Oct 7, 2026 Hoi KongInternational & Comparative Law
David Dyzenhaus’s The War Against Law: What’s Wrong with Common Good Constitutionalism (hereinafter, The War Against Law) is essential reading for anyone concerned about the state of the rule of law in liberal democracies. Dyzenhaus is one of the world’s most perceptive analysts of how illiberal theories, when implemented by governments, can contribute to breakdowns in the rule of law. In The War Against Law, he argues that the consequences for the rule of law are grave when governments in liberal democracies put into action the theory of common good constitutionalism.
The United Kingdom’s 2024 Rwanda Act (since repealed), and the debates surrounding it, provide the material for the case study that grounds Dyzenhaus’s analysis. He describes the Act as “a statute that removed the judges’ authority to review the executive’s implementation of a statute on the basis of the UK’s legal commitments to international human rights law, commitments that had been firmly embedded in domestic law by Parliament in legislation.” (P. 4.) According to Dyzenhaus, arguments that proponents of common good constitutionalism advanced in favor of the legislation had the effect of “subvert[ing] the rule of law while claiming to serve its ideal.” (P. 5.) Continue reading "Dyzenhaus on Common Good Constitutionalism and the Rule of Law"
Oct 6, 2026 Christina S. HoHealth Law
Gabriel Scheffler, Affordable Care Act Retrenchment, 102 Ind. L. J.___ (forthcoming, 2026), available at SSRN (July 15, 2026).
Even as the horrors of the Trump Administration mount to benumbing proportions, I’d wager we can still recall the gut punch that was the “The One Big Beautiful Act (OBBBA)” which Trump signed it into law last July 4. More properly known as H.R.1, this vehicle was the behemoth reconciliation package that contained the signature items of the early Trump agenda. The size of the omnibus makes it hard to describe fully, but media accounts typically highlight a few characteristic contours: OBBBA spent lavishly on tax cuts from Trump I’s Tax Cuts and Jobs Act of 2017 and on immigration enforcement, and it paid for that spending spree by slashing Medicaid, Obamacare, and SNAP. A definitive accounting of the abuses and atrocities is a necessary transitional justice function that Gabe Scheffler’s new Indiana Law Journal article prepares us to perform. Scheffler’s forthcoming Affordable Care Act Retrenchment piece documents the scope and detail of the health provisions in OBBBA, relates how those provisions came to be as well as where their implementation stands, and divulges insider accounts of how the implementation is expected to proceed in the coming period.
First, kudos to Scheffler on the cogency and efficiency of his account; anyone who can deliver such a clear layperson’s explanation of state Medicaid Provider Taxes and related financing devices is a treasure! (Pp. 28-43.) Rather than digest for the reader what is already so well digested, I will use my JOTWELL space for some comments on the article’s methodology. It is methodologically ambitious in at least 3 ways that I want to flag here. Continue reading "The One Big Beautiful Bill Act: Passing Anomaly or Health System Death Blow?"
Oct 5, 2026 Eliza MikContracts
Deborah DeMott,
When Agentic AI Met the Common Law of Agency, __
Harv. J.L. & Tech. __ (forthcoming, 2026), available at
SSRN (May 27, 2026).
Professor Deborah DeMott’s article When Agentic AI Met the Common Law of Agency is a much needed breath of fresh, cold air in the overheated, overhyped debates surrounding Agentic AI. Scholars and regulators are often seduced by the sales talk coming out of Silicon Valley and, more importanly, assume that just because a particular type of software is referred to as “agent,” it must (or should?) be an agent in the legal sense.
