Jan 26, 2026 Darryl BrownCriminal Law
The United States imprisons about 1.8 million people—more than any other nation. Roughly a quarter of those behind bars have not been convicted; they are detained while awaiting a court hearing. The burden is not evenly distributed: the share of black men in prison is three times their share of the national population. What explains America’s commitment to spending so much to lock up so many? In her previous book, Prisoners of Politics (2019), Rachel Barkow put the blame squarely on the fact that U.S. criminal justice policy at every level—local, state, and federal—is made by politicians and voters rather than agencies informed insulated from political pressure and informed by expert analysis. The public perennially demands tough-on-crime policies. Legislators oblige by enacting ever-harsher laws. Elected prosecutors enforce those laws. Reforms won in recent years through politics—election of progressive prosecutors, bail reform, decriminalization of marijuana, and modest sentencing law changes—barely moved the needle.
Barkow’s new book, Justice Abandoned, starts with the same convincing premise: populist and politicized policymaking generally sustains the laws and practices that produce mass incarceration. She has now shifted both the focus for blame and reform to the U.S. Supreme Court, a choice both obvious and odd. Obvious because the Court clearly deserves some of the blame: for decades it has ruled, in a variety of cases that Barkow astutely unpacks, that the Constitution puts few restraints on the policies that have filled American prisons and jails. Odd because if there is one institution less likely than Congress or prosecutors to put the brakes on mass incarceration, it would seem to be the current Court. Continue reading "The Supreme Court’s Failure to Stop the Politics of Mass Incarceration"
Jan 23, 2026 Linda S. MullenixCourts Law
Class action practitioners and scholars are well aware that before a federal court may approve a class action settlement, the judge must assess the settlement’s fairness, adequacy, and reasonableness under various Rule 23(e) requirements. The Advisory Committee on Civil Rules has paid heightened attention to settlement approval, amending Rule 23(e) in 2003 and 2018. State class action procedures contain similar rules relating to judicial scrutiny of state class settlements.
Although the judicial role in overseeing class action settlements is well known, the role of governmental entities under the Class Action Fairness Act of 2005 (CAFA) in assessing class settlements has been somewhat overlooked in class action scholarship. This is not surprising; since CAFA federalized class action procedure, academic discussions of CAFA’s intricacies has receded. Michael Solimine and Hailey Martin’s recent article in the Journal of Legislation reminds us that CAFA intended to provide governmental entities with an additional role in assessing class action settlements, including rights to comment and object. Their article assesses the effect of CAFA’s provision for governmental oversight of class settlements. Continue reading "Take Notice: Governmental Review of Class Action Settlements"
Jan 22, 2026 Adam RosenzweigTax Law
Conor Clarke & Ari Glogower,
Apportioned Direct Taxes, 79
Tax L. Rev. __ (forthcoming 2026), available at
SSRN.
In June 2024 the Supreme Court issued its decision in Moore v. United States, a case many had predicted would be one of the most consequential tax cases of the past century. Instead, however, the Court managed to avoid deciding the most difficult and consequential issues by reframing the case and ruling on narrower, more technical grounds. Yet Moore may well still prove as consequential as expected, but for a different reason– that, for the first time, the Court explicitly utilized the “history and tradition” to interpret the taxing power, stating that “the Sixteenth Amendment expressly confirmed what had been the understanding of the Constitution before Pollock …” In doing so, Moore also serves as an invitation to to reconsider the historical record and understanding of the taxing power specifically with an eye towards shaping the Court’s modern interpretation of the Constitution.
Conor Clarke and Ari Glogower take up this cause in their new article, Apportioned Direct Taxes (ADT). The authors have two primary goals in ADT: (1) to provide a comprehensive survey of all “direct tax” legislation adopted by Congress prior to the Sixteenth Amendment including not only legislative history but administration and enforcement considerations as well, and (2) to identify what if any lessons emerge from that survey to help the courts to interpret the breadth and scope of the term “direct taxes” as used in the Constitution. Continue reading "Putting the Original Back into Tax Originalism"
Jan 21, 2026 Bill BrattonCorporate Law
Marcel Kahan & Edward B. Rock,
The Cleansing Effect of Shareholder Approval in a World of Common Ownership, available at
SSRN (Nov. 18, 2024).
