André den Exter

Caught in Language. The importance of speech and language therapy for the Youth Justice System is the result of a PhD research project examining how juveniles with speech, language, and communication needs participate in the criminal justice system. The research’s findings have important implications for health law, including informed consent and shared decision-making in health care.

The research focuses on combining different perspectives, including criminal law, speech therapy, and health law, also known as forensic speech therapy (science involving speech and language disorders, providing testimony in legal cases on diagnoses, treatment protocols, and patient prognoses). This multidisciplinary approach, combined with the unique findings, makes this book highly relevant to legal professionals in law enforcement, the judiciary, and juvenile care institutions in the Netherlands and abroad. The book’s bilingual approach makes it accessible for non-Dutch readers. For most lawyers, forensic speech therapy is currently uncharted territory. It is a relatively new discipline, primarily known in common-law countries such as Australia and the United Kingdom. Continue reading "Speech Therapy and Juveniles: What’s in it for Health Law?"

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Luke Herrine

We have become inured to a world of surveillance so pervasive it would make the Stasi blush. Much of this infrastructure is built on our nominal consent in the guise of consumption choices. We carry around tracking and recording devices in the form of “phones” because they also contain navigation tools, music libraries, messages with our intimates, games, cameras, and a huge variety of other tools to make our lives more convenient and connected. We accept that our online lives will be monitored, not always thinking of it, because doing so makes it possible to provide many services for free and makes it easier to find things and people that fit one’s idiosyncrasies. And, as brick-and-mortar stores close and more people stay in touch with each other through networked communication devices, it is increasingly difficult to live one’s life without “opting into” a surveillance architecture. Many (most?) of us would rather that the conveniences and connectivities of modern life not be connected to a network of surveillance—especially as the second Trump administration knits together these networks of commercial surveillance even more closely with state surveillance and repression–but we find ourselves feeling powerless to do much about it.

We association most of the modern infrastructure of nominally opt-in surveillance is associated with the rise of Big Tech, but  as Nakita Cuttino’s new article The Presumption of Creditworthiness reminds us, before Big Tech came credit reporting. Over the second half of the Twentieth Century, credit reporting agencies developed the basic approach of collecting data that businesses had on their customers without customer consent and compiling into files that other businesses and law enforcement agencies could buy. Once Fair Isaac Corp. developed its initial credit scoring model, the credit reporting industry also became the first to sell its data to firms with proprietary models that could be used to automate customer evaluation and, eventually, to segment consumer markets (and to target vulnerable customers with the most predatory deals). And as consumer credit became a core part of American life, the data collected by these companies became increasingly valuable for all kinds of businesses (employers, landlords, insurance companies) and the difficulty of opting out of the surveillance dragnet became increasingly high. Continue reading "How Mass Surveillance Imposes Penalties on the Unsurveilled"

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Leonid Sirota

It is not difficult to think of constitutional rules that are criticized, defended, or often both, on normative grounds that are more or less fact-free—not for what they actually are, but for what their critics or defenders believe they are or ought to be. In the United States, the Citizens United decision comes to mind. In the United Kingdom, Lewis Graham argues, a similar fate has befallen section 3 of the Human Rights Act 1998 (“HRA”), which provides that “[s]o far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the … rights” protected by the European Convention on Human Rights.

Graham notes that section 3, “perhaps more than any other provision in the HRA, has been subject to serious criticism in the literature.” He does not mention the Bill of Rights Bill, which the last Conservative government introduced in an ultimately failed attempt to replace the HRA; if enacted, it would have eliminated section 3. For the record, although very critical of the Bill as a whole, I was sympathetic to that aspect of it at the time. Continue reading "Doctrine by the Numbers"

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Aya Gruber

Not a day goes by without someone remarking that social media is a “cesspool.” The internet overflows with misogynist, anti-LGBT, racist, fascist, and even openly genocidal sentiments, some coming from the highest reaches of government. Snarky male right-wing influencers edgelord over popular discourse, claiming to say the bigoted and cruel things that “everyone is thinking.” Still, there has been something conspicuously absent from this execrable miasma: “smut”—that is, commercial sexuality, sexual imagery or just nudity, and sexual remarks. On Parler, which has served as a clearinghouse for far-right and neo-fascist ideology, one can post effusive praise for Andrew Tate and his pro-rape female-slavery agenda, but one cannot post a topless photo of a feminist protesting the shirt-wearing double standard.

