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Schrodinger's Dissent: The Hybrid Authority Of A Dissenting Opinion, Christina Frohock

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A dissenting opinion is the Schrodinger's cat of authorities: both the law and not the law simultaneously. Courts and scholars often clarify that a dissenting opinion is not binding. Outside the universe of precedent, that authority defies easy description. Emerging from the pen of a judge wearing a black robe and acting in an official capacity, a dissenting opinion exhibits the form of the law. Yet, beneath that lofty sheen, a dissent exhibits the substance of commentary. A dissenting judge writes to undercut the law, providing a case law coda. This Article describes the traditional categories of authority, primary and …

Unprincipled All The Way Down, Wilfred U. Codrington Iii

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In 2006, the Supreme Court issued an emergency stay order in Purcell v. Gonzalez. Sparing in words and inattentive to the realities on the ground, the opinion nevertheless made a reasonable and understandable assertion: prior to issuing relief, courts presiding over elections should take into account any harms that judicial orders might cause, particularly in the lead-up to voting, alongside other considerations unique to elections. The statement was general enough to mollify the masses in the short-term. But over the long haul, it has proven to be a vehicle through which important election decisions might be made in less than …

Are Exit Taxes Discriminatory?, Reuven S. Avi-Yonah

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In a recent column, Tax Notes’ Robert Goulder analyzed case law in Europe on the constitutionality of exit taxes. Many EU member states impose exit taxes on individual residents who move to lower-tax jurisdictions, but the Court of Justice of the European Union has repeatedly struck them down as inconsistent with freedom of movement unless they allow for deferral until realization or death with no interest charge, which is equivalent to having no exit tax at all. Goulder cogently argues that this issue is similar to the Moore problem in the United States, especially since the U.S. exit tax on …

Microglial Piezo1 Mechanosensitive Channel As A Therapeutic Target In Alzheimer's Disease, Erol D Ikiz, Erin R Hascup, Chilman Bae, Kevin N Hascup

Articles

Microglia are the resident macrophages of the central nervous system (CNS) that control brain development, maintain neural environments, respond to injuries, and regulate neuroinflammation. Despite their significant impact on various physiological and pathological processes across mammalian biology, there remains a notable gap in our understanding of how microglia perceive and transmit mechanical signals in both normal and diseased states. Recent studies have revealed that microglia possess the ability to detect changes in the mechanical properties of their environment, such as alterations in stiffness or pressure. These changes may occur during development, aging, or in pathological conditions such as trauma or …

Digital Barter Taxes: A Legal Defense, Young Ran (Christine) Kim, Darien Shanske

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This short essay, aimed at state legislators, defends digital barter taxes from the most common legal objections.

The Broader Lessons Of Privacy Law, Salome Viljoen

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This Article explores the trend of privacy—and what kind of techno-social or legal effect ought to count as a “privacy harm”—expanding to encompass a growing set of social factors. This big-tent approach to privacy has several virtues. However, it also comes with a few costs. While others have explored the conceptual and doctrinal tradeoffs that an expansive approach to privacy may entail, this Article focuses on a secondary effect the trend toward expansiveness has had on the relationship between privacy scholarship and legal scholarship more broadly. This Article suggests that the internal expansiveness of privacy means that insights developed within …

Raising The Bar: The Nextgen Bar Exam And Contract Drafting, Susan M. Chesler, Karen J. Sneddon

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Set to debut in July 2026, the NextGen Bar Exam will test a broad range of foundational lawyering skills needed in today’s practice of law, including contract interpretation, drafting, and revising. According to the National Conference of Bar Examiners (“NCBE”), this exam is designed “to balance the skills and knowledge needed in litigation and transactional legal practice.” More specifically, the foundational skills that will be tested include drafting and revising contract provisions consistent with the facts, the law, and the client’s objectives, interests, and constraints. The NCBE has indicated that the examinees’ knowledge of the doctrinal subject matter topics, like …

Water Management And Conservation In India Fostering Water Justice: Arguing For Adopting Just Sustainability In Water Governance, Gayathri D Naik Dr, Sanjay Shenoi P

