Bethany Berger

Native people’s citizenship is in the news.  In its attacks on birthright citizenship, the Trump administration argues that because “Indians in tribal relations” were not citizens under the original understanding of the Citizenship Clause, children of undocumented or temporarily present immigrants are not either. These claims rely on egregious distortions of history and law.¹

The contemporary debates, however, reflect little about how Native people viewed citizenship in the decades before, in 1924, Congress statutorily extended citizenship to all “Indians born within the territorial citizenship of the United States.”² The answers are complex and varied. In Indians Now Taxed, Professor Lisa Teeters Knolle has opened a new and important window on Native citizenship. The article also sheds new light on the sad history of allotment, the federal policy that deprived tribal nations of most of their remaining lands, and particularly the way it pitted homesteading settlers against the Native people whose land they occupied.

Indians Now Taxed examines contests over citizenship and taxation in the early twentieth century. The article discusses such contests in many states, but focuses on Dewey County, South Dakota. Most of the county falls within the Cheyenne River Sioux Reservation, while the remainder falls within the Standing Rock Sioux Reservation. In other words, the entire county was built on Lakota lands that allotment opened to non-Native settlement. For the Lakota, allotment acts were the culmination of decades of violations of solemn treaty promises. Unlike those earlier violations, allotment brought non-Native people into the heart of formerly cohesive tribal communities.

Knolle adds to our understanding of this devastating loss with a nuanced perspective on the non-Native settlers benefiting from allotment. Lured to the high plains by promises of cheap lands, they faced huge start-up costs to build the schools, roads, and bridges to connect isolated businesses and farms. Communities typically paid for such infrastructure through property taxes. But the migrant settlers had little property of their own to tax. Taxation was therefore “a central dilemma in growing US settlements on Native lands.” (P. 54.) The settlers’ response to this dilemma was to tax Native allottees.

The taxes—at least initially–were illegal. When land was allotted to individual Indians, it was held “in trust” by the federal government for twenty-five years, and could not be taxed, sold, or otherwise encumbered. In reaction, many counties simply taxed trust property illegally, sometimes jailing the owners and foreclosing on their land. Others taxed any property not directly linked to allotments. In 1903, the Supreme Court rejected the efforts of Roberts County, South Dakota, to tax permanent improvements on allotted land on the Sisseton-Wahpeton Sioux Reservation,³ while in 1906, the Eighth Circuit rejected Thurston County, Nebraska’s efforts to sell proceeds from Omaha and Winnebago allotments.⁴

But counties kept trying to find loopholes in the law. Dewey County decided to tax property derived from untaxable property, such as the offspring of livestock acquired with trust funds, or the movable property purchased from their sale. Cheyenne River Sioux citizen Harry Kingman, for example, received bills for “back taxes” on his agricultural tools, his horses, his cows, and even his dog. When he and other allottees refused to pay, the county seized and sold their horses. In response, the Cheyenne River Sioux organized. They wrote to and met with their federal agent and local and state tax commissions. When this did not work, they raised tribal funds to sue in federal court.

Citizenship was a key ideological hook for the taxes. The 1887 Allotment Act provided that as soon as allotments had been made, Indian allottees would become citizens of the United States. Advocates for taxation of allottees now argued that citizenship required taxation. Never mind that until 1951, South Dakota law prohibited citizen Indians from voting “while maintaining tribal relations.”⁵ Never mind that the era was rife with non-Indian resistance to property taxation. In South Dakota, this resistance led to a state commission that found that county property taxes were “in disregard of the law” and subject to “gross inequalities.” (P. 57.) When it came to Indians, however, the same commission informed the U.S. that taxation was “vital to the welfare of the government and the maintenance of good citizenship” and “no more than just  . . . to the Indian under supervision of your office.” (P. 57.) South Dakota was not alone in these claims. Oklahoma Senator Robert Owen, for example, argued that “[u]niform taxation is absolutely essential to preserve the spirit of cordial friendship between the Indian citizen and his far more numerous neighbors.”

U.S. officials accepted the allegations that taxation would benefit the Indians. Secretary of the Interior Walter Lowrie Fisher, for example, opined that the “justifiable” complaints of local communities led them to “condone[] unfair or even illegal methods. . . .” The solution? “[T]he Indian’s lands should be opened for general development, and especially to local taxation as rapidly as practicable.” (P. 58.)

And that is what the United States did. In 1906, Congress enacted the Burke Act, allowing the Secretary of the Interior to issue fee patents that removed “all restrictions as to sale, incumbrance, or taxation” on land allotted to any Indian deemed “competent and capable of managing his or her affairs.”⁶ For new allottees, citizenship would be delayed until the lifting of restrictions. Armed with this new authority, federal officials forced fee patents on thousands of allottees who didn’t want them.⁷ Subject to property taxation, the vast majority of new citizens lost their lands, many to tax foreclosure sales or mortgages taken out to pay their taxes.

In 1916, the federal courts held that Dewey County’s taxation of allottees who had not yet received patents was illegal.⁸ In response, states and local governments sought to “accelerate the release of Indigenous individuals from trust status.” (P. 65.) And federal officials complied. Between 1917 and 1920, the Indian Office issued more than 17,000 fee patents, almost double the number issued since 1906.⁹ Native people resisted, dodging mailmen with fee patents in their bags, protesting to federal agents, and suing in federal court. In 1923, the Ninth Circuit ruled in their favor, holding that fee patents without the consent of the allottee were unconstitutional.¹⁰ But by then, much of the prematurely patented land had been lost.

The year before, a new Commissioner of Indian Affairs (ironically Charles Burke, the lead sponsor of the 1906 Burke Act) had rejected Dewey County’s taxation arguments. Burke noted that the community had already received vast benefits from the Lakota: it was built upon Lakota land and the money paid to Indians brought “immense sums” to the county’s banks. (P. 65.) While about a quarter of Lakota children attended public schools, a similar fraction of Lakota families paid taxes, and the United States nevertheless reimbursed counties for Indians in public school.