Free-speech-absolutist platform Parler’s prohibition of content involving “nudity” and “explicit adult material or language” is one of myriad examples of the “sexual safety” default in online regulatory governance explored by Brenda Dvoskin and Thomas Kadri in their consequential article, Safe Sex in the Age of Big Tech Feminism. Now, sex exceptionalism in media regulation is hardly a modern phenomenon. In the traditional movie-rating context, one could always more easily see bodies being riddled with bullets than bodies coming together in sexual activity. Nor is it a novel question whether the agenda of broadening the reach of criminal law over sexual conduct is a “feminist” one, having been debated since the famous 1980s “sex wars” between anti-pornography and sex-radical feminists. On that debate, Kathy Abrams and Brenda Cossman provide excellent accounts, or one can go back to a classic book on the topic, Carole Vance’s edited collection, Pleasure and Danger.

Still, Safe Sex provides something new and desperately needed: a meticulous accounting of the complicated regulatory infrastructure governing sex in cyberspace and how its web of privileges and punishments reflect and reinforce certain ideas about sexuality and gender. The past decade has seen legal reforms addressing technology-enabled sexual misconduct—and conduct—amass at a dizzying pace with relatively little criticism outside of the civil libertarian free-speech arena. And, as the Parler anecdote suggests, the freest right-wing free-speakers have offered limited resistance to sexual censorship. Continue reading "Sex and Tech"

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Andrew F. Tuch

In their recent paper, Private Equity, Public Capital, and Litigation Risk, Professors Ludovic Phalippou and William Magnuson challenge the wisdom of a current trend in finance: retail investors’ increasing access to private equity (PE). The authors make compelling arguments—both about the imminent reality and risks of “retailization” and about the effects of the broader, long-term erosion of the public-private divide embedded in federal securities law.

Retailization, to be clear, is not new. Legislators, regulators, and courts have loosened constraints, allowing retail investors to access private equity through investment funds. Major law firms have engineered fund structures designed to channel retail capital into PE. The result is that PE firms, also known as alternative asset managers, began accepting retail capital through intermediaries more than a decade ago. Continue reading "Private Equity, Retail Investors, and Litigation Risk"

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Orit Gan

Law students study landmark contract law cases; scholars write law review articles on contract law precedents and influential judicial decisions (typically from states’ appellate and supreme courts); and the media covers high-profile, high-value contracts and high-stakes contract disputes between sophisticated parties. However, according to Contract Law and Civil Justice in Local Courts, these represent exceptional examples. The majority of contract disputes (over eighty percent) are adjudicated in local courts. In this fascinating article, Cathy Hwang and Justin Weinstein-Tull examine this understudied domain, shifting the attention from the extraordinary to the mundane.

The authors begin by describing proceedings in local courts. Most judges in local courts do not hold law degrees and have only completed brief training courses that include introductory legal instruction. In many cases, at least one party is not represented by legal counsel. Moreover, most cases in local courts do not result in written opinions, and those that do are typically unpublished, and proceedings are rarely recorded. The disputes themselves often involve non-negotiated contracts that parties signed without legal counsel, and without reading them. These cases frequently concern small amounts in controversy, including debt collection; auto loans; landlords-tenants disputes; contract disputes with general contractors or landscapers; small-scale business-to-business services; and family loans. Continue reading "Ordinary Contract Law"

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Suzette M. Malveaux

The Supreme Court of the United States is poised to make one of the most important decisions this term: the constitutionality of President Trump’s Executive Order challenging birthright citizenship. As the Court considers this substantive question, many scholars, judges, lawyers, and Americans are still grappling with the meaning of its earlier remedial decision, Trump v. CASA. Thankfully, Professor Mila Sohoni’s essay provides an excellent analysis of the case and its implications.

