Mar 5, 2025 Robin J. EffronCourts Law
The access-to-justice movement—comprised of lawyers, activists, and scholars—has traditionally focused on ensuring people have access to legal resources, tribunals, and lawyers to pursue remedies or mount defenses. As Kathryne Young says in Getting Help, the conventional approach asks: “How do we, as lawyers, serve those seeking help? How do we provide more legal services to lawyerless parties?” But this framework rests on two problematic assumptions: that people recognize their problems as legal in nature, and that the primary barrier to justice is a lack of affordable legal services. Young’s research exposes the error in both assumptions.
To explore this gap, Young conducted an empirical study using a nationally representative survey, gathering quantitative and qualitative data about how Americans approach complex problems with legal implications. Her findings reveal significant variations in how different demographics conceptualize legal problems, whom they trust, and what kinds of assistance they find valuable. These variations correlate with factors including race, gender, political affiliation, and religiosity, painting a nuanced picture of help-seeking behavior in legal contexts. Continue reading "From “Information” to “Advice” in the Provision of Legal Services"
Mar 4, 2025 Mary FanCriminal Law
Andrew Guthrie Ferguson,
Generative Suspicion and the Risks of AI-Assisted Police Reports (July 17, 2024), available at
SSRN.
Humans do not enjoy the vital drudgery of paperwork, including writing reports. Increasingly, people are turning to machine learning and artificial intelligence-powered products to produce reports. Students do it. Scientists do it. Doctors might do it. And police are starting to do it too, thanks to technology companies like Axon. One of the most prescient scholars of policing and technology, Andrew Guthrie Ferguson’s recent paper, Generative Suspicion and the Risks of AI-Assisted Police Reports, offers a fascinating overview of AI-generated police reports and the potential impact on criminal practice.
Police reports might seem like dull bureaucratic minutiae. But a police report can shape a person’s fate, from whether and what charges get filed, to the plea deal that is offered, and the sentence a defendant receives. One of the first items in a criminal case for a prosecutor or defense attorney to review, the police report shapes and constrains the narrative. The report defines victims and perpetrators, provides potential impeachment material for trial, and impacts the availability of defenses. The transformation of how police reports are generated is thus important, with potential systemic impacts. Continue reading "AI-Generated Police Reports"
Mar 3, 2025 Stacy-Ann ElvyTechnology Law
Increasingly, attorneys use various generative artificial intelligence (AI) tools in the practice of law. These tools purport to provide targeted answers to specific legal questions and they can be used to facilitate review and drafting of legal documents as well as aid in due diligence assignments, along with various other legal tasks. In response to the rapid rise of generative AI tools in the legal profession, state bar associations have published recommendations on the issue. For instance, in 2023, the California State Bar Association issued practical guidance to attorneys on generative AI in the legal profession. Florida followed suit by issuing an advisory opinion on the topic. Similarly, the American Bar Associationalso released a formal opinion on generative AI tools in 2024.
In her article, Rule 11 is No Match for Generative AI, Professor Jessica R. Gunder offers an impressive contribution to both the law-and-technology and civil procedure fields by exposing the limits of Federal Rule of Civil Procedure 11 in addressing “fictitious cases and false statements of law” that arise from attorneys’ use of generative AI. Gunder convincingly argues that although courts have used Rule 11 to sanction attorneys who fail to conduct sufficient legal research, Rule 11 cannot adequately regulate this behavior in the generative AI context. She goes on to contend that Rule 11’s inadequacies have likely led a growing number of courts to issue standing orders to directly address attorneys’ misuse of generative AI in legal proceedings. Continue reading "Federal Civil Litigation in the Age of Generative AI"
Feb 28, 2025 David HoffmanContracts
Erik Encarnacion,
Section 1981 as Contract Law, available at
SSRN (Jan. 10, 2025).
Erik Encarnacion’s Section 1981 as Contract Law presents a striking claim: 42 U.S.C. § 1981, a statute primarily understood as a piece of federal antidiscrimination law, is, in fact, a foundational component of contract law in the United States. Section 1981, originally part of the Civil Rights Act of 1866 and later amended in 1991, prohibits racial discrimination in the making, performance, modification, termination, and enforcement of contracts. Encarnacion argues that this provision does not merely sit adjacent to contract law as a regulatory constraint; rather, it is an intrinsic part of contract law itself. This conceptual reframing has significant implications for legal theory, doctrinal teaching, and the broader understanding of how contract law operates on the ground, and I recommend the paper to you.