Indians Now Taxed adds an important dimension to our understanding of the allotment era. Scholars (including myself) often assume that the desire for faster access to land and Indian assimilation drove premature fee patenting. But Knolle’s research shows that property taxation may have played a larger role. Further, the origins of this shift were distinctly local, rather than the broader national policies behind allotment. And while these local communities violated Native people’s rights, their actions lacked some of the greed or dishonesty often attributed to such actions. Instead, federal allotment policies had created new settlements in which property taxes, the funds necessary to build a community, were off limits without breaking the law.

And what does this add to our understanding of Indian citizenship? As to the current birthright citizenship debates, it underscores that even decades after the Citizenship Clause was ratified, Indian citizenship was linked to ordinary jurisdiction, not the allegiance or domicile that the Trump Administration claims. As earlier work by Knolle shows, Indigenous activism ensured that the 1924 Indian Citizenship Act would not deprive Indians of their federal rights.¹¹ It also reinforces the ways that citizenship, which for many other groups is the source of rights and federal protection, was deployed against Native peoples, and how Native people organized to retain their rights.

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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.

Rivalrous Remedies fills this gap. It pivots from tools that operate directly on the wrongdoer to those that operate indirectly by empowering rival competitors and other strategically situated rival actors. Deterrence remains the goal, but operates not by the wrongdoer’s fear of injunctions or fines, but instead by the prospect that misbehavior will bolster an adversary’s position. This conceptual reframe is elegant and compelling. It explains chronic underenforcement and offers new institutional design opportunities to advance solutions that will empower rivals and confer benefits.

The trans-substantive nature of remedies requires breadth of knowledge on underlying rights enforcement. This article unlocks the far-reaching impact by showing a broad spectrum of applications from intellectual property to family law, from defamation to consumer protection, and from antitrust to qui tam actions. Accordingly, the authors show that rivalrous remedies are not marginal curiosities but rather a recurring feature of the legal landscape.

For example, the article’s exploration of the misuse doctrines of intellectual property is fascinating and effective.  The misuse doctrines center on harms that are difficult to prove and monetize, yet the doctrines garner significant criticism as incoherent, overbroad, and draconian. By situating the misuse doctrines within the rivalrous-remedies conception, the article uncovers the institutional logic: misuse doctrines address underenforcement by permitting competitors to discipline rights holders who overreach in ways that harm diffuse third parties. The authors thus re-catalogue existing caselaw and explain the effectiveness of such alternative techniques.

In the civil procedure context, the authors demonstrate that rivalrous remedies confer second-mover advantages that deter excessive litigation behavior. This insight resituates longstanding debates about fairness and efficiency of procedural doctrines and litigation strategy. The authors reveal a coherent logic rather than ad hoc judicial practice. Examples within family law showcase the versatility of the framework, such as when the court confers the benefits of added visitation to a rival rather than punishing the alienating parent. This approach aligns incentives with protecting the best interests of the children.

The authors are careful not to overly romanticize rivalrous remedies. They carefully assess limits and risks. For example, rivalrous remedies can over-deter, foster strategic abuse, and garner spillover harms to third parties. The article provides caution on the proper context for rivalrous remedies to work best, including appropriate market structure and alignments of private incentives and public goals. The article offers a useful visual with a “remedies grid” that maps enforcement mechanisms along the dimensions of who enforces and how enforcement occurs. With this guide, courts and policymakers can appreciate that rivalrous remedies are not a panacea but rather a panel of tools that vary depending on the context and degree of self-execution, judicial oversight, and proximity to victims. This nuanced approach enables the article to suggest tailored normative guidance as some rivalrous remedies should be constrained, others recalibrated, and still others combined with conventional relief.

Another intriguing component of the article is its application of the rivalrous-remedies framework to emerging problems in consumer protection. The proposal to recognize a trade secret misuse doctrine—and revive a trademark misuse—to advance consumers’ rights to repair is both novel and persuasive. They compellingly argue that existing enforcement mechanisms fail because consumers and small repairers lack proper incentives to litigate against intellectual property overreach. By contrast, empowering repeat-player rivals such as independent repair companies could meaningfully shift behavior, reduce waste, and promote competition. This proposal exemplifies the article’s broader methodological contribution: rivalrous remedies are not merely descriptive artifacts, but a systematic feature of institutional design ripe for remedying persistent underenforcement in complex modern economies.

Overall, Rivalrous Remedies meaningfully contributes to remedies theory and offers valuable practical insights. Like the best of remedies scholarship, this work overcomes silos and invites scholars to rethink enforcement beyond binary traps. The proposed framework will add to the scholarly dialogue and influence decision-makers. It offers concrete, practical suggestions for courts confronting rivalrous remedies. Judges and scholars will appreciate this article’s novel frame for understanding—and enhancing—the law’s answer to habitual underenforcement. Only then will rivalrous remedies that empower rivals begin to offer jurists another useful tool to address and deter harmful behavior. Such efforts to increase judicial capacity to address ills more efficiently and effectively warrant serious attention.

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Ezra Rosser

Professor Heather Abraham’s new Article, Sheltering Discrimination: Fourth Amendment Challenges to Voucher Inspections, embodies the sort of practical, important work that often comes out of the clinical trenches. The Article focuses on what Professor Abraham describes as a second-generation effort by landlords to avoid renting to low-income tenants whose rent is partly covered by a housing voucher. As the Article notes, landlords in recent years have had some success arguing that laws prohibiting source-of-income (SOI) discrimination violate their privacy rights when such laws are combined with the inspection regimes that accompany vouchers. Through careful doctrinal analysis, Professor Abraham convincingly pushes back on this Fourth Amendment claim while also suggesting reasons other tenant-side arguments are likely to fail.

