Rebecca Tushnet

More Everything Forever is a tour through the dumb things that rich white men in Silicon Valley believe. Adam Becker cogently demonstrates that, by the same logic that leads these folks to endorse the death of people in the present to improve the chances of having trillions of people a million years in the future, the whole project is nonsensical. For example, if energy use continues to grow at the same rate as it does now, “3,700 years from right now, we’d be using all the energy produced by all the stars in the observable universe. If Bezos believes that ceasing to grow our energy usage must lead to a culture of stagnation, he’d better get used to the idea.”

These claims about the far future provide a justification for prioritizing energy use and capital investment in AI now. But our key problems are not technological problems; they are social. Unfortunately, pretending that tech is always the solution is profitable. (Evgeny Morozov called this ideology “solutionism”; while Becker focuses on the conceptual apparatus of justification, Morozov focused more on how this works in the details of the little people’s lives.) It makes sense that billionaires would want to focus on the future as a way to deny the inevitability of death. “Go to space, and you can ignore scarcity of resources, not to mention legal restrictions. Be a longtermist, and you can ignore conventional morality, justifying whatever actions you take by claiming they’re necessary to ensure the future safety of humanity.” But, in imagining they can live forever, they’re threatening the future of all of us. Continue reading "What Happens to a Power Fantasy Deferred?"

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Adam Rosenzweig

While in private practice I confronted a situation where a bankrupt company was facing an unfortunate conundrum. The IRS had determined that the parent company had to claim a worthless stock deduction in the year of bankruptcy while the bankruptcy court ruled that the automatic stay prevented the parent company from doing so as it would have wiped out the NOLs of the bankrupt company. I had filed this incident away as nothing more than a mildly amusing legal anecdote, until reading Professor Drumbl’s recent article Poverty, Fresh Starts, and the Social Safety Net (“Fresh Starts”).

In Fresh Starts, Professor Drumbl confronts a question I had never considered before–what happens to refundable tax credits such as the Earned Income Tax Credit (EITC) or the Child Tax Credit (CTC) when a taxpayer declares bankruptcy? As an initial matter, this question appears to identify a relatively straightforward tension between tax and bankruptcy policy. On the one hand, refundable tax credits are clearly a valuable asset of a bankruptcy estate which could be used to satisfy creditors, while on the other hand both refundable tax credits and bankruptcy law are intended to protect or assist low-income taxpayers. By itself this proves to be an intriguing question involving a potential conflict of fundamental public policy underlying two comprehensive federal regimes. Yet, as Fresh Starts starkly demonstrates, that is only the beginning of the story. Continue reading "What is Tax Law’s Role in Bankruptcy’s Fresh Start?"

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W. Keith Robinson

Black farmers in the United States are almost nonexistent. Fewer than 2% of all farmers are black. Black-owned land represents a paltry 0.4% of all farmland in the United States. How did the state of the black farmer become so dire? In his recent essay, Professor Etienne Toussaint introduces “structural extermination” as a cause for the collapse in black farming activity. Professor Toussaint explains how this deliberate system is a root cause of the decline of black farm operations from their height of about 14% of all U.S. farm operations.

In addition to eye-opening data, the essay discusses key legislative developments, explains political resistance to them, and offers insights into a path forward. Ultimately, the essay shows how entrenched structural systems shape property law and policy. Continue reading "Structural Extermination in American Agriculture"

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Tom Simmons

Not infrequently, a testator will prod her progeny to marry within her faith. Courts generally uphold contingent inheritances linked to marrying. The Restatement (Third) of Trusts’ reformist inclinations to the contrary notwithstanding, historically, a narrow public policy exception provides the only limitation upon testamentary gifts which reward marrying someone with the desired theological orientation; a test of reasonableness is applied to such partial restraints on marriage. The Restatement (Third) section 29 parts ways with tradition. But will the Restatement sway the courts’ preference for testamentary freedom?

