Maneesha Deckha

In jurisdictions around the world, constitutions are held up as venerable national texts available to strike down legislation and government action offending basic societal commitments. Constitutions are seen as forces of good and not just due to their explicit rights-granting provisions, but also the unwritten principles courts have held them to house. But similar to how law schools and other educational institutions have “hidden curricula” that can subvert an institution’s formal written principles of inclusivity and equality, recognizing unwritten constitutional provisions can cut in different directions. Specifically, how might they undermine more formal equality provisions?

In The Unwritten Constitution and the More-than-Human World, Jessica Eisen considers the case of the Canadian Constitution, which many regard as a model for equality and justice due to both its written and unwritten commitments. Eisen’s article provides a valuable corrective to the sense of the implicit goodness of the Canadian Constitution. It illuminates the “ignominious” (P. 571) unwritten principles that “shap(e) constitutional praxis even as they are ignored, denied, or repudiated by actors within the system.” (P. 553.) Continue reading "Pursuing Interspecies Justice in the Shadows"

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Alma Magaña

In Marisol Orihuela’s The Lawyer’s Quandary: Client-Center Lawyering in the Treatment Paradigm, we get an in-depth discussion about the dilemma criminal defense lawyers face when they are counseling individuals with atypical decision-making capacity. Specifically, Orihuela focuses on individuals with personality conditions who need to decide if they want to enter mandated treatment in lieu of prison. The lawyer’s role, she writes, “requires a candid and honest assessment of how best a client might achieve the client’s goals in their legal matter.” However, systemic flaws regarding accessibility to treatment for personality conditions, coupled with decision-making impairments caused by such conditions lead to an impasse. What is the lawyer supposed to say or do?

Legal ethical rules and lawyering models do not provide clear solutions. This article offers a thorough first step toward filling this gap. Further, Orihuela’s treatment of this kernel of an issue generates a much broader critique of the criminal legal system by highlighting systemic flaws and raising concerns about the fairness of criminal proceedings for individuals with personality conditions. Among the ways it does this is by demonstrating the limits of incremental reform in indigent criminal defense and by underscoring that the law and those in power consistently fail to consider, let alone accommodate, poor and disabled people. Continue reading "Counseling at the Edge of Decisional Autonomy"

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Sergio J. Campos

Any serious study of civil procedure in the United States should learn from other procedural systems. Comparative study has a number of advantages. It can provide insights about alternatives. It can shed light on beneficial features of our own procedural system that we take for granted. And it can generate questions for further study.

In Hyrniak’s Erosion: Summary Judgment in Ontario, Suzanne E. Chiodo, Gerard J. Kennedy, & Alyssa King conduct an insightful and nuanced empirical study of summary judgment motions in Ontario provincial courts (the equivalent of state courts in the United States). The motivation for the study is a tension between two views of summary judgment. The first, endorsed by the Supreme Court of Canada in Hryniak v. Mauldin (2014), views summary judgment as a vehicle for increasing access to justice by reducing the costs of litigation. The central idea is that the amount of procedure should be “proportional” to the case, and in some lower-stake cases providing a full trial would be a form of “undue process,” raising costs and discouraging plaintiffs from filing suit. The second, endorsed by the Ontario Court of Appeals, discourages summary judgment because such motions are themselves costly and can hinder the “full appreciation of the evidence and issues” needed to resolve a case. Continue reading "Learning from Others: Summary Judgment in Canada"

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Robert Hillman

Arbitration in Name Only seeks to resolve the many issues generated by current-day arbitration agreements between a business drafter and consumers or employees.  The author, Myriam Gilles, observes that under the Supreme Court’s interpretation of the Federal Arbitration Act (FAA),¹ courts generally enforce such agreements even though the terms call for arbitration heavily in favor of the business drafter, provide for cumbersome procedures, and allow for unilateral modification  and termination by the business.  Such terms negate “arbitration’s definitional core,” the article points out, which consists of neutrality, “procedural minimalism,” and mutuality of obligation.

The article ably fills out the meaning of each characteristic of arbitration’s core mentioned above. In part, neutrality means the absence of a stake by the adjudicator on one side or the other.  Procedural minimalism means that the procedure must be “streamlined,” “informal,” and not “cumbersome,” thereby ensuring the efficiency of the process. Mutuality means that both parties are bound, not that one party has the unilateral right to change or terminate the arbitration agreement at will. Continue reading "What is in a Label? The Problem of Imitation Agreements to Arbitrate"

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Evan Bernick

The Supreme Court makes law. This shouldn’t be controversial. Like the rest of the judiciary, the Supreme Court lacks sword or purse. But those who fail to adhere to its legal reasoning or obey its judgments are generally met by state actors who have the means to insist. Such insistence is not usually necessary because most people, most of the time, believe that the Supreme Court holds legitimate authority to say what the law is—finally, if not infallibly. When the Court says something new, the operation of the legal system can change as dramatically as if the Constitution had been formally amended.