What stands out about the Article is how forward-looking it is. In recent years, SOI laws have proliferated such that Professor Abraham reports that “at least 24 states and 150 localities have banned SOI discrimination,” which protects “approximately 60% of all Housing Choice Voucher (HCV) voucher holders nationwide.” (P. 5.) In areas without SOI laws, landlords are free to openly state that they will not accept vouchers. But in areas with SOI laws, landlords have had to be creative. One emerging argument is that because of the inspection regime built into voucher programs—typically involving a pre-tenancy inspection and the possibility of subsequent inspections of both the premise and related written and electronic documents—SOI laws are unconstitutional. This Fourth Amendment-based challenge is gaining traction; a few courts have bought this privacy argument and have sided with landlords on their facial challenges to SOI laws. Sheltering Discrimination offers practitioners a roadmap for responding to such claims.

The idea that SOI laws violate the privacy rights of landlords seems straightforward. From the perspective of landlords, SOI laws mean landlords cannot discriminate against voucher holders, as voucher holders (there are other ways they skirt such laws), which means they are forced into a scheme that involves inspections without their consent. The bulk of the Article is dedicated to a careful and critical doctrinal analysis of the claims made by landlords. At the end of the Article, Professor Abraham shows the limitations of one initial reaction (the one this reviewer had), that such inspections could just be imposed on landlords as a condition of being in the business of renting property.

Blending academics and practice, the Article offers what amounts to a roadmap of the arguments tenant advocates should raise in response to privacy-based facial challenges to SOI laws. As Professor Abraham highlights, many of the challenges should fail because the claims are being made prior to landlords experiencing actual injury. SOI laws are not facially unconstitutional, the Article argues, because the inspection regime associated with voucher programs is separate and apart from SOI laws. This point risks being a bit too technical, relying upon the fact that SOI laws by themselves do not require inspections, instead such requirements are part of the voucher programs. One could push back by observing that in practice, SOI laws and voucher programs work in tandem and do so by design—after all, SOI laws are passed to get landlords to accept vouchers—but the sort of clever line drawing behind Professor Abraham’s attack on facial challenges is exactly what good lawyers (and good academics, for that matter) should do. Not all readers will be convinced as a policy matter, but it is a smart argument that walks a careful doctrinal line. The Article’s other defenses of SOI laws in the face of Fourth Amendment challenges emphasize the difference between administrative searches and other searches, as well as the ways tweaks in tenancy contracts could protect SOI laws from being struck down.

What is great about this article is how it manages to show the importance of SOI laws even as it breaks new ground in a sub-field (low-income housing) at risk of saturation. Academic work often is reactive and suffers from a terrible time lag. Though there have been a few successful challenges to SOI laws, as well as troubling moves by conservative states to block local SOI laws, these are still likely the early days when it comes to landlord attempts to use the Fourth Amendment to invalidate SOI laws. Attacking SOI discrimination is crucial in the pursuit of fair housing because otherwise many tenants, including low-income minority households, will find themselves effectively blocked from accessing important segments of the rental market. Moreover, the nation’s reliance upon housing vouchers instead of government-owned units depends upon a functioning inspection regime. The stakes are high. If landlords succeed in their Fourth Amendment challenges, landlords will be able to confine voucher holders to the worst units in the poorest neighborhoods. Sheltering Discrimination offers tenant advocates the doctrinal tools to push back against this possibility while also offering poverty law and housing law scholars a rich understanding of the next wave of landlord attacks on voucher programs and on low-income tenants.

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Izze Hanel

Colorado and New Mexico are experiencing one of the driest winters on record, with snowpack at only half its normal level. While drought has long been a challenge for this region, this dry winter—and the dry spring that will inevitably follow—may mark the start of a new chapter of scarcity, requiring adaptation across Colorado and New Mexico. Urban areas will likely be insulated from the effects of this imminent drought, since these areas have the ability to pipe water to their residents from other parts of the state and country. Those living in rural areas, however, typically rely on spring runoff carried by local rivers to meet their water needs and must follow the doctrine of prior appropriation (“first in time, first in right”): the first person to divert water for a beneficial use has a superior right to that water, and later users are entitled to water only after the senior user’s needs have been met. For members of rural communities who are not “first in right,” today’s snowless mountains are a sign of challenges ahead.

In his timely article, Irrigation and Society in the Upper Río Grande Basin, U.S.A.: A Heritage of Mutualism, José A. Rivera explains that in the face of challenge, the culture and traditions of acequia communities may hold the key to adaptation and survival. He posits that the cohesion offered by the Spanish language,¹ as well as the longstanding tradition of mutualismo—reciprocal mutual aid—among acequia communities, will allow them to adapt to the challenges ahead. Acequias are centuries-old gravity-fed irrigation ditches that are characterized by being maintained and managed entirely by their users in a unique form of local government. Acequia communities are spread throughout the arid and isolated areas of southern Colorado and New Mexico. While the rigid doctrine of prior appropriation shows no signs of changing anytime soon, Rivera’s article presents acequia communities’ compelling extra-legal approach to dealing with the challenge of drought: mutualismo.

Rivera begins by discussing the long history of acequia communities, which have speckled Colorado and New Mexico since the first caravans of Spanish-Mexican settlers arrived in the late 1500s. During this Spanish-colonial period, acequia water was managed by pobladores, communities of landowners, and parciantes, individual members. This local management structure remains today. Each community elects a cequier to administer the ordenazas, rules governing the ditches, and to resolve any conflicts or disputes arising from the repartimiento, allotment of water. In times of abundancia—abundance—every parciante is free to take the water they need from the acequias. In dry years, the parciantes decide for themselves who will receive water and who will not. Those who must go without are supported by ayuda mutua—mutual aid—in the form of food and financial resources from their community. As Rivera puts it, “this self-organized enterprise wed[s] the irrigators into a shared institution for water management that bond[s] them as a hydraulic society, a living culture of water based on cooperation and mutualism.” Each parciante helps to prepare the ditch and manage its use, and in turn each parciante has access to both water and a network of supportive vecinos, neighbors. This collaborative tradition is a hallmark of acequia communities, emblematic of the concept of mutualismo.

