Ryan Thoreson

As feminist scholars have long observed, the rise of populist governance has often been fueled by the enforcement of rigid gender and family roles. Populist leaders frequently cast themselves as the guardians of traditional gender norms and family structures and disparage global elites as imposing new or foreign ideas on unwilling publics. Recently, right-wing governments around the globe have reliably campaigned against what they have called “gender ideology,” a flexible and protean term that can include anything from changing gender norms, to same-sex marriage, to legal gender recognition for transgender people.

Yet the rightward shift toward authoritarian governance in many countries has coincided with a relatively recent recognition of LGBTQ rights in constitutional jurisprudence. Rehan Abeyratne’s excellent new book, Courts and LGBTQ+ Rights in an Age of Judicial Retrenchment, examines how LGBTQ rights have fared amid democratic backsliding and a retreat from a coordinated and generally progressive global constitutionalism. Abeyratne focuses on developments in three jurisdictions: the United States, India, and Hong Kong. He argues that decisions affirming LGBTQ rights have thus far survived an illiberal, authoritarian turn in each of these jurisdictions. This is because LGBTQ rights have provided a vehicle for judges in these jurisdictions either to signal a commitment to liberal values by recognizing at least some LGBTQ rights claims even as they acquiesce to a rightward turn in other respects, or to assert some modicum of judicial independence by ruling against the government and affirming LGBTQ rights claims in the face of growing constraints. Continue reading "Can Global LGBTQ Rights Jurisprudence Survive the Authoritarian Turn?"

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• Woodrow Hartzog & Jessica M. Silbey, How AI Destroys Institutions, 77 UC L. J. __ (forthcoming, 2026), available at SSRN (Dec. 8, 2025).
• Andrew Perlman, A Response to “How AI Destroys Institutions” (Jan. 29, 2026), available at SSRN.

Paul Horwitz

A terribly wise man once said—actually, he has said it again and again—that the core crisis of our time is an institutional crisis. The institutions of civil society—public and private, secular and religious—have seen public trust in them plummet in the polls year after year, like a Colorado Rockies fan watching the baseball standings. It’s indicative of the crisis—and the culture that feeds it—that the social-media slogan “burn it all down” rose to popularity among the cosplay revolutionaries of the Bluesky left and then became popular among the cosplay nihilists of the Twitter right.

At the intersection of nihilism and opportunism—which is to say, where we are right now—one can find the inevitable technology enthusiasts. Buoyed by a relentless optimism and unburdened by any sense of community or history, these cheerful Vandals argue that “burning it all down is good, #actually.” They have just the match to start the blaze: AI. There is no shortage of current legal scholarship on AI. (Surely a sentence with a double meaning. There’s lots of current scholarship about AI—and, no one doubts, lots of scholarship written by it, “legal scholarship on AI” in the sense that an addict is “on meth.”) There’s less on the landscape it is altering. So it’s a pleasure to find an article that focuses less on how AI is remaking everything, and more on what AI is remaking—or killing.

How AI Destroys Institutions, by Woodrow Hartzog and Jessica Silbey, focuses our attention on our civic institutions, which “form the invisible but essential backbone of social life.” Hartzog and Silbey argue that AI is “a death sentence” for these institutions. Even an AI non-enthusiast may find a lot to disagree with in this short, sharp paper. But the authors focus their lens commendably and well. It’s not a doctrinal paper. It does not, in fact, mention the Constitution. Not everything that is essential to our constitutional order does. (Arguably the most timely constitutional law book of the day is this one, and the Constitution won’t be the most important element there, either.) But the ongoing crisis of our civic institutions is both fundamentally constitutional in nature and affects our ability to respond to the more conventionally “constitutional” problems we face. AI is deeply embedded in both and should be understood as such. Continue reading "Robby The Robot vs. The Little Platoons"

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SpearIt

When NFL star Colin Kaepernick was in the spotlight in 2016 for protesting police violence, the notion of “defund the police” was just a fledgling idea in criminal justice reform. At that time, he aligned with and amplified the Black Lives Matter movement, which had reached a zenith in the wake of George Floyd’s murder in 2020. This explosive moment put police practices under heavy scrutiny and thrust the notion of “defund” into mainstream debates on police reform. Some states have embraced aspects of the “defund” ideology, but unfortunately, have faced some unsavory consequences that produce the very problem sought to be prevented.