DeMott, who served as sole Reporter for the American Law Institute’s Restatement (Third) of Agency (2006), cuts through the nonsense and describes “Agentic AI” as a tool that can operate autonomously and complete tasks without direct human input or continuous supervision. Despite the reference to autonomy, a concept that often serves to justify departures from the existing law, she regards “Agentic AI” as “an instrumentality created by its developer and deployed by its user, and not the common law agent of either.” In effect, the technological complexity of the tool – including its capacity to operate independently – is legally irrelevant. Continue reading "A Warning on Agentic AI"
Oct 2, 2026 Eric J. MillerCriminal Law
Alice Ristroph is one of our foremost philosophers of police violence. She has provided important clarity about the physical nature of “force” and its effect on human bodies, and painstakingly traced the ways in which Supreme Court doctrine has concealed or legitimized the impact of the police on, disproportionately, the bodies of Black people. It thus behooves us to pay attention when she warns that, not just the police or the Supreme Court, but now the federal government as a whole is on the precipice of a legitimacy crisis with policing and the police power at its heart.
In teasing out the police power, Ristroph asks us to consider (again) the interrelation of state, sovereignty, violence, legitimacy, and policing that have formed the core of her writings for at least the past decade-and-a-half. What she adds in her wonderful new article, The Judicial Police Power, is an inquiry into the concept of power itself. Continue reading "Leviathan Twisted: The Supreme Court’s Legitimation of Police Violence"
Oct 1, 2026 Dara E. PurvisFamily Law
Aníbal Rosario Lebrón,
Opting Out of Subordination: Minors’ Right to Control Their Bodies and Futures, 47
Cardozo L. Rev. __ (2026), available at
SSRN (Apr. 17, 2026).
Over the last five years, repeated waves of attacks on transgender children have presented a dichotomy for legal advocates hoping to help transgender and nonbinary kids: how to handle parental rights. On the one hand, conservative legislators and judges have used parents’ rights to justify measures such as statutes requiring teachers to out a student to their parents if the student requests that teachers use a different name or pronouns than those that appear on their formal paperwork. Last year’s Mahmoud v. Taylor held that the religious rights of parents reach into the public school curriculum so extensively that a school presenting any curriculum sufficiently in conflict with parents’ beliefs – in the case, approximately one book per school year with an LGBTQ main character or theme – must provide parents a warning and an opportunity to opt their child out of being exposed to those curricular materials. On the other hand, parents’ rights could be a promising avenue when parents support their transgender children, since the Supreme Court’s 2025 holding relating to gender-affirming care bans did not address potential claims brought on behalf of the parents of children seeking such care. To be sure, the parents whose rights have been vindicated before the courts and who have successfully lobbied in favor of protective legislation have all been antitrans. Consequently, pursuing a parents’ rights claim risks further retrenching conservative notions of which parents are entitled to have their rights protected.
Professor Aníbal Rosario Lebrón’s article Opting Out of Subordination: Minors’ Right to Control Their Bodies and Futures, complicates this dichotomy in a tremendously helpful way. It is too simplistic to summarize the question as whether parents win or lose in a disagreement with the state. Sometimes the central conflict is between parents and state, such as if a state mandates a childhood vaccine that the parents wish to opt out of. But sometimes different arrangements of parent, state, and the child in question create different fights. What if parents say that a public school’s curriculum conflicts with their religious beliefs, but the child argues they don’t share their parents’ faith and asks to stay in class? Or if a parent wants their child to undergo medical treatment for a life-threatening condition, but the child wishes to decline the treatment? All of the potential conflicts between parents, child, and the state are not, Professor Rosario Lebrón establishes, created equal. A thumb on the scale in favor of one member of that triad [by whom/what?] is too blunt a solution for a broad range of issues arising in this context. Continue reading "Complicating Children’s Rights"
Sep 30, 2026 Eliot TraczEquality
Many books are timely. Quite a few books put forth an interesting and well-supported argument. Few books manage to do both while introducing a thesis that can be construed narrowly towards a specific class- in this case women- while also having a broader application towards the achievements and erasure of other groups. Professor Jill Hasday’s book, We the Men, is just such a book.
