Katheleen Guzman

Q: What happens if a joint tenant sues for partition and then dies?

A: Action ends, survivorship trumps–right?

Easy property questions, simply put and comfortable to ask, suggest easy answers. But particularly in law, and especially when tested against particular facts at a particular time and place, easy questions are also rare. Real property rules feel timeless and immutable—two qualities that are believed to encourage robust markets, avoid litigation, and offer clarity, efficiency, and speed. But context can change everything, and sometimes even the easiest questions become difficult to answer.

What effect does partition have on survivorship? And what effect does survivorship have on litigation? Liam Cronan collects and presents historical evidence to reveal that courts have been too quick to replace research and reason with “survivor takes all.” Through a recent case, Cronan shows that much more may and should turn on the specifics of extant statutes, including even colonial-era ones based upon some long-repealed 17^th-century English law of the land. Continue reading "Getting In, Getting Out"

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John C.P. Goldberg

At the outset of his very interesting article, The Liability Revolution That No One Saw Coming, Kenneth Abraham, one of our most distinguished scholars of tort and insurance law, posits an irony concerning predictions about law. As Holmes famously observed, law practice is all about anticipating judicial decisions. Yet, according to Abraham, lawyers – and adjacent actors including insurers and law professors – are not expected to predict, and have not predicted, broader shifts in the legal landscape, some of which have had huge significance.

The bulk of the article discusses three broad twentieth-century legal developments: (1) the rise of mass tort law; (2) the expansion of insurers’ coverage costs for liabilities generated by environmental and tort law; and (3) the conclusion of the expansionary phase of American accident law. According to Abraham, nobody in law saw these important developments coming. Continue reading "What Can The Reasonable Lawyer (and Law Professor) Foresee?"

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Adam Thimmesch

Since 2020, many states have been cutting their income tax rates and narrowing their bases, while others have been considering wealth tax proposals and other progressive revenue tools. These divergent actions raise critical questions about modern fiscal federalism. When is subnational redistribution feasible? When does tax competition instead lock states into a uniform tax-cut script? And how does federal tax policy impact states’ choices?

Kirk Stark’s article, Taxation, Redistribution, and the Urban-Rural Divide, offers an interesting and useful evaluation of these questions by assessing modern fiscal federalism through a spatial lens built on insights from a variety of fields, including economic geography, U.S. history, and political science. His article recognizes that the traditional “textbook” model of fiscal federalism often dismisses subnational progressive taxation as implausible. The logic, rooted in the Tiebout model, is simple: if a state tries to “tax the rich,” the rich—or their mobile capital—will simply move. This understanding conventionally leaves the federal government to address equity and progressivity while states instead compete on service quality. Continue reading "The Asymmetric State: The Urban-Rural Divide as Architect of U.S. Tax Policy"

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Hannah Bloch-Wehba

In a congressional hearing over seven years ago, Senator Orrin Hatch asked CEO Mark Zuckerberg a simple question: how did his company, then known as Facebook, make money if users never paid them a dime? Zuckerberg’s brief, smirking answer immediately went viral: “Senator, we run ads.” The exchange seemed to encapsulate both the generational divide between the 84-year-old Hatch and the 33-year-old Zuckerberg and their fundamentally different understandings of how capitalism worked on the ground. That Hatch needed something as basic as the Facebook business model spelled out for him suggested, to some, that he was out of touch.

But Zuckerberg’s deceptively straightforward reply also warrants unpacking, because—as is by now obvious—Meta does far more than simply sell advertising. In The Ordinal Society, sociologists Marion Fourcade and Kieran Healy argue that firms like Meta have remade society and sociality itself. By transforming social activity into a source of profit, firms have gained the ability to control and manipulate interactions and to rank and sort individuals in increasingly precise ways. An ambitious account in the vein of Julie Cohen’s Between Truth and Power, The Ordinal Society offers a crucial rethinking of how technology has reordered society, focusing on how the data economy enables emerging systems of ranking and classification that not only amplify underlying social stratification, but also produce new and unpredictable forms of inequality. Existing legal approaches fail to address the harms wrought by this reordering. Continue reading "Bringing Society Back In: How Tech Remakes Social Relations"

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Shelley Ross Saxer

Understanding the gravity of the problem with water scarcity in the western United States is complex enough before considering the doctrine of Federal Reserved Rights. Professor Alexader Pearl in his recent article, Homelands Not Graveyards, helps readers navigate and understand this complex mix of doctrines, policies, and priorities that help the law develop in this space.

More specifically, Professor Pearl focuses on Federal Reserved Rights that are known as “Winters rights” in the context of federal Indian law water rights jurisprudence. These implied water rights were first recognized by the United States Supreme Court in 1908 in Winters v. United States, 207 U.S. 564, a case involving the Fort Belknap Reservation created by agreement in 1888. Continue reading "The Uncertainty of Water Rights for Tribal Communities"

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Rebecca Roiphe

Many scholars have written about the role of courts in liberal democracies. They grapple with tough questions about how to justify the outsized role that unelected judges play in our democracy. Beginning with Alexander Bickel who famously coined the phrase, “the counter-majoritarian difficulty,”¹ and continuing with scholars like John Hart Ely, Mark Tushnet, and Jeremy Waldron, to name just a few, critics have analyzed what role courts should play in ushering in social change. Ann Southworth has skillfully complemented this literature by arguing that it is not just judges who have power to alter the social and political landscape. Lawyers at legal advocacy organizations play a significant role in this process.