Although acequia communities may sound like idyllic enclaves, Rivera is careful to remind readers of the many challenges acequia communities have navigated. The arrival of the railroad in the 1800s signaled the start of the American territorial period, which brought with it new institutions that competed with acequias for water and land. Importantly, many of these institutions finagled their way into being deemed “first in time” for water allocations, pushing acequia communities down the priority list. Facing threats from land speculators, cattle companies, mining interests, and capitalist investors, acequia communities formed mutualista organizations to protect their land and water rights en benefício común, for their common benefit. Rivera highlights that in the San Luis Valley of Colorado, these mutualistas worked to combat wage and racial discrimination, and to support members in times of unemployment. They offered cash subsidy benefits to members unable to work due to illness, short-term loans in times of emergencies, and funeral benefits to widows and orphans.

Through his illustration of the mutualistas and his description of how acequia communities functioned historically and at present, Rivera adeptly blends the history of these communities with the wisdom they presently hold. Both past and present iterations are characterized by a collective effort to maximize the availability of community resources, regardless of whether that resource is water, land, money, or resilience. While the world around them continually changes, acequia communities have endured because they have prioritized mutualismo.

Rivera’s message is particularly poignant today. As Colorado and New Mexico grapple with the prospect of unprecedented drought, the question must be asked: how will rural water users who are not “first in right” make it through the tribulations ahead? Rivera provides one answer. Acequia communities have survived for centuries—through abundance and through drought—not because their acequias import water when there is none, and not because they are “first in right,” but because their vecinos provide support when it is needed. Through mutualismo, acequia communities have worked around the unyielding doctrine of prior appropriation and have managed to survive. This heritage, and Rivera’s article, provide one compelling example of how to navigate the unchanging law amid the ever-changing world we live in.

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Kristina Niedringhaus

Depending on who you ask, AI will either free us from the drudgery of our everyday lives, take our jobs, or wipe out humanity. It’s nearly impossible to glance at legal news without reading something about AI. There is, however, a lot more theorizing than actual data-driven research on how AI is working for (or against) the legal profession. However, Professor Lee Peoples reports on the results of his important study evaluating and comparing the performance of various specialized and non-specialized large language models (LLMs) in legal reasoning. Spoiler alert: it varies, and not necessarily how you might assume.

Before getting to the results, let’s examine how Prof. Peoples designed the study. Many first-year law students are taught to think like a lawyer using the IRAC method. As a refresher, this is a system using distinct steps to spot the Issue, identify the Rule, Apply the rule to the facts, and draw a Conclusion about the legal outcome. Prof. Peoples selected seven fact situations from a legal research and writing exercise book and anonymized to test beginning rule analysis, skilled rule analysis, beginning analogical reasoning, skilled analogical reasoning, beginning statutory analysis, intermediate statutory analysis, and skilled statutory analysis. Very importantly, Prof. Peoples told the LLMs not to train on the prompts used in the testing.

Prof. People’s study is thoughtfully and intentionally designed. For example, he explains, “LLMs’ statutory reasoning abilities were explored in more detail because previous studies have demonstrated LLMs’ tendency to hallucinate when analyzing statutes.” (Pp. 56-57.) In response, he has tested three skill levels of statutory analysis to tease out more specificity about LLMs’ capabilities in this area. Other important features of the study include temperature setting (to limit randomness), nucleus sampling (to set a threshold probability), using zero-shot prompting (without additional examples), and employing iterative prompting (such as instructing the LLM to process step by step or to use “chain-of-thought” reasoning). The study tested “Lexis+ AI, Anthropic’s Claude 3 Sonnet, Open AI’s CPT 3.5, Microsoft’s Copilot 365, and Google’s Gemini lightweight LaMDA” in April and May of 2024. (P. 57.)

​Prof. Peoples ​assessed ​the results of the prompts ​using eight scoring categories. Six measured different aspects of legal analysis directly; one measured response to iterative prompting; and one measured whether the model hallucinated. Refer to the article for a full explanation of scoring but the categories are: “relied on sources as instructed,” “issue identification,” “stating the rule,” “applying the rule,” “reaching the correct conclusion,” “conclusion stated with certainty,” “correctly responded to the prompt to use chain of thought reasoning,” and “hallucination.” Prof. Peoples explains these categories and the scoring rubric in greater detail, but I think the important takeaway is the variability in performance, not just between models but also within the same model across different tests. This result may feel familiar. My very unscientific survey of more advanced AI users finds they almost uniformly prefer different LLMs for different types of tasks.

Based on the total scores across all tests, Claude won the day, with Lexis + AI trailing the pack. However, as you would expect, the results are more nuanced than the total scores. For example, Copilot outperformed the other models on the Beginning Rule Analysis test, with Claude performing second best but lacking some detail. You might expect a similar result in the Skilled Rule Analysis, but in fact, Claude performed best with Copilot performing worst. In the Skilled Rule Analysis, Lexis+ AI came in second, although Prof. Peoples noted that the Lexis+ AI response had less certainty than the other models.

The statutory analysis tests indicated greater difficulty with legal analysis. All the models performed reasonably well on the Beginner Statutory Analysis test. Interestingly, only Lexis + AI referenced an important state rule critical to the response that wasn’t mentioned in the fact situation. At the same time, Lexis + AI also cited an irrelevant rule that didn’t apply to the facts. This moderate success across all models progressively degraded in the Intermediate and Advanced Statutory Analysis tests.

I’ve frequently heard the AI lore that prompting an LLM to think in steps, or use chain-of-thought, should improve the results. Prof. Peoples’ study indicates that this may not always be true. His results showed that Claude, Copilot, and Gemini improved with a chain-of-thought prompt, with the improvement most pronounced in more complicated scenarios. Meanwhile, the results from Chat GPT 3.5 and Lexis+ AI did not see the same kind of improvement.