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The water sector is characterised by everyday water injustices where factors like social discrimination, economic disparities, and political preferences influence the determination of water resource access, allocation, and management. The increasing anthropogenic impacts on water resources and consequent threats to sustainability add to the water injustices, often impacting the poorer, socially downtrodden communities that bear the brunt of water scarcity and cannot afford alternatives. The current water governance patterns, prioritising equality over equity, fail to address the issues of water injustices created by social, political, and economic factors in water management and sideline the ecological impacts on water resources. Moving …

Free Speech Originalism: Unconstraining In Theory And Opportunistic In Practice, Caroline Mala Corbin

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Courts should not apply originalism in freedom of expression cases. Originalists claim that originalism prevents judges from imposing their own views. It does not-not in theory and not in practice. Instead, as the treatment of hate speech bans suggests, it is not principles but outcomes that determine whether and which version of originalism is used. Moreover, a true originalist First Amendment would likely lead to impoverished free speech protections.

Part I provides background on original public meaning originalism, the iteration of originalism currently favored by scholars. It also explains how the theory falls short of its original promise of limiting …

Economic Security And The Separation Of Powers, Kathleen Claussen, Timothy Meyer

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The U.S. Constitution grants Congress the power "[t]o regulate Commerce with foreign Nations," but today the exercise of the foreign commerce power resides primarily with the executive branch. That transfer of control is partly the result of significant delegations of responsibility for managing foreign commerce from Congress to the executive. It is also, however, the result of the securitization of foreign commerce. The executive branch asserts that foreign commerce issues fall under its constitutional powers over foreign affairs, and, thus, that it enjoys authority over foreign commerce that exceeds the scope of congressional delegations.

This Article makes three contributions. First, …

Trade Law Policing On The Factory Floor: Next Generation Agreements And Their Corporate Accountability Tools, Kathleen Claussen

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Trade policymakers' increased attention to sustainability has prompted the development of trade tools focused on corporate accountability within international trade agreements. As evidenced by the creation and use of the United States-Mexico-Canada Agreement's Rapid Response Labor Mechanism, this institutional shift has potent implications for labour rights and environmental protections. This article, which transcribes a lecture delivered at the Lauterpacht Centre in October 2023, scrutinises the turn toward supply-chain policing within international trade law and its institutional, legal, sociological, rhetorical and disciplinary effects.

All Roads Lead To Rome: Combating Impunity For Perpetration Of Slave Trade And Slavery Crimes, Jocelyn Getgen Kestenbaum

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The Republic of Sierra Leone has proposed amendments to the Rome Statute of the International Criminal Court (ICC) to include, inter alia, provisions for the slave trade as a crime against humanity and has recommended that the General Assembly include the slave trade as an enumerated crime in the Draft articles on Prevention and Punishment of Crimes Against Humanity (CAH) (Draft articles). This declaration came nearly five years after Cardozo’s Benjamin B Ferencz Human Rights and Atrocity Prevention Clinic, on behalf of slavery crimes expert Patricia Viseur Sellers, sent commentaries to the United Nations International Law Commission (ILC) to revise …

The Myth Of Slavery Abolition, Jocelyn Getgen Kestenbaum

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In many countries today, slavery and the slave trade continue with impunity. International human rights law prohibits both abuses, but states are rarely held accountable and people who are enslaved or slave traded rarely receive redress. This Article offers a novel account of why international human rights law advocacy neglects slavery and the slave trade. Specifically, this Article demonstrates that the abolition of the Transatlantic and East African slave trades was achieved through a legal framework that marginalized the human rights of enslaved persons while consolidating empire. In the wake of World War II, prohibitions on slavery and the slave …

Redistributing Justice, Benjamin Levin, Kate Levine

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This Essay surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system. Despite progressives’ increasingly prevalent critiques of criminal law, there is hardly a consensus on the left in opposition to the carceral state. Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas— often areas in which defendants are imagined as powerful and victims as particularly vulnerable.

