Thomas Bustamante

Bentham’s account of political authority is often deeply misunderstood. Legal theorists too easily buy Hart’s critique of imperativist jurisprudence, as presented in The Concept of Law, without bothering to check what Bentham said about language, perception, fictitious entities, analysis, paraphrasis, inference, judgment, universals, norm expression per adoptionem, the logic of imperatives, or the very notion of a “habit” of obedience. Nonetheless, in recent years, we have seen more careful reconstructions of Bentham’s work. In one of these works, Postema highlighted the connection between Bentham’s epistemology and the expressivist theory of language on the one hand and the principle of publicity and the rule of law on the other.¹ Given Bentham’s departure from the Cartesian representationalism that is still found in several accounts of meaning and reference, I have argued that “Postema interprets Bentham … as a linguistic pragmatist avant la lettre.”² But anticipating a substantial part of the most sophisticated forms of linguistic pragmatism is not the only remarkable achievement of Bentham’s philosophy of law and politics. The notions of command and political authority, for Bentham, cannot be understood apart from the practice of criticizing the acts of those in power and keeping the code of laws of a political community under a “perpetual commentary of reasons.”³ The legitimacy of a legal system rests on the existence of accountability mechanisms, such as the Public Opinion Tribunal (POT) and certain institutional structures for the appropriate interpretation and criticism of law – not only through court procedures and governmental acts, but fundamentally through the judgments of ordinary people. According to Bentham, “the catechism of reasons is worthless, if it cannot be made the catechism of the people.”⁴

Crucial for this public critical scrutiny of the law is Bentham’s notion of laws in principem – the laws that apply to the sovereigns, or those in power. Xiaobo Zhai’s recent essay, Bentham on Laws in Principem, Judicial Review, and the Public Opinion Tribunal, shows that the idea of laws in principem is not only immune to Hart’s objection that imperativist theories of law are unable to make sense of power-conferring rules and laws imposing official duties, but also gives form and determinate content to a republican ideal that is usually overlooked. Continue reading "Bentham on the Citizen’s Duty to Hold Political Authorities Accountable"

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Nicholas Parrillo

The election of Donald Trump to a second term has brought to power a political coalition that is alienated from—and distrustful of—the federal bureaucracy, by which I mean career officials in federal agencies (a.k.a., civil servants). The second Trump Administration has been carrying out a historic campaign to remove civil servants from their posts and to disempower those who remain. In this context, Nicholas Bednar’s excellent article, Presidential Control of the Civil Service, is essential reading.

Bednar’s analysis of the civil service goes against two familiar narratives. The first is that career officials are so entrenched that nobody can effectively defy them—a view that seems less plausible than it once did, in light of the second Trump Administration’s apparent impact. That impact may trigger a reflex in many of us to interpret current events in terms of a second familiar narrative: the Roberts Court’s embrace of unitary executive theory, allowing the President to assert greater vertical control over agency officials, notwithstanding statutory constraints to the contrary. To Bednar, both narratives are inadequate. He proposes a third. The civil service has never been terribly entrenched (at least not as a legal matter) because Congress has long delegated broad power to the President to shape the career officialdom. If a President distrusts the civil service and seeks to tame it, this can be done—and it can be done primarily through the President’s statutory powers. The constitutional theory of the unitary executive isn’t much needed for the task. Continue reading "The Administrative Law of the Civil Service"

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Michael C. Duff

I really “like lots” Elizabeth Ford’s recently posted work-in-progress, Thin Blue Advantage: Police Exceptionalism and the Two-Tier System of Public Sector Collective Bargaining. The article is engaging as a careful empirical explanation of the great variety of collective bargaining agreements in use in the United States. But that is only the beginning of its accomplishments. At a deeper level, the article bravely takes on and reckons with the question that every union organizer in communities of color has faced: “why do police unions get away with so much?” (P. 45.)

Imagine you are a young worker of color who believes that white cops routinely get off the hook for brutalizing communities of color based on “technicalities” contained in “union contracts” about which you otherwise know little. Your initial exposure to the entire idea of collective bargaining is as a shelter for the exercise of illegitimate power. It is one thing for proponents of unions to argue, factually and correctly, that cops are workers, too. And people of good faith realize that the job of a police officer is horrendously dangerous. But many workers of color may still believe at the most basic level that union contracts protect racist cops. Telling them that they are simply wrong can make a bad situation worse. Continue reading "An Honest Look at Police Union Contracts – Beat Them or Join Them?"

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Reid Weisbord

Inheritance law scholarship usually addresses some form of the question: “Who gets what?” But in their remarkable new article, Uneven Ground: New Mexico as a Case Study of a Growing Rural Estate Planning Crisis, Sergio Pareja and Sophie Rane ask another important question: “Where?” Pareja and Rane’s landmark empirical study reveals that, in rural America, cracks are forming in the foundation of wealth transfer law’s basic infrastructure. The consequences are not merely delays or inconvenience. Societal problems include immobilized property, tangled titles, and, ultimately, the loss of intergenerational wealth.

The article opens with a story that captures the problem with unsettling clarity. A New Mexico couple died intestate. Probate was delayed for a few years but was then further complicated by fractionation of the couple’s property among eleven heirs who couldn’t agree on selection of an estate administrator. The probate proceeding was ultimately abandoned. The conclusion: “Today, a small residential parcel lingers in Elias and Eleanor’s names, likely unable to be sold or used as collateral for lending.”

Unfortunately, the story of Elias and Eleanor’s estates cannot be dismissed by scholars as mere anecdote, as the article goes on to explain. What makes Uneven Ground so Jotworthy is its ambition and methodology. Pareja and Rane’s research is the product of a grant-funded empirical study constructed from obituaries, probate files, Medicaid records, and other public data collected from three New Mexico counties—Chaves, Cibola, and Colfax. In a field where probate remains notoriously under-examined, this kind of on-the-ground data collection is especially useful and revelatory. Continue reading "Empirical Insights into the Rural Estate Planning Crisis"

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Nora Freeman Engstrom

In his thoughtful—and bracing—Comment, A Shield for Whom? The Disastrous Hidden Toll of Section 230 on Children, Dominic G. Roschival revisits a familiar statute with fresh urgency.  He shows that a statute, enacted to furnish limited protection to fledgling online intermediaries, has, through aggressive judicial interpretation, become something else entirely: a sweeping immunity that displaces core commitments of tort law, discourages common-sense safety mechanisms, and leaves grievously injured plaintiffs without a remedy.

Enacted in 1996, Section 230 of the Communications Decency Act provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”¹ This protection, Congress believed, was necessary in order to “maintain the robust nature of Internet communication.”² And indeed, absent Section 230, the Internet likely would not exist as it does in its current form.³ Continue reading "Immunity Run Amok: Section 230 and the Distortion of Tort Law"

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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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