Apr 2, 2025 Paul HorwitzConstitutional Law
Ethan J. Leib,
Good Faith in U.S. Constitutional Law (Jan. 8, 2025), available at
SSRN.
Every era gets the constitutional scholarship it needs—after the fact. The Burger Court era saw elaborate efforts to justify the Warren Court. The rise of history and tradition on the Supreme Court has been met by new defenses and criticisms of…standard originalism. The tyro leadership of leading law reviews committed themselves to running constant “Abolish Everything” articles just as abolitionism transitioned from interesting-but-highly-unlikely to politically disastrous fantasy. The bell tolls the end of the fight just as the scholars climb into the ring.
Given his recrudescence, to go for le mot juste, the study of the—bear with me—constitutional jurisprudence of Donald Trump presents an interesting case. What was too late the first time—a consideration of what American constitutional requires by way of character in its office-holders—might now become newly relevant. Or it might be too late once more: not only practically ineffectual, but also a pathetic plea for behavior that the wider culture now treats with a mixture of indifference and contempt. Nevertheless, there is new cause for this work. In his short but sweet contribution Good Faith in U.S. Constitutional Law, Ethan J. Leib presents a useful summation of one strain of this character-based constitutionalism: officials’ duty to act in good faith. Its conjunction with an administration in which good character is as plentiful as rainfall in the Atacama Desert is, we might say, an act of exquisite lousy timing. Continue reading "“I Love Beating George Washington”"
Apr 1, 2025 Michael E HerzAdministrative Law
Susan C. Morse,
Time Bars for Administrative Procedure Claims After Corner Post, 114
Calif. L. Rev. __ (forthcoming 2026), available at
SSRN (Jul. 18, 2024).
In recent terms, the Supreme Court has had its nose to the grindstone, transforming American administrative law. In a series of striking decisions, it has created the major questions doctrine, overruled Chevron and reined in Auer, shifted toward the elimination of independent agencies and a full-throated endorsement of the unitary executive theory, come close to remaking the nondelegation doctrine, reinvigorated arbitrary-and-capricious review, and opened the courthouse doors to challenges to regulations issued long ago. Most of these developments have spawned a flurry of academic commentary. The major questions doctrine in particular has created an itch it seems everyone needs to scratch. And overruling Chevron has given all those who had written about the case in the past (which is practically everyone) a chance now to write about its demise.
In the face of this tsunami, what is a poor JOTWELL reviewer to do? How to select the best from among them? It can’t be done. (Though, as Jack Beermann has written, if you want to understand the major questions doctrine you can’t go wrong by starting with Anita Krishnakumar.) But there is one exception. When it comes to Corner Post, there is a standout article. While others have been hypnotized by the shiny new objects of the MQD and Loper Bright, an undistracted Susan Morse has kept her attention focused where it has been for a couple of years. Her latest, Time Bars for Administrative Procedure Claims After Corner Post is a standout not only because, let’s be honest, there is not a lot of competition, but because it is so good. Continue reading "Avoiding the Demon Lurking Around the Corner (Post)"
Mar 31, 2025 Michael Z. GreenWork Law
When considering how to prove statutory employment discrimination claims, and in particular those actions relying on so-called reverse discrimination, William R. Corbett has authored a crucial and timely article. In Reverse Discrimination: An Opportunity to Modernize and Improve Employment Discrimination Law, Professor Corbett reveals important and modern-day considerations regarding employment discrimination proof structures.
More importantly, the article identifies key points about those proof structures that the Supreme Court will have to face this term after granting certiorari on October 4, 2024 to hear Ames v. Ohio Dept. of Human Services to determine whether “a majority-group plaintiff must show ‘background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.’” Continue reading "Interpreting Reverse Discrimination Proof"
Mar 28, 2025 Katheleen GuzmanTrusts & Estates
James Toomey,
Executor Discretion, 110
Iowa L. Rev. __ (forthcoming, 2025), available at
SSRN.
I hereby grant my executor the power to alter my will to reflect my most likely recent intent.
Notwithstanding the mysteries that can attend multiple aspects of estate planning, some things—such as the precepts that deeds are not wills, revocation is permitted, and takers must survive—seem plain. The near-absolute supremacy of Testator Intent fits within this rough set of axioms. Cases instruct that, elusive though it may be, it is that intent alone that matters, and not that of any judge, jury, or creditor; disappointed spouse or disinherited heir. Indeed, the principle has become the rhetorical stuff of earth and sky both, with the Testator’s intent cast as the cornerstone, the lodestar, the keystone, the polestar, the crown jewel, the very light that guides. Less often questioned is just how far and brightly that North Star actually shines, and at what temporal and comparative remove.