It’s been ten years since MFW and Corwin opened a process pathway to business judgment review of cashout mergers, subject to Weinberger, and arm’s length mergers, subject to Revlon. At the time the cases came down, I anticipated smooth sailing for the cases’ two-track cleansing regime, under which the defendant needs independent director approval followed by ratification by a fully informed and uncoerced majority of disinterested shareholders. I figured that we had enough law in place on each of the tracks to make their application a straightforward matter. The components of the board approval leg, director independence and a special committee process, were focal point matters in late twentieth-century corporate governance, and there were plenty of Delaware cases providing guidance. The shareholder approval leg had a sketchier background. We had a well-developed law, mostly federal, on the full information requirement, and we knew coercion when we saw it. We had much less on the table to help us with precise questions respecting majority disinterested shareholder approval, because shareholder ratification had not theretofore been the usual practice recourse respecting conflicted transactions. But how hard could it be to fill in the details?
It turned out to be a lot harder than I thought. MFW and Corwin came down before everybody’s attention turned to the Big Three institutional investors and their growing block of voting shares and the closely related question of portfolio investor incentives, in particular the incentives of “common owners.” Common owner conflicts first popped up on the screen in 2004 with the empty voting allegations triggered by the Mylan-King merger agreement. The problem has been looming larger ever since, implicating not just corporate governance but antitrust. Continue reading "Institutional Disinterest"
Jan 20, 2026 Nancy KimContracts
Brett Frischmann and Moshe Y. Vardi’s article, Better Digital Contracts with Prosocial Friction-in-Design, wrestles with perhaps the most vexing problem facing contract law today – what to do about the proliferation of digital contracts that infest our screens. Frischmann and Vardi tackle the problem from a different angle than most contracts scholars (perhaps not surprising given their background and expertise in technology). Rather than focusing exclusively on doctrinal or legislative solutions, they propose design-based solutions that reframe and reconceptualize assent (and consent).
Their article begins with a critique of digital contracting (while they use the term “digital contracting”, they are mostly concerned with wrap contracts, such as clickwraps and browsewraps, and not DocuSign-type documents). The failure of digital contracting as an aspirational ideal has to do with digital contracting systems, which they define as “the combination of law and code-based architecture that generates boilerplate.” (P. 4.) These systems fail not simply as implementation of the traditional model of contracts (two parties bargaining and reaching mutual assent or a “meeting of the minds”), but more tragically for humanity, they “generate contracting behavior and contractual relationships that are as far from the ideal as one can imagine.” (P. 4.) Continue reading "Slowing Down the Clicks"
Jan 19, 2026 Lorianne Updike SchulzkeConstitutional Law
The Founding was for Whites. Or so it would seem, according to most contemporary histories or legal accounts of the era. Black Writers of the Founding Era, edited by Jim Basker and Nicole Seary, adds important color to that history. This edited volume is the most comprehensive compilation of Black-authored editorials, letters, court petitions, sermons, and poems to date, and the first such compilation of Black writings during the Founding in over 50 years.
Very few Black men and women at the Founding were literate. Whereas 90% of the white population was literate in 1790, roughly 90% of the Black population at the Founding were enslaved, and a very small percentage of the entire Black population (5-10%) was literate. In two states—South Carolina and Georgia—teaching an enslaved person to read and write was illegal. The few extant Black writings have been difficult to find, or out of print. The paucity of Black writings from the Framing has inevitably led to their absence in historical and legal accounts. As a result, it has been assumed that the Founding was not for them: the Constitution was not theirs, and the Revolution was fought only for those they served ala. In part, this has led many to conclude, ala Justice Thurgood Marshall’s famous Bicentennial speech, that “We the People” excluded Black Americans and turn to alternative narratives of American history like the 1619 Project. Continue reading "Adding Color to the Founding"
Jan 16, 2026 Edward RubinAdministrative Law
Donald Trump has placed the issue of the President’s removal power before the Supreme Court, and its answer will undoubtedly be one of its most important decisions in the entire field of administrative law. Independent agencies, where leadership is appointed by the President with Senate approval and can only be removed for cause, have been a mainstay of our modern administrative state since its development in the late nineteenth century. The first modern agency, the Interstate Commerce Commission, was structured in this manner, and the model has been regularly employed for many others, including the Federal Trade Commission, the Securities Exchange Commission, and the Federal Reserve Board.