In this Essay, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment—the hope that the criminal system …

Achille Mbembe, "Brutalism", Atreyee Majumder

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Book Review: Achille Mbembe, Brutalism (Duke University Press 2024)

Why We Should Stop Talking About Violent Offenders: Storytelling And Decarceration, Mira Edmonds

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The movement to decarcerate risks foundering because of its failure to grapple with so-called violent offenders, who make up nearly half of U.S. prisoners. The treatment of people serving sentences for offenses categorized as violent is a primary reason for the continued problem of mass incarceration, despite widespread awareness of the phenomenon and significant bipartisan interest in its reduction. People convicted of “violent offenses” are serving historically anomalous and excessively long sentences, are generally denied clemency and compassionate release, and are excluded from a wide array of legal reform and policy changes with decarceral aims. Keeping these people in prison …

Should Racially Vulnerable Victims Show Mercy?, Ekow N. Yankah

Articles

On June 17, 2015, twenty-one-year-old Dylann Roof entered the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, sat, and prayed with nine congregants for at least an hour before pulling out a handgun and killing Cynthia Hurd, Susan Jackson, Ethel Lance, DePayne Middleton-Doctor, State Senator Rev. Clementa Pinckney, Tywanza Sanders, Rev. Daniel Simmons, Sharonda Singleton, and Myra Thompson.' He left three survivors, explicitly so they could "tell the story" of his killings. Roof did so for his own demented reasons; his racist rage was laid out publicly in an online manifesto, and he hoped his murders would begin a …

Beyond The Human: Crossovers For An Onto-Epistemological Bifurcation, Ester Toribio-Roura

Articles

Building upon recent studies in new materialisms and feminist critical posthumanism with a focus on human and more-than-human relationships, this paper examines how the posthuman paradigm, by postulating the queering of identit(ies) via entanglement with the more-than-human (including technology), and by offering a critical examination of diverse modes of existence within a broader ecological context, can foster more inclusive and ethically sound ways of being in the world. Although posthumanism encompasses a wide range of perspectives and theories, including transhumanism, at its core, it challenges traditional notions of humanism, blurring the boundaries between what is human and what is more-than-human, …

Medical-Legal Partnerships Reinvigorate Systems Lawyering Using An Upstream Approach, Kate L. Mitchell, Debra Chopp

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The upstream framework presented in public health and medicine considers health problems from a preventive perspective, seeking to understand and address the root causes of poor health. Medical-legal partnerships (MLPs) have demonstrated the value of this upstream framework in the practice of law and engage in upstream lawyering by utilizing systemic advocacy to address root causes of injustices and health inequities. This article explores upstreaming and its use by MLPs in reframing legal practice.

Should U.S. Tax Law Be Constitutionalized?, Reuven S. Avi-Yonah

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Moore is the first Supreme Court case involving a constitutional challenge to a federal income tax law since Macomber, which was decided more than a century ago. Whatever way the Court rules, other such cases are likely to be brought and some of them may reach the Court. Moore won’t be the last case of its kind.

Soil Organic Matter Components And Characteristics Of Forest Soil In Spruce And Sycamore Plantations In The Temperate Region, Samuel Obeng Apori, Michelle Giltrap, Julie Dunne, Furong Tian Nanolab Research Centre, Focas Research Institute

Articles

The stability of soil organic matter (SOM) that governs soil organic carbon (SOC) storage depends on its characteristics and components, but little is known about how tree species in forest ecosystems affect SOM components and characteristics. In this study, we used FTIR spectroscopy to investigate plantations of two ecologically and economically significant tree species—namely, spruce (Picea spp.) and sycamore (Acer pseudoplatanus)—in order to determine how the different litter inputs and root-microbe interactions of these two plantations affect the functional groups, components, and characteristics of their SOM. Soil samples were taken from the topsoil (0–10 cm) and subsoil (10–20 cm). In …

Can Investment Treaties Defeat Pillar 2?, Reuven S. Avi-Yonah

Articles

In their excellent recent Tax Notes International article, “Using Investment Treaties to Prevent Pillar 2’s Revocation of Promised Tax Incentives,” Javier Rubinstein, Lauren Friedman, and Tamsin Parzen make an interesting new argument about the interaction between bilateral investment treaties (BITs) and pillar 2. They argue that an investor benefiting from an existing BIT can rely on it to prevent the imposition of a qualified domestic minimum top-up tax (QDMTT) even without resorting to treaty arbitration. This argument is problematic, however, because it does not fully address the likely reaction of other countries that are not party to the BIT.

