Feb 2, 2026 Brian BixJurisprudence
Gregory Klass,
What Might Contract Theory Be?, in
Understanding Private Law: Essays in Honour of Stephen A. Smith 181 (Evan Fox-Decent, John C. P. Goldberg & Lionel Smith eds. 2025).
Gregory Klass’s article, What Might Contract Theory Be?, was published in the collection, Understanding Private Law, a volume honoring Stephen A. Smith, the eminent Contract and Private Law Theory scholar who passed away far too young (shortly before this volume’s publication). Klass’s article focuses on an influential discussion in the first chapter of Smith’s influential work, Contract Theory. In that chapter, Smith sets out the criteria he believes should be used to evaluate theories of contract law. In particular, Smith offers four criteria: fit, coherence, morality, and transparency. In Klass’s discussion, he asks good, probing questions of each of Smith’s categories and the way that Smith applies them. (Pp. 183-89.) However, Klass’s most important challenge may be the following, general one: should a theorist of contract law (or other doctrinal areas of law) be essentially an outside spectator to the practice, or essentially a (kind of) participant in the practice?
Whether theorists should be (or should treat themselves as being) participants or observers has been an active dispute for some time in the related area of general theories about the nature of law. Many of the best-known theories of law take primarily an observer’s attitude towards the subject – law, legal norms, the legal system. At the same time, at least since the work of H. L. A. Hart, they have simultaneously given significance to the “internal point of view,” the fact that some of those in the practice accept the law (as giving them reasons for action). By contrast, Ronald Dworkin presented a theory of law, and an approach to theorizing about law, in which the theorist is a participant in the practice, and “no firm line divides jurisprudence from adjudication or any other aspect of legal practice.” Hart’s response to Dworkin on this matter was simple: that whatever value there might be to a theory built entirely from an insider’s perspective, “there is an important place for general and descriptive jurisprudence”. Continue reading "Theorizing for Insiders and Outsiders"
Jan 30, 2026 Margo BagleyIntellectual Property Law
Jorge L. Contreras,
The Role of U.S. Customs and Border Protection in Enforcing Intellectual Property Rights, 59
Int’l Law. __ (forthcoming), available at
SSRN (Sept. 2, 2025).
Some years ago, I reviewed a book about patent office administration, a topic even the book’s author considered “excruciatingly dull”. As such, I had low expectations for the book but was delightfully surprised by how engaging it was. I have experienced déjà vu with Jorge L. Contreras’ short article, The Role of U.S. Customs and Border Protection in Enforcing Intellectual Property Rights. An article on a topic that I would have expected to be boring in fact was quite enlightening in important ways and a pleasure to read.
I may not be alone among Intellectual Property (IP) law scholars in acknowledging a lacuna in my knowledge of IP enforcement at the U.S. border. For many of us, the topic may surface in course discussions about, inter alia, the benefits of federal trademark registration on the principal register or litigation at the International Trade Commission (ITC), but border enforcement is seldom explored in any depth. Continue reading "IP Savvy at the U.S. Border"
Jan 29, 2026 Marc SpindelmanEquality
Dean Spade’s latest book, Love in a F*ucked Up World: How to Build Relationships, Hook Up, and Raise Hell Together (2025), is a self-help volume with a distinctive mission. The book’s self-improvement stylings arrive amidst the highly intentional teachings of an established social movement activist, organizer, and institution-builder writing here primarily for a younger generation on or open to the political left. The book leverages hardscrabble wisdom wrought from Spade’s years on the political front lines as deepened by serious psychological study and reflection. The result is a book offering readers a space for meaningful self-witness. Love encourages readers to discover via self-reflection that many of the forces they oppose “out there” in the social world also operate within themselves. The book’s self-help resources then guide readers toward the transformative self-healing that may follow—producing selves capable of new intimacies, relationships, and social movement work that may yet set them, and the rest of us, free.
Love’s self-help advice unfolds across digestibly structured chapters. These carve-ups give readers opportunities to process the book’s instruction and self-exam prompts, making the experience almost dialogic. The book braids self-help advice with political argument and complements both with first-person narrative and fictionalized vignettes that supply readers with additional layered contact points for approaching its ideas, questions, questionnaires, assessment tools, and worksheets. Continue reading "Spade’s Love"
Jan 28, 2026 Jessica Lind MantelHealth Law
The phrase “hospital desert” sanitizes a brutal reality for millions of rural Americans: the closure of a local hospital means longer journeys for life-saving care, worse health outcomes, and the hollowing out of fragile local economies. While many commentators point to demographic changes and strained budgets as primary causes of this growing crisis, in her compelling new article, The Healing Power of Antitrust, Theodosia Stavroulaki argues that we have been misdiagnosing the problem. She shows that hospital deserts are also the product of anticompetitive practices and enforcement failures—noncompete clauses that drive clinicians away, hospital mergers that strip rural communities of services, and regulatory blind spots that treat closures as unavoidable. Stavroulaki calls for antitrust enforcers to embrace their “healing power” by addressing these practices head-on, proposing reforms that expand merger analysis to labor markets, ban healthcare noncompete agreements, and condition rural hospital mergers on commitments to preserve services. Stavroulaki thus shows that antitrust is not simply a tool for protecting consumer welfare, but can also advance health equity by addressing the geographic disparities that leave rural patients behind.
