Apr 30, 2025 Rebecca ZietlowConstitutional Law
Lucien Ferguson,
Contesting State Capture, 46
Cardozo L. Rev. __ (forthcoming, 2025), available at
SSRN (Feb, 6, 2025).
What is the proper role for courts to play in ensuring the health of our democracy? In the early 21st century, the principal threat to democracy is state capture by monied interests and what appears to be a rising oligarchic state. At a time when the president of the United States uses the South Lawn of the White House to record an ad for a car company owned by a billionaire who has donated hundreds of millions of dollars to his campaign, concern about state capture by special interests is one of this country’s most urgent problems. The federal courts have been called upon to police illegal and unconstitutional activity, placing a strain on our judicial system that threatens our democracy. However, they have proven unwilling to address the murkier problem of state capture by powerful and wealthy individuals who use the government to promote their own interests.
In his forthcoming article, Contesting State Capture, Lucien Ferguson shifts our focus from federal to state courts. Ferguson argues that state courts have a special role to play in preventing state capture, in part because state constitutions contain special provisions aimed at preventing this peril. According to Ferguson, some of the most urgent examples of capture include partisan gerrymandering and voter ID laws, which are all designed to aid one political party (the Republican Party), as well as Right to Work Acts that undermine the political power of unions. Ferguson maintains that these laws are “special acts” that violate state constitutions and common law doctrines. One can also think of examples that cut towards the Democratic Party, such as legislation that favors union organizing and plaintiff’s attorneys, significant sources of funding for Democratic candidates. Ferguson calls on state courts to enforce state constitutional provisions to constrain state capture from any source. Continue reading "State Constitutions As A Bulwark Against Oligarchy"
Apr 29, 2025 Wendy WagnerAdministrative Law
Nikhil Menezes & David Pozen,
Looking for the Public in Public Law, _
U. Chi. L. Rev._ (forthcoming, 2025), available at
SSRN (Oct. 02, 2024).
If you have ever advocated for a greater “public” role in administrative law without specifying who that public actually is or how they might realistically engage, then Nikhil Menezes’ and David Pozen’s terrific new article, Looking for the Public, is a must-read. Menezes and Pozen call out our bad habits, trace the many adverse consequences that result from our imprecision, and challenge us to do better while offering concrete suggestions for how we might do so. Their analysis makes it clear that until we address the phantom public problem, well-meaning efforts to create more inclusive or public-spirited policies and processes will be missing the most critical ingredient of all—evidence that the policies or processes actually benefit a “credible public.”
Looking for the Public begins by tracing how, despite our reliance on the public as the lodestar for virtually every policy and process in administrative law, lawmakers and scholars regularly appeal to the public without providing evidence-based accounts of who the public is or how they might engage. Efforts to ground policy or accountability mechanisms in “public opinion,” the “public interest,” and “public participation” often neglect to locate these same publics, while at the same time steadfastly ignoring mounting literature that suggests the public is absent or not credibly represented. Continue reading "The “Phantom Public” Exposed and Transformed"
Apr 28, 2025 Kerri Lynn StoneWork Law
In a field as volatile and fragmented as employment discrimination law, it helps to see how courts take the same concept in different statutes and apply that concept against different backdrops. In Reasonably Accommodating Employment Discrimination Law, Professor William Corbett has done just that by examining “reasonable accommodation” in federal employment discrimination law as a mandate, an entitlement, and a capacious concept. He focuses on the employer duties under Title I of the Americans with Disabilities Act (enacted 1990, amended 2008) to provide “reasonable accommodations” to employees and job applicants for “known physical or mental limitations” absent “undue hardship on the operation of the business”; the Pregnant Workers Fairness Act (enacted in 2022), which requires employers to make “reasonable accommodations” for an employee for “known limitations” related to pregnancy, childbirth, and related medical conditions absent “undue hardship on the operation of the business”; and the employer’s duty under Title VII of the Civil Rights Act of 1964 (as amended) to “reasonably accommodate” current and prospective employees’ religious practices absent “undue hardship on the conduct of the employer’s business.” Corbett finds that these accommodation duties “demonstrate the largely dysfunctional, piecemeal approach that Congress and the Supreme Court have followed for over half a century in revising and updating employment discrimination law.” (P. 539.) His insights throughout the article and his use of the lens of comparison make the piece exceptional.