Professor Southworth’s article, Conservative Legal Advocacy: Organizations and the Roberts Court, draws on the example of campaign finance reform to show how conservative legal advocacy organizations engaged in a coordinated effort to change precedent and push an ideological agenda. These organizations consciously followed the example of civil rights groups like the NAACP and the ACLU, occasionally even drawing on precedent established by their liberal predecessors. The article is an important reminder that Supreme Court decisions are not simply a product of judicial appointments but are also affected by well-funded legal advocacy organizations and their lawyers. Continue reading "Be Careful What You Wish For: How Conservative Groups Learned from Liberal Cause Lawyers"

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Aila Hoss

In its foundational Indian law decisions, the U.S. Supreme Court has consistently recognized federal supremacy on all matters regarding Indian affairs. This plenary power can preempt both Tribal and state authorities. SCOTUS granted certiorari in Haaland v. Brackeen to assess the constitutionality of the Indian Child Welfare Act (ICWA), with some of the challenges being on the basis that the law infringes on state authority under the Tenth Amendment’s anticommandeering doctrine. Indian country anxiously awaited to see if the court would once again abandon longstanding Indian law precedent in favor of state rights, as it recently did in Oklahoma v. Castro Huerta. The court concluded that ICWA was valid. But, the decision left me confounded on the continued viability of anticommandeering arguments to strike down federal Indian affairs legislation. Fortunately, Professor Ann Tweedy’s recent article, Anticommandeering & Indian Affairs Legislation, published in the Harvard Journal on Legislation, considers the applicability of anticommandeering to Indian law following Brackeen.

The anticommandeering doctrine holds that when Congress requires states to adopt or enforce federal law, such actions violate the Tenth Amendment. First articulated by the Supreme Court in the 1990s under the Rehnquist court, the doctrine has been successfully used to strike out provisions of various pieces of federal legislation including the Low-Level Radioactive Waste Policy Amendments Act (required states to take title and assume liability for radioactive waste within their borders), the Brady Handgun Violence Protection Act (required state and local law enforcement to conduct background checks on prospective gun buyers), and the Professional and Amateur Sports Protection Act (prohibited states from establishing sports gambling regulatory schemes). Continue reading "Against Anticommandeering in Indian Law"

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Izabela Skoczen

In the article, Lawful, But Not Really: The Dual Character of The Concept of Law, Brian Flanagan and Guilherme de Almeida challenge the traditional divides in jurisprudence as to the definitions of the concept of law as well as the concept of legal validity. The article intends to offer a novel, third-way approach between the two traditionally most populated camps in legal philosophy, namely positivism and natural law theory.

The novelty of the article does not consist only in its theoretical appeal, but also in adopting a relatively new methodology, namely the methodology of experimental jurisprudence (“xjur”). Xjur seeks to shed new light on traditional jurisprudential questions by employing the methodology of the psychological, sociological, or cognitive sciences. The methods include, among others, massive online surveys, corpus studies (analyzing a large collection of texts), neuroimaging, or decision-making in immersive virtual reality. Using these methods permits researchers to achieve a more accurate grasp of how people understand concepts such as, for example, intention, causation, rule, law, or reasonableness. Moreover, using such methods permits us to end speculation as to, for example, what the linguistic or conceptual intuition of a certain population is. See SEP entry on experimental jurisprudence. Continue reading "What is Real Law?"

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David Fagundes

Abe Lincoln was fond of relating a story about a lawyer who tried to argue that a calf had five legs by calling its tail a leg. The folksy Lincolnian upshot was that this lawyer not only lost, but also looked foolish in the process, because simply calling a tail a leg does not make it so.

Mark Lemley’s Authoring While Dead spins a copyright version of Abe’s old yarn. Songwriters have recently begun listing as co-authors of their musical works artists who cannot be regarded as “authors” under any remotely plausible reading of the Copyright Act. Lemley’s vivid article explores the origins and rapid ascension of this industry practice. He explains with welcome drollery why this is the copyright equivalent of calling a tail a leg. He further offers a caution why what may seem like mere formalism, in fact, poses serious problems for copyright law. Continue reading "Inspiration versus Authorship"

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Mathilde Cohen

Julie Suk’s forthcoming The Shadow Court: Rescuing Democracy from the Supreme Court is an invigorating intervention in the long-standing question of how to align constitutional lawmaking in the United States with democratic ideals. Suk’s book moves beyond familiar critiques of the Supreme Court’s judicial supremacy to propose a bold, institutionally imaginative solution: the Shadow Court. What makes this proposal particularly compelling is its comparative lens, drawing on constitutional designs across the world to offer concrete inspiration for reform. In an era when the Supreme Court increasingly dominates the constitutional landscape, Suk invites readers to imagine what constitutional law might look like if citizens, legislators, and other institutions could exercise more democratic influence over its creation.

At the heart of Suk’s project is the conviction that “[i]n a healthy and legitimate constitutional democracy, ‘We the People’ should have supremacy and control over constitutional lawmaking.” The book diagnoses a democratic crisis rooted in the Supreme Court’s concentration of power, much of it facilitated by the Court itself. Suk observes that the Court’s eighteenth-century design, as an Article III judiciary primarily intended for dispute resolution, is ill-suited to serve as the principal constitutional-lawmaker for a twenty-first-century, demographically complex nation. Against this backdrop, The Shadow Court pivots toward institutional innovation rather than incremental reform: it sketches out a new body capable of exercising real influence without formal coercive power, borrowing lessons from shadow cabinets in parliamentary democracies and constitutional courts abroad. Continue reading "From Shadow Cabinets to Shadow Justices: Rethinking Constitutional Lawmaking"

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