Hallucinations may be the most publicized of the legal malpractice disasters using AI. Surprisingly, in Prof. Peoples’ study, all of the models performed with zero or only one hallucination, except Lexis+ AI, which had a hallucination rate of 57%. Prof. Peoples notes, however, that a study of mostly specialized legal LLMs conducted in May 2024 found that Lexis+ AI had the lowest hallucination rate among the models tested. (Varun Magesh, et al., Hallucination Free? Assessing the Reliability of Leading AI Legal Research Tools.) Lexis+ AI’s performance in the study relative to non-specialized LLMs is surprising, but Prof. Peoples suggests this may be because the data universe used by Lexis+ AI is much smaller than that of the non-specialized models. It would be reasonable to assume that a model limited to legal materials might outperform the non-specialized LLMs because it is focused on the most relevant sources. However, Lexis+ AI was released only 6-7 months before the tests in this study. Results will likely change over time.

The most important takeaway of this study is not how the various models performed on these specific tasks but what to consider when using AI for legal analysis. In part, this is because the results of the exact same AI prompt change. As Prof. Peoples highlights, one of the issues for AI in legal work is that the results aren’t reproducible. The rule of law relies on results being consistent across similar situations. Precedent is a critical feature of American law. However, “the instability of answers created by LLMs complicates their usefulness for legal work and ability to think like a lawyer. Researchers who repeatedly input identical prompts to generative AI will never receive the same responses.” (P. 75.) (A recent article on inconsistency that may be of interest is Or Cohen-Sasson, Stochastic Justice: Legal Inconsistency by Human and AI, (2025).)

Another issue for AI, that seems intractable, is the lack of transparency often present regarding the algorithms underlying the system and the details of the information models on which they were trained or which they can access. This is protected as intellectual property and a trade secret, but leaves users mostly clueless about how the model works, what it prioritizes, and what information it is using as a basis for responses. This lack of understanding would be challenged, or at least queried in most other legal processes, but is often accepted when using AI tools.

Prof. Peoples’ study on the efficacy of LLMs for legal analysis should be required reading for law students and lawyers using AI tools, and can serve as a guideline for examining the performance of those tools.

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Jaya Ramji-Nogales

What do we learn by reading the international law of migration from the perspective of migrants from the Global South? Deftly weaving together various strands from legal and social science literature to produce a brilliant new theoretical tapestry, Usha Natarajan’s book chapter, Third World Approaches to International Law (TWAIL) and Migration, offers a relational and contextual take on that question. She suggests three new ways of understanding international law in this sphere: as a harmful relationship between control and protection; as a constructor of categories that limit contestation; and as a phenomenon destructively co-constitutive of migration. This critique lays the groundwork for her proposal to build an international law of migration that is “more expansive, evidence-based and ethically consistent . . . as advocated for by TWAIL scholars.”

TWAIL is a movement of international legal academics that coalesces around a shared critique of the Global North’s domination of knowledge production in the field. TWAILers offer a diverse set of viewpoints and methodologies, yet share a commitment to foregrounding the perspectives of the people of the Third World in international law through policy-making, practice, and scholarship. Prof. Natarajan offers the reader both a useful overview of existing TWAIL literature on international migration law and an important new framing of that work, elucidating the synergies that emerge when the range of TWAIL insights are put in conversation with each other.

Prof. Natarajan’s first analytical move sets out two separate but related categories that constitute the international law of migration: laws of control, which determine who moves and who decides who can move, and laws of protection, which focus on the treatment of migrants. The chapter emphasizes the recency and contingency of control laws, describing how international law produces and normalizes the “sovereign prerogative,” manifested in extreme deference to state authority to control the movement of migrants. These laws of control construct the migrant as a vulnerable being, necessitating laws of protection to contest that vulnerability. Prof. Natarajan highlights the futility of this project, suggesting that laws of protection may be no more than an effort to salve the global community’s conscience in the face of exploitation and abuse of migrants, and to offer migrants hope for a brighter future that never materializes. She also explains insightfully the dangerous relationship between the two sets of laws, namely that “control laws ensure that protection laws are permanently necessary but inadequate.” This relational understanding of international migration law shines an incisive, critical light on the shortcomings of the field.

The second contribution draws together several strands of the legal and social science literatures, explaining the range of ways in which international law structures contemporary understandings of migration and limits the universe of available challenges. In short, international law fails to attend to migrants’ perspectives, instead constructing binaries and hierarchical categories that are disconnected from the reasons for and results of human mobility. The law creates exceedingly narrow categories of migrants who can avail themselves of the protections of non-refoulement, which is the only exception to the sovereign prerogative of border control. International law also prioritizes political and civil rights over social and economic rights as a basis for protection, creating arbitrary hierarchies of suffering. The law’s focus on crisis rather than systemic causes of migration precludes rational and sustainable governance of migration. These criticisms have been levied against international migration law and international law in general by a range of TWAIL scholars; the contribution of the chapter is to tie them together cohesively and coherently into an overarching critique of the law. Prof. Natarajan offers an important reminder that this constrained understanding is contingent, not natural, creating space to imagine more emancipatory futures.

Finally, the chapter offers a third valuable insight, namely that migration and international law are co-constitutive, defining and legitimating each other to the detriment of migrants. In the common understanding of international law, migration is a domestic matter, and all decisions about law, policy, and enforcement are made by the state. In other words, international law constructs a sovereign world that restricts human mobility by default, thereby creating the “migrant.” Prof. Natarajan contrasts contemporary international law’s restrictions on human movement with the centrality of migration to imperialism, supported by international legal legitimation of the mass migration of settler colonials from Europe to the Global South. She links this paradox with international law’s preoccupation with mobility to the Global North, and the looming specter of “brown hordes” at the border, despite the reality that most human movement occurs within the Global South. Without the “migrant” that it has constructed, the sovereign would lose substantial existential justification, and without the sovereign prerogative, Global South people on the move might be considered humans rather than migrants.

