Feb 23, 2026 Jonathan SimonCriminal Law
In Franz Kafka’s haunting short story, Before the Law, an ordinary person (described as a “countryman”) seeks to enter the law only to discover a gatekeeper whose formidable personal presence and vague threats of even fiercer gatekeepers keep him stalled at the law’s entrance. The seeker spends his entire life imploring the gatekeeper to let him in, never daring to attempt to evade him. In the end, he comes to know (spoiler here) that this gate, from which he was denied entry, was made only for him.
Modern students of the legal system have long studied the role of gatekeepers, both the intermediaries like lawyers whose help is crucial to accessing justice, and institutional rules and norms that favor repeat players over first time users of the courts. Rarely, (but see, Nicole Gonzalez Van Cleve, Crook County (2016)), however, do we, like Kafka, explore the physical (and perhaps metaphysical) barriers to equal justice. In an important analysis of data from a broader ethnographic and qualitative interview based study of ordinary people’s experiences with accessing courts, Spatial Burdens of State Institutions: The Case of Criminal Courthouses, Matthew Clair, Jesus Orozco and Iris Zhang spotlight the spatial environments of court houses and how they contribute to complex patterns of inequality and paternalistic and punitive forms of poverty governance. The authors highlight two kinds of power effects of court spatial conditions. There is the direct effect on court users of the environment in and around the courthouse and how that can shape the emotional experience of accessing justice institutions. There is also a secondary effect when court-based burdens cause a person to have to seek additional state institutional intervention (like a person who loses their job because of the time involved in attending court hearings and must apply for unemployment or food support). Together, these create a distinctively spatial dimension to poverty governance. Continue reading "Burden in the Court! The Spatial Powers of Courts and Their Environment"
Feb 20, 2026 Marin K. LevyCourts Law
Melville’s Ishmael declares in the opening chapter of Moby Dick, “Whenever I find myself growing grim about the mouth; whenever it is a damp, drizzly November in my soul . . . then, I account it high time to get to sea as soon as I can.” In this dark February, the timing is right to take to sea—and Kevin Arlyck’s new book, The Nation at Sea: The Federal Courts and American Sovereignty, 1789–1825—is just the thing to take us there.
The Nation at Sea provides a new historical account of the federal judiciary’s early days—one that shifts the way we understand how our country took its place in the world, and how the federal courts took their place in our country. The story so often told is that the federal courts were rather quiet after they were established. They began to find their voice with Chief Justice Marshall at the Court’s helm in cases such as Marbury v. Madison and McCulloch v. Maryland. And through such cases, the story goes, the Court began establishing its role in the constitutional order and its role in American nation-building. Continue reading "Judicial Sovereignty-Making at the Country’s Start"
Feb 19, 2026 Caroline BradleyCorporate Law
Curtis J. Milhaupt & Wolf-Georg Ringe,
The Political Economy of Global Stock Exchange Competition (Sep. 08, 2025), available at
SSRN.
States compete with each other to attract business, and this competition often focuses on specific sectors of financial activity. States compete to be centers for asset management, for insurance, for listings, for derivatives markets, or for financial innovation. Private actors also engage in competition: stock exchanges, as for-profit businesses, seek to attract listings and trading activity, competing with other exchanges. Other market operators similarly seek to attract business. Private-sector actors develop standards and documentation to support financial market transactions.
Conventionally, academics and journalists focus on competition between stock exchanges to attract listings, but as Curtis Milhaupt and Wolf-Georg Ringe show in The Political Economy of Global Stock Exchange Competition, this only reflects a part of a much more interesting and important story, which, they argue, calls for “sustained scholarly engagement across law, economics, and international relations.” The paper convincingly shows why this is the case. Continue reading "Stock Exchanges as Strategic Assets"
Feb 18, 2026 David HoffmanContracts
John Coyle & Tanya Monestier
, Limits on Damages for Breach of a Forum Selection Clause, (Sep. 25, 2025), available at
SSRN.
Forum selection clauses are so familiar that they rarely invite fresh questions. Courts mostly enforce them after lawyers litigate motions to dismiss or transfer, and the parties move on. One remedial question, however, has long sat in plain sight: when a party breaches a forum selection clause by suing in the wrong court, why is the remedy limited by default to correcting the venue error rather than compensating the counterparty for the cost of enforcing the clause?
In Limits on Damages for Breach of a Forum Selection Clause, John Coyle and Tanya Monestier take that question seriously—and show that it was never foreclosed for particularly good reasons. The article is valuable precisely because it is doctrinally grounded, methodical, and unspectacular in the best sense: it demonstrates that even in well-trodden territory, there remain basic remedial questions worth asking, and answering, with ordinary tools of contract law. Continue reading "Damages, Doctrine, and the Remedial Life of Forum Selection Clauses"
Feb 17, 2026 Leah LitmanConstitutional Law
Genevieve Lakier,
Enforcing the First Amendment in an Era of Jawboning, __
Univ. Chi. L. Rev. __ (forthcoming, 2026), available at
SSRN (Mar. 01, 2025).
Too often, our “free speech culture” gloms together private censorship and state-sponsored censorship. These things are not the same. Only one of them is prohibited by the First Amendment, and failing to differentiate between the two runs the risk of collapsing the distinction between censorship, on one hand, and on the other, private citizens exercising their own First Amendment rights (sometimes by choosing who to associate with or who to support).
