Jan 22, 2025 Yael LifshitzProperty
Professor Shoemaker, in her article, Re-Placing Property, shines a light on a surprisingly understudied, yet immensely important point. She explores that the law of real property encompasses both situations when land is held for its use value and when it is held for the wealth it represents as a form of investment. Through this work, Professor Shoemaker elegantly and thoughtfully reminds us of this fundamental truth, which likely rings true with every property scholar and student.
Picture a typical family house. The house can be held by a family that uses it daily. The kids’ growth chart is etched in the kitchen pantry and the backyard holds the memories of many birthday parties. The same house; however, can also be held by an investment company, a corporation that holds it for the sake of profit. Same house. Same law of real property. Vastly different purposes. Continue reading "Land as Land and Land as Wealth"
Jan 21, 2025 Samy AyoubLegal History
Islamic legal theory places great importance on the distinction between general and specific language (al-ʿāmm wa al-khāṣṣ). This new article by Omar Farahat draws on the philosophy of law to distinguish between internal and external generality. Internal generality refers to how the law maintains its coherence and intellectual consistency, while external generality deals with how the law applies to different social situations. These are analytical tools used to understand Islamic legal principles and their application. They primarily refer to the way Islamic legal principles are articulated and the scope of their applicability.
Internal generality refers to the universality of Islamic legal principles within the Muslim community such as the obligation to perform daily prayers. These rules imply that a particular legal principle is meant to apply to all Muslims, regardless of their specific social, geographical, or cultural circumstances, provided they meet the conditions of the rule. External generality refers to the applicability or relevance of Islamic legal principles beyond the Muslim community, often in interactions with non-Muslims or in multi-religious contexts. It considers how Islamic principles are communicated or enforced in situations involving non-Muslims or international matters. For example, the principle of upholding contracts applies in dealings with both Muslims and non-Muslims. Continue reading "The Indispensable Nature of Islamic Legal Theory"
Jan 20, 2025 Tom SimmonsLex
Sharona Hoffman & Cassandra Burke Robertson,
Patient Autonomy, Public Safety, and Drivers with Cognitive Decline, 15
UC Irvine L. Rev. __ (forthcoming, 2025), available at
SSRN (2024).
Sadly, age and cognitive decline often go hand in hand. Approximately one in ten Americans over the age of 65 have dementia. As much as half of individuals with dementia still drive. The statistics on how many additional accidents occur as a result are somewhat murky. Some studies reveal twofold increases in risk of car crashes. But one study actually revealed lower risks among drivers with dementia possibly because that set of persons reduces their driving frequency so much relative to the non-dementia set that the occurrence of accidents drops despite the greater risks associated with cognitive impairments (and also because not everyone with dementia is incapable of driving safely). Still, no one doubts that the risks of driving with dementia are real, yet the law has had very little to say about the matter.
In Patient Autonomy, Public Safety, and Drivers with Cognitive Decline, Professors Hoffman and Robertson assess the predicament of drivers with cognitive impairments. Even individuals with only mild dementia are about ten times more likely to fail an on-the-road driving test than comparators without dementia. Currently, however, only one state requires road re-testing for all drivers above a certain age (75 and above, in Illinois). Simply renewing a driver’s license in-person is too anemic. Across-the-board mandatory road re-testing is too costly. A more thoughtful solution has thus far been elusory, but Hoffman and Robertson articulate and defend a multifaceted framework of enhanced protocols which is both compelling and thought-provoking. Continue reading "Miss Daisy – Driving?"
Jan 17, 2025 Helen NortonConstitutional Law
Intentional falsehoods often frustrate the purposes of the Free Speech Clause. They can—and often do—undermine a healthy democracy, interfere with enlightenment and the distribution of knowledge, and frustrate listeners’ autonomous choices. At the same time, however, laws prohibiting lies often trigger First Amendment concern because of the government’s dangerous potential for regulatory abuse.
