Sep 23, 2026 Kenneth W. SimonsTorts
Christopher Brett Jaeger,
A Two-System Theory of Negligence, 93
U. Chi. L. Rev. __ (forthcoming), available at
SSRN (Sep. 9, 2026).
Tort negligence, like Gaul, is divided into three parts. The first territory is conscious negligence: the actor, aware of the risks, nevertheless chooses to take them, and is unreasonable in doing so. The second is inadvertent negligence: the actor is unaware of the foreseeable and unjustifiable risks, and that ignorance is unreasonable. And the third is a failure to safely execute a task, a failure that is unreasonable. A driver can be negligent for harming another:
- by choosing to run a red light despite recognizing the risk to a pedestrian;
- by looking at her cellphone and not seeing the pedestrian; or
- by making the effort to brake in plenty of time but clumsily failing to press the brake firmly enough.
Most tort scholars who investigate negligence doctrine explore only the first domain, but a few have explored the second and third. Continue reading "If Your Perception, Reaction Time, Or Coordination Is Substandard, Are You Negligent?"
Sep 22, 2026 Deborah WidissWork Law
Lisa M. Fairfax & Veronica Root Martinez,
The Miscalculation of Corporate DEI Risk, __
U. Pa. L. Rev. ___ (forthcoming 2026), available at
SSRN (Jan. 22, 2026).
In 2020, after the murder of George Floyd, public companies embraced diversity, equity, and inclusion (DEI) initiatives, branding them as essential to productive growth. In 2025, in response to the Trump administration’s attacks on so-called “illegal DEI,” many companies hastily dismantled those initiatives. Lisa Fairfax and Veronica Root Martinez’s insightful article, The Miscalculation of Corporate DEI Risk, assesses these developments from a corporate governance perspective. They argue that the rapid retreat from DEI “amplifies, rather than reduces, firm exposure to risks” (P. 36) and that boards fail in their oversight duties if they “substitute political reflex for fiduciary judgment.” (P. 35.) Instead, corporate leaders should integrate DEI into general risk-management strategies, assessing the risks of abandoning DEI programs alongside the risks of maintaining them.
As Fairfax and Martinez explain, the rise of DEI coincided with a shift in corporate governance principles. In 2019, and again in 2024, the influential Business Roundtable rejected the idea that companies exist solely to maximize shareholder value; instead, it endorsed “stakeholder primacy,” the view that companies’ long-term success depends on considering employees, customers, suppliers, and communities, as well as shareholders. Additionally, in 2020, the SEC promulgated a rule requiring discussion of “human capital resources” in corporate disclosure statements. These developments created new synergies between “work law” scholarship and some corporate governance scholarship. Fairfax and Martinez’s article highlights the benefits of such cross-fertilization. Continue reading "Assessing DEI-Related Risk – and Reward – in the Corporate Boardroom"
Sep 21, 2026 Adam HirschTrusts & Estates
In one dimension, the law of charity is oversimplified. A transfer either meets or fails to meet the definition of charitability. Lawmakers acknowledge no gradations of charity, and a gift to a food bank sustaining indigent citizens is treated in the same way as a gift to the National Mustard Museum. In another dimension, though, the opposite is true. As Nancy McLaughlin shows in a recent article, Donor Standing to Enforce Charitable Gifts in the 21st Century, categorical fragmentation has caused the law of charity to become overcomplicated.
Professor McLaughlin’s article explores donors’ rights to oversee a charitable transfer after they have made it. As a general principle, once donors make a transfer, whether in the form of a trust or an outright gift, they no longer have an interest in the corpus of the transfer. Accordingly, donors lack standing thereafter to bring a cause of action against the beneficiary. Under the common law, even a restricted gift to a charitable entity constitutes a complete transfer, leaving enforcement to the “beneficiary,” viz. the state attorney general, representing society at large. The problem is that waves of codification have splintered the law of charity. The Uniform Trust Code (UTC), currently in effect in thirty-six states, is confined to charitable trusts. The Uniform Prudent Management of Institutional Funds Act (UPMIFA), currently in effect in forty-nine states, covers gifts to charitable organizations—but pertains only to investment funds, not to program-related assets that a charity uses to accomplish its purposes, which continue to be governed by common law. Finally, nonuniform legislation enacted in several states further modifies donors’ rights. Continue reading "Muddled Charity Law"
Sep 18, 2026 Rebecca CrootofTechnology Law
When does a difference in degree become a difference in kind? Answers to this perennial techlaw question inevitably include mentions of “scale”—but what exactly does “scale” mean?
