Cesar Rosado Marzán

How many kinds of hammers can you name? Most people picture a claw hammer. A few might add a rubber mallet, and gamers might imagine a medieval war hammer. Skilled trades and craft persons, however, recognize dozens of designs, each built for a distinct job. A dead-blow hammer absorbs rebound; a tack hammer secures delicate upholstery. In other words, they know their hammers.

U.S. labor lawyers, by contrast, tend to reason within a constrained, Wagner Model vocabulary. The familiar, almost provincial categories appear on cue: plant or craft units, exclusive representation or members-only models, and good-faith versus bad-faith bargaining. But recent scholarship has been broadening our imagination. Professor Kate Andrias’s influential work on “sectoral bargaining,” along with contributions from other legal academics, social scientists, one historian, think tanks (both progressive and conservative), and Harvard’s Clean Slate Program, are pushing bargaining beyond the NLRA’s tired categories. A diversity of public figures, from  Senator Bernie Sanders, to Lyft President John Zimmer have also called for institutionalizing forms of sectoral bargaining. Yet critics, me included, have questioned whether many concrete examples, such as wage boards, actually involve bargaining at all. Professor Cynthia Estlund asserts they are systems of sectoral regulation, not bargaining.

Enter Professor Sara Slinn. In her upcoming chapter, Analytical Framework for Understanding Broader-Based and Sectoral Bargaining Models, Professor Slinn maps what counts as sectoral bargaining and what other tools exist. She argues that reform debates stall because scholars and policymakers use terms like “multi-employer,” “broader-based,” and “sectoral” interchangeably even though they describe different arrangements. Without a shared vocabulary, reform fragments. In other words, reformers need a clear analytical framework. Continue reading "Tools to Clear the “Sectoral Bargaining” Fog"

The post Tools to Clear the “Sectoral Bargaining” Fog appeared first on Jotwell.

Gerry W. Beyer

Who wouldn’t want to control things, even after death? The chance that your surviving family will not obey your wishes after you die is exactly why you create a last will and testament. We all long to control where our money and property goes, but shouldn’t people also be concerned with what for some of us is most important of all—where our body goes? William A. Drennan’s R.I.P.—A Financial Incentive to Protect Your Cadaver?, suggests a clever way for individuals to control the disposition of their body through financial incentives. This is valuable to everyone who wishes to have a body disposition different from what family members want for them as well as those who desire a unique or untraditional disposition. Drennan’s suggestion of financial incentives gives everyone what they want. You choose how to dispose of your final remains while your survivors get your cash.

In this article, Drennan points out although people have substantial control over what happens to their property after death, they have less power over what actually happens in the disposition of their own bodies. The article explains that state laws permit family members to override decedents’ instructions concerning the handling of their corpse. To address this, Drennan proposes the use of a financial incentive clause that gives the living family members a gift when and if they comply with a decedent’s specific disposition method. The article looks at the practicalities, enforceability, and public policy implications of this proposal while also uncovering philosophical tension between the rights of the dead and the interests of the living. Continue reading "Cash For Compliance, Buying Obidience After Death"

The post Cash For Compliance, Buying Obidience After Death appeared first on Jotwell.

Emily J. Stolzenberg, Toward a Private Law of Intimates’ Obligations, 111 Iowa L. Rev. (forthcoming), available at SSRN  (Feb. 2, 2026).

Hila Keren

Under most descriptions, contract law perceives parties as dealing with each other at arm’s length. It assumes the parties seek “to further their economic self-interest,”[1] and thus generally does not expect them to assist each other. As Richard Posner once put it in one of his decisions: “Contract law does not require parties to behave altruistically toward each other; it does not proceed on the philosophy that I am my brother’s keeper.”[2] Two excellent forthcoming articles offer a compelling challenge to this approach: Sarah Dadush’s Shared Responsibility in American Contract Law and Emily Stolzenberg’s Toward a Private Law of Intimates’ Obligations. I review the pair of articles in tandem to highlight the synergy between their significant contributions to contract law scholarship. While Dadush and Stolzenberg focus on contexts that could not be more distinct, I highly appreciate how they both illuminate the value of collaboration and cooperation in contractual relationships and argue that contract law could and should play a role in advancing them.[3] In her article, Dadush analyzes global transactions and complex supply chains at the heart of the market. Stolzenberg, by contrast, zooms in on intimate relationships between cohabitants at the market’s margins. Nevertheless, from those opposing angles, each forcefully emphasizes the collaborative or cooperative dimension of the contractual relationship. Continue reading "Collaboration and Cooperation Under Contract Law"

The post Collaboration and Cooperation Under Contract Law appeared first on Jotwell.