Stavroulaki begins by powerfully situating what is at stake with the rural hospital closure crisis. Rural hospitals serve communities that are poorer, older, sicker, and more likely to be uninsured. These communities also experience higher rates of chronic conditions, disability, and substance use. Unsurprisingly, rural communities rely heavily on their hospitals to meet their healthcare needs. Moreover, because hospitals are often the largest local employer—generating jobs, purchasing goods and services, and sustaining community life—many rural hospitals serve as their community’s economic anchor. When a rural hospital closes, the resulting hospital desert can devastate the community, endangering lives and destabilizing the local economy. Continue reading "An Antitrust Prescription for Ailing Rural Hospitals"
Jan 27, 2026 Brian BixFamily Law
Susan Frelich Appleton & Albertina Antognini,
Abolishing the Family, 61
Harv. C.R.-C.L. L. Rev. __ (forthcoming, 2026), available at
SSRN (Aug. 1, 2025).
There are benefits to thinking about extreme proposals—suggested utopias and radical restructurings of institutions. However unlikely it might be that such proposals are ever put into effect, they help us to think more clearly both about what needs to be changed and about what might yet be feasible. The particular extreme or utopian (or perhaps dystopian) set of proposals Susan Frelich Appleton and Albertina Antognini consider in their recent work is, as their title indicates, “abolishing the family.” While family, in conventional social and political ideologies, is often presented as an ideal, it has also for a long time been the subject of sharp criticism by many feminists and more than a few family law scholars. And, from the perspective of such critics, moderate reforms have turned out to be frustrating, teaching us (as the authors put it) “not only that inequality and its counterpart, privilege, continuously find ways to reassert themselves” (P. 60, fn omitted), but also that many suggested reforms “have failed because they defy core pillars of what families are assumed to be or do.” (P. 61.)
As the authors note (P. 4), the analysis of family abolition broadly evokes the discussion of abolishing marriage associated with Martha Fineman in work such as The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies and others (see, e.g., the contributors to Anita Bernstein (ed.), Marriage Proposals: Questioning a Legal Status and Elizabeth Brake (ed.), After Marriage: Rethinking Marital Relationships). During the later stages of the same-sex marriage movement, some more conservative voices also urged getting the state out of the business of recognizing marriage (so as not to be forced to give official sanction to same-sex unions). Despite such right-wing arguments joining critiques from within the LGBTQ+ movement and older left-wing arguments against marriage, civil marriage, now expanded to include same-sex couples, is still with us, and with little likelihood of imminent abolition. Continue reading "What We Can Learn from Family Abolition"
Jan 26, 2026 Darryl BrownCriminal Law
The United States imprisons about 1.8 million people—more than any other nation. Roughly a quarter of those behind bars have not been convicted; they are detained while awaiting a court hearing. The burden is not evenly distributed: the share of black men in prison is three times their share of the national population. What explains America’s commitment to spending so much to lock up so many? In her previous book, Prisoners of Politics (2019), Rachel Barkow put the blame squarely on the fact that U.S. criminal justice policy at every level—local, state, and federal—is made by politicians and voters rather than agencies informed insulated from political pressure and informed by expert analysis. The public perennially demands tough-on-crime policies. Legislators oblige by enacting ever-harsher laws. Elected prosecutors enforce those laws. Reforms won in recent years through politics—election of progressive prosecutors, bail reform, decriminalization of marijuana, and modest sentencing law changes—barely moved the needle.
Barkow’s new book, Justice Abandoned, starts with the same convincing premise: populist and politicized policymaking generally sustains the laws and practices that produce mass incarceration. She has now shifted both the focus for blame and reform to the U.S. Supreme Court, a choice both obvious and odd. Obvious because the Court clearly deserves some of the blame: for decades it has ruled, in a variety of cases that Barkow astutely unpacks, that the Constitution puts few restraints on the policies that have filled American prisons and jails. Odd because if there is one institution less likely than Congress or prosecutors to put the brakes on mass incarceration, it would seem to be the current Court. Continue reading "The Supreme Court’s Failure to Stop the Politics of Mass Incarceration"
Jan 23, 2026 Linda S. MullenixCourts Law
Class action practitioners and scholars are well aware that before a federal court may approve a class action settlement, the judge must assess the settlement’s fairness, adequacy, and reasonableness under various Rule 23(e) requirements. The Advisory Committee on Civil Rules has paid heightened attention to settlement approval, amending Rule 23(e) in 2003 and 2018. State class action procedures contain similar rules relating to judicial scrutiny of state class settlements.