In (Non)Police Brutality, Shawn E. Fields explains the unintended consequences of moves to defund the police. Perhaps the most damaging of these have emerged due to the reality that non-police actors can be brutal too. The main justification for defunding the police, brutality, is sometimes one of the consequences of defunding—only now it is at the hands of EMTs, mental health workers, and other police substitutes. This paradox produces a most insalubrious outcome since civilians have less legal recourse against the acts of non-police responders, leaving victims in a worse position than if they had been brutalized by police. Continue reading "How “Defund the Police” Diminishes the 4th Amendment"

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Brett McDonnell

Diversity, equity, and inclusion (DEI) efforts at the board level and beyond have been a major topic in corporate governance for the last decade or two. Those efforts have mainly focused on gender and racial diversity, but initiatives (now struck down) in California and at Nasdaq have also included LGBTQ or queer people. Turning our focus to them reveals a unique challenge: the closet. Boards and C-suites probably already contain a fair number of queer people, but most of them are not out about their status. How does the closet affect efforts to diversify boards? Are numerical goals an adequate response, or does addressing queer exclusion require deeper changes in corporate culture? Might non-queer people also benefit from such cultural changes?

Darren Rosenblum explores these questions, among others, in Queers, Closets, and Corporate Governance. They start with a quick primer on “queer.” Activists started using the word in the late 80s and early 90s to help question efforts at assimilation by more mainstream people and organizations. At the same time, theorists like Eve Sedgwick and Judith Butler called into question the stability of all sorts of categories and binaries that were at the heart of older versions of feminist theory. The theorists drew upon disciplines like structuralism and psychoanalysis to analyze subconscious, antisocial, and irrational desires. Activists and theorists both questioned prevailing sexual and gender norms and practices. Continue reading "Corporate Governance through a Queer Perspective"

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Cathy Hwang

When corporations make commitments to stakeholders, they often do so voluntarily and without contracts. But perhaps unsurprisingly, they also regularly flip-flop on those voluntary commitments.

Take retailer Target. A few years ago, it rolled out a variety of initiatives aimed at diversifying its workforce and supporting Black entrepreneurs. Nobody forced Target to do so; it appeared to have done so in response to the zeitgeist. But in January of 2026, shortly after the new Presidential administration came into power, Target abruptly announced that it would roll those initiatives right back due to “the evolving external landscape.”

In Corporate Goodwill, Caley Petrucci considers corporations’ non-binding promises to stakeholders, which are “unmoored from durable, actionable commitment[s].” The article notes that because of this unmooring, corporations regularly and easily abandon their stakeholder promises during periods of transition, such as during a merger or acquisition (M&A), or when there is a change in the political winds. It then proposes a variety of mechanisms, including contractual ones, that might do a better job of holding corporations to their commitments. Continue reading "What M&A Contracts Reveal about Corporate Stakeholder Commitments"

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Jack Beermann

Non-statutory review, ultra vires review, and Leedom v. Kyne, the leading case on non-statutory review, all have one thing in common—when I come across them, my eyes glaze over, and I pretend it never happened, hoping they will all go away. It’s like an allergic reaction. I’ve avoided talking about them, writing about them, and covering them in my Administrative Law course like the plague. Leave it to Richard (“Chip”) Murphy, famous for his entertaining and informative annual reviews of administrative law developments for the American Bar Association, to produce an article that makes them accessible, worth covering, and, almost, enjoyable to read about. Murphy’s article, Ultra Vires Review of Federal Agency Action Made Simple(r), does just that.

Statutory review, as the term implies, is judicial review of agency action under the APA or another statute providing for judicial review. Non-statutory ultra vires review is conventionally understood to provide a narrow method for seeking to enjoin agency action taken beyond the agency’s statutory authority that may not meet the finality requirement applicable to actions by the particular agency. The availability of ultra vires review is based on the Supreme Court’s 1958 decision in Leedom v. Kyne, an NLRB case the Court characterized as “one to strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition in the Act.”¹ Under current law, as the Fourth Circuit has explained, ultra vires review is “appropriate only where there is a ‘strong and clear demonstration that a clear, specific and mandatory [statutory provision] has been violated.’”² In his characteristically colorful style, Professor Murphy explains that under this view, ultra vires claims “can override finality requirements, but only for the most spectacular statutory violations.” (P. 1206.) Continue reading "Ultra Vires Review in Administrative Law for Dummies"

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Michael Z. Green

Professor Michael Selmi’s 2025 essay, DEI and the Private Workplace, examines some of the court rulings in the “upwards of one hundred cases filed” challenging the legality of workplace diversity, equity, and inclusion (DEI) practices after the Supreme Court’s 2023 decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College,  (“SFFA”). (Pp. 3-4 n.7.) SFFA concerned challenges to affirmative action practices in the college admissions setting as violating the U.S. Constitution’s Equal Protection Clause and Title VI of the Civil Rights Act. In analyzing DEI cases, Selmi notes “the long history of workplace affirmative action which differs significantly from the educational setting.” (P. 1.) Nonetheless, advocates have relied on SFFA in suing private sector employers and arguing their DEI practices violate federal discrimination statutes. (Pp. 3-4 n.7.) In his essay, Selmi examines how much SFFA “affects private efforts to diversify a workforce and what legal guidance there is on those efforts.” (P. 5.) Selmi also explains how the anti-DEI workplace cases are mostly like so-called reverse discrimination cases, that most of those anti-DEI lawsuits have failed, and that federal law still permits private-sector employers to pursue some forms of DEI.