• Arvind Narayanan & Sayash Kapoor, AI Snake Oil: What Artificial Intelligence Can Do, What It Can’t, and How to Tell The Difference (2024).
• Arvind Narayanan & Sayash Kapoor, AI as Normal Technology, available at Knight First Amend. Inst. (April 15, 2025).
• Arvind Narayanan & Sayash Kapoor, A Guide to Understanding AI as Normal Technology, available at AI as Normal Tech. (Sep. 9, 2025).

Paul Ohm

For those splashing around in the shallow water of AI Law and Policy, it’s a heady time to be mapping old laws onto transformative AI-based technologies, such as chatbots, image generators, and AI agents. But off toward the horizon in the deeper water are worrisome shadows, forecasts for the arrival of Artificial General Intelligence (AGI), and confident but contradictory predictions about how AGI will lead to either tech Nirvana or human extinction (and sometimes, confusingly, to both). Bobbing around out there are adversarial flotillas firing potshots at one another, flying obscure banners with confusing tribal names: e/acc, long-termism, TESCREAL, to name only three. The rational thing to do has been to cover one’s eyes and ears, trying to block it all out.

There is now a third and better option to either avoiding or diving deeply into the AGI waters: read the recent works by two Princeton computer scientists, Arvind Narayanan and Sayash Kapoor, who have started to engage with and rebut the most radical calls to action of the AGI-set. To get the full extent of their rich argument, you should read not only their recent book, AI Snake Oil, but also their subsequent series of online essays, some as long as traditional law review publications. Only by considering four different works together (and one imagines there will be more to read from the pair soon), does the full argument take shape. The good news is that their argument—if it is correct—dispels worst-case predictions about both the speed with which the problems of AGI will emerge and the radical nature of what we will need to do to respond to those problems. Continue reading "The New “Normal”"

The post The New “Normal” appeared first on Jotwell.

Susan Morse

Does the Seventh Amendment provide a taxpayer with the right to a jury before the government imposes tax penalties? This issue is live at the Tax Court, at Courts of Appeals, and at the Supreme Court. Fortunately, the tax literature includes two entries on this topic, one by Professor Steve Johnson and another by Professor Bryan Camp. Both are somewhat skeptical about a jury trial requirement, thought they emphasize different aspects of the question. Their work should illuminate the conversation, and inform the litigation.

Few thought tax penalties attracted jury rights prior to the 2024 Supreme Court decision in Jarkesy v. Securities and Exchange Commission. But after the Court decided that jury rights attached to securities fraud penalties, an analogous question arose in tax. A cert petition is pending in Hirsch v. U.S. Tax Court, where the Eleventh Circuit refused petitioner’s request for a writ of mandamus on the grounds that the Tax Court had unconstitutionally denied them a jury trial. Tax practitioners are following Hirsch closely. Continue reading "Jury Rights in Civil Tax Cases??"

The post Jury Rights in Civil Tax Cases?? appeared first on Jotwell.

Anita Bernstein

In 2019 the phrase “a world designed for men” saw print when the Brazilian-English activist Caroline Criado Perez put it into the subtitle of a book. Criado Perez may not have been the first to notice the pattern of extraordinary unfairness documented in Invisible Women: Exposing Data Bias in a World Designed for Men but she wrote the most devastating report on the phenomenon I’ve ever seen, and I have been paying attention. Products Liability in a World Designed for Men by Melissa F. Wasserman connects this problem of gendered “who benefits? who pays?” with a careful, well-argued, and scientifically informed call for law reform.