In Taking Scale Seriously in Technology Law, Mark McKenna and Woodrow Hartzog clarify and complicate the concept of “scale.” Certainly, “scale” can simply mean more of something (what the authors refer to as “scale as more”). Social media content moderation is difficult both because of the complexity of the analysis and because of the sheer number of posts to evaluate. But more of something might not just result in more of the associated benefits or harms. One of the article’s main takeaways is that, in some situations, more of something can change the nature of the benefits or harms (“scale as different”). If we are sensitive to these distinctions—let’s call them different kinds of differences in kind—we can better identify harms that might otherwise be ignored and design more effective regulations. Continue reading "Different Kinds of Differences in Kind"
Sep 17, 2026 Emily SatterthwaiteTax Law
Currently, about half of the U.S. labor force is comprised of individuals who are married. And nearly 97 percent of married individuals file their taxes jointly, meaning that the married couple is the so-called “tax unit.” For spouses who earn significantly different amounts of income, one of the benefits of filing jointly is simple: in a progressive system, tax can be saved by income-averaging. Rather than facing two separate marginal tax rates, as would be the case with individual filing, filing jointly means that both spouses face the same marginal rate on their aggregate income. Because the married-filing-jointly brackets are approximately double the individual brackets, the higher-earner’s rate will be lower than her counterfactual individual rate, increasing her return to working. And the lower-earner’s rate will be higher than her counterfactual individual rate, reducing her return to working.
These labor-supply incentives are well-known. What is less-explored, however, is the extent to which the combination of tax unit rules and rate schedule progressivity affects the spouses’ labor supply decisions. A look at Scandinavian countries with highly progressive tax rates presents an intriguing puzzle. One might predict that high tax rates discourage productivity. So how have these countries achieved world-leading employment rates and per-capita output levels? Building on the work of scholars including Borella et al. (2023) (working paper version previously reviewed in Jotwell), a new working paper by Hans A. Holter, Dirk Krueger and Serhiy Stepanchuk (“HKS”) argues that the answer, at least in part, may be hiding in plain sight: the tax unit. Continue reading "Could Tax Unit Reform Improve Labor Supply, Raise Revenue, and Increase Welfare? Yes, Say Macro-Economists!"
Sep 16, 2026 P. T. BabieProperty
Andrew Leach & Jasper Ludewig,
Back to the Land, 28
Wolkenkuckucksheim: Int’l J. Architectural Theory 37 (2024/2025).
We know that private property allows its holder to exercise choice about how to use and to shape our social and physical world. What makes that choice possible is power. At the risk of hyperbole, all theorizing about property, in one way or another, explores the nature of that power. Yet, for all that, we often fail to see the effect of that power on us. Andrew Leach and Jasper Ludewig, in an interdisciplinary study of the history of architecture, Back to the Land, pull back the curtain on what property allows.
Property theory tells us that property is neutral—property alone cannot shape the world in any particular way. It allows, as scholars like Larissa Katz argue, its holder to set an agenda about land. Yet, even then, the agenda alone cannot alter the physical or social world. That requires something more. Leach and Ludewig suggest that, for land, that something more is architecture: “a series of themes…bind architecture to land: race and labour, colonial territoriality, property formation and transfer, extraction, and governmentality. Th[e] land is not stable, as a ground-plane, but read through forms of representation and intervention that render it something other than what it once was.” (P. 40.) Continue reading "Architecture Reveals Property’s Power"
Sep 15, 2026 Anita KrishnakumarLexLegislation
Abbe R. Gluck,
The End of Ambiguity (in Statutory Interpretation), 76
Duke L.J. __ (forthcoming 2026)(available at
SSRN).
Ambiguity has long played a central role in statutory interpretation—serving as the trigger for judicial resort to extratextual materials or any one of a slew of interpretive canons. The rule of lenity, the avoidance canon, legislative history, and even the erstwhile Chevron deference regime all turn (or turned) on a threshold determination that the statute at issue is ambiguous. In proportion to ambiguity’s centrality, scholars have felled forests theorizing about ambiguity and judges have argued for decades over how much ambiguity is sufficient to trigger the application of particular canons.