But the Justices rarely state that they are making law and often suggest (when they do not assert) that they merely find it. They overrule half-century-old precedents which they pronounce “egregiously wrong from the start.” They declare that “statutes, no matter how impenetrable, do—in fact, must—have a single, best meaning” awaiting discovery. Law-finding talk is particularly common among professed originalist judges, and the Supreme Court’s decision in Trump v. CASA, Inc.—holding “universal injunctions” unlawful (mostly)—is an illustrative case in point. But Alma Diamond’s extraordinary paper, Lawfinding’s Dilemma: Legal Formalism, or Judicial Neutrality, contends that originalist judges will inevitably make law—and ought not pretend otherwise. Continue reading "How Originalism Makes Law"

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A. Michael Froomkin

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Charlotte Crane

Michael Schler thinks the prognosis for the federal income tax, at least as it is currently administered, is not good. In The State of the Federal Income Tax System: Poor, he outlines many of the problems federal tax administration currently faces. Most of these problems are worsening as the foundations of administrative law more generally are challenged in the federal courts and in Congress.

Even with the enormity of the substantive law itself, those teaching income tax in law school cannot consider themselves masters of their subject without a firm understanding of  the legislative and the administrative procedures that produce it. Imparting to young lawyers a sense of the conceptual design driving the tax law requires a full understanding of the forces that create it.  These forces include the extent to which Congress is likely to have deliberately left ambiguity in the statute, the discretion Treasury can exercise as it interprets a statute, and the inevitable choices that the Internal Revenue Service must use in its efforts to curb taxpayers as they pursue questionable positions. Continue reading "Good Analysis of a Bad Situation: Federal Tax Administration in the 2020’s"

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Haiyun Damon-Feng, Agency Fact-Making, 135 Yale L. J. 2525 (2026).

Wendy Wagner

In Gundy, Justice Gorsuch reminds us that one of the traditional roles of the agency is “filling up details and finding facts.” (Dissent, P. 33.) Indeed, “fact-finding” appears in the title of at least eighty law review articles on agencies and in the text of several thousands more.

However, in Agency Fact-Making, Damon-Feng shows how this simplistic characterization of agency work as fact-finding misses most of the action; the agencies are not simply out there finding facts and reporting back but are producing (or “making”) the authoritative knowledge that comes to count as fact. Those agency-produced facts guide countless decisions about governance, public policy, and daily life.

But if agencies really are making—not finding—the public facts on which so much of the nation depends, administrative law should have a well-developed account of how that function operates and how it ought to be structured, right? Nope. Continue reading "The State as Fact-Maker: The Fourth Function of the Fourth Branch"

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George S. Georgiev

Most legal responses to generative artificial intelligence ask familiar questions. Who may copy? Who may sue? Who should regulate? Who should pay? Jeremy Bearer-Friend and Sarah Polcz ask a more basic, and more corporate, question: who should own AI? Their answer: the public should own a piece.

Sharing the Algorithm sits comfortably in tax law, but corporate law scholars should read it because its ultimate subject is a corporate law mainstay: the ownership and control of enterprise. The article proposes a one-time tax on generative AI firms, paid not in cash but in equity. Instead of leaving the public to be only a consumer of AI products, a claimant in copyright litigation, a beneficiary of future tax revenues, or a regulator trying to catch up after the fact, Bearer-Friend and Polcz would make each of us a fractional owner of the firms that control generative AI. Continue reading "Owning the AI Revolution"

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Joseph Seiner

In Work Law’s Domain, Professor Ryan Nelson reveals our general “blindness” about who and how many people are really covered by work law generally and employment discrimination law in particular. (P. 60.) As Professor Nelson notes early in the piece, “this Article begins with a frightening claim: no one actually knows how illegal employment discrimination is in the United States.” (P. 59.)  This is a startling claim and one that is fully developed over the course of the piece.

This article is superb because it is one of the few recent pieces of worklaw scholarship which provides a broader review of one of the pressing problems in this area – society and academia’s lack of a complete understanding of how to define the field.  Rather than parsing particular parts of statutes or legislation, this Article performs the wonderful job of exploring how all the pieces (sometime fail) to fit together.  This matters, Professor Nelson argues, because the “opacity of work law’s domain” makes it more difficult to understand, regulate, legislate, and improve that law. (P. 62.)  This inability to fully regulate, legislate, and improve the area of labor and employment law has led to (arguably many artificial) constraints in this field. Continue reading "How Far Does Worklaw Truly Reach? Does Anyone Really Know?"

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