Ari Waldman

Organizations have long used individuals’ pasts to predict those individuals’ likely future behaviors. Banks look at our credit histories to predict the likelihood of on-time mortgage payments; states look at criminal histories to predict the likelihood of recidivism when making parole decisions. These pasts tell stories, narratives of behavior that, some argue, produce essential knowledge about the future so organizations can make smart decisions today. At the same time, relying too much on our pasts threatens autonomy, makes us prisoners of our worst mistakes, and entrenches discrimination.

One notable difference today is that these and other predictive decisions are now made using algorithms, computer programs, and tools collectively called “artificial intelligence” (AI), all of which can introduce many wrinkles into the age-old story of predictive policymaking. In a masterful article in the American Journal of Sociology, the field’s most respected journal, Barbara Kiviat (Columbia), Sara Sternberg Greene (Duke), and Hesu Yoon (CREST, ENSAE Paris) focus on one wrinkle: the problem of exceptions.  When predictive decisions were made exclusively by humans, exceptions were easy to make. Social workers or bankers could look at the numbers and appreciate changes in circumstances; the human touch made that possible. The conventional wisdom is that the algorithmic turn erases that discretion.  Kiviat, Greene, and Yoon argue that the algorithmic turn instead complicates discretion, moving it upstream and changing it from an individualizing mechanism to one that problematically relies on cultural archetypes. Continue reading "How Algorithms Make Exceptions"

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Afton Titus

Tax scholarship has long been concerned with poverty, redistribution, and the financing of public goods. That is why debates about wealth taxation and the developments at the UN with its Framework Convention on International Cooperation are so enduring. At the heart of these debates lies a common concern: how should tax systems respond to global inequality? It is against this backdrop that Ingrid Robeyns’ recent article, Why Economic Inequality Should be Central to Strategies for the Future, is particularly timely.

While much international tax scholarship has focused on how taxing rights should be allocated between source and residence countries, Robeyns’ article implicitly asks: what distributional outcomes should tax systems be trying to achieve? In doing so, she persuasively argues that reducing wealth concentration should be a central objective of public policy rather than an incidental consequence of poverty alleviation. Continue reading "What Is Taxation For? Beyond Taxing Rights and the Challenge of Inequality"

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Nora Freeman Engstrom

Aviv Caspi

In Access to Justice in the Age of AI: Evidence from U.S. Federal Courts, Anand V. Shah and Joshua Y. Levy, document what may be a tectonic shift in the civil justice system.  According to Shah and Levy, Generative AI is lowering the barriers to filing suit—and, as a result, more self-represented litigants are initiating claims.

Analyzing 46 million docket entries, the authors uncover a surge in non-prisoner pro se filings.  Federal pro se filings have risen in percentage terms—from a nearly 20-year steady state of roughly 11%, up to nearly 17% in fiscal year 2025.¹ And, they have also jumped on a numbers-basis.  Self-represented individuals initiated just 23,000 federal cases in 2022, and nearly twice that—41,000—in 2025.² Continue reading "Opening the Courthouse Door—or Just Lowering the Threshold?"

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Gregory M. Stein

Utilities must find quick ways to meet a sudden surge in the need for electricity after years of flat or declining demand. Many utilities are currently racing to meet huge increases in electrical demand by constructing new plants, refurbishing old ones, or building nuclear facilities, while also upgrading local grids.

A new report from Energy Innovation, a non-partisan think tank focusing on energy and climate, authored by Eric G. Gimon, offers creative alternatives to this approach, which he refers to as the “firm fixation.” This term reflects the common approach of building new plants to meet the demands of individual data centers, rather than adopting a more modular approach.

The sudden need for additional electricity, most notably for data centers, has enormous legal implications, particularly for land use and environmental law. Legal policy makers, however, do not necessarily have the technical backgrounds required to assess these questions.