The neutral-on-the-surface biases favoring men that Professor Wasserman examines in this article fit within design defect as a subset of products liability doctrine. The category may seem narrow. It’s not. Products Liability in a World Designed for Men takes 52 pages to document the issue it addresses, review the governing law, and offer recommendations. Limited space rather than any lack of urgent examples, I am sure, shortened what Professor Wasserman shares here. Continue reading "Male Supremacy as a Products Liability Defect"

The post Male Supremacy as a Products Liability Defect appeared first on Jotwell.

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. Continue reading "Do Landlord Privacy Rights Trump Voucher Inspections?"

The post Do Landlord Privacy Rights Trump Voucher Inspections? appeared first on Jotwell.

Abdurrahman Atçil

In his famous 1957 Oliver Wendell Holmes Lecture at Harvard, the renowned British legal philosopher H. L. A. Hart presented a vision of law as a system of rules validated through institutional procedures and not dependent on moral merit for their validity. Later that year, his American colleague Lon Fuller countered that only an “inner morality” imbues law with its binding force; normative statements lacking moral merit do not qualify as law. This debate, states Allan C. Hutchinson in Hart, Fuller, and Everything After, defined the agenda of Anglo-American jurisprudence for decades afterward; but, closely bound up with the historical and intellectual conditions of its day, he argues, it offers a poor framework for discussing the diversity of legal practices beyond the postwar liberal societies of Britain and the United States. As an historian of Ottoman law, I’m inclined to agree.

One of the great challenges that historians in fields like mine face is the difficulty of connecting the literature on modern legal theory with the normative worlds of societies far different from the ones that figures like Hart and Fuller addressed. By unpacking the seemingly timeless questions at the center of the Hart–Fuller debate, Hutchinson instead presents law as an ongoing social activity shaped by interpretation, institutional practices, and political and moral struggles. In doing so, he makes legal theory speak to these other worlds, and thereby makes it more useful for a much broader audience. Continue reading "Legal Theory, Law, and Politics: Making Theory Useful"

The post Legal Theory, Law, and Politics: Making Theory Useful appeared first on Jotwell.

Albertina Antognini

Law has mostly dealt with unmarried couples by adopting a wait-and-see approach. Rather than states passing legislation ex ante, courts address issues that arise ex post. Among the most commonly litigated questions is property ownership – where courts are asked to sort out who owns what and who owes what to whom. While much scholarship has considered how law should distribute such property, there is precious little information on what cohabitants themselves want. John Morley and Yair Listokin’s article, What Should You Owe Your Ex? A Survey of Attitudes About the Law of Married and Cohabiting Relationships, provides a timely and important intervention, offering an empirical assessment of what cohabiting couples, as compared to married couples, desire when their relationship ends.

Morley and Listokin thus seek to fill a gap not primarily in law (although that too), but in knowledge: “We bring these wishes into focus by directly asking people in a systematic way for the first time what they want for themselves.” (P. 37.) To do so, they surveyed a nationally representative sample of around 3,000 American adults, half of whom were married and half of whom lived with a partner in a nonmarital relationship. Continue reading "Who Wants What?"

The post Who Wants What? appeared first on Jotwell.

Nina Varsava

In Sustaining Stare Decisis as a Post-Merits Determination, Peter Povilonis offers an insightful and novel analysis of the U.S. Supreme Court’s stare decisis jurisprudence. He characterizes stare decisis as a procedural doctrine that, in its proper form, is separate from merits determinations. Just as some doctrines, including statutes of limitations and jurisdiction, are pre-merits matters, stare decisis, Povilonis argues, is meant to be a purely post-merits analysis.

This means that, in the horizontal context, stare decisis has effect if and only if the Court first determines that the precedent at issue is erroneous (or assumes for the sake of argument that it is erroneous, e.g., because the Justices disagree about that): the analysis “comes subsequent to a determination on the merits” (P. 671). The important upshot is that, once the Court makes the merits determination and moves on to the stare decisis inquiry, it can’t go back to re-assess the merits or improve the holding of the precedent. That, argues Povilonis, would be inconsistent with the post-merits methodology of stare decisis. Continue reading "Post-Merits Stare Decisis"

The post Post-Merits Stare Decisis appeared first on Jotwell.