Jan 12, 2026 Samy AyoubLegal History
Mohammad Fadel’s Beyond Liberal Zionism, is an extraordinary work of legal and moral imagination. Fadel reframes one of the most enduring and polarizing questions in international law: what would a just Zionism look like? In his answer, Fadel insists that international law and political liberalism, properly understood, retain the moral and institutional resources to guide Israelis and Palestinians toward a just settlement.
The article opens with an assessment of liberal Zionism. Fadel argues that what is commonly called liberal Zionism recognizes Palestinian suffering but denies Palestinians standing as rights-bearers. This position is exemplified by New York Times commentator Ezra Klein and by the late Israeli legal theorist Ruth Gavison. The goal of liberal Zionism is a humane peace, not a just one. This distinction—between a moral appeal to compassion and a juridical claim to equality—animates Fadel’s entire article. Through a careful reading of Klein’s widely discussed, post-October 7 podcast series on the Israel–Palestine conflict, Fadel shows how even the most self-consciously liberal commentators confine Palestinian aspirations to a humanitarian vocabulary of aid, decency, and empathy. The effect is to transform a problem of law and justice into a problem of sentiment. Palestinians appear as objects of moral concern rather than subjects of legal right. Continue reading "Equality Before Law: Just Zionism, Political Liberalism, and the Question of Palestine"
Jan 9, 2026 Ignacio CofoneTechnology Law
Julie Cohen’s Oligarchy, State, and Cryptopia is a bracing account of how a handful of technology companies can move beyond regulatory arbitrage to something more ambitious: remaking the rules by which they are governed. The article’s core claim is that some groups of tech elites do more than evade oversight: they reconfigure the administrative state to relocate meaningful rulemaking into private hands.
Cohen’s analysis clarifies a particular form of power and why several familiar toolkits in the law, such as antitrust, fail at addressing it. From the many explanations that emerge from Cohen’s comprehensive framework, three are worth noting. Today’s tech elites fit the description of oligarchs not because they are rich, but because they can use their wealth for infrastructures that enable them to produce private rules (including both self-regulation and private governance) insulated from democratic accountability. So, programs of AI governance should consider political economy because the firms that build and operate the infrastructure also shape the State that might regulate them. An extension of this idea is that privacy law’s traditional focus on individual consent misses the point because the risk that privacy law should be addressing is the structural concentration of informational power. Continue reading "Tech Elites Don’t Just Evade the State, They Change It"
Jan 8, 2026 Sarah SchindlerProperty
In her recent essay, Slum Managers, Professor Anika Singh Lemar interrogates the distinction between ownership and management of rental housing. Numerous legal commentators and legislators have focused on the harms associated with large commercial entities purchasing rental housing, and some have even proposed prohibiting or placing limits on certain types of ownership to address the housing affordability crisis. However, fewer lawmakers and scholars have discussed who manages these properties. Professor Lemar investigates whether management might have an even greater impact on rental housing and its tenants than ownership.
Property management often has more to do with the actual lived experience of a tenant than the property’s ownership. Indeed, it is generally the management company that is responsible for making repairs, ensuring safety, collecting rent, and carrying out evictions. As Lemar points out, small owners can also be or employ bad managers. Thus, Lemar’s thesis is that lawmakers and others interested in tenants’ rights should be pushing for laws and policies that focus more on harmful management practices and less on forms of ownership. Continue reading "Let’s Focus on Property Managers Rather than the Form of Ownership"
Jan 7, 2026 Ian StephensLexLegislation
Textualism confounds the linkage between jurisprudential methodology and philosophy. In popular conception, a judge’s choice of interpretive tools is bound to be tightly intertwined with the ideological flavor of that judge’s outcomes: originalism or strict constructionism lead to conservative results, while living constitutionalism or purposivism lead to liberal results. Textualism, once pilloried as a tool of the right, is now making a play at escaping that perceptual mold. As the methodology has become more and more ubiquitous, it has taken on a new character. It now boasts of broad acceptance throughout the judiciary and even such conservative paragons as Neil Gorsuch and Clarence Thomas have sometimes followed textualism toward what might seem rather progressive outcomes. Muldrow v. City of St. Louis, decided last term, is sure to join cases like Southwest Airlines v. Saxon, New Prime v. Oliviera, and the quintessential Bostock v. Clayton County in the pantheon of progressive textualism.