Although the judicial role in overseeing class action settlements is well known, the role of governmental entities under the Class Action Fairness Act of 2005 (CAFA) in assessing class settlements has been somewhat overlooked in class action scholarship. This is not surprising; since CAFA federalized class action procedure, academic discussions of CAFA’s intricacies has receded. Michael Solimine and Hailey Martin’s recent article in the Journal of Legislation reminds us that CAFA intended to provide governmental entities with an additional role in assessing class action settlements, including rights to comment and object. Their article assesses the effect of CAFA’s provision for governmental oversight of class settlements. Continue reading "Take Notice: Governmental Review of Class Action Settlements"
Jan 22, 2026 Adam RosenzweigTax Law
Conor Clarke & Ari Glogower,
Apportioned Direct Taxes, 79
Tax L. Rev. __ (forthcoming 2026), available at
SSRN.
In June 2024 the Supreme Court issued its decision in Moore v. United States, a case many had predicted would be one of the most consequential tax cases of the past century. Instead, however, the Court managed to avoid deciding the most difficult and consequential issues by reframing the case and ruling on narrower, more technical grounds. Yet Moore may well still prove as consequential as expected, but for a different reason– that, for the first time, the Court explicitly utilized the “history and tradition” to interpret the taxing power, stating that “the Sixteenth Amendment expressly confirmed what had been the understanding of the Constitution before Pollock …” In doing so, Moore also serves as an invitation to to reconsider the historical record and understanding of the taxing power specifically with an eye towards shaping the Court’s modern interpretation of the Constitution.
Conor Clarke and Ari Glogower take up this cause in their new article, Apportioned Direct Taxes (ADT). The authors have two primary goals in ADT: (1) to provide a comprehensive survey of all “direct tax” legislation adopted by Congress prior to the Sixteenth Amendment including not only legislative history but administration and enforcement considerations as well, and (2) to identify what if any lessons emerge from that survey to help the courts to interpret the breadth and scope of the term “direct taxes” as used in the Constitution. Continue reading "Putting the Original Back into Tax Originalism"
Jan 21, 2026 Bill BrattonCorporate Law
Marcel Kahan & Edward B. Rock,
The Cleansing Effect of Shareholder Approval in a World of Common Ownership, available at
SSRN (Nov. 18, 2024).
It’s been ten years since MFW and Corwin opened a process pathway to business judgment review of cashout mergers, subject to Weinberger, and arm’s length mergers, subject to Revlon. At the time the cases came down, I anticipated smooth sailing for the cases’ two-track cleansing regime, under which the defendant needs independent director approval followed by ratification by a fully informed and uncoerced majority of disinterested shareholders. I figured that we had enough law in place on each of the tracks to make their application a straightforward matter. The components of the board approval leg, director independence and a special committee process, were focal point matters in late twentieth-century corporate governance, and there were plenty of Delaware cases providing guidance. The shareholder approval leg had a sketchier background. We had a well-developed law, mostly federal, on the full information requirement, and we knew coercion when we saw it. We had much less on the table to help us with precise questions respecting majority disinterested shareholder approval, because shareholder ratification had not theretofore been the usual practice recourse respecting conflicted transactions. But how hard could it be to fill in the details?
It turned out to be a lot harder than I thought. MFW and Corwin came down before everybody’s attention turned to the Big Three institutional investors and their growing block of voting shares and the closely related question of portfolio investor incentives, in particular the incentives of “common owners.” Common owner conflicts first popped up on the screen in 2004 with the empty voting allegations triggered by the Mylan-King merger agreement. The problem has been looming larger ever since, implicating not just corporate governance but antitrust. Continue reading "Institutional Disinterest"
Jan 20, 2026 Nancy KimContracts
Brett Frischmann and Moshe Y. Vardi’s article, Better Digital Contracts with Prosocial Friction-in-Design, wrestles with perhaps the most vexing problem facing contract law today – what to do about the proliferation of digital contracts that infest our screens. Frischmann and Vardi tackle the problem from a different angle than most contracts scholars (perhaps not surprising given their background and expertise in technology). Rather than focusing exclusively on doctrinal or legislative solutions, they propose design-based solutions that reframe and reconceptualize assent (and consent).
Their article begins with a critique of digital contracting (while they use the term “digital contracting”, they are mostly concerned with wrap contracts, such as clickwraps and browsewraps, and not DocuSign-type documents). The failure of digital contracting as an aspirational ideal has to do with digital contracting systems, which they define as “the combination of law and code-based architecture that generates boilerplate.” (P. 4.) These systems fail not simply as implementation of the traditional model of contracts (two parties bargaining and reaching mutual assent or a “meeting of the minds”), but more tragically for humanity, they “generate contracting behavior and contractual relationships that are as far from the ideal as one can imagine.” (P. 4.) Continue reading "Slowing Down the Clicks"