In Truth and Transparency, Alan Chen and Justin Marceau explore a particularly fascinating slice of deception: lies concealing the speaker’s identity as a journalist or other undercover investigator. We can understand these as lies about the source of speech—in other words, lies about who’s talking to you. And because listeners find it so helpful to know the source of expression when assessing its credibility or value, law often forbids lies about the source of speech. Consider, for example, laws requiring disclosure of the identities of those creating and producing public campaign advertisements—laws upheld by the Supreme Court in the less famous part of Citizens United v. Federal Election Commission. Or laws forbidding folks from pretending to be law enforcement officers or other government officials. Continue reading "Undercover Investigations, Deception, and Democracy"
Jan 16, 2025 Kenneth HimmaJurisprudence
Unlike morality, law is, by its very nature, a social artifact. If morality is objective and consists of substantively necessary truths, those norms exist in possible worlds without intelligent beings. However, objective moral norms would not have application in those worlds since there are no moral agents in them. In contrast, there cannot be a system of what John Austin described as “positive law” – i.e., the social phenomena that positivism is concerned to explicate – in possible worlds without intelligent beings.
Law, then, is like a professional sports league in this important respect: if human beings ever go extinct without violence, the concrete remnants of legal systems and sports leagues in the form of documents, basketballs, courthouses, and stadiums might survive. However, legal systems and the NBA will not. Both are social artifacts constructed by our social practices that depend for their continued existence, on our continued existence.
That said, there is much that remains unclear about what law’s artifactuality tells us about its constitutive properties. In Defects and Failures in Legal Artifacts, Jonathan Crowe articulates the relationship between an artifact kind’s existence conditions and its non-defectiveness conditions. As he explains: “the non-defectiveness conditions of an artifact kind are those features that a token artifact must possess to count as a non-defective example of the kind, while its existence conditions are those features a token artifact must possess to count as a member of the kind at all.” (P. 37-38.) Continue reading "Positivism, Natural Law, and Artifact Theory"
Jan 15, 2025 Sheila Vélez MartinezEquality
This article, written by four distinguished Latina legal scholars, provides an analysis of the unique challenges, achievements, and potential future for Latina law professors and educators in the United States. It is framed around the 2022 Graciela Olivárez Latinas in the Legal Academy Workshop (GO LILA), which brought together 74 Latina law professors to foster community, mentorship, and strategic growth.
Much has been discussed in higher education about the impending “demographic cliff”. The consensus view is that the United States will hit a peak of around 3.5 million high-school graduates sometime near 2025. As a result, the college-age population is expected to shrink across the next five to 10 years by as much as 15 percent. Furthermore, even as high school graduation rates have increased in recent years, the percentage of graduates who choose to enroll in college right after high school has been declining. Less attention has been given to an additional demographic challenge for law schools: no matter the size, the future pool of law school applicants will differ significantly from the current one, with a much higher proportion of students of color, first-generation college students, and individuals from low-income or lower socioeconomic backgrounds. Continue reading "LILAs, Can Law Schools Meet the Latinx Demographic Challenge?"
Jan 14, 2025 Michael W. CarrollIntellectual Property Law
Katherine Lee, A. Feder Cooper, & James Grimmelmann,
Talkin’ ’Bout AI Generation: Copyright and the Generative-AI Supply Chain, __
J. Copyright Soc’y U.S.A. __ (forthcoming, 2024), available at
SSRN (July 27, 2023).
In order to understand whether generative AI may infringe copyrights, one must first have a sound grounding in the technical complexities of the “generative AI supply chain.” This Article not only explains the technology in terms accessible to a legal audience, but also explores the doctrinal complexities of how generative AI maps onto existing copyright law. The authors do an admirable job in accomplishing both goals.