That’s not to say there aren’t “free speech” risks from private power—especially in an era where control of major media outlets is concentrated in the hands of a few. And there are hard cases where it may not be clear who is driving the censorship—state actors or private ones. Continue reading "Throwing the Supreme Court/Free Speech A Bone"
Feb 16, 2026 Michael E HerzAdministrative Law
A year into the second Trump administration, the 47th president has done a pretty darn impressive job of destroying state capacity. Resources, personnel, expertise, law-following, law-enforcement, ethics, and competence have all been jettisoned. For many observers, the result is a catastrophic inability of the federal government to accomplish basic functions.
In The Secular Decline of the American State, Ganesh Sitaraman has arrived with some good news and some bad news. The good news is that the current administration’s sapping and mining are not that aberrant; Trump’s dismantling project has not, in fact, fundamentally shifted the country from the path it has been on for some time. The crisis is not acute. Whew. Continue reading "The Deep Causes of The Shallow State"
Feb 13, 2026 Joseph SlaterWork Law
A key priority of the second Trump administration has been an unprecedented attack on federal employees’ workplace rights. This includes removing collective bargaining rights, dismantling federal agencies, and working to remove the civil service protections of many federal employees. Catherine Fisk’s Democracy and a Nonpartisan Civil Service focuses on the assault on civil service. The article gives a history of civil service laws and reviews the evidence on the benefits and costs of their protections. It details the assaults on these protections and provides a nuanced defense of them. Fisk convincingly addresses legal, practical, and policy concerns, describing current rules, proposed changes, , theoretical arguments, and relevant empirical data. Her article is a strong contribution to the literature.
Since the Pendleton Act of 1883, civil service rules have been a key component of employment law in federal, state, and local government. Such laws originally aimed to combat political patronage practices by providing “merit” rules for both hiring and firing. By the second half of the mid-20th century, these rules gave most lower- to mid-level public employees just cause discharge protection, at least after a probationary period. While most other industrialized democracies in that period adopted just cause rules as the default for most employees, the United States remained, except for civil service laws, committed to at-will employment. Continue reading "Defending Civil Service Rules from Existential Attacks"
Feb 12, 2026 Charlene D. LukeTax Law
Edward J. McCaffery and Darryll K. Jones offer an engaging explanation for the lack of progress in closing the carried interest loophole in The Curiouser and Curiouser Case of Carried Interests. This well-known loophole—which has been analyzed extensively in the literature—allows top hedge fund and private equity managers to pay tax on service income at the lower rate afforded long-term capital gains. The article draws on earlier scholarship by each of the co-authors and provides an updated account of the decades-long lack of progress in closing the loophole.
In 2006, McCaffery and Linda Cohen published Shakedown at Gucci Gulch: The New Logic of Collective Action, 84 N.C. L. Rev. 1159 (2006). That 2006 article drew on Mancur Olson’s 1965 book, The Logic of Collective Action, which theorized the conditions required for special interest lobbyists to overcome collective action problems and wield outsized legislative influence. McCaffery and Cohen posited that Olson’s framework did not adequately explain the shenanigans surrounding estate tax repeal. Instead of legislators being the dupes of special interest groups, legislators were engaging in extortionate brinkmanship to increase campaign contributions from the special interests with the most to gain (or to lose) from estate tax legislation. As McCaffery and Jones summarize in their article, the game is “reverse” Mancur Olson because “legislators come first, special interests second.” Continue reading "Anatomy of a Shakedown: The Carried Interest Case"
Feb 11, 2026 Victoria J. HanemanTrusts & Estates
Professor Naomi Cahn’s recent article, Trusting Remedies for the Child Influencer Space: Blocked Trust Accounts and Child Beneficiaries, exists at the intersection of centuries-old legal doctrine and the technology-based influencer economy. The family influencer, parent-facilitated influencer, and kidfluencer spaces are thriving (from TikTok sponsorships to YouTube ads), and these are spaces in which federal protections for children are arguably inadequate. Instead, we must rely on limited oversight provided by a patchwork of state privacy and labor laws. A parental conflict of interest is inherent when a child is unable to give informed consent, and parents are overseeing a child who is also a profit center. As with child actors, the question becomes: who is overseeing or regulating the parents? The exploitation of successful children, including actors and athletes, is not a new concern, but current legal infrastructure does not apply neatly to protect child content creators. In her essay, Professor Cahn considers the way the blocked trust account may be reimagined to better protect kidfluencers.
For over a century, the legal system has vacillated between empowering parents as guardians and constraining them as potential exploiters, from child factory labor to Hollywood stardom. The kidfluencer economy heightens this tension: the “workplace” is not a set or a studio but the family living room, and the “manager” is often a parent with a smartphone. The intimacy of this arrangement makes oversight uniquely difficult and the risk of abuse correspondingly high. Cahn draws a straight line from the Coogan laws of the early twentieth century (designed to safeguard child actors’ wages) to the relatively unregulated frontier of contemporary influencer culture. Continue reading "Leveraging Trust Law to Protect Child Influencers"
Feb 10, 2026 Ronen AvrahamTorts
What happens when a self-driving car kills someone and there is no human driver to blame, no detailed public regulation to point to, and a jury that has never heard of ISO 26262 or UL 4600? Who decides what “reasonable care” means when safety choices are embedded in code, sensors, and validation protocols rather than in a driver’s split-second decision?
In his insightful paper Swords and Shields, Gary Marchant argues that in this world, private technical standards will quietly become the real baseline for tort law. Standards written by SAE, ISO, UL, IEEE, and other standard-setting organizations—largely unfamiliar to most people—will serve as shields for autonomous-vehicle (AV) manufacturers who comply with them, and as swords for plaintiffs when manufacturers ignore them. Continue reading "Private Standards as Swords and Shields for Autonomous Vehicles"