Selmi starts with “debates” that arose during “the passage of the Civil Rights Act of 1964″ regarding how “affirmative action” would affect the development of employment discrimination law. (P. 1.) Even back then, there were “concerns that white men would be passed over by unqualified Blacks or other minorities, a view that was reflected in some of the early cases” after Title VII’s passage. (Pp. 1-2.) According to Selmi, in cases from “1979 to the late 1980s, the Supreme Court” read Title VII of the Civil Rights Act of 1964, which prohibits some kinds of employment discrimination, to allow employers, under certain circumstances, to adopt affirmative action plans based on race or sex. United Steelworkers v. Weber, Johnson v. Transportation Agency. (Thereafter, some lower courts extended those cases to cover race discrimination challenges to affirmative action plans under 42 U.S.C. 1981 (e.g. Setser v. Novack Inv. Co., 657 F.2d 962, 966-67 (8th Cir. 1981); Schurr v. Resorts Int’l Hotel, Inc., 196 F.3d 486, 499 (3d Cir. 1999) (P. 25 nn. 98-99.)) As a result, there have been “very few challenges, particularly in the lower courts,” to private-sector employer affirmative action plans. (P. 2.) Instead, most of the successful workplace affirmative action challenges argued that public sector employers, by adopting such plans, violated the Equal Protection Clause of the U.S. Constitution, which does not apply to private sector employers. Id. Continue reading "Drilling Down on Anti-DEI Case Results"

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Allison Anna Tait

Donative freedom is the guiding principle of inheritance law. This is something that many of us who teach the subject tell students every semester, at the outset of a Wills and Trusts class. We keep repeating this truism because donative freedom turns out to be the answer to many of the questions we encounter, questions about why a certain rule exists or why a court case produces a certain result. What happens less frequently is sustained inquiry into the principle of donative freedom, its history, and the political economy supporting it.

In their article, Donative Freedom, Disrupted, Carla Spivack and Deborah Gordon engage in just such an inquiry, taking on the primacy of donative freedom as an ordering mechanism and foundational principle in inheritance law. Three pillars, Spivack and Gordon tell us, have traditionally supported the edifice of donative freedom: philosophy, history, and economics. These pillars have been reinforced over time, bolstered in their foundation by theorists, legislators, and courts. Nonetheless, Spivack and Gordon observe, reports concerning the strength and utility of these pillars have been greatly exaggerated. Continue reading "Less Freedom and More Equality"

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Anthony Sebok

The Pain Brokers by Prof. Elizabeth Burch (Georgia) describes the terrible treatment suffered by a group of women who had a defective surgical device implanted into their bodies. Unlike the more familiar stories about products liability involving DES or asbestos, The Pain Brokers focuses not on the wrongdoing that led to the defective products reaching the market, but on the wrongdoing that followed the discovery of the defendants’ liability. This is the story of the mass tort system being weaponized against plaintiffs.

The Pain Brokers is a work of general nonfiction which will appeal to various audiences. It takes the reader into a world that many may have already encountered in books like Michael Lewis’ Liars Poker and films like The Wolf of Wall Street. No one in the early 21st Century would be shocked to discover that lawsuits can be commodified and sold just like junk bonds or crypto currency. The book will appeal to readers who believe that America is dangerously obsessed with financialization, to the detriment of the larger society. Continue reading "The Shame of Mass Torts"

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Seth Endo

Multidistrict litigation (MDL) cases now comprise a majority of the federal docket. And MDLs often are one of the only means of providing victims of mass-torts with the possibility of redress. But even after Federal Rule of Civil Procedure 16.1 took effect on December 1, 2025, there is limited guidance for courts, lawyers, and litigants. Despite this, as Nora Freeman Engstrom identifies, “These decisions can affect hundreds of thousands of litigants and, in many cases, the legitimacy of the civil justice system itself.” Unsurprisingly, MDLs provide a frequent subject for legal scholars.

Even the best scholarship frequently misses a vital component, however—the on-the-ground experiences and stories of the litigants themselves. Elizabeth Chamberlee Burch’s new book builds on her earlier work to address this gap, providing a unique window into the pelvic-mesh MDLs and how unscrupulous lawyers, doctors, and con artists preyed on vulnerable women. Continue reading "The Lost Story of the Pelvic Mesh Litigants"

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