I. Understanding Generative AI
This jot highlights four key technical points made in the article about generative AI that a copyright-interested legal reader needs to understand. Continue reading "A Stepwise Approach to Copyright and Generative Artificial Intelligence"
Jan 13, 2025 Daniel BarnhizerContracts
One of my favorite cases from the perspective of consumer bargaining power is Boucher v. Riner, which involved both my third-greatest physical fear (jumping out of a perfectly good flying airplane a few thousand feet above the ground) and my first-greatest jurisprudential concept (what is ‘assent,’ really, in the context of consumer contracts). The case involved a contract between a consumer who for some reason wanted to jump out of a perfectly good airplane in flight…because reasons, and a producer who apparently really believed in providing consumers with meaningful choices in a standard-form contracting paradigm.
Specifically, the standard-form contract in Boucher provided the consumer with two options regarding exculpation of the people who were offering the consumer the opportunity to jump out of that perfectly good airplane – (1) pay the standard base price and release the producer from liability for its own negligence or (2) pay an additional $300 (presumably with which the producer would purchase insurance against personal injury) and retain the right to sue the producer for injuries resulting from the producer’s negligence. Notably, the standard form contract presented these options in menu form, and the consumer was free to choose either option. The Boucher case is important because of the efforts of the producer to make the options regarding the exculpatory clause salient for the consumer. Nothing makes things salient like paying money for a choice. Continue reading "What if Producers Paid Us to Read Fine Print?"
Jan 10, 2025 Wendy EpsteinHealth Law
Leah Fowler, Max Helveston, & Zoë Robinson,
Influencer Speech-Torts,
113 GEO. L. J. __ (forthcoming, 2025), available at
SSRN (August 22, 2024).
The spread of disinformation is one of the most pressing problems facing society today. Lawmakers, policymakers, and researchers have focused on how disinformation disrupts political discourse and undermines democratic processes, threatens global security by contributing to the spread of extremist ideologies, furthers social and political polarization, and more. But as Leah Fowler, Max Helveston, and Zoë Robinson describe in their forthcoming article, Influencer Speech-Torts, it can also harm people’s health. (See also the Surgeon General’s Report, Confronting Health Misinformation.) They take on the specific problem of social media influencers providing health advice that causes their followers injury or even death.
Many of us might be thinking of COVID-19 examples, like how people may have ingested bleach and other disinfectants recommended by influencers and faced serious health consequences. But as Fowler, Helveston, and Robinson point out, the problem is pervasive, even outside the pandemic context. Consider, for instance, people with cancer who avoid evidence-based treatments because they become convinced that a particular diet or detox will cure their cancer, or influencers who promote extreme weight loss methods that, when followed, cause serious health harms. Continue reading "Using Private Law to Combat Influencers’ Health Misinformation"
Jan 9, 2025 Brian BixFamily Law
The role of extended family in childcare has always been significant. As Stephanie Tang points out in her excellent article, Best Interests of the Child and the Expanding Family, one study (in 2021) found that nearly a quarter of Americans live in multigenerational households, while another study (from 2017) reported that roughly one third of households with children depend on extended family for childcare. (Pp. 266-67.)
The attitude of American family law to extended family could be described variously as ambivalent, inconsistent, or simply confused. At the Supreme Court, we have, first, Moore v. City of East Cleveland, where the Court held that East Cleveland’s single-family zoning ordinance could not define “family” in such a way that a grandmother could not live with her two grandchildren (who were cousins to one another). The Court commented: “Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition.” However, despite this indication that extended family might be entitled to constitutional protection, when the same Court was faced with a grant of visitation to grandparents over the objection of a parent in Troxel v. Granville, the Court, in affirming parental rights, did not treat grandparents as having any special standing. Instead, the grandparents were treated as simply another example of a non-parent, holding that, in contests regarding custody or visitation between a parent and a non-parent (even if that non-parent is a member of the extended family), a strong presumption must be given in favor of the parent (at least if the parent is fit). Continue reading "Extended Family Care and Custody Decisions"