Professor Hasday’s book, which deserves to be recognized as a pilar of contemporary feminist legal jurisprudence, comes at a time when it would be particularly easy to argue that women’s rights have once again become hot legal topics. This might seem to be a particularly appealing argument as voter identification laws threaten to take away married women’s voting rights at the same time that the federal government has sought to crack down on disparate impact claims, the Equal Rights Amendment seems caught in the doldrums, and states continue to pass ever-more-repressive abortion laws post Dobbs v. Jackson Women’s Health Organization. Continue reading "Where are the Women?"
Sep 29, 2026 Allan ErbsenCourts Law
Reviewing Aderson Bellegarde François & Helen Hershkoff,
Pennoyer, Due Process, and the End of Reconstruction, __
N.Y.U. L. Rev. __ (forthcoming), available at
SSRN (Aug. 4, 2026).
Imagine that a presenter at an academic conference summarizes the Supreme Court’s recent decisions. The presenter explains that Dobbs v. Jackson Women’s Health Organization addressed regulatory constraints on certain medical procedures and therefore is primarily of interest to health law scholars; that Trump v. United States addressed a defense to certain criminal charges and therefore is primarily of interest to criminal law scholars; and that Students for Fair Admissions v. Harvard addressed university admissions criteria and therefore is primarily of interest to education law scholars. The audience would conclude that the presenter missed the bigger picture. Each decision invoked principles with broad implications beyond the specific context in which the constitutional issue arose. Each should and will interest scholars in many fields.
Now suppose that the same presenter mentions that Pennoyer v. Neff is a famous decision about civil procedure. The audience that rejected the presenter’s prior oversimplifications might nevertheless accept the presenter’s narrow characterization of Pennoyer as a civil procedure case. The academy has relegated constraints on personal jurisdiction to the margins of the constitutional landscape. Pennoyer is a staple of civil procedure courses, but rarely receives substantial coverage in courses about constitutional law. Yet Pennoyer is interesting primarily because the Court sanctified a territorial account of state power with the imprimatur of the Fourteenth Amendment’s Due Process Clause. Pennoyer therefore should feature prominently in discussions of federalism. Marginalizing Pennoyer as a case about civil procedure minutiae makes the same type of mistake as reducing Dobbs to a health law decision, reducing Trump to a criminal law decision, and reducing SFFA to an education law decision. Continue reading "Personal Jurisdiction and the Tapestry of Constitutional Law"
Sep 28, 2026 Da LinCorporate Law
- Luca Enriques, Alessandro Romano, and Andrew F. Tuch, Sustainability Assurance (ECGI Working Paper No. 871/2025)
- Luca Enriques, Alessandro Romano, and Andrew F. Tuch, Green Gatekeepers, 109 Minn. L. Rev. 609 (2024)
Even though climate-related reporting is now near-universal among the world’s largest companies, it remains one of the most contentious, politically-explosive topics in contemporary corporate regulation. Questions surrounding the materiality of climate-related risks, the value of climate-related disclosures, and the regulation of greenwashing have dominated recent scholarly attention. What is less frequently addressed is the practical mechanics of how companies assess their climate risks and then reassure others about the credibility of those assessments.
In fact, there is now a sprawling industry of people and institutions that function to vouch for the quality of climate-related reporting as well as other “green” signals sent by companies. There are obvious parallels between this industry and the traditional “gatekeepers” of corporate financial disclosures, whose failure to function as effective sentries famously contributed to the corporate scandals in the early 2000s and was a central target of the reforms introduced by the Sarbanes-Oxley Act of 2002 (“SOX”). Given the similarities, do we need a “green” SOX, and if so, what should such regulation look like?
A cogent, insightful step toward an answer to this question comes from Professors Luca Enriques, Alessandro Romano, and Andrew Tuch in their recent article, Sustainability Assurance, and an earlier companion, Green Gatekeepers. In the latter, the authors define “green gatekeepers” as entities that perform at least one of two functions: standard-setting (“specify[ing] the requirements for certification” of a sustainability-related claim) and verification (“assuring or validating that these standards have been met in any given instance”). This label broadly encompasses assurance providers, who verify a company’s sustainability disclosures; ESG ratings providers, who assess a company’s operations vis-à-vis societal and environmental factors; and net-zero target certifiers, who evaluate the credibility of a company’s strategy to transition to net-zero emissions; just to name a few examples. Continue reading "Green SOX?"