Prof. Natarajan offers an invaluable introduction to the TWAIL literature on international migration law, as well as an insightful synthesis of that work into an original theoretical framing of the field. She foregrounds a powerful call from TWAIL scholars to work towards a “legal framework more closely attuned to why people are moving, with a view to ensuring more humane and orderly population movement.” This chapter provides scholars and practitioners with a formidable foundation to guide the struggle towards that future.

The post Beyond the Sovereign Prerogative: TWAILing Global Migration appeared first on Lex.

Aila Hoss

In its foundational Indian law decisions, the U.S. Supreme Court has consistently recognized federal supremacy on all matters regarding Indian affairs. This plenary power can preempt both Tribal and state authorities. SCOTUS granted certiorari in Haaland v. Brackeen to assess the constitutionality of the Indian Child Welfare Act (ICWA), with some of the challenges being on the basis that the law infringes on state authority under the Tenth Amendment’s anticommandeering doctrine. Indian country anxiously awaited to see if the court would once again abandon longstanding Indian law precedent in favor of state rights, as it recently did in Oklahoma v. Castro Huerta. The court concluded that ICWA was valid. But, the decision left me confounded on the continued viability of anticommandeering arguments to strike down federal Indian affairs legislation. Fortunately, Professor Ann Tweedy’s recent article, Anticommandeering & Indian Affairs Legislation, published in the Harvard Journal on Legislation, considers the applicability of anticommandeering to Indian law following Brackeen.

The anticommandeering doctrine holds that when Congress requires states to adopt or enforce federal law, such actions violate the Tenth Amendment. First articulated by the Supreme Court in the 1990s under the Rehnquist court, the doctrine has been successfully used to strike out provisions of various pieces of federal legislation including the Low-Level Radioactive Waste Policy Amendments Act (required states to take title and assume liability for radioactive waste within their borders), the Brady Handgun Violence Protection Act (required state and local law enforcement to conduct background checks on prospective gun buyers), and the Professional and Amateur Sports Protection Act (prohibited states from establishing sports gambling regulatory schemes).

Congress passed ICWA in 1978 in response to “an alarmingly high percentage of Indian families [] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and [] an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.” In custody proceedings involving an Indian child, the law provides Tribes sole jurisdiction when the child resides or is domiciled in Indian country or when the child is a ward of a Tribal court. In all other scenarios, Tribes and states maintain concurrent jurisdiction. When the proceedings are in state court, ICWA mandates substantive and procedural safeguards to ensure Tribal access to the proceedings and to prevent the breakup of Indian families. ICWA also establishes placement preferences for members of the child’s extended family; other members of the Indian child’s Tribe; and other Indian families. ICWA has led to increased Tribal participation and Indian placements in applicable child custody proceedings.

The original plaintiffs (three non-Native couples, the birth mother of an Indian child, and Texas, Louisiana, and Indiana) challenged ICWA on a variety of bases, including the nondelegation doctrine, the Equal Protection Clause, and the Tenth Amendment. In the Court’s June 2023 decision, none of these challenges proved successful, although the Court dismissed the equal protection arguments due to lack of standing, leaving room for future litigation on that issue on the merits. In the context of anticommandeering, Justice Barrett, writing for the majority (joined by Roberts, Sotomayor, Kagan, Gorsuch, Kavanaugh, and Jackson), dismissed the numerous anticommandeering arguments raised by the plaintiffs against various ICWA provisions. Professor Tweedy deftly untangles all of the arguments and the Court’s response against their application.

To summarize, the Court concluded that the anticommandeering doctrine does not apply to legislation like ICWA “that applies ‘evenhandedly’ to state and private actors.” It also found that ICWA’s placement preferences and recordkeeping requirements were not sufficiently burdensome to run afoul of the Tenth Amendment. Finally, it found that Congress can direct state courts to follow federal law due to federal preemption.

Although the anticommandeering doctrine was not successful in striking down ICWA, it could be successful in striking down other federal Indian laws. Professor Tweedy argues that the majority could have made the case against the application of the anticommandeering doctrine more simply and more broadly: “[T]he Tenth Amendment generally has no application in the context of Indian Affairs legislation, particularly where Congress has directly spoken on an issue, given Congress’s plenary power in that area.” (P. 59.) Instead, the Court took what Professor Tweedy describes as a “granular” approach the application of the anticommandeering doctrine in Indian affairs. By doing so, the Court opens the floodgates to litigation on other Indian affairs legislation.

Professor Tweedy highlights another important flaw in the majority’s discussion of anticommandeering. The Court had previously only examined the anticommandeering doctrine against federal legislation passed under Congress’s interstate commerce authority. The Court fails to consider whether the doctrine should apply in the context of the Indian Commerce Clause, part of the basis of federal supremacy in Indian affairs, the scope of which differs from that of the Interstate Commerce Clause.

The anticommandeering doctrine is not going away. But Professor Tweedy’s important work may provide a path to limit the viability of anticommandeering claims in Indian country moving forward.

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Cynthia Alkon

The pandemic forced courts (and every other part of society) to do things differently. These changes continue to be a gold mine for scholars as we continue to learn lessons about the impact of these changes. Professor Wechsler’s article is a wonderful example of looking at one specific area, civil protection hearings for survivors of intimate partner violence, and examining COVID-19-generated lessons that could improve the process moving forward. The article is grounded in original empirical research with survivors and legal services providers and focuses on procedural justice, empowerment, and access. Although civil protection orders are the most common legal remedy sought by survivors of intimate partner violence, this article examines how different options for filing protective order petitions and hearing participation are important to survivors.

The article is based on two complementary and original empirical studies. The first is a survey of intimate partner violence survivors in New York City family courts who sought protective orders during the pandemic. Notably, 85% of participants were women of color, ensuring that the study centers the voices of those disproportionately impacted by intimate partner violence but who are often marginalized in policy debates. The second was a survey of legal services providers nationwide, documenting changes in protective order procedures before, during, and after the pandemic restrictions. Methodologically, this dual approach gives the article both depth and breadth with rich qualitative accounts from survivors themselves, combined with a broader procedural landscape from practitioners’ perspectives. Importantly, Professor Wechsler builds on prior scholarship without duplication, providing new empirical insights.