Although prediction is a notoriously difficult enterprise, current indications are that the Court will accede to Trump’s argument (sometimes described as the unitary executive theory) that the President has inherent power to remove most, or all, executive officials and that the many enacted provisions limiting him to removal for cause are unconstitutional. This will reverse a century of Supreme Court doctrine; indeed, except for some expansive language in Chief Justice Taft’s 1926 decision in Myers v. U.S. (whose actual holding is the uncontroversial principle that Congress may not participate in the removal process), the Court has never questioned the constitutional validity of independent agencies. In decisions such as Seila Law v. CFPB and Free Enterprise Fund v. PCOAB, it struck down the use of for cause provisions to create innovative agency structures, but it left the basic principle – as articulated in Humphrey’s Executor v. U.S. and revised in Morrison v. Olson — intact. The pragmatic consequences that will flow from reversing this long-established doctrine will be unfortunate at best. Donald Trump has demonstrated hostility to democratic governance and the rule of law, not merely by statements and behaviors reported by the press, but through actions repeatedly struck down by federal courts. In other words, his troubling pattern of political and legal irresponsibility can be discerned from the legal record that falls within the Court’s institutional purview. To grant him the power to ignore the limits that have accompanied Congressional grants of authority for one hundred fifty years and exercise sole control of the entire administrative apparatus is to court disaster. Continue reading "How to Avoid Trumping the Legal History of Removal"
Jan 15, 2026 Anne Marie LofasoWork Law
As I often remind my students, labor law stands among the most demanding courses in law school—not just for its intellectual rigor, but for the layered complexity it presents. Labor law is rooted in a dense statutory framework. It requires mastery of intersecting doctrines from constitutional, administrative, and contract law, all of which are interpreted through a case-heavy lens.
At its core, labor law grapples with deeply human issues—power dynamics, structural inequities, and the lived realities of working people. Its scope is wide and constantly in flux, shaped by the shifting politics of Board leadership and the broader currents of social change. But what makes it so compelling—so urgent—is that it is never abstract. It is relentlessly real. It forces us to grapple with clashing perspectives from workers, employers, and unions, each bringing their own lived experience and competing visions of fairness, autonomy, and justice. Continue reading "Can You Hear Section 7 Now?"
Jan 14, 2026 David HortonTrusts & Estates
When I read the premise of Mark Glover’s terrific new article Nominal Bequests—that some small-dollar gifts are problematic—I couldn’t help wonder whether it was a kind of stunt, like writing a novel without using the letter “e.” What could be wrong with testamentary gifts of trivial sums? Even if these bequests were somehow harmful, wouldn’t the payoff from regulating them pale in comparison to the costs? But Glover (who has been publishing up a storm) is waiting in the weeds with creative and thoughtful answers.
For starters, Glover argues that “[s]ome nominal bequests . . . are wasteful” and “undermine the fundamental policies of the law of succession.” He astutely observes that testators invariably make nominal bequests for one of two reasons. First, some are motivated by spite. Glover offers the real-life example of a mother who left each of her four daughters $1 and quips that she “wanted to give [them] something worse than nothing.” Second, Glover notes, other testators are laboring under a mistake of law. They want to disinherit the beneficiary entirely, but they incorrectly believe that they must acknowledge the individual to prevent a court from deeming the individual to be accidentally omitted. Either way, Glover contends, there’s no social value in implementing these testators’ wishes. Freedom of disposition supposedly encourages industry and thrift, but “[t]he donor has no reason to increase her wealth during life to functionally disinherit the beneficiary at death.” Continue reading "Small Gifts, Big Problems"
Jan 13, 2026 Gregory KeatingTorts
In an illuminating article, A Novel Tort Duty for Platforms that Intermediately Produce Real World User Interactions, Jordan Wallace-Wolf proposes that we recognize that a distinctive duty of care should attach to internet platforms that “cultivate” markets. Ridesharing Apps— Uber and Lyft— are the paradigm platforms that he has in mind. Professor Wallace-Wolf’s perceptive proposal warrants careful consideration. It puts its finger on properties of the interactions that platforms promote that courts and other commentators have not identified as clearly. And its proposed liability rule responds to those properties in an attractive, justified way. Continue reading "Sponsoring Torts: Reconceptualizing Platform Liability"