Missouri’s Sandra Sperino makes this point in her forthcoming article, When is Discrimination Harmful?, where she explores Muldrow’s dominating use of textualism to drastically expand the reach of employment discrimination laws. But, in its quest to excise subjective applications of Title VII, the Muldrow Court opened just as many doors as it closed—leaving lower courts to struggle with applications that are no less subjective than the standard Muldrow abandoned. What’s the root of this inextricable challenge? Sperino posits that the concept of “harm,” a foundational component of anti-discrimination law, inevitably “rests on judgments that cannot be answered through the statutory text alone.” Continue reading "New Standards, New Questions, and Old Answers"
Jan 6, 2026 Melissa MortazaviLegal Profession
While there is a growing body of research on rural lawyering and rural access to justice, none approaches the subject with the level of detail and care to individual experiences that Professor Hannah Haksgaard does in her quietly landmark work, The Rural Lawyer: How to Incentivize Rural Law Practice and Help Small Communities Thrive. She sets out the book’s seemingly modest goal with a humility that mirrors the project she describes so lovingly, as an “analysis of how a program can help new rural lawyers.” (P. 8.) However, this deeply intimate account detailing the successes (and failures) of South Dakota’s Rural Attorney Recruitment Program, does far more than that: this book interrogates the relationship between communities, legal practice, lawyer to lawyer mentorship, and law itself. In doing so, it provides vital insights for our turbulent times.
The chapters of the book proceed intuitively and usually begin with an individual lawyer’s story; to Professor Haksgaard, this is always a study of and for people, both lawyers and clients. Even the opening chapter’s broad discussion of historic rural lawyering practices includes a specific illustrative biography: a stubborn lawyer riding circuit decides to “brave the weather” to get home, only to freeze his legs to his stirrups, ultimately causing his untimely death (we learn this is the author’s great grandfather). (Pp. 13, 18.) Providing the reader with the individual narrative first, and then diving into the broader observations and conclusions continuously grounds the reader in the human aspect of practice both for the lawyer and the client. In this way, Professor Haksgaard sidesteps a common flaw in works analyzing the legal profession: writing about it in such a technocratic role-differentiated way that neglects the fact that lawyers are still whole people. Continue reading "One Person at a Time: Lawyers and Legal Legitimacy in a Shifting World"
Jan 4, 2026 Kenneth HimmaJurisprudence
Luka Burazin,
Naturalized Jurisprudence, in
Elgar Concise Encyclopedia of Legal Theory and Philosophy of Law, (John Linarelli ed.) __ (forthcoming 2026), available at
SSRN (Nov. 11, 2024).
Luka Burazin’s Naturalized Jurisprudence is an elegant discussion of the various movements to naturalize legal philosophy. Burazin differentiates between substantive and methodological naturalism, further distinguishing two types of substantive naturalism: “Ontological naturalism is a view that philosophy should accept as real or actually existing only (in a broad sense) natural things, properties, entities and phenomena (i.e., those identified through the methods of empirical sciences)…. Semantic naturalism is the view that a philosophical analysis of a concept must show it to be ‘analyzable in terms that admit of empirical inquiry’” (P. 1).
In contrast, he explains methodological naturalism as “the view that philosophical theorizing should abandon armchair theorizing on the basis of philosophers’ intuitions and common-sense beliefs (‘truisms’), thought experiments (hypothetical situations), and a priori conceptual analysis, and use instead the (empirical) methods of successful (natural and social) sciences and the scientific style of explanation.” (P. 1.) Continue reading "What is “Naturalized Jurisprudence”?"
Dec 22, 2025 A. Michael FroomkinJotwell
Jotwell is taking a short Winter break. Jotting should resume on Monday, January 5, 2026.
I and the Jotwell Student Editors — Andrew Ballenger, Stephanie Haik, and Brendan P. Ramirez — all wish our readers a happier 2026.
Jotwell carries no advertising, and we would like to keep it that way, so we would very much appreciate it if you could make a small (or, if you wish, large!) holiday donation. The University of Miami School of Law is Jotwell’s host and main supporter, but having tangible signs that our readers value us is important. Even a few dollars, or the equivalent in your currency, can matter a great deal. (Please choose “other” from the dropdown menu and then enter “Jotwell”.)
