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"
Feb 9, 2026 Stacy-Ann ElvyTechnology Law
Alicia Solow-Niederman,
AI and Doctrinal Collapse, 78
Stan. L. Rev. ___ (forthcoming 2026), available at
SSRN (Aug. 08, 2025).
Government actors across the globe have responded to the rapid uptake of artificial intelligence by adopting or proposing various forms of legislation. For instance, on September 29, 2025, California adopted the Transparency in Frontier Artificial Intelligence Act, which imposes transparency and safety obligations on artificial intelligence companies in the state. Other states, such as Colorado, have also responded by enacting laws addressing artificial intelligence. At the federal level, the proposed Generative AI Copyright Disclosure Act would impose disclosure requirements on artificial intelligence developers that use copyrighted works to train their systems. In 2024 the European Parliament adopted the Artificial Intelligence Act—a comprehensive framework for the regulation of artificial intelligence in European Union countries. Despite domestic and international legislative responses, the rapid rise of artificial intelligence continues to pose significant challenges for several established areas of law, including privacy law and intellectual property law.
In her article AI and Doctrinal Collapse, Professor Alicia Solow-Niederman offers an impressive contribution to both the privacy law and intellectual property law fields by exposing the various pressures placed on these two legal regimes by artificial intelligence. Solow-Niederman contends that artificial intelligence has blurred the boundaries between privacy law and copyright law—a phenomenon she aptly labels as “inter-regime doctrinal collapse.” She convincingly posits that without sufficient intervention, corporate actors will continue to implement “exploitation tactics” to profit from this doctrinal collapse and further undermine the rule of law. Continue reading "Crossroads: Privacy Law and Copyright Law in the Age of Artificial Intelligence"
Feb 6, 2026 Shelby D. GreenProperty
The Yellowstone River ecosystem is breathtaking, unparalleled in its wonder and expanse. The river is the longest free-standing river in the United States. But, its transcendent beauty and abundance are threatened by overuse and climate change (rising temperatures, snowmelt, greater runoff, and reduced summer flows).
In Equity Along the Yellowstone, Professor Jason A. Robison laments the myriad of threats to the Yellowstone River, even as more than seventy-five years ago, an interstate compact was entered into for the asserted purpose of ensuring its future. The Yellowstone Compact is a domestic water treaty between Montana, Wyoming, and North Dakota. Ratified in 1951, the Compact aimed to establish a rational regime for allocating uses of the Yellowstone River that would avoid constant litigation in the Supreme Court. These negotiations took over two decades. Continue reading "Infusing an Ethic of Place into the Water"
Feb 5, 2026 Elizabeth D. KatzLegal History
Family law scholars, activists, and practitioners have devoted increasing attention to state actions that separate hundreds of thousands of children from their parents every year in the United States. Many condemn laws that regulate child removal and foster care, finding current approaches insufficiently protective of children’s wellbeing. Commentators consider how reframing and strengthening children’s and parents’ rights may better ensure respect for family integrity. These accounts often include historical context that emphasizes continuity in the harmful, classist, and racist treatment of marginalized families.
In The Origins of Family Rights and Regulations, Professor Laura Savarese identifies a forgotten period in which parents’ habeas corpus litigation prompted the development of formal protections for the parent-child relationship. Predating canonical U.S. Supreme Court cases constitutionalizing parental rights (beginning with Meyer v. State of Nebraska (1923) and Pierce v. Society of Sisters (1925)), parents sued institutions to recover custody of their children and contributed to nascent understandings of parental rights. Continue reading "Developing Legal Protections for Family Integrity"
Feb 4, 2026 Martin GelterInternational & Comparative Law
Royhan Akbar, Nathanial Mangunsong, & Dan W. Puchniak,
The Abolition of Independent Directors in Indonesia: Rationally Autochthonous or Foolishly Idiosyncratic, __
Am. J. of Compar. L. __ (forthcoming, 2026), available at
SSRN.
Over the past 30 years, comparative corporate law scholarship has grown into a worldwide industry with a substantial volume of publications. For an English-speaking scholar, it has become easy to follow debates in (mainly Western) Europe, Japan, China, India, and Brazil, just to name a few hotspots of the field. Indonesia is often overlooked in the literature, which is surprising, given that it is the fourth largest country in the world by population and its status as a Member of the G20 and an Upper-Middle-Income economy (in fact, the seventh largest economy by GDP/PPP).
