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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Natsu Taylor Saito

“Decolonization and reparations are distinct paradigms and projects that cannot be collapsed into one another. But the project of reparations entails decolonization.” (P. 421.)

A former UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia, and Related Intolerance (2017-2022), E. Tendayi Achiume has seen the global reach of racialized harm in ways few of us ever will. Her work has highlighted opportunities for reparations offered by the international legal system and challenged its constraints. Drawing on this rich background, Achiume, now a Stanford law professor, shares her deeply thoughtful and thought-provoking analysis of reparations in this short but very powerful piece.

Achiume’s writing is beautifully clear and brilliantly comprehensive. She tackles the hardest questions and refuses to pretend they will be resolved easily. Reflecting these strengths, Race, Reparations, and International Law critiques the ability of contemporary international law to meaningfully redress the harm deriving from centuries of colonialism and, particularly, the transatlantic trade in enslaved Africans. She raises questions that should be confronted by all international law scholars, but what really caught my attention is that virtually everything Achiume says about reparations in international law applies with equal force to redress for persons of African descent (as well as Indigenous nations) within the United States. Continue reading "Reparations And Decolonization"

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Jessica M. Eaglin

The criminal justice system is rife with junk forensics. From bitemark comparisons to firearm examinations and more, police and prosecutors secure arrests and convictions by presenting numerous techniques and methodologies as scientific though the techniques lack indicia of reliability that are the hallmark of science. While legal scholars and policymakers make headway to contain or eliminate such practices in criminal trials, new techniques emerge in clandestine ways throughout the criminal process. Professor Christopher Lau illuminates this development in his recent article, Shadow Forensics: 911 Uncovering 911 Call Analysis. Because his piece imagines the implications of forensic evidence beyond the scope of individual trials, this article is a must read for anyone interested in the juncture of science, technology, and criminal law.

Professor Lau defines “shadow forensics” as the introduction of forensic evidence into the criminal process in ways that elide evidentiary oversight through judicial gatekeeping. So while much research considers the concerns of “junk” forensics, meaning the techniques and methods used to secure criminal convictions that lack indicia of scientific support, this article identifies an overlapping but distinct concern. Even if there is consensus on how to identify junk forensics, the way that evidence enters the criminal process is increasingly obscured. This development undermines efforts to reduce junk forensics in the criminal process. Continue reading "Contesting “Trust Me, Bro’” Forensics Beyond the Trial Process"

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Adam N. Steinman

Class actions have long been an important and controversial weapon in the civil justice arsenal. And those who teach, study, and litigate class actions are well aware of the myriad obstacles that federal courts have erected in recent years that can block class certification—even when a class action would be the most effective way to hold powerful entities accountable for illegal conduct with broad societal consequences. One such obstacle (although it appears nowhere in the text of Rule 23) goes by the moniker ascertainability. Maureen Carroll and Madena Mustafa’s terrific article provides a timely account and critique of how courts are interpreting and applying this often-muddled concept.

The authors begin by disentangling three distinct inquiries that courts have placed under the ascertainability label. One is Definitional Clarity, which is the requirement that a class definition be clear and (usually) objective. It screens out vague definitions, subjective definitions that turn on state of mind, and (at times) “fail-safe” classes defined by success on the merits. Another version, Individual Provability, demands that a court be able to determine, by reference to objective criteria and records, whether any particular person standing before it is a class member. The third variant is Enumerability, which requires a reliable and administratively feasible mechanism for generating a list of absent class members (an approach associated with the Third Circuit’s decisions in Marcus v. BMW and Carrera v. Bayer). Continue reading "Ascertaining Ascertainability"

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Joan MacLeod Heminway

Technological advancements add new wrinkles to business law and practice at an unforgivingly rapid pace.  As a result, the work of legal scholars (including my own research and writing) increasingly grapples more intensely with the possible and optimal roles of technology in business governance and finance.  For example, blockchain technology has many actual and potential applications in the management and control of businesses, and fintech (as the term suggests) exists at technology’s intersection with finance, including business finance.

Generative artificial intelligence (AI) is a bit of a new kid on the block in this regard.  Although legal academics and practitioners have focused significant attention on important questions involving the use of AI in law teaching and lawyering, legal research and writing regarding AI’s applications to business entity governance and finance is just emerging.  Zhaoyi Li’s Artificial Fiduciaries makes foundational contributions to this developing literature by suggesting that an AI agent could effectively serve in a human-like decision making role in corporate governance. Li’s work is especially salient in light of Delaware’s recent public announcement to move forward with legislative validation of a new form of entity, the Artificial Intelligence Company (“AIC”)—a legal entity directed by artificial intelligence rather than human agents. Continue reading "Bots as Corporate Directors? An Exploration of AI in Corporate Governance"

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Brandon Duke

Formalism has won. Textualism is now the Supreme Court’s dominant language of statutory interpretation, and originalism is its main vocabulary of constitutional interpretation. Yet victory has produced strange discontent. In Bostock v. Clayton County, three opinions each claimed fidelity to original public meaning textualism and reached opposite conclusions. Originalism has fractured the same way—interpreters who agree that what binds them was fixed at ratification divide over what counts as evidence of that fixed meaning. Formalists and their critics alike observe that the ascendant methods now generate as much interpretive leeway as the purposivism they displaced. Something has gone sideways, and until now nobody has explained precisely what.

Jeffrey Pojanowski has. In Faces of Formalism, he identifies a fault line: Formalism embodies two distinct, sometimes conflicting conceptions of interpretive constraint. Formalism of authority binds interpreters to original sources of law—the reasoned choice of an authoritative lawmaker fixed in the past. Formalism of method constrains interpreters through predictable, rule-bound techniques that ensure notice, coordination, and judicial impersonality. The formalist who spearheaded the current surge, the late Justice Antonin Scalia, assumed the two ran together. (P. 117.) Pojanowski shows that this assumption was wrong. As he explains, “a careful search for an original, authoritative source is not amenable to mechanical methods,” while “interpretive simplicity risks interpretive drift from original, authoritative norms.” (P. 100.) Constraint anchored in authority “is open to methodological complexity that would surprise the first wave of formalists.” (P. 100.) This distinction is the article’s central insight. Recognize it, and many long-running debates suddenly look different. Continue reading "Two Ways to Be Bound"

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