Melanie J. Brown firmly answers in the negative. In Death, Religion, and Sexuality: Testamentary Restraints on Marriage, she confronts contemporary objections to gifts conditioned upon the religious affiliation of a devisee’s spouse. Given the increasing societal tolerance of gay marriage, today, these objections highlight the impact on enforcing such contingencies on same-sex marriages. Brown frames her analysis around a recent case involving a Chicago dentist with a “Jewish Clause” in his will, insisting that only his descendants who married Jews could inherit his wealth. She concludes that “there is no reason to limit testamentary freedom for religious testators in the name of antidiscrimination.” (P. 31.) Continue reading "Dying to Discriminate"

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Thomas J. McSweeney

What does a twelfth-century treatise on the laws of Normandy have to teach us about how we approach legal texts? Quite a lot, actually. In Damp and Disorderly?, William Eves explains how generations of scholars have misunderstood a text because they thought it was one type of text when it was actually another.

The Très Ancien Coutumier de Normandie has been used to help us understand the early common law. Norman law had a significant influence on the development of English law after the Conquest, and as the earliest surviving treatise on Norman law, the Très Ancien Coutumier is an obvious place to look for help in understanding legal developments in England. As Eves notes, historians have often treated it as part of a line of legal treatises that were written in England and Normandy in the twelfth and thirteenth centuries, which included Glanvill (England, ca. 1187-1189), the Summa de Legibus (Normandy, ca. 1240), and Bracton (England, ca. 1220-1250). But historians who treat the Très Ancien Coutumier as part of this textual tradition have generally held that it compares poorly to the other examples; as Eves notes, G.D.G. Hall, who made the standard edition and translation of Glanvill, described the Très Ancien Coutumier as “disorganized and scrappy, long-winded…and sentimental” and said that “It is a damp contrast to the professional crispness of [Glanvill].”¹ Continue reading "When is a Treatise not a Treatise?"

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Aníbal Rosario-Lebrón

Inspired by poet and playwright Federico García Lorca’s unfinished work of the same name, Spain’s recent selection for the Oscars, the critically acclaimed La bola negra, has generated discussions that go well beyond cinema. Questions of belonging and exclusion are embedded in the very symbol that gives the work its name.¹The black ball at the center of Lorca’s unfinished work – a vote of exclusion from a social club cast against a young man because of his homosexuality – symbolizes not only rejection but also the power to decide who belongs and who does not. The power to cast it matters as much as the rejection it signifies.

Parental-rights controversies center on a similarly contested authority: who has the power to cast the black ball and determine which groups merit recognition, accommodation, and protection. Recently, battles over abortion-related assistance, gender-affirming care, school disclosure policies involving LGBTQ+ students, curricular disputes concerning sexual orientation and gender identity and expression, and the treatment of LGBTQ+ youth in foster care have been framed as conflicts about parental rights. Yet an increasing body of scholarship pierces the parental-rights veil to reveal that these disputes are fundamentally contests over equality, democratic belonging, and the authority to decide whose identities receive recognition. Two recent articles, Mary Ziegler, Maxine Eichner, and Naomi Cahn’s Retrenchment by Diversion, and Susan Etta Keller’s The Double-Edged Rhetoric of Parental Rights, offer powerful frameworks for understanding and evaluating these increasingly consequential conflicts. Continue reading "Casting the Black Ball: Parental Rights, Equality & Belonging"

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Charlotte S. Alexander

For years, worker advocates have argued that “wage theft is theft.” Increasingly, legislators and prosecutors have agreed. If an employer intentionally fails to pay workers’ wages, why shouldn’t the law regard that conduct as a crime? A growing movement to criminalize wage theft, with laws on the books in thirty-seven states and Washington, D.C., now does just that. However, in More Harm Than Good, Alia Al-Khatib asks a deceptively simple question: What if criminal prosecution for wage theft is solving the wrong problem(s)?

Al-Khatib starts by cataloging three interconnected “spheres” in which wage theft causes harm: (1) the lives of the workers whose wages are stolen, (2) labor standards across workplaces, and (3) the communities in which workers live. She then analyzes the ways in which criminal penalties fall short of providing an adequate response. Continue reading "Should Wage Theft be Theft?"