Mr. Gimon’s report bridges that gap, addressing technical issues in a way that is approachable to lawyers and others. It will allow lawyers to make policy decisions based on a clearer understanding of the engineering issues involved. Continue reading "Can Increased Demand for Electricity Be Met Without Building New Gas, Coal, or Nuclear Plants?"

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Allison Brownell Tirres

The fact that Black Americans played a pivotal role in the formation and adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments would not come as a surprise to historians of the Reconstruction period working today. Scholars ranging from W.E.B. DuBois to Eric Foner to Kate Masur, and many in between, have painted a rich picture of the activism and engagement of enslaved and formerly enslaved persons and free Blacks, who participated directly in the meaning-making of the Second Founding.

Unfortunately, this remarkable history goes largely unacknowledged by contemporary legal scholars and jurists, including some of those on the Supreme Court. It is this gap between historical reality and jurisprudential attention that David H. Gans seeks to close in his forthcoming article Forgotten Framers: Black Conventions and the Second Founding. Continue reading "Furthering Inclusive Constitutionalism"

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Caprice Roberts

Rivalrous Remedies offers a novel theoretical account of chronic underenforcement. Its primary contribution is to explain and systematize an enforcement phenomenon in which courts and legislators employ an untheorized device. Rather than sanction wrongdoers directly, judges and lawmakers adopt doctrines and tools that deter misconduct by granting a legal advantage to the wrongdoer’s rival, such as a business competitor or litigation counterparty. This institutional design of “rivalrous remedies” regulates behavior indirectly and empowers rivals. As such, these remedies possess significant potential to outperform typical remedies. If overused, however, the benefits may convert to intolerable risks, especially in particular markets. But the benefits are alluring, including benefiting victims while not sanctioning wrongdoers or advancing victims’ benefits without requiring court processes. This arena is ripe for this rich scholarly treatment. Ultimately, the potential promises are worth the reader’s thoughtful consideration.

The reframing of focus is core to the article’s argument. Again, rivalrous remedies focus on conferring benefits to a wrongdoer’s rival. By shifting enforcement away from wrongdoers, and in some instances, away from courts, rivalrous remedies hold a novel path worthy of deeper exploration and application. This work starts by challenging the traditional remedial dichotomy: equitable injunctions stemming from property rules versus monetary damages tied to liability rules. While this conventional property-liability conception, famously advanced by Calabresi and Melamed, has proven extraordinarily influential, the Rivalrous Remedy authors persuasively show that the binary approach overlooks an important middle ground unexplored. In many settings, transaction costs are high, damages are difficult, if not impossible, to quantify, and immediate victims lack the incentives or capacity to vindicate their rights. It is no wonder then that, in such circumstances, classic remedies regularly fail. Continue reading "Rivalrous Remedies"

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Alma Diamond

In early twentieth-century South Africa, the Gordonia School Board refused admission to two children on the grounds that they were not of “European parentage.”¹ In determining the validity and meaning of the relevant empowering legislation, Chief Justice Lord De Villiers invoked “public history”: the first “civilized” legislators in South Africa regarded its indigenous peoples as “an inferior race” whom they were “entitled to rule over.” The legal order De Villiers was reasoning within presupposed that European legislators had the legal right to rule over all inhabitants of South Africa,² and the society of which he was a part continued to accept the soundness of that proposition. In his personal capacity, he might have disagreed. But, qua judge, he could either accept that norm for purposes of legal reasoning or abandon legal reasoning altogether. And if South African society came to disagree with that foundational norm, it would face the same choice: accept the norm while reasoning within the legal order or reject the norm along with the legal order itself.³

That, at least, is the standard view: a legal order’s highest norm might be changed by social and political processes, whether through outright revolution or via a series of “pious fictions.”⁴ But there can be no legal authorization for changing the highest norm of a legal order. To revise a legal order’s highest norm is to abandon it in favor of a new one. As Stephen Sachs has written, adhering to our current law means rejecting unauthorized changes to it.⁵ Manish Oza invites us to reconsider this standard view in his recent Article, Can We Legally Revise the Highest Legal Rule?. Continue reading "Can Law Speak Against Itself?"

