Juliet Stumpf

As the elevator rises through the federal office building in downtown Portland, Oregon, one expects the sliding doors to open onto rows of federal bureaucrats keystroking policy into reality. Instead, a narrow hallway leads to the lobby of two diminutive courtrooms. This administrative court, like others scattered across the nation, is where immigration judges daily determine whether noncitizens will be expelled from the United States or remain in permanent or liminal immigration status. Some noncitizens arrive with their lawyers. But many appear pro se, or sometimes not at all. Shining light on immigration courts, Ingrid Eagly and Steven Shafer published their groundbreaking study of immigrant representation in 2015, A National Study of Access to Counsel in Immigration Court. I fan-girled their work here, and watched their revelations impact legal scholarship, briefs, opinions, and media.

Then the world changed. Even as statutory reform remains stuck in cryo, immigration policy has lurched wildly—from lots of enforcement, to more, to still more, until now when proclamations of mass incarceration and deportation of the worst of the worst sear national headlines. Immigration courts have lurched in time, if not in tune, with these developments, with backlogs weighing down due process. Meantime, communities, NGOs, states and localities responded to the threat of removal of thousands of long-term residents by trying to expand representation of noncitizens in their communities. Eagly and Shafer did what any self-respecting empirical scholarly team would when faced with this new reality. They created a troika, adding co-author Renee Moulton, rolled up their sleeves, and went back to work. Access to Counsel in Immigration Court is a master class in translating empirical analysis into accessible and compelling analysis. Continue reading "Bringing Justice to Immigration Court, By the Numbers"

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Sida Liu

Celeste Arrington’s From Manners to Rules: Advocating for Legalism in South Korea and Japan is an important contribution to the study of law and politics in East Asia and to sociolegal scholarship more generally. The book asks a deceptively simple question: why have South Korea and Japan, long described as societies that prefer informal ordering, bureaucratic guidance, and social norms over adversarial legalism, increasingly turned to more legalistic modes of governance? Arrington’s answer is that this turn to courts, lawyers, formal rights, and legal rules as tools of governance cannot be understood only as a story of state modernization, elite institutional design, globalization, or American influence. Instead, it must also be understood from the bottom up, through the work of lawyers, activists, and civil society groups who mobilized law to transform regulation and governance.

The book’s title captures this transformation elegantly. “Manners” suggest a traditional East Asian regulatory style based on “informal, flexible ‘soft-law’ measures, such as administrative guidance via nonbinding recommendations or warning letters” and dependent on “opaque networks of bureaucrats, political elites, and regulatory interests [that] cooperated to design and implement policies” (p. 4). “Rules,” by contrast, suggest a world in which obligations are articulated, rights are asserted, procedures are formalized, and compliance is monitored through judicial and administrative channels. Japan and South Korea have often been described as societies in which disputes were managed through apology, mediation, or administrative guidance rather than formal legal confrontation. ¹. Arrington does not deny the importance of this nonlegalistic approach, which “often ‘privatized’ disputes by granting preemptive but limited concessions or mobilized societal groups from the top down to help achieve policy aims” (pp. 4-5). Rather, she treats the rise of legalism in these two “hard cases” as the core puzzle of her book. Continue reading "Lawyer Activism and Legalism’s Uneven Paths in East Asia"

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Sara Mayeux

William Blackstone is, of course, an omnipresent name for law students and law professors alike. At least once a week during the semester, I teach a Supreme Court opinion that cites the eighteenth-century English jurist’s writings for some proposition or another. Typically, though, these opinions give no introduction to the man behind the quotations. Sentences begin with phrases like, “As Blackstone explained,” “Blackstone denounced,” and “Blackstone says,” as if the words come from some disembodied presence rather than an actual man.

As a result, William Blackstone the person can remain curiously abstract in legal education, for all the ubiquity of his name. In fact, I learned from Julia Rudolph’s article William Blackstone, Family Man that even those historians who are specialists in his era have lots of unanswered questions about his inner life: he “left no diary or other family or professional papers, and few of his personal letters have been found.” (P. 6.) In this article, Rudolph nevertheless draws upon what sources are available to assemble a portrait of Blackstone as “a husband, friend, and investor.” (P. 5.) For those of us who teach law or legal history, this article provides a memorable and humanizing portrait of the man behind all the quotations that we and our students encounter on a regular basis. Continue reading "The Real Housewife of William Blackstone"

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Bill Watson

General jurisprudence can sometimes be surprisingly parochial for a field that purports to study the nature of law, wherever and whenever law exists. In Truly General Jurisprudence, Felipe Jiménez criticizes this tendency while taking aim at an ostensibly new strand of legal anti-positivism. According to this “New Legal Anti-Positivism” or “NLAP,” law is a part of morality: legal norms are moral norms. Ronald Dworkin perhaps held such a view throughout his career, but he expressed it most clearly in his final book, Justice for Hedgehogs. Likewise, Mark Greenberg argues that “law is the moral impact of the relevant actions of legal institutions.” And Scott Hershovitz proposes that we should stop theorizing the nature of law and focus instead on “how our legal practices affect our moral rights, obligations, privileges, and powers.”

Jiménez’s objection is that NLAP is not truly general in the way that general jurisprudence aspires to be; it is a distinctively American picture of law that fits less well with other legal systems, especially civil law systems. NLAP relies on “observations that are local or parochial … to establish or motivate the plausibility of a general view without considering whether comparable observations from other systems might challenge it.” In this respect, Jiménez continues, NLAP fares worse than “other theories on offer (both positivist and non-positivist).” While this is not a conclusive argument against NLAP, it is “an important consideration—and one that we are likely to miss if we don’t look at jurisprudence from a comparative perspective.” Continue reading "General Jurisprudence’s Generality Problem"

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David Fagundes

The Copyright Act is turning fifty this year. One of the many things that has not changed in U.S. copyright law is a ongoing struggle to map the territory of the elusive fair use defense. Even before its 1976 codification, fair use had earned a reputation as “the most troublesome doctrine in the whole law of copyright.”¹ Its drafters hoped that codification would clarify, or at least make more predictable, analysis of fair use defenses by requiring judges or juries to consider a set of factors about the defendant’s use of the plaintiff’s work.

The fourth fair use factor, often misunderstood as an assessment only of market harm, actually mandates consideration of market effects (harmful and helpful alike): “the effect of the use upon the potential market for or value of the copyrighted work.”² Factor four thus demands that judges rule on a question of law (does this factor weigh for or against fair use?) by resolving factual questions about the future (if permitted, how would the defendant’s use affect the market for the plaintiff’s work?). Judges gamely seek to assess the market effects of the defendant’s use in light of the evidentiary record, but even the most thoughtful assessments of factor four have lacked sound empirical footing.

So wouldn’t it be nice if we could actually know what the market effects of a given use of a given work were? The authors of An Evidence-Based Approach to Fair Use aim to provide at least a partial answer to that question. Continue reading "Insightful New Empirical Study Measuring Market Effects"

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Hoi Kong

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"

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Gabriel Scheffler, Affordable Care Act Retrenchment, 102 Ind. L. J.­­___ (forthcoming, 2026), available at SSRN (July 15, 2026).

Christina S. Ho

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?"

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Eliza Mik

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"

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Eric J. Miller

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"

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Dara E. Purvis

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"

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