Corbett sharply and thoroughly excavates the problem from Supreme Court opinions like Groff v. DeJoy (2023), EEOC v. Abercrombie & Fitch (2015), and Young v. United Parcel Service, Inc. (2015). First, according to Corbett, the Court approaches the statute at issue to engage in statutory interpretation. Next, Congress responds to the decision by amending the statute at issue or otherwise changing the decision’s result with a “patch.” At this point, the Court sets about interpreting the new statutory language. It is there that Corbett extracts his key observations about the asymmetries inherent in accommodation jurisprudence. Continue reading "Antidiscrimination Law Cannot Accommodate Asymmetry"
Apr 25, 2025 Michael YuTrusts & Estates
Jonathan G. Blattmachr writes, “This Article primarily will deal with how the wealth transfer tax system might be used to provide reparations for descendants of people enslaved in the United States as part of the system of chattel slavery. It will not discuss other potential reparations such as for Native Americans among others.” (P. 297, dagger note.) The term “wealth transfer tax system” refers to the estate, gift, and generation-skipping transfer taxes imposed by Subtitle B of Title 26 of the United States Code. (P. 297, note 1.) Blattmachr’s specific proposal is that “a refundable estate tax credit (perhaps, up to a certain limit of wealth or using a scaled credit) could be allowed for the estates of descendants of enslaved persons.” (P. 309.) Blattmachr contributes to the literature of wealth transfer taxes, wealth inequality, racial wealth disparity, and reparations with his thoughtful proposal.
The core of Blattmachr’s proposal is the “refundable estate tax credit.” For any decedent dying in 2024, the estate tax credit currently stands at $5,389,800. (This jot focuses on the estate tax credit of $5,389,800 because Blattmachr’s article focuses on the estate tax credit—often, discussion centers on the estate tax exemption amount ($13,610,000 for a decedent dying in 2024), which is, generally, the amount that can be transferred estate tax-free to persons other than one’s spouse and other than to charities.) That relatively high estate tax credit is slated to sunset at the end of 2025 and revert to a lower estate tax credit unless Congress enacts new legislation. Before we discuss the mechanics and merits of a refundable estate tax credit, we should note that Blattmachr does not propose unequivocally that $5,389,800 be refunded to each estate of descendants of enslaved persons. Instead, Blattmachr explains that the amount of the refundable credit could be limited or scaled. (P. 309.) Continue reading "A Refundable Estate Tax Credit Might Promote Fairness and Reduce Inequality"
Apr 24, 2025 Anthony SebokTorts
Recent events offer a grim picture of the future of public law. In particular, President Trump’s assault on the administrative state seems destined to hamper the ability of agencies to protect the public in familiar areas such as drug safety, auto safety, environmental protection, and consumer protection.
It is for this reason that a recent paper by Yotam Kaplan, Adi Libson, and Gideon Parchomovsky, entitled The Renaissance of Private Law, is especially timely. Their thesis is that private law can partially substitute for some of the functions performed by public law, namely the regulation, supervision, and sanctioning of private actors—especially large corporations which typically escape control by the state, and, even when they do not, ignore civil fines and penalties. Continue reading "The Return of Private Law"
Apr 23, 2025 Ifeoma AjunwaTechnology Law
With her recent article, A Products Liability Framework for A.I., Professor Catherine Sharkey may have silenced at least some critics of artificial intelligence (A.I.) regulation. At the very least, the article stands as a sharp retort to anti-regulation advocates who often crow: “But how can we regulate A.I. when we don’t even yet know the full extent of what it can do or how it will be used?” Sharkey’s proposed regulatory framework, which eschews ex-ante pre-approval strategies in favor of post-market regulatory monitoring, may just be the answer to one of the critics’ favorite regulatory dodge.
Sharkey has the savoir faire to be afforded credence for any A.I. regulation proposal. As both an A.I./ML (machine learning) law and tort law scholar, what most stands out about Sharkey’s oeuvre is that she has gained enviable access to observe how A.I./ML systems are deployed in the government and has deployed her admirable analytical skills in dissecting those workings. For example, in Government by Algorithm: Artificial Intelligence in Federal Administrative Agencies, Sharkey (along with other scholars), conducted a rigorous canvass of A.I. use at 142 federal departments, agencies, and sub-agencies. Sharkey et al’s work in Government by Algorithm has been an inspiration for other scholars taking up the mantle to advocate for guardrails to automated governance. Continue reading "Products Liability as the Pragmatic First Step to A.I. Regulation"
Apr 22, 2025 Diane RingTax Law
Regardless of one’s normative perspective, international tax—both its design and its substance—is in great flux. We see this playing out at the United Nations in ongoing debates and maneuvers regarding the UN’s new role in global tax policy making, including during the first week of February 2025, as the UN debated a new framework convention process. Of course, the debate is not just about the UN but rather about the system of global taxation itself, and this debate takes place against a broader backdrop of political and economic history and current tensions beyond tax law. Where global tax policy will land in the medium term, and how much it will change, is not clear. The Global South and the Global North have articulated different visions for where tax policy negotiations should occur (UN, OECD, or other), how those negotiations should be conducted, and what substantive topics should be tackled first.