Thank you for reading, and for your support.
Michael Froomkin
Jotwell Editor in Chief
Dec 19, 2025 Ann E. TweedyEquality
In this current era of the weaponization of law against transgender people, I found the beauty and heartbreak of K. Iver’s Short Film Starring My Beloved’s Red Bronco fortifying. Iver is a trans, non-binary poet, but the poems in the book largely focus on their teen-age years when they identified as female and were in love with a young trans man who ultimately committed suicide.
These extremely difficult times we are now living in seem to call for poetry—even among law professors—because of its emotional immediacy, particularly its ability to transcend entrenched positions and arguments and to allow us to commune with others through the experiences poets describe. In this era of book bans and state-sponsored censorship, poetry and literature in general are perhaps less likely to have the wide reach they otherwise would, so, despite Iver’s book’s transformative potential, it may be unlikely that it will be read by many who are unsure about transgender rights or who reject them outright. However, as a trans ally and poet, I found the book deeply affecting, and I would highly recommend it to anyone. Continue reading "Iver’s Poetry as an Antidote to Law’s Weaponization Against Trans Folk"
Dec 18, 2025 Emily SatterthwaiteTax Law
Direct international aid flows directly to individuals and communities in the form of such essentials as food, water, medicine, and cash. As humanitarian crises erupt around the world, this form of assistance has become both politically contentious and more necessary than ever. Yehonatan Givati’s timely new paper, Income and Preferences for International Redistribution: Theory and Evidence, offers an enlightening framework to think about patterns of support for such aid programs. It builds on theoretical and empirical research that has established a relationship between preferences for domestic redistribution and income: poor citizens will likely support rich-to-poor redistributive policies within their own countries more than rich citizens. But what about international redistribution? How might an individual’s relative income level influence her support for internationally redistributive policies?
Givati begins by observing that the relationship between income and preferences for international redistribution is much less obvious than in the domestic context. Because lump-sum international redistribution must be financed through higher taxes, higher-income individuals have more to lose from international redistribution. This implies a negative relationship between income and support for international redistribution. At the same time, lower-income individuals may perceive that, given fixed funding levels, international redistribution will come at the expense of domestic redistribution. This implies a positive relationship between income and support for international redistribution. Continue reading "Do Rich or Poor Prefer International Redistribution More?"
Dec 17, 2025 Kristelia GarcíaIntellectual Property Law
Cathay Y. N. Smith,
Copyrighting Nature, 79
Vand. L. Rev. __ (forthcoming 2026), available at
SSRN (May 22, 2025).
From the use of copyright to combat revenge porn, to protecting slavish reproductions of public domain artworks, copyright law is sometimes invoked in circumstances where it either doesn’t, or shouldn’t, apply. Smith’s latest piece adds another (wonderful!) example to the growing list: the utilization of copyright to protect works that faithfully copy naturally occurring objects—from animals and flowers, to rocks and wood grain. In doing so, she sifts through a thicket of discordant case law to tease out a point of agreement: copyright protects only human contributions. This declaration should sound profoundly familiar to those following the ongoing battle between copyright and generative AI, in which the Copyright Office has explicitly limited registration to works—or the portion(s) of works—attributable to a human. Smith’s fascinating dissection of the case law surrounding copyright for natural objects demonstrates that there’s really nothing new about the copyrightability questions presented by generative AI, while her prescription for a “work of nature” doctrine offers a prospective blueprint for a “work of humans” doctrine with application far beyond the nature context.
In the 2003 case of Satava v. Lowry, the Ninth Circuit considered the copyrightability of glass-in-glass jellyfish sculptures. Ultimately, it issued an opinion that governs the copyrightability of creative works concerning natural objects today; namely, that “no copyright protection may be afforded to the idea of producing a glass-in-glass jellyfish sculpture or to elements of expression that naturally follow from the idea of such a sculpture.” The first part of this holding—that no copyright protection extends to the idea of a glass-in-glass jellyfish sculpture—merely restates copyright’s long-standing idea-expression dichotomy, which says that copyright protects only expressions, and not mere ideas. This explains, among other things, the curiously extensive collection of young adult vampire romance novels. Continue reading "Copyright for Dummies Humans"
