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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Sarah Waldeck

You should read Reimagining Marital Property At Death because it challenges the conventional conception that death ends the economic partnership between spouses. The authors’ insight that a marriage might (sort of) continue post-mortem prompts a reevaluation of how property is divided between spouses and of what it means to be married.

Professors Ram Rivlin and Shahar Lifshitz begin with mutuality and symmetry, two principles that inform how states divide property between spouses at death. (P. 364.) Symmetry dictates that the division of property should be the same regardless of whether a marriage ends in death or divorce. Because marital assets are divided equally in divorce, they should also be divided equally between the surviving spouse and the dead spouse’s estate. Mutuality dictates that both spouses should be able to devise half the proceeds from the economic partnership, regardless of which spouse dies first. States with an elective share that allows the surviving spouse to claim roughly half of the marital assets accept the principle of symmetry but reject mutuality because they do not provide a mechanism to transfer property from the surviving spouse to the dead spouse’s estate, even if the surviving spouse has a greater share of marital assets. Community property jurisdictions, on the other hand, embrace both symmetry and mutuality. These jurisdictions give spouses equal ownership of property earned during the marriage, thereby enabling each spouse to devise half of the marital property at death. Continue reading "Maybe Death Doesn’t Part Us"

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Sarah Swan

To truly understand all the nuances and textures in Verónica Rodríguez-Blanco’s rich argument in her recent book, Responsibility for Negligence in Ethics and Law: Aspiration, Perspective, and Civic Maturity, a reader would likely need full fluency with the methodology and language of moral and ethical philosophy: terms like akrasia, proleptic, and phenomenology dance with Hume, Aristotle, and Kant throughout the chapters. Yet the book has much to offer even the non-philosopher kings and queens of tort law. It takes on the perpetually vexing question of whether there is an actual moral justification (as opposed to a mere policy one) for negligence liability, and, through nine chapters of careful argumentation, offers its own distinct answer. Eschewing previous theories, Rodríguez-Blanco argues that negligence liability is justifiably grounded in a defendant’s failure to adopt a deliberative-aspirational perspective, when that failure has caused injury to another.

Negligence has long been a bugaboo for theories of responsibility. By definition, negligence assigns legal liability even to those whose mere inadvertence has caused injury. Whereas culpability is relatively easy to assign in the case of intentional torts— purposefully or knowingly causing injury is clearly blameworthy and deserving of deterrence and sanction—the basis for ascribing blame and liability to inadvertent actions and results is less clear, and theorists have spilled much ink offering various attempts at justifications—and refutations —of the practice. Continue reading "An Aspirational Theory of Negligence Responsibility"

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Nikia Gray, Kyle Rozema, & Danielle Taylor, Who Enters the Pipeline to Partnership at Leading American Law Firms? (Dec. 13, 2025), available at SSRN.

Kevin Woodson

Equity partners at America’s leading law firms occupy positions of extraordinary wealth, influence, and prestige atop the legal profession. Who reaches those positions, and through which pathways, is a revealing measure of how open and inclusive the profession is and has accordingly received extensive attention in both legal scholarship and the popular press. There has been less attention, however, to which new attorneys land the types of positions that plausibly place them on the path to partnership.

Gray, Rozema, and Taylor’s important new study, Who Enters the Pipeline to Partnership at Leading American Law Firms?, addresses this gap, using three decades of data from the National Association for Law Placement (NALP) to track the first jobs of over 1.2 million law school graduates between 1992 and 2023. They focus on the elite entry-level “pipeline” positions in which a large majority of partners at top law firms begin their careers—a set that primarily consists of associate positions at firms with more than 250 attorneys, but also similar positions at mid-sized firms that pay comparable salaries and federal judicial clerkships. The result is the most comprehensive empirical portrait yet assembled of who enters the pipeline to elite legal leadership and how the pipeline has changed over time. Continue reading "Access to Elite Legal Careers"

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Sara Bronin

Scholarship that highlights the far-reaching consequences of the failure of American land use law to address climate change deserves our attention. That’s why, for the second year in a row, my JOTWELL review covers this critical issue. My choice last year, Jonathan Rosenbloom’s “Sacrifice Zones,” explained how local governments could deploy a variety of zoning strategies to reduce development in areas prone to natural hazards—including relocating residents.

This year, I recommend “Land Law Localism and the Climate Resilience Paradox” by Sarah J. Adams. Adams argues that we should not count on localities to reconcile their parochial motivations with the broader imperative to adapt governance frameworks to address climate change. Her detailed, expansive article urges us to recalibrate local land use regulations before we zone ourselves out of existence. Continue reading "Exposing Zoning’s Failure to Address Climate Hazards"

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Daniel Gervais

For decades, law-and-tech scholarship has relied on intuition and analogy: a new technology arrives, legal scholars declare it “disruptive,” and commentary proliferates, particularly concerning its governance and affordances. Ryan Calo’s Law and Technology is an ambitious and lucid attempt to give an unruly field a shared intellectual backbone. Calo argues that this ad-hoc mode no longer suffices. Law’s relationship with technology, he insists, is clouded by what he calls “technological fog” (P. 86), which he describes as a recurring set of misconceptions that make technology appear inevitable, obscure human agency, and frustrate regulation. His response is a rigorous, four-step methodical approach (and he stakes his ground without hesitation: “methods are arguably what distinguish scholarship from other modes of inquiry”) designed to help legal analysis catch up with the social fact of technology.

Calo begins by grounding the reader in a deceptively simple insight: technology is not destiny but design. In Chapter One, “Technology as Social Fact,” he dismantles deterministic narratives by showing how law repeatedly mistakes contingent artifacts (driverless cars, AI systems, augmented reality) for unavoidable progress. The problem, he argues, is not that legal scholars fail to grasp how gadgets work, but that they may misunderstand the social contexts in which those gadgets operate. This diagnosis sets the tone for the rest of the book: technology confuses law because law tends to forget that technology is made by people with values and choices. Continue reading "A Method for the Madness of Tech Law"

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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. Continue reading "Stagnant Laws in an Arid World: Acequia Communities Illustrate the Key to Adaptation"

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Anders Walker

Andrew Isenberg’s Age of the Borderlands should be required reading for anyone interested in the territorial expansion of the United States. The book takes on a slew of myths about the American past, including the once-popular Frederick Jackson Turner thesis as well as the more recent “settler colonial” thesis, both of which cast westward expansion as an inexorable, perhaps inevitable campaign of settlement and conquest. (P. 12.) Isenberg throws this idea into question by positing that from 1790 to 1850, America was a “relatively weak” nation surrounded by “powerful European imperial competitors, even more powerful Indigenous societies, and formidable enclaves of fugitive slaves.” (P. 4.)

The result was that the United States lacked the military force to impose its will “vertically” onto the borderlands and was left having to impose itself “horizontally” through “diplomacy or commerce.” (P. 4.) This, in turn, meant that the prophetic concept of manifest destiny—the notion that God gave North America to white people—“was but one of many ways early nineteenth-century Americans imagined the future of their borderlands.” (P. 4.) To illustrate his point, Isenberg excavates five stories from the borderlands, each of which constitutes a chapter that, in turn, challenges the idea that manifest destiny drove American settlers across the continent like a horse-drawn steamroller. Continue reading "Manifold Destiny"

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