Encarnacion’s thesis rests on two primary claims. First, he makes a conceptual argument that Section 1981 should be recognized as part of contract law because it directly governs the formation, enforcement, and modification of contracts. He traces its origins to the Civil Rights Act of 1866, which sought to dismantle the Black Codes—state laws that restricted the contractual and economic freedoms of newly freed Black Americans. These laws imposed additional formal requirements on Black contract formation, often nullifying their economic agency. The 1866 Act, therefore, was as much a reconstitution of contract law as it was a civil rights measure. Continue reading "Contract Law’s Hidden Civil Rights Foundation"
Feb 27, 2025 Bill BrattonCorporate Law
Corporate governance and corporate finance operate very differently as legal academic topics. With governance, there’s always some new legal development—a Delaware ruling, a provision in a corporate code, or a new SEC regulation. Failing that, the international corporate governance machine is a reliable generator of new material, whether a new wrinkle on a monitoring process or a substantive initiative falling inside the big tent of corporate purpose. With finance, law and legal theory are more in the back seat while practice takes the lead. Bankruptcy is the one important exception, but even there, practice has been trumping law in recent years as bankruptcy courts have passively turned the reins over to controlling creditors. Not that there aren’t developments in the practice to write about. There are. But this will be more a matter of tracking new wrinkles than accounting for great upheavals.
It is, accordingly, a big deal for legal finance when a whole new mode of financing springs up on the upper part of the right side of corporate balance sheets. The quick rise of private credit in recent years is just such a development. Jared A. Ellias and Elisabeth de Fontenay, The Credit Markets Go Dark, 134 Yale Law Journal 779 (2025), lays out the territory with diligence, clarity, and sophistication. Continue reading "Private Credit"
Feb 26, 2025 Mila SohoniAdministrative Law
Since the Supreme Court overturned Chevron in Loper Bright, the administrative law community has been consumed with the question of what will come next—and how much it will differ from what has gone before. Some predict that deference by courts to agencies will persist, albeit in renamed or reconceptualized form. Some worry that the combination of Loper Bright with other cases decided last term will empower courts to kneecap regulatory schemes, both old and new. Others posit that agencies will turn to regulatory tools that bypass whatever pitfalls may emerge as a consequence of Loper Bright and its brethren.
As scholars and policymakers grappled with the past term’s implications for federal agency power, Professor Adam Zimmerman’s Ghostwriting Federalism arrived to remind us that the reach of administrative influence extends far beyond the realms of formal rulemaking and judicial deference. This rich and thought-provoking new article is about much more than the post-Loper Bright world. The paper points out a great number of routes — fifty, to be precise — that agencies might use to promote policy objectives even in a world of federal courts inhospitable to federal regulatory power. Continue reading "Re-Routing Power"
Feb 25, 2025 Henry L. Chambers, Jr.Work Law
Dave Hall and Brad Areheart have written an article that anyone who cares about employment discrimination and workplace bias should read. In it, they propose to amend Title VII to provide that “when a worker makes a prima facie showing that she is a member of a protected class and has experienced a bad outcome at work, that showing should trigger a rebuttable presumption that the defendant-employer unlawfully discriminated against the worker.” To rebut that presumption, the defendant-employer would have to show “by clear and convincing evidence that the adverse outcome was solely job related for the position in question.” (P. 777-78.) Even if Congress is unlikely to amend Title VII, the authors’ proposal should start a serious discussion about whether and how to address an article of faith, that the courts’ current interpretation of Title VII does not hold liable as many employers for employment discrimination as it should.
At just under 40 pages, the article is an easy read. It provides a good outline of the problem it proposes to solve. Many employers escape Title VII liability for instances of workplace discrimination because of Title VII’s narrow focus on intentional discrimination, a proof structure that tends to search for specific animus-based instances of discrimination. In addition, federal judges tend to see less discrimination than jurors. The authors note that even though much less overt animus exists in society and in the workplace than in the past, substantial employment discrimination manifests through lingering animus, apathy, implicit bias, and structural bias that may be unrecognized. Continue reading "Providing a Bold New Solution to an Old and Growing Problem"
Feb 24, 2025 Victoria J. HanemanTrusts & Estates
Would you rather have government decisions made by artificial intelligence or by a presidential administration that you loath? The concept of the villainous AI overlord became part of the zeitgeist with the Terminator movie franchise, but the reality is that the greatest threat to the future of humanity may be itself. AI decision-making has demonstrated remarkable reliability and efficiency, often outperforming human decision-making in various domains. The ability of AI to quickly process immense amounts of data, identify patterns, and make decisions based on objective analysis minimizes the impact of biases and emotions that can cloud human judgement. As AI technology continues to progress, there is a growing possibility that AI may eventually displace humans in governing and decision-making positions. It is estimated that AI may soon replace 300 million jobs, or 9.1% of jobs worldwide. Jobs with a higher level of exposure to AI tend to be in higher paying fields, where education and critical reasoning skills are required. Prof. Lee-ford Tritt’s article, The Use of AI-Based Technologies in Arbitrating Trust Disputes, considers whether it is appropriate or feasible to supplant or support human decision-making with AI technology in the context of trust litigation.