Sep 25, 2026 Sanford LevinsonConstitutional Law
Let me confess to two personal reasons for being especially interested in this fascinating essay. First, Zalman Rothschild is probably the most interesting single student I have been privileged to interact with in what is now two decades of regularly visiting the Harvard Law School. He is not only brilliant – not such an unusual trait at HLS. More to the point, he has an unusually compelling personal history, as someone who left his initial life as a Chasidic Jew and became a member in good standing of the American legal academy. I have suggested to him since first getting to know him that he should write a memoir, as well as standard-form scholarly articles. Though this is no memoir, it is undoubtedly colored by his experience as what might be described as a “refugee” from a community that he now regards as unacceptably insular and, in its own way, abusive of children.
The second reason for my particular interest goes back to my days as a graduate student in government, many decades ago. On those days when I considered actually writing a dissertation in political theory I imagined addressing the difficulty that liberal political theory has in handling children. They are, after all, not the truly autonomous decision-makers so central to traditional liberalism. “Arm’s-length bargaining” and “consent” make no sense for the truly young. They are, as writers going back to Plato and Aristotle recognized, being formed by the communities within which they are raised, with no say over that character formation. I was wise enough not to become a full-fledged political theorist, but perhaps that interest helps to explain why the one job I’ve ever had as a practicing lawyer was a year spent working at the Children’s Defense Fund. Children do indeed need advocates. Not surprisingly, however, those who advocate for children are confronted with the same issues of autonomy and what is correctly called paternalism. One might have children as “clients,” but, for better or worse, it is rare indeed for the representation to be truly guided by the actual wishes of the client, unless the “child” is at the cusp of “adulthood” (whatever exactly we think that might mean). One could advocate for them, but they were often not able to speak or structure the representation in their own behalf. Continue reading "Emigration from Sectarian Religion and the Limits of “Individual Rights”"
Sep 24, 2026 Jodi ShortAdministrative Law
Chad Squitieri,
Congress in the Mouth of a Lawyer, 78
Ala. L. Rev. __ (forthcoming), available at
SSRN (Apr. 07, 2026).
Chad Squitieri’s Congress in the Mouth of a Lawyer is one of the most generative articles I have read this year. His observation that legislation is a multi-branch affair is, at once, trivially obvious and radically unsettling. Centering this observation is an important corrective to the conceptual slippages that result from lawyers’ tendency to speak of “Congress” as the branch that makes law and to speak of legislation as the constitutional prerogative of a single branch—“Congress.” Of course, it is well known that Congress cannot make law alone but must do so in concert with the President. “What follows from that fact of constitutional structure is that, when one speaks of ‘Congress’ as making law, one should be understood as necessarily (albeit implicitly) speaking of the House, Senate, and President working in concert.” (P. 4.) Squitieri refers to this as the “multi-branch definition of ‘Congress.’” (P. 4.)
Squitieri makes structural arguments in support of his multi-branch conception of lawmaking, pointing not only to the presentment requirement in Article I, Section 7, but to the Recommendation Clause and the role of the Vice President in the Senate, which give the President additional means of influencing the lawmaking process. The Recommendation Clause authorizes—arguably commands—the President to participate in the legislative process proactively, stating that the President “shall … recommend to [Congress’s] Consideration such Measures as he shall judge necessary and expedient.” (P. 25.) The Vice President’s tie-breaking vote in the Senate provides a tangible means through which the President can participate in the lawmaking process, and Vice Presidents have not been afraid to use it to advance the agenda of the presidential administration they serve. Squitieri discusses the practical leverage that these mechanisms give to the President in the legislative process. Continue reading "Taking Shared Powers Seriously"