Royhan Akbar, Nathanial Mangunsong, and Dan W. Puchniak’s forthcoming article, The Abolition of Independent Directors in Indonesia: Rationally Autochthonous or Foolishly Idiosyncratic, is one of very few filling this gap. What at first glance seems like a peculiar development—the abolition of the requirement for publicly traded companies to have independent directors—reveals many parallels to other countries upon closer investigation, which allows the authors to make important points that reveal structural features of comparative corporate governance beyond the country. Continue reading "Finding Familiarity in the Unknown? Independent Directors in Indonesia"
Feb 3, 2026 Cynthia AlkonLexDispute Resolution
The pandemic forced courts (and every other part of society) to do things differently. These changes continue to be a gold mine for scholars as we continue to learn lessons about the impact of these changes. Professor Wechsler’s article is a wonderful example of looking at one specific area, civil protection hearings for survivors of intimate partner violence, and examining COVID-19-generated lessons that could improve the process moving forward. The article is grounded in original empirical research with survivors and legal services providers and focuses on procedural justice, empowerment, and access. Although civil protection orders are the most common legal remedy sought by survivors of intimate partner violence, this article examines how different options for filing protective order petitions and hearing participation are important to survivors.
The article is based on two complementary and original empirical studies. The first is a survey of intimate partner violence survivors in New York City family courts who sought protective orders during the pandemic. Notably, 85% of participants were women of color, ensuring that the study centers the voices of those disproportionately impacted by intimate partner violence but who are often marginalized in policy debates. The second was a survey of legal services providers nationwide, documenting changes in protective order procedures before, during, and after the pandemic restrictions. Methodologically, this dual approach gives the article both depth and breadth with rich qualitative accounts from survivors themselves, combined with a broader procedural landscape from practitioners’ perspectives. Importantly, Professor Wechsler builds on prior scholarship without duplication, providing new empirical insights. Continue reading "A Lesson from the Pandemic: Moving Beyond “One Size Fits All” in Protection Order Processes for Survivors of Intimate Partner Violence"
Feb 2, 2026 Brian BixJurisprudence
Gregory Klass,
What Might Contract Theory Be?, in
Understanding Private Law: Essays in Honour of Stephen A. Smith 181 (Evan Fox-Decent, John C. P. Goldberg & Lionel Smith eds. 2025).
Gregory Klass’s article, What Might Contract Theory Be?, was published in the collection, Understanding Private Law, a volume honoring Stephen A. Smith, the eminent Contract and Private Law Theory scholar who passed away far too young (shortly before this volume’s publication). Klass’s article focuses on an influential discussion in the first chapter of Smith’s influential work, Contract Theory. In that chapter, Smith sets out the criteria he believes should be used to evaluate theories of contract law. In particular, Smith offers four criteria: fit, coherence, morality, and transparency. In Klass’s discussion, he asks good, probing questions of each of Smith’s categories and the way that Smith applies them. (Pp. 183-89.) However, Klass’s most important challenge may be the following, general one: should a theorist of contract law (or other doctrinal areas of law) be essentially an outside spectator to the practice, or essentially a (kind of) participant in the practice?
Whether theorists should be (or should treat themselves as being) participants or observers has been an active dispute for some time in the related area of general theories about the nature of law. Many of the best-known theories of law take primarily an observer’s attitude towards the subject – law, legal norms, the legal system. At the same time, at least since the work of H. L. A. Hart, they have simultaneously given significance to the “internal point of view,” the fact that some of those in the practice accept the law (as giving them reasons for action). By contrast, Ronald Dworkin presented a theory of law, and an approach to theorizing about law, in which the theorist is a participant in the practice, and “no firm line divides jurisprudence from adjudication or any other aspect of legal practice.” Hart’s response to Dworkin on this matter was simple: that whatever value there might be to a theory built entirely from an insider’s perspective, “there is an important place for general and descriptive jurisprudence”. Continue reading "Theorizing for Insiders and Outsiders"
Jan 30, 2026 Margo BagleyIntellectual Property Law
Jorge L. Contreras,
The Role of U.S. Customs and Border Protection in Enforcing Intellectual Property Rights, 59
Int’l Law. __ (forthcoming), available at
SSRN (Sept. 2, 2025).
Some years ago, I reviewed a book about patent office administration, a topic even the book’s author considered “excruciatingly dull”. As such, I had low expectations for the book but was delightfully surprised by how engaging it was. I have experienced déjà vu with Jorge L. Contreras’ short article, The Role of U.S. Customs and Border Protection in Enforcing Intellectual Property Rights. An article on a topic that I would have expected to be boring in fact was quite enlightening in important ways and a pleasure to read.
I may not be alone among Intellectual Property (IP) law scholars in acknowledging a lacuna in my knowledge of IP enforcement at the U.S. border. For many of us, the topic may surface in course discussions about, inter alia, the benefits of federal trademark registration on the principal register or litigation at the International Trade Commission (ITC), but border enforcement is seldom explored in any depth. Continue reading "IP Savvy at the U.S. Border"