This is less science fiction and more science fact, as China has already started to use AI-based courts to resolve legal disputes. The central question undergirding Prof. Tritt’s examination is the degree to which the experience of being human should control or guide dispute resolution. AI has several possible applications to arbitration, generally. It may assist arbitrators in the performance of their job, with tasks such as case management and fact gathering. AI may also assist with decision-making. One study demonstrated that artificial intelligence is able to predict the vote of individual Supreme Court justices with more than 70% accuracy, which far exceeds the reliability of human predictions. AI is less accurate with predictions involving factually similar cases, which may mean either that AI is less likely to identify legal nuances or that human factfinders are inconsistent in the application of the law. If the latter, we may find that AI decision-making is more equitable because of the precision with which the technology applies the law. We may also find that running our decisions through AI to ensure the fairness of the decision is a useful and supportive tool. Continue reading "Artificial Intelligence as Arbitrator"
Feb 21, 2025 Gregory KeatingTorts
Adam Slavny’s Wrongs, Harms, and Compensation: Paying for Our Mistakes rejects a basic premise of most contemporary tort theory. It renounces all aspiration to interpretive adequacy and holds contemporary tort law up to rigorous philosophical scrutiny. The results are invariably stimulating, usually illuminating, and often persuasive.
Most contemporary tort theory tries to show that the theory being propounded makes sense of tort law. Economic analysis, for example, can be, and sometimes is, presented as merely a positive account of the law of torts—as a demonstration that “common law legal rules are, in fact, efficient.” This positive claim can be distinguished from the normative claim “that common law legal rules ought to be efficient.” Sometimes economic theorists of tort do renounce all claims to normativity and insist that their views are purely positive. And sometimes they do the reverse: they renounce all interest in making sense of the law that we have and declare themselves interested only in the law as it should be. More often than not, though, economic theorists of tort are read to claim that tort law both is and should be efficient. Continue reading "Can Tort Theory be Foundationalist?"
Feb 20, 2025 Melissa MortazaviLegal Profession
“Civil lawsuits—especially class actions and multidistrict litigation (MDL)—can be messy and complicated,” (P. 49) Professor Seth Endo begins his lucid article, Ethical Guardrails to Unbounded Procedure, which is anything but messy and provides a deceptively simple solution to a complicated area of law. Here, Professor Endo sinks his teeth into the question of how judges should approach areas of civil procedure where the Federal Rules of Civil Procedure (FRCP) provide little guidance, biting off a meaty chunk of the beast that is the wild west of MDL complex litigation as his primary illustrative example. His solution? To give teeth to a body of legal authorities already in existence and largely previously ratified by the courts: that of professional-conduct rules.
Professor Endo sets his target on “common-benefit” fees, specific fees afforded to a subset of lawyers in MDL who are members of plaintiffs’ steering committees (PSC), to compensate them for litigation coordination. These fees spring from a void left in procedural rules and statutes. These fees are highly controversial, both for affording attorneys’ fees that are disproportionately high compared to plaintiffs’ recovery and because the composition of MDL leadership positions has often been under representative of both the demographic composition of the bar and the plaintiffs. As an example, Professor Endo highlights the Propulsid litigation against Johnson & Johnson where common benefit fees amounted to approximately twenty-seven million dollars in contrast to plaintiffs’ recovery at under seven million dollars. (P. 52.) In that case, the seven member PSC was entirely composed of white men despite a “disproportionately large percentage” of the plaintiffs being female. (P. 53.) These types of facts, coupled with the courts’ underutilization of traditional forms of lawyer sanctioning in MDL cases, gives the damning impression that courts use these fee structures and lucrative appointments at best to control and manipulate lawyer conduct to privilege expediency and out of court resolution of claims, and at worst to fall prey to bias and reward powerful lawyers at the expense of injured clients and less well-connected attorneys. Continue reading "Seeing the Unseen: Procedural Solutions in Plain Sight"
