A. Michael Froomkin

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Charlotte Crane

Michael Schler thinks the prognosis for the federal income tax, at least as it is currently administered, is not good. In The State of the Federal Income Tax System: Poor, he outlines many of the problems federal tax administration currently faces. Most of these problems are worsening as the foundations of administrative law more generally are challenged in the federal courts and in Congress.

Even with the enormity of the substantive law itself, those teaching income tax in law school cannot consider themselves masters of their subject without a firm understanding of  the legislative and the administrative procedures that produce it. Imparting to young lawyers a sense of the conceptual design driving the tax law requires a full understanding of the forces that create it.  These forces include the extent to which Congress is likely to have deliberately left ambiguity in the statute, the discretion Treasury can exercise as it interprets a statute, and the inevitable choices that the Internal Revenue Service must use in its efforts to curb taxpayers as they pursue questionable positions. Continue reading "Good Analysis of a Bad Situation: Federal Tax Administration in the 2020’s"

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Haiyun Damon-Feng, Agency Fact-Making, 135 Yale L. J. 2525 (2026).

Wendy Wagner

In Gundy, Justice Gorsuch reminds us that one of the traditional roles of the agency is “filling up details and finding facts.” (Dissent, P. 33.) Indeed, “fact-finding” appears in the title of at least eighty law review articles on agencies and in the text of several thousands more.

However, in Agency Fact-Making, Damon-Feng shows how this simplistic characterization of agency work as fact-finding misses most of the action; the agencies are not simply out there finding facts and reporting back but are producing (or “making”) the authoritative knowledge that comes to count as fact. Those agency-produced facts guide countless decisions about governance, public policy, and daily life.

But if agencies really are making—not finding—the public facts on which so much of the nation depends, administrative law should have a well-developed account of how that function operates and how it ought to be structured, right? Nope. Continue reading "The State as Fact-Maker: The Fourth Function of the Fourth Branch"

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George S. Georgiev

Most legal responses to generative artificial intelligence ask familiar questions. Who may copy? Who may sue? Who should regulate? Who should pay? Jeremy Bearer-Friend and Sarah Polcz ask a more basic, and more corporate, question: who should own AI? Their answer: the public should own a piece.

Sharing the Algorithm sits comfortably in tax law, but corporate law scholars should read it because its ultimate subject is a corporate law mainstay: the ownership and control of enterprise. The article proposes a one-time tax on generative AI firms, paid not in cash but in equity. Instead of leaving the public to be only a consumer of AI products, a claimant in copyright litigation, a beneficiary of future tax revenues, or a regulator trying to catch up after the fact, Bearer-Friend and Polcz would make each of us a fractional owner of the firms that control generative AI. Continue reading "Owning the AI Revolution"

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Joseph Seiner

In Work Law’s Domain, Professor Ryan Nelson reveals our general “blindness” about who and how many people are really covered by work law generally and employment discrimination law in particular. (P. 60.) As Professor Nelson notes early in the piece, “this Article begins with a frightening claim: no one actually knows how illegal employment discrimination is in the United States.” (P. 59.)  This is a startling claim and one that is fully developed over the course of the piece.

This article is superb because it is one of the few recent pieces of worklaw scholarship which provides a broader review of one of the pressing problems in this area – society and academia’s lack of a complete understanding of how to define the field.  Rather than parsing particular parts of statutes or legislation, this Article performs the wonderful job of exploring how all the pieces (sometime fail) to fit together.  This matters, Professor Nelson argues, because the “opacity of work law’s domain” makes it more difficult to understand, regulate, legislate, and improve that law. (P. 62.)  This inability to fully regulate, legislate, and improve the area of labor and employment law has led to (arguably many artificial) constraints in this field. Continue reading "How Far Does Worklaw Truly Reach? Does Anyone Really Know?"

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Goldburn Maynard

Does the United States only pay lip service to testamentary freedom? When compared to other countries, it does not appear that way. That is, by providing a substantial degree of testamentary freedom, the United States is actually in the minority among nation-states. Most countries have family maintenance or forced succession rules that allow estate plans to be modified by judges after the death of the testator. Needy family members in those countries have a right to petition for a share of the inheritance, regardless of the wishes of the testator. In the U.S., an individual has every right to disinherit a disfavored child, regardless of need. In fact, testamentary freedom is seen as a foundational concept in U.S. inheritance law. Yet, even in the U.S., freedom of disposition is not absolute. In a recent article, Natural Objects and Testamentary Freedom, Kevin Bennardo argues that we do not follow through on our commitment to testamentary freedom. To illustrate, Bennardo focuses on the difficulties faced by nontraditional or eccentric testators.