Professor Wechsler’s key findings included comparing in-person vs. virtual hearings. She found that whether survivors preferred in-person or virtual hearings was driven by individual safety concerns, technology access, and perceptions of fairness. She found that virtual hearings can reduce barriers for some survivors (due to transportation costs, childcare needs, and risk of encountering the abuser in person) but can disadvantage others (due to those lacking private space or fearing reduced credibility before the court). She found that many jurisdictions returned to pre-pandemic practices, eliminating virtual options, despite their benefits to certain groups.

By introducing a statutory framework of “accessible process pluralism,” Professor Wechsler not only critiques going back to pre-pandemic practices but also charts a realistic, implementable path forward—one that balances fairness, safety, and empowerment. This framework would allow survivors to choose the method of filing and hearing participation. It would require judges to honor these preferences absent good cause. And it would integrate accessibility features that reduce procedural burdens on pro se petitioners, who constitute the majority of protection order seekers.

This article’s reach is broad and practical. Professor Wechsler offers judges, court administrators, and advocates data-driven reasons to adopt procedural flexibility. She gives legislators a statutory blueprint ready for implementation. For legal scholars, it contributes to the literature on access to justice by demonstrating how procedural flexibility can be systematically embedded into statutes to promote fairness and efficacy. Its conceptual framing — linking process pluralism to empowerment theory — enriches both fields and provides a transferable model for other contexts where litigants face significant barriers to participation.

This article is a deep dive into an important area and a powerful argument of why courts should move away from “one size fits all” processes, while giving concrete recommendations on how to make a flexible process approach work for one often disadvantaged and disempowered group.

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Ian Stephens

Textualism confounds the linkage between jurisprudential methodology and philosophy. In popular conception, a judge’s choice of interpretive tools is bound to be tightly intertwined with the ideological flavor of that judge’s outcomes: originalism or strict constructionism lead to conservative results, while living constitutionalism or purposivism lead to liberal results. Textualism, once pilloried as a tool of the right, is now making a play at escaping that perceptual mold. As the methodology has become more and more ubiquitous, it has taken on a new character. It now boasts of broad acceptance throughout the judiciary and even such conservative paragons as Neil Gorsuch and Clarence Thomas have sometimes followed textualism toward what might seem rather progressive outcomes. Muldrow v. City of St. Louis,¹ decided last term, is sure to join cases like Southwest Airlines v. Saxon, New Prime v. Oliviera, and the quintessential Bostock v. Clayton County in the pantheon of progressive textualism.

Missouri’s Sandra Sperino makes this point in her forthcoming article, When is Discrimination Harmful?, where she explores Muldrow’s dominating use of textualism to drastically expand the reach of employment discrimination laws. But, in its quest to excise subjective applications of Title VII, the Muldrow Court opened just as many doors as it closed—leaving lower courts to struggle with applications that are no less subjective than the standard Muldrow abandoned. What’s the root of this inextricable challenge? Sperino posits that the concept of “harm,” a foundational component of anti-discrimination law, inevitably “rests on judgments that cannot be answered through the statutory text alone.”

Muldrow concerned the transfer of a St. Louis police sergeant to a less prestigious and subjectively rewarding position because of her sex. Most circuits had held that transfers without a change in rank and pay like this do not constitute “harm” within the meaning of Title VII. Instead, actionable harm must rise to the level that it is “materially adverse” to the plaintiff. Muldrow rejects that standard, offering instead that the plain text of Title VII requires nothing more than a showing of “some harm.”

But, Professor Sperino and others, myself included, have noted that “some harm” is hardly more definite than “materially adverse.” The new standard is certainly lower, but how much lower is not clear, and the statutory text seems insufficient to reveal the answer. My own take on Muldrow would look beyond the text toward corresponding legal conceptions of harm.

Professor Sperino agrees. But from Muldrow she offers a more universal approach. Title VII, she suggests, was designed to be broad—and even ambiguous in parts—so as to leave room to “strike at the entire spectrum” of discrimination. The some-harm standard demonstrates this malleability. So, while textualism can answer some of the questions Title VII poses, stopping there leaves the job only half done. Taking the next step further, courts should look to the history and purpose of Title VII for answers.

In many ways, the modern approach to statutory interpretation, that leaves extraneous sources and policy off to the side, is superior. Done right, it avoids the manipulation, bias, and subjectivity that an open universe can introduce. But one of its biggest pitfalls is that past Congresses often wrote laws with the assumption that courts would look more broadly at the law’s history and purpose. In the case of Title VII, Sperino explains, this meant Congress wrote open-endedly—expecting that courts would apply the law as needed to strike broadly against discrimination. Indeed, many of the core tests courts apply to Title VII were developed by reference to its objective, not its text.

Sperino makes a compelling case for a more comprehensive approach to discrimination law. In fact, I might even go a step further to argue that Title VII and its sister-statutes double as one of a class of background statutes that provide context to the law more broadly. As courts grapple with the unanswered questions Muldrow left, they should take Professor Sperino’s lesson that those questions are supposed to be there. And they should take heed that answers exist, not just in the statute’s text, but in its character.

The post New Standards, New Questions, and Old Answers appeared first on Lex.

Marco Jimenez

Whenever I teach remedies, one of the first principles we cover is that compensatory damages should put the plaintiff in their “rightful position” by returning the injured party to the position it would have occupied but for the defendant’s wrongful harm. Students quickly grasp this concept and its corollary, which I sometimes refer to as the “Goldilocks principle”: courts often try to award the amount of damages that is “just right”—neither too much (creating an undeserved windfall for the plaintiff) nor too little (leaving the plaintiff undercompensated). Anything that makes a plaintiff better off than before the injury seems obviously problematic.

In his outstanding article Making Whole, Making Better, and Accommodating Resilience, Professor Erik Encarnacion challenges this conventional wisdom in ways that are both intellectually sophisticated and practically important. The piece makes a compelling case that reflexive avoidance of any “betterment” often leads to systematic undercompensation, and that a more generous approach to compensatory damages is not only doctrinally supported but normatively required.