Professor James Toomey seeks consistency and tests fidelity to Testator Intent in Executor Discretion, admonishing that lawmakers should be every bit as aggrieved by the effectuation of will terms that reflect expired intent as reformers have been, for decades, about the rejection of intended wills on formalistic technicalities. “Whenever a will is probated [that . . .] no longer represents what the testator would have wanted, wills law fails on its own terms.” (P. 1.) If and where so, the autonomy, identity, and freedom that testamentary intent captures also fail, and stars fall to earth. Continue reading "Discretioners"
Mar 27, 2025 John C.P. GoldbergTorts
Matteo Godi,
Section 1983: A Strict Liability Statutory Tort, 113
Cal. L. Rev. __ (forthcoming, 2025), available at
SSRN (Aug. 13, 2024).
The federal civil rights law known as 42 U.S.C. § 1983 has garnered vast attention from the legal academy, including recent wide-ranging discussions of its qualified immunity defense. In his interesting article, Section 1983: A Strict Liability Statutory Tort, Matteo Godi addresses a more basic question, namely: what are the elements of a Section 1983 claim? Intriguingly, he maintains that the statute is best interpreted to hold officials strictly liable.
Section 1983 empowers individuals to seek redress from state officials (and certain others) for violating their federal constitutional rights. Under prevailing Supreme Court precedent, the statute does not specify a uniform liability standard. Instead, different standards apply depending on the right allegedly violated. For example, to prove an Equal Protection violation, the plaintiff must demonstrate intentional discrimination. Meanwhile, an inmate alleging an Eighth Amendment violation might have to prove maliciousness (for claims of excessive force) or deliberate indifference (for claims of unsafe conditions of confinement). Notably, in all applications the statute is understood to require conduct falling below some standard of conduct, i.e., legal fault.
According to Godi, this reading of the statute is fundamentally mistaken. As a matter of sound interpretation and normative theory, he claims, Section 1983 should be read to impose a single rule of strict liability. Thus, on his account, an inmate denied adequate medical treatment should be able to establish a constitutional tort simply by proving harm attributable to the denial, irrespective of whether the harm was intentionally or carelessly inflicted. Continue reading "The Rights and Wrongs of Constitutional Torts"
Mar 26, 2025 Tal ZarskyTechnology Law
There seems to be a budding consensus among tech pundits and stakeholders: The EU has solidified its role as a leader in one ICT sector—regulation. EU regulation is a growing industry in itself. However, such regulation may not necessarily be beneficial for business and technological progress. Professor Bradford, a leading expert on EU law and its international influence, agrees with the first two statements, but not necessarily with the third. She challenges (and ultimately rejects) the intuitive argument that excessive ICT regulation is responsible for the EU’s innovation lag in this sector. In making her claim, she maps out the many impediments to ICT innovation in Europe, identifying numerous factors beyond the content of regulation – such as its complexity, as well as underdeveloped capital markets, unfitting insolvency laws and the inability to attract and retain talent. Or, to paraphrase J.F.K.: Bradford explains that the EU’s ICT innovation failure has many fathers. Bradford thus argues that the link between regulation and the lack of innovation is weak and that there is no real lesson here for U.S. regulators and lawmakers contemplating tech-related policy.
To illustrate the weak connection between innovation and regulation, Bradford begins the article by outlining the U.S.’s centrality in the ICT sector. She highlights the dominant brands like Google, Meta, Microsoft, Amazon, and Apple that shape contemporary life and discourse, as well as the extraordinary wealth these firms have amassed. The article then examines the U.S.’s tech-friendly regulatory environment, particularly the relative immunity provided by Section 230 of the Communications Decency Act (as part of broader notion of promoting free speech) and the absence of comprehensive federal privacy legislation. Continue reading "EU ICT: A Tale of Regulation, Innovation (?), Causation (?) and Frustration (!)"