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Pamela Samuelson

In May 2025 the Trump Administration summarily fired Librarian of Congress Carla Hayden and Register of Copyrights Shira Perlmutter and announced that Deputy Attorney General Todd Blanche would become the Acting Librarian and Associate Deputy Attorney General Paul Perkins the Acting Register.

The Library and the Copyright Office did not contest Trump’s ability to fire the Librarian, but they successfully blocked Blanche and Perkins from assuming the acting roles. Perlmutter has sought a declaratory judgment that the Administration lacks authority to fire her as the Register and asserts that she is still the Register. The D.C. Circuit Court of Appeals ruled in Perlmutter’s favor, but the Supreme Court will review that ruling. (Blake Reid explores the issues raised in Blanche v. Perlmutter in his Separation of Copyright Powers article, which is also slated for publication in the Seattle U.L. Rev. Online).

Street and Runyon are concerned primarily with preserving the independence of the Library of Congress from executive branch interference. They explain very well the important role the Library has played not only as a substantial resource for members of Congress, but also as the country’s national library, with more than 178 million items in its collection. The Library adds more than 10,000 items to its collection every working day, largely by virtue of the mandatory deposit copies of works of authorship it obtains from the Copyright Office when copyright owners provide deposit copies when they register their claims of copyright. Continue reading "Copyright’s Constitutional Crisis"

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Nadia Sawicki

Prof. Zack Buck’s scholarship regularly focuses on the tension that health care providers and institutions face between ensuring their own financial sustainability and serving the needs of vulnerable patients. In Patients as Stakeholders, Prof. Buck turns to the challenges posed by for-profit acquisitions of non-profit hospitals, and introduces the corporate governance theory of stakeholderism as a potential solution. Recognizing patients as core stakeholders in hospital operations and governance, Prof. Buck argues, will allow health care institutions to achieve both mission and margin.

Stakeholderism is the theory that a corporation’s duty to maximize shareholder wealth should be balanced against its obligations to other actors who are meaningfully affected by its decisions. Corporate law scholars are engaged in ongoing debates about the merits and implementation of stakeholderism – and the rise of the environmental, social, and governance (ESG) movement across industries suggests that many companies are already putting elements of stakeholderism into practice. In this article, Prof. Buck persuasively shows that stakeholderism as a governance model is particularly well suited to the health care industry, especially as a tool for filling regulatory and oversight gaps that arise when nonprofit hospitals convert to for-profit status. Continue reading "A Corporate Governance Model Serving Patient Interests"

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Naomi R. Cahn

Defining and redefining the family law canon is an ongoing project, with family law casebooks and scholars increasingly questioning the boundaries (or even the existence) of a canon. Kaiponanea Matsumura’s chapter, Close Resemblances: The Legal Construction of the Asian American Family, enters this conversation with an initial observation that: “Most of the laws and cases that comprise the current family law canon are race-neutral.” (p. 2). Matsumura identifies others, including Dorothy Roberts, Angela Onwuachi-Willig, and Solangel Maldonado who are challenging this race-neutrality, and he celebrates these efforts. Placing the chapter within these challenges to the canon, Matsumura argues that Asian Americans largely “continue to be ignored.” (p. 3)

The chapter asks what happens when we bring Asian American families into the family law conversation – or even center them. That critical question is the basis for the chapter’s dual goals; first, bringing Asian Americans into family law scholarship; and second, in actually doing so, showing how family law has centrally shaped the “model minority concept” that has an ongoing, and profound, effect on Asian Americans and the families they form. In the process, Matsumura shows that laws governing immigration, marriage, citizenship, labor, and military policy did not merely discriminate against Asians. They helped define what qualified as an “American” family in the first place. Continue reading "Strangers in a Family Law World?"

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