Rebels might be popular in the American imagination, but this popularity does not extend to rebel testators. We like our testators to go with the grain. The focus of Bennardo’s article is on the seemingly innocuous phrase “the natural objects of one’s bounty.” Because the phrase recurs throughout American laws of succession, it implants society’s judgement on an estate plan. Even when one executes a will to opt out of intestacy, those underlying societal preferences are influential. Being a member of the “natural objects” class is itself a favored status. These dispositions are more likely to be rubberstamped without raising suspicion. Unnatural dispositions, on the other hand, are scrutinized. Testators who make such dispositions risk invalidation of their estate plans and must take special precautions. This is a trap for the unwary or those without resources, typically individuals preparing their own estate plans without attorney input. This fact raises distributional concerns. Continue reading "The Myth of American Testamentary Freedom"

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Christopher J. Robinette

The professional standard for medical malpractice, traditionally set by custom, has come under scrutiny. The most common concern is that custom may not reflect actual best practices,¹ and health care providers may be reluctant to adopt those newer, better methods because the custom standard will not protect them.² That criticism assumes the custom standard was originally set in good faith, based on patient outcomes and not health care industry profits.

In their compelling piece, Customary Corruption, Professors Ani Satz (Emory) and Liza Vertinsky (Maryland) raise a further complicating factor. What if the customary standard of care has been influenced by profit-driven entities outside of the health care provider-patient relationship? Professors Satz & Vertinsky accomplish three things in Customary Corruption. They provide updated survey data on the jurisdictions’ use of custom in medical malpractice cases,³ case examples of pharmaceutical companies affecting the standard of care, and sharpened arguments against deferring to custom as the sole standard of care. Satz & Vertinsky advocate for “the abandonment of the professional custom standard for prescribing practices in tort.” (P. 763.) But it is clear they are laying the groundwork for further attacks on customary standards in medical malpractice and even other learned professions. (P. 764.) Continue reading "Gaming the Standard"

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Nicholson Price

Who regulates the physical and informational risks of scientific research?  Who makes sure that researchers keep intensely personal data secret, or lock their dangerous chemicals away safely, or don’t haphazardly create superviruses that could kill us all?  You could be forgiven for assuming it was, well, a regulator—OSHA or the CDC or some similar entity that can promulgate binding rules and enforce them.  But as Doni Bloomfield shows in the fascinating How Science Grantmakers Govern, you’d be (mostly) wrong.  Instead, a key substantive and procedural regulator of the risky business of scientific research is, in fact, the funder of that research.  Bloomfield’s case study considers the leviathan of basic research funding, the National Institutes of Health (NIH).  In the first part of this article, Bloomfield pulls apart how NIH acts as a regulator. The second part of this piece draws out implications in a clearly written and fascinating read.

One framing note: Bloomfield purposefully focuses on how grantmakers governed up until the beginning of the second Trump administration.  It’s a reasonable choice; there’s much to say about how NIH became a significant regulator of scientific research, and what that means for innovation and administrative law theory.  Accordingly, the paper doesn’t center how the second Trump administration has used the grant system as a cudgel to beat down universities, or how it’s tearing apart the system of scientific funding.  Bloomfield does address the recent changes, but they’re not his focus. There is a lot in this paper; it’s full of insight and replete with interesting historical details (Did you know that the term “peer review” was first used by NIH?  I did not!).  It’s worth a read, and then another. Continue reading "Strings Attached: Science Regulation by Science Funders"

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Lisa Owens

In K-Sue Park’s Property and Sovereignty in America: A History of Title Registries & Jurisdictional Power, it is the near-invisible, mundane title registry that is at the center of the early American settlement and dispossession of indigenous landholders.

Title registries are one of the local, everyday legal institutions that are often treated as background noise of the legal system, Through archival research, Park shows that these title registries came into being not because American sovereignty was already made manifest, but in order to manifest American sovereignty. Continue reading "A Timely Reminder that Power Moves Even in the Mundane"

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Bethany Berger

Native people’s citizenship is in the news.  In its attacks on birthright citizenship, the Trump administration argues that because “Indians in tribal relations” were not citizens under the original understanding of the Citizenship Clause, children of undocumented or temporarily present immigrants are not either. These claims rely on egregious distortions of history and law.¹

The contemporary debates, however, reflect little about how Native people viewed citizenship in the decades before, in 1924, Congress statutorily extended citizenship to all “Indians born within the territorial citizenship of the United States.”² The answers are complex and varied. In Indians Now Taxed, Professor Lisa Teeters Knolle has opened a new and important window on Native citizenship. The article also sheds new light on the sad history of allotment, the federal policy that deprived tribal nations of most of their remaining lands, and particularly the way it pitted homesteading settlers against the Native people whose land they occupied. Continue reading "Native Citizenship through a Different Lens"

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