Mar 25, 2025 Adam ThimmeschTax Law
The immense wealth being accumulated by U.S. technology companies and their owners has been apparent for some time, and events during and since the last presidential election have put this reality firmly in the spotlight. Wealth is power, and innovative data practices have allowed for a great concentration of that power among a few key companies and individuals. In Valuing Social Data, Amanda Parsons and Salomé Viljoen provide a timely analysis of this new market reality and help us to think about how our legal systems might better respond. Their article is timely and incredibly useful both for those new to thinking about the data economy and for those looking for new frameworks to address wealth and power disparities in modern society.
Parsons and Viljoen’s article is situated within a broader literature addressing the challenges created by the collection, use, and sale of data in today’s world. Companies operating in this new economy have been able to obtain powerful market positions both through their innovation and by operating outside the scope of existing regulatory regimes—tax systems included. Parsons and Viljoen explain that issue and provide useful terms and taxonomies to better understand and discuss potential responses. Continue reading "Data, Value, and Power in the Digital Age"
Mar 24, 2025 William SmileyLegal History
The last two decades have seen a boom in scholarship on law and empire—a boom that owes much to the work of Lauren Benton, through her books Law and Colonial Cultures (2001) and Search for Sovereignty (2009). Now Benton broadens her lens to look at the longue durée history of law and war across, and even beyond, European empires, in They Called It Peace. Her book is a wonderful survey of the interplay of legal ideas and violence in European empires from the early modern era to the present. Benton focuses our attention on “small wars,” or “violence at the threshold of war and peace” (P. 8), which was “chronic, and repeating” across the world (P. 4). Rather than exceptions to the rule, she argues, small wars were the rule. And while small in scale, they could be both brutal and decisive, even leading to massacres and extermination.
Benton draws on examples from multiple empires—French, British, Portuguese, and Spanish—and different modes of conquest, both seaborne and land-based. We go from the Indian Ocean to Uruguay to the Pacific Northwest to Polynesia to Mexico to the Coromandel coast to Reconquista Spain to Jamaica. And we travel from the early modern period to the 19th century while also entering into conversation with modern dilemmas of violence—questions of “force short of war” like the US War on Terror, or “special military operations” like Russia’s invasion of Ukraine. Continue reading "Small Wars, Big Law"
Mar 21, 2025 Suja A. ThomasCourts Law
I feel like I am late to the party. Years ago, in 2017, Tonja Jacobi and Dylan Schweers wrote an influential article showing female Supreme Court Justices were disproportionately interrupted by male Justices and advocates. Fortunately, because Professor Jacobi sent me an old school hard copy of her newest article, I am now aware of her previous work and her new article co-authored with Matthew Sag. This new piece examines how, if at all, the atmosphere has changed at the Supreme Court. The short answer is some is the same. Some is different.
In the first article, Professor Jacobi and Schweers discovered a historical increase in interruptions since the 1990s and also that there was a gendered aspect to interruptions. Between 2004 and 2015, female Supreme Court Justices were interrupted up to three times as much as their male colleagues. After this first study was released, the Supreme Court actually made some change to its oral argument structure. Among other changes, during oral argument, each Justice has dedicated time to engage with advocates. Continue reading "Increasing Interventions by Chief Justice Roberts to Address Increasing Interruptions in Oral Argument"
Mar 20, 2025 Shelley Ross SaxerProperty
Jessica L. Asbridge,
Fines, Forfeitures, and Federalism, 111
Va. L. Rev. __ (forthcoming, 2025), available at
SSRN (Feb. 29, 2024).
Government has abused its authority with respect to discretionary fines and forfeitures that serve as a significant source of revenue for federal, state, and local governments and have a disproportionate impact on poor and disadvantaged communities. Similarly, local government abuses have occurred in land use regulation when the government seeks to obtain private property in exchange for granting a permit by requiring either a physical or monetary exaction. Professor Jessica Asbridge’s new article, Fines, Forfeitures, and Federalism, brings together these two seemingly unrelated areas of potential government abuse—exactions and discretionary fines and forfeitures.
The exactions doctrine allows the government to condition its approval of a permit it could otherwise deny so long as there is “nexus” and “rough proportionality” between the property the government demands in exchange for the permit and the adverse effects caused by the applicant’s project proposal. This higher level of scrutiny applied to exactions protects property developers against abusive government officials acting to extort as much revenue as possible to devote to community infrastructure. Professor Asbridge’s work suggests that heightened scrutiny is appropriate for both exactions requiring payments to the government in land use regulation in exchange for permission to develop and discretionary fines and forfeitures for state and local code violations. Continue reading "Penalties, Payments, and Power"