Sohoni provides a thoughtful, fair, and clear-eyed summary of what the opinion does and does not do. She starts by explaining how the Court now forbids district courts from issuing injunctive relief beyond the parties (“universal injunctions”). She flags important interpretive vacuums and questions left in CASA’s aftermath. Having clearly identified CASA’s boundaries, she recognizes the various means through which federal courts can provide broad injunctive relief to those challenging executive branch overreach. Finally, and most importantly, Sohoni contextualizes CASA during these turbulent times. Continue reading "Resilience and Judicial Power in the Aftermath of Trump v. CASA"

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Emily Hammond

In Second-class Administrative Law, Professor Matthew Lawrence makes a provocative challenge to the presumption of unreviewability announced in Lincoln v. Vigil, 508 U.S. 182 (1993), which applies to agencies’ decisions about how to allocate lump-sum appropriations. Challenging both the opinion’s premise and its potential theoretical bases, Lawrence offers an important rethinking of the doctrine. What really stands out about this piece, however, is that Lawrence melds traditional methods of administrative law scholarship with a human-focused dimension, exploring how it impacts people as applied. And he demonstrates why this seemingly neutral rule of administrative law has a disparate impact on historically marginalized groups, especially Tribes and imprisoned people. In so doing, he answers a broader call to bring a critical lens to administrative law and offers a model for how it can be done.

Some readers might wonder if the Vigil slice of administrative law is worth the fuss. But as Lawrence notes, about a fifth of the federal budget is theoretically shielded by Vigil as non-defense, discretionary spending. (P. 1067.) And, as exemplified by the Fall 2025 shutdown impacting SNAP benefits,¹ it bears noting that many of the kinds of programs funded this way are those that offer safety nets to those with the least power and most vulnerability. Indeed, Lawrence’s treatment is rich with the separation-of-powers and human-impact dimensions that are of extraordinary importance in the United States today. Continue reading "Putting a Human Face on Administrative Law"

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Verity Winship

In 2024, the Brazilian Supreme Court froze assets of a Starlink subsidiary because of non-compliance by X (formerly Twitter). What do Starlink and X have in common? The Brazilian Supreme Court’s answer was “Elon Musk.” His control, according to the court, made this a de facto economic group (grupo econômico de fato). In many contexts, that answer wouldn’t make legal sense; X and the Starlink sub were separately organized legal entities, whose boundaries are generally respected. Or are they? Read Overcoming Corporate Separateness to find out.

Multinational corporations are often organized into corporate groups or conglomerates, but these groups are not always formally defined in the law. US corporate law orthodoxy is that respecting the formal boundaries between corporations, parents and subsidiaries, etc. offers risk partitioning, predictability, and ease of compliance. Under this account, it makes sense to respect and even encourage organization of separate entities by jurisdiction, by company, by market. Continue reading "Corporate Groups & the Principle of Reality"

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Kerri Lynn Stone

In this provocative article, Bill Corbett traces recent developments in Title VII employment discrimination law by analyzing two Supreme Court decisions, Ames v. Ohio Department of Youth Services, 605 U.S. 303 (2025), and Muldrow v. City of St. Louis, 601 U.S. 346 (2024), as well as how textualism has imperiled the McDonnell Douglas doctrine. (Courts have used this three-part burden-shifting framework to decide the issue of discrimination under various statutes since the early 1970’s. The McDonnell Douglas doctrine puts the burden on the plaintiff to create an inference of discrimination, then permits the defendant to offer a legitimate, nondiscriminatory reason for its action. The plaintiff shoulders the ultimate burden of persuasion by proving pretext, and thus, the ultimate fact of the discrimination.) Corbett concludes that an “escalating textualist purge of employment discrimination law is fashioning a body of law that differs significantly from the one that has developed over six decades.” (P. 37.) He predicts that, as a result, courts will be less likely to grant employer-defendants’ motions for summary judgment on plaintiffs’ Title VII claims.

In his analysis, Corbett reads Muldrow as a case in which the Court deploys textualism to eschew “heightened standards for actionable adverse employment actions,” and Ames as further confirming that Title VII exists to protect individuals and not groups. (P. 36.) From this, he infers Muldrow and Ames will cause more Title VII cases to make it to trial, and more filing of discrimination claims, especially so-called “reverse discrimination” claims. Continue reading "Textualism’s Trajectory"

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