Frederik Heitmüller’s timely ICTD working paper, Scenarios for Negotiating a UN Framework Convention on International Tax, provides readers a fantastic insight into this unsettled world with an accessible yet sophisticated take on the underlying dynamics. In the face of such momentous uncertainty, with great tax, fiscal and political relevance, governments, taxpayers, researchers, business organizations, media, NGOs, and other actors are all trying to interpret, anticipate, and predict how these dynamics will play out. Not surprisingly, there is a substantial flow of commentary, interpretation, and analysis. (My own co-author and I have contributed to this deluge of material.) But Heitmüller’s January 2025 paper broke through the noise for me. I found it a valuable framing of the players, issues, tensions, and options that was both nuanced and informative. The paper opens a window onto what has occurred, and how to map the future. Continue reading "A Thinking Person’s Guide to Tax Conflict at the UN"
Apr 21, 2025 Sara BroninProperty
As extreme weather and natural hazards increase, policymakers must do a better job of ensuring that people live out of harm’s way, and build in a manner compatible with our changing planet. Land use laws, which in the United States are primarily the province of local governments, could help achieve more rational outcomes. Local zoning laws, in particular, have the potential to ensure that future development avoids risk-prone areas, because zoning dictates much of what gets built in this country. Yet as Professor Jonathan Rosenbloom points out in his latest article, Sacrifice Zones, few local governments have harnessed zoning’s powers to protect people and their places.
Rosenbloom contends that local governments have neglected zoning instead of changing and updating their codes as conditions change. I would probably go a little farther than Rosenbloom. When they have amended zoning rules, local governments often made the problem worse by permitting more development in areas prone to floods, wildfires, or extreme temperatures. Overall, poor land use planning, epitomized and reinforced by ill-conceived zoning rules, has accelerated disaster impacts and myriad losses of life, livelihoods, homes, neighborhoods, cultural resources, and communities. Continue reading "No Change Without Sacrifice (Zones)?"
Apr 18, 2025 Steve VladeckCourts Law
Most of what lawyers learn about the “Interbellum Constitution”–i.e., constitutional law between the end of the War of 1812 and the beginning of the Civil War—comes from the handful of major Supreme Court decisions of that era that law schools still teach as part of the required first-year curriculum. McCulloch v. Maryland for the supremacy of the federal government vis-à-vis the states; Gibbons v. Ogden for Congress’s power over interstate commerce; Dred Scott (and maybe Prigg v. Pennsylvania) for slavery; Martin v. Hunter’s Lessee for the relations between state and federal courts; and maybe, if a professor is ambitious enough, more complicated fare like the Passenger Cases. Through modern eyes, we view the great constitutional debates of the era largely (if not exclusively) as those that played out in the pages of the relevant Supreme Court reports—as compiled by Henry Wheaton (1816–27), Richard Peters (1828–42), or Benjamin Chew Howard (1843–60).
But in her magisterial new history of the constitutional debates of the era, legal historian Alison LaCroix expands her (and our) horizons beyond the modest contributions of the Supreme Court of the era and to the broader debates that played out on the ground—including, critically, in the justices’ rulings and opinions while riding circuit. On everything from the nature of the union to the scope of Congress’s power under the Commerce Clause to the status of Native American tribes to the intractable moral, political, and legal debates over slavery, our understanding of the debate over “federalism” during the interbellum period has been unhelpfully binary—pitching everything in stark “federal” vs. “state” terms. LaCroix’s book documents the reality of a “federalism of fractals” that was far more nuanced and jurisdictionally interdependent than the most famous Supreme Court decisions might suggest—where states and the federal government were not the only players and where the contest for power was more complicated than a constant antipodean tug-of-war between state capitals and Washington. Continue reading "The Interbellum Circuit Justices"
Apr 17, 2025 Rachel RosenbloomLexImmigration
With the Trump Administration threatening to carry out a wave of mass deportations, understanding the history of federal attempts to secure state and local cooperation in immigration enforcement feels more urgent than ever. Immigration law scholars have devoted considerable attention in recent years to the federal government’s deepening cooperation with state, county, and local law enforcement agencies, part of a growing focus within immigration law scholarship on the intersection of immigration law and criminal law (or “crimmigration law”). In large part, the story that legal scholars have told centers on the past three decades, a period in which both immigration detention and federal-state cooperation have dramatically expanded.
A new book from historian Brianna Nofil, The Migrant’s Jail: An American History of Mass Incarceration, makes a persuasive case for understanding such cooperation along a much longer timeline. Centering on the county jail, the book tells “a national story about local institutions” (P. 14), one that offers new insights into the dynamics of immigration federalism and the symbiotic relationship between the criminal legal system and the ostensibly civil regime of immigration law. Continue reading "Immigration Detention Through the Lens of the County Jail"
