both historians and sociologists have dug into the subject, with excellent results like those of Vanessa Ogle and Brooke Harrington. And legal scholars are also joining the conversation, talking about colonial aftermaths and the ghosts of colonialism that persist in our systems of wealth transfer.
A new contribution to the literature—and our understanding—of trust law and colonialism is Masayuki Tamaruya’s chapter in the forthcoming Oxford Handbook of Comparative Trust Laws, aptly entitled Trust Law and Colonialism. Tamaruya takes the reader on a historical adventure through diverse empires and their spheres of influence. Tamaruya focuses in particular on the British empire, the Americas, and Asia explaining that “distinct patterns of colonialism naturally engender different dynamisms in using trust and trust laws.” Continue reading "Trust Law and the Tides of Colonialism"
May 23, 2025 Sarah SwanTorts
Deborah N. Archer & Joseph Schottenfeld,
Defending Home: Toward a Theory of Community Equity, __
U. Chi. L. Rev. __ (forthcoming, 2025), available at
SSRN (Sept. 30, 2024).
For communities suffering the harms of long-standing neglect and callous infrastructure decisions that dump highways, landfills, and the like in the middle of them, legal remedies have been few and far between. In their illuminating article, Defending Home: Toward a Theory of Community Equity, Deborah Archer and Joseph R. Schottenfeld offer a new framework to render such community-based harms legally cognizable, and call on tort law as an important conceptual piece of this project.
Archer and Schottenfeld begin by telling the story of Sandridge, a small, unincorporated, historically Black community in South Carolina. When the surrounding county decided it was time for a new four-lane road project to connect two pre-existing highways and make it easier for vacationers to travel to the beach, numerous road placement options were proposed. The county determined that the best path forward would be to lay the highway down right in the middle of Sandridge, even though the road would functionally destroy the community, devouring multiple homes, businesses, and the community park, and isolating the heart and soul of the community, the church, from its many attendees. Continue reading "Building a Community Equity Framework from the Tort of Public Nuisance"