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Barbara Levenbook

Law-creation, goes the received wisdom, requires an intentional act by a legal authority. This authority is the author of the legal utterance creating a legal norm.  Many legal theorists nowadays, including  Rabanos and Spaić, hold that law is an artifact.  An artifact, it is claimed, is intentionally created — for some purpose, which is its function (regulating behavior in a specific way).  It follows that institutions, such as legislatures, can act intentionally.  Unintentional legislation is impossible.  At the minimum, there must be an intention to make law and an intention to make a certain text or utterance pass into law.  Further, if laws are artifacts, the author must intend its function, which is a conduct-guiding intention.  That intention, in the case of imperatives, is accompanied by a will or desire to regulate behavior of the addressees in the specified way.  Searching for this intention is either useful in interpreting the law that is created, normatively required in interpreting it, or conceptually necessary because constitutive of the activity of interpreting.  In these ways, authorial intention is held to be central to law-creation and law-interpretation.

Rabanos and Spaić deny this picture.  Unlike previous challengers of the intentionalist picture (on law-creation or law-interpretation or both), Rabanos and Spaić motivate their arguments by GenAI’s ability to create law-looking statutory texts that can function in law subjects’ lives and in judicial opinions exactly as statutes with more orthodox origins do.  This isn’t an entirely new approach.  More than half a century ago, Richard Wollheim described a fictional machine that would generate a piece of legislation once legislators fed in their individual choices on various issues. “The point of this thought-experiment,” remarked Jeremy Waldron, “. . . is that it enables us to envisage a piece of legislation that cannot be conceived as . . . . something produced `by an intentional being [for a purpose] . . .’”¹ Rabanos and Spaić in effect replace this thought-experiment with the real-life case of a Brazilian city council legislative act written entirely by ChatGPT in response to a 49-word prompt. Continue reading "Another Nail in the Coffin of Intentionalism"

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Alexandra Roberts

Are you an entrepreneur who sells t-shirts for dogs? If you want to register your logo as a trademark with the USPTO, you’ll need to include in your application an acceptable description of the goods you sell. But you’re in luck: if you pull up the Trademark Office’s ID Manual and type in “dog shirts,” you’ll get “Animal clothing for {specify type of animal, e.g., pigs, dogs, etc.}, namely, {indicate specific item, e.g., shirts, skirts, scarves, etc.}.” You can fill in the information in brackets—“Animal clothing for dogs, namely, shirts”—and proceed with confidence that the examining attorney will accept your description, because it already has the USPTO’s seal of approval.

But if you’re a psychologist who specializes in gender-affirming therapy and wants to register your service mark, your search of the ID Manual won’t be as fruitful. The Manual contains zero identifications relating to gender-affirming healthcare. You’ll have to craft your own description of services and hope it passes muster. The ID Manual is a searchable database that includes more than 70,000 pre-approved identifications of goods and services for trademark registrations. But what it excludes may be just as important as what it contains. In Discrimination in the Trademark ID Manual, Professor Rachael Dickson explains that while the USPTO created the ID Manual to offer a helpful guide for trademark applicants and attorneys, it also serves as “a powerful gatekeeping device—one that quietly but systematically disadvantages entire industries.” Continue reading "Identifying Inequality"

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Rosalind Dixon

Julius Yam’s Judging for Democracy: Principles and Strategies in Hybrid Regimes is a deeply impressive book by a scholar taken far too soon from his family and the global constitutional community. Re-reading the book in its final published form, I was again struck by the intellect, energy and optimism of our late friend Julius Yam; and of the importance of his work and ideas. His analysis is deeply clear eyed and realistic, and yet still fundamentally optimistic. (Pp. 7-8; 73-87.) His account of constitutional judicial review in hybrid regimes is also bound to inform debates on the question for years to come, and in ways that suggest the possibility of a more democratic future for at least some regimes of this kind.

Judging for Democracy explores the role of constitutional courts in protecting and promoting democracy in the distinctive context of a hybrid regime – or a regime that is neither fully democratic nor authoritarian. Specifically, it outlines 5 potential roles courts can play in this context: a referee role, participatory role, quasi-representative role, representation-reinforcing role and educative role. (Pp. 114-26.) Continue reading "Hope and Possibility: Julius Yam and Judging for Democracy "

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