Three Arguments Against Anti-Betterment Orthodoxy

Encarnacion’s argument unfolds through three interconnected claims. First, he demonstrates that courts already permit compensatory awards resulting in material betterments more frequently than conventional wisdom suggests. Cases like Burr v. Clark illustrate this point: when a repair technician accidentally destroyed the plaintiff’s old, malfunctioning water boiler, the court awarded the full cost of a new replacement without any depreciation offset. The plaintiff clearly received a “betterment”—a new boiler for an old one—yet the court refused to treat this as an unjust windfall. Encarnacion argues that this outcome exemplifies how existing doctrine permissibly accommodates such betterments, particularly when strict adherence to pre-injury value would be “inequitable or inappropriate,” a standard recognized in Section 9 of the forthcoming Restatement (Third) of Torts: Remedies. (P. 1357.) Encarnacion further notes that the Restatement explicitly recognizes this broad standard, encompassing situations where benefits are “thrust upon” plaintiffs, are not readily convertible to cash, and are unwanted, or when the plaintiff was “already entitled” to the benefit. (Pp. 1357-59.)

Second, and more provocatively, Encarnacion argues that such betterments are not merely exceptions to the make-whole ideal but can even be required by it. His key insight is that compensatory damages are fundamentally “substitutional”—they aim to provide reasonable substitutes for losses rather than perfect restoration. As he explains, “reasonable or next-best substitutes may in some respects be better than the thing being substituted for along some significant dimensions, even if not in all dimensions preferable to the original. That is just part of what it means for something to be a substitute.” (P. 1374.) He elaborates that the goal is often to restore the lost “use value” of property to the owner—its value for its intended purpose—rather than strictly its market value, with any market betterment being an incidental byproduct of fully restoring that use value. When the best available substitute necessarily involves some improvement, courts should focus on providing adequate substitutes rather than mechanically avoiding any betterment.

Third, Encarnacion introduces the genuinely original concept of “resilience interests”, arguing that victims have compelling interests not just in recovering from setbacks, but in “bouncing back better” in the aftermath of wrongdoing. (See Part IV, Pp. 1383-92.) These resilience interests deserve recognition in tort law, even when accommodating them results in material betterment.

The Power of Substitutional Thinking

What makes this article so compelling is how it reframes familiar problems through concrete examples that expose hidden assumptions. Consider Encarnacion’s “Coffee” hypothetical: you negligently bump into me, causing me to spill my homemade coffee. Being decent, you offer to buy me a replacement coffee from the pricey corner shop—the only reasonably available option. The replacement turns out to be more expensive, more voluminous, fresher, and tastier than my home brew. I’m clearly better off. But here’s Encarnacion’s key insight: it would be unreasonable for you to later send me an invoice seeking the difference between what you bought and what I lost. As he puts it, seeking such reimbursement would mean you are “seeking to retroactively force me to help pay for an improvement of my holdings—more and better coffee—that I secured only as a result of your negligence.” (P. 1378.) The substitutional framework reveals that when the only adequate substitute happens to be superior, basic fairness suggests the wrongdoer should bear the full cost rather than forcing the victim to finance their own improvement.

This insight has profound practical implications. A homeowner whose kitchen is destroyed might reasonably choose energy-efficient appliances as part of recovery, or a business whose computer system is damaged might upgrade to more secure technology. Rather than viewing such choices as opportunistic, Encarnacion’s framework sees them as legitimate aspects of obtaining adequate substitutes for what was lost.

Resilience as Innovation

Perhaps the article’s most innovative contribution is the introduction of resilience interests into remedial theory. Encarnacion persuasively argues that tort law should accommodate a victim’s interest in building back better. This psychological and moral dimension of recovery has been largely ignored in traditional remedial analysis, yet it captures something deeply important about how humans experience and respond to wrongdoing.

The concept of resilience provides a principled foundation for allowing victims to undertake reasonable improvements as part of recovery. It recognizes that sometimes the most effective way to restore a victim’s sense of security is to allow them to emerge stronger than before, and that requiring wrongdoers to bear reasonable costs of this process serves important values. Importantly, Encarnacion acknowledges that “not every betterment is justifiable” (P. 1344); a minor injury should not lead to a multi-billion-dollar verdict simply because it would make the plaintiff better off. He suggests that unreasonable betterments are less about concerns for “windfalls” or “unjust enrichment” and more about whether they are “punitive or unjustly exploitative” of the defendant. (P. 1344.) His analysis in Part V provides important limits, suggesting that while proportionality and the so-called “duty” to mitigate damages are relevant, they aren’t the full story; instead, courts should guard against betterments that manifest punitive behavior or constitute ex post exploitation. This nuanced approach makes his argument for allowing betterments even more robust.

Conclusion

By challenging reflexive hostility toward any form of betterment, Encarnacion provides courts and practitioners with tools for reaching more generous and fairer results. His analysis suggests that judges should be more skeptical of defendants’ claims for depreciation offsets and more willing to award plaintiffs the full, reasonable costs of repair or replacement, even when some betterment occurs.

Making Whole, Making Better, and Accommodating Resilience takes what seemed like settled remedial law and reveals its hidden depths and possibilities. For remedies scholars, this piece offers fresh ways to think about compensation and restoration. For practitioners, it provides powerful theoretical support for arguing that clients deserve adequate substitutes rather than bare-bones compensation. For judges, it offers a more principled approach to remedial decision-making.

This article should be read by anyone interested in tort theory, remedial philosophy, or the intersection of law and human psychology. It represents exactly the kind of scholarship that makes legal academia worthwhile—challenging settled assumptions and revealing new possibilities in familiar terrain. I, for one, look forward to exploring Encarnacion’s insights with my Remedies students, confident that rethinking what it truly means to provide adequate compensation will enrich our understanding of one of the law’s most fundamental goals.

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