In The End of Ambiguity (in Statutory Interpretation), Abbe Gluck draws on clues from Supreme Court opinions, the Justices’ comments at oral argument, and their extra-judicial writing to argue that ambiguity’s reign is over—and that its demise is a sign of a larger shift in power from Congress to Article III courts. The End of Ambiguity is a tour de force of an article, full of illuminating insights and observations about how and why ambiguity is on the decline and what ambiguity’s demise teaches about the current (and future) state of statutory interpretation on the Roberts Court. Continue reading "Ambiguity and Judicial Power on the Roberts Court"
Sep 14, 2026 William SmileyLegal History
Mustafa Aksakal’s new book, The War that Made the Middle East, offers a pointed and relatively succinct (182 pages) reconsideration of the First World War in that region. It comes at a timely moment, amidst wars across the region, and with the foundations of international law and international order deeply cracked, if not collapsing. In Aksakal’s telling, the First World War caused a similar breakdown. The avarice of Britain and France, and the countervailing ruthlessness of the Unionist cabal which controlled the Ottoman Empire, broke and remade the Middle East—not only through war, famine, and destruction, but by changing political and legal visions.
I found myself most engaged by the prominent, if unadvertised, role that law—both domestic and international—plays in Aksakal’s story. In 1908, Ottoman subjects from many diverse communities—Christians, Jews, and Muslims, speakers of Turkish, Arabic, Greek, Armenian, Ladino, and more—launched a popular revolution to transform the empire into a constitutional monarchy (reviving a constitution that had first been promulgated, then promptly abrogated, in 1876). Two elections were held before the war. To be sure, many subjects were oppressed and discontented, and visions for Ottoman reform abounded—but almost always within the frame of constitutional empire. Greek, Armenian, Arab, and Jewish activists sought democracy, equality, decentralization, or autonomy (on this point, see also Aimee Genell’s brilliant new book Empire by Law) within the empire. Continue reading "War, Empire, and Authoritarianism in the Middle East"
Sep 11, 2026 Andrew HalpinJurisprudence
In their essay, Bridges Between Realism and Formalism, introducing a special symposium issue of the American Journal of Jurisprudence, Andrew Gold and Thilo Kuntz provide a clear and helpful survey of the impressive array of contributions, with a stimulating variety of perspectives on the relationship between Realism and Formalism. More than this, the authors produce an illuminating commentary on the ways these differing perspectives might be related and offer suggestions for possible directions for future research.
The contributions to the symposium are considered in two sections of the essay. In Section I, Gold and Kuntz emphasize the role of legal concepts and the possibility of change to those concepts, drawing on Natasha Sarna and Kevin Tobia’s empiricist study of “reasonableness” (Pp. 123-24), Andrew Gold and Henry Smith’s portayal of the mechanisms of conceptual change in the law (P. 124), Shyamkrishna Balganesh and Taisu Zhang’s account of how legal reasoning can employ concepts so as to integrate internal and external considerations on the development of the law (Pp. 124-25), and Thilo Kuntz’s employment of artifact theory to provide an explanation of how legal change is possible, but with constraints upon judicial activism. (P. 125.) Continue reading "Realism or Formalism or Both?"
Sep 10, 2026 Michael W. CarrollIntellectual Property Law
Trademark law in the United States requires use of a mark in commerce as the basis for both acquisition and infringement of exclusive rights. This requirement is justified, in part, as a way of focusing trademark on its core purpose—protecting the mark owner’s goodwill that arises from such use. Most of the rest of the world relies on the formality of registration as the basis for protection. How did the law in the United States take this nearly-unique evolutionary path? In her extensively-researched article, Professor Barbara Lauriat succeeds in correcting the record about this question by lengthening the relevant historical period to at least the sixteenth century in England and by showing that commercial goodwill had an established recognition in both business practice and in common law as a business’s residual asset distinct from its trademarks.
Lauriat makes a number of contributions to the literature. First, she provides a tantalizing account of the not-always coherent legal treatment of goodwill as a distinct form of intangible property. Second, she argues that understanding this history informs how judges in the nineteenth and early twentieth centuries incorporated protection for goodwill with trademark protection in the United States. Third, by providing a comparative lens, she shows how trademark law in the United States and the United Kingdom share ancestral roots but took quite different evolutionary paths. Last, she argues that even though the registration-based protection for marks in the United Kingdom treats them as personal property that can be assigned separate from a business’s goodwill, the scope of protection in the United Kingdom can be constrained, and is likely to be narrower than in the United States, because the suppleness of a use-based conception of protection has enabled courts to extend protection beyond trademark law’s traditional scope. Continue reading "Distinguishing the Historical Roots of Goodwill From Trademark Law’s Origins"