Reynolds Revisited: The Original Meaning Of Reynolds V. United States And Free Exercise After Fulton, Clark B. Lombardi

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This Article calls for a profound reevaluation of the stories that are being told today about the Supreme Court’s free exercise jurisprudence starting with the Court’s seminal 1879 decision in Reynolds v. United States and proceeding up to the present day. Scholars and judges today agree that the Supreme Court in Reynolds interpreted the Free Exercise Clause of the First Amendment to protect only religious belief and not religiously motivated action. All casebooks today embrace this interpretation of the case, and the Supreme Court has regularly endorsed it over the past twenty years, most recently in 2022. However, this Article …

Reproductive Objectification, Meghan M. Boone, Benjamin J. Mcmichael

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The American system of rights is individualized - premised on the concept of singular, physically separate, and autonomous people. The rise of the fetal personhood movement complicates this basic understanding. If rights attach to singular, autonomous people, and fetuses are legally people, then the body of a pregnant person becomes conceptually unintelligible as it contains potentially two, interrelated people. Such a circumstance is fundamentally a contradiction within a framework that insists that rights attach to people who are, by definition, singular, separate, and autonomous.

This Article argues that, as a result of this apparent contradiction, fetal personhood laws make the …

Generative Interpretation, Yonathan Arbel, David A. Hoffman

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We introduce generative interpretation, a new approach to estimating contractual meaning using large language models. As AI triumphalism is the order of the day, we proceed by way of grounded case studies, each illustrating the capabilities of these novel tools in distinct ways. Taking well-known contracts opinions, and sourcing the actual agreements that they adjudicated, we show that AI models can help factfinders ascertain ordinary meaning in context, quantify ambiguity, and fill gaps in parties' agreements. We also illustrate how models can calculate the probative value of individual pieces of extrinsic evidence.

After offering best practices for the use of …

Administrative Reliance, Haiyun Damon-Feng

Articles

Presidential regime change and the federal policy shifts that accompany it raise significant questions concerning continuity, stability, and governance in the administrative state. Presidential policymaking through the administrative state may generate serious reliance interests recognized under administrative law (what this Article calls “administrative reliance”), which agencies must consider prior to enacting policy change. Administrative reliance has developed into a robust form of judicial review over agency action. Administrative reliance has been invoked in highly politicized contexts, such as immigration law, to challenge a sitting administration’s termination of a prior administration’s policies. Despite its powerful and consequential effects, the doctrine of …

Biosensor-Enhanced Organ-On-A-Chip Models For Investigating Glioblastoma Tumor Microenvironment Dynamics, Gayathree Thenuwara, Bilal Javed, Baljit Singh, Furong Tian

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Glioblastoma, an aggressive primary brain tumor, poses a significant challenge owing to its dynamic and intricate tumor microenvironment. This review investigates the innovative integration of biosensor-enhanced organ-on-a-chip (OOC) models as a novel strategy for an in-depth exploration of glioblastoma tumor microenvironment dynamics. In recent years, the transformative approach of incorporating biosensors into OOC platforms has enabled real-time monitoring and analysis of cellular behaviors within a controlled microenvironment. Conventional in vitro and in vivo models exhibit inherent limitations in accurately replicating the complex nature of glioblastoma progression. This review addresses the existing research gap by pioneering the integration of biosensor-enhanced OOC …

Enhancing Public Access To Agency Law, Bernard Bell, Cary Coglianese, Michael Herz, Margaret Kwoka, Orly Lobel

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A just, democratic society governed by the rule of law requires that the law be available, not hidden. This principle extends to legal materials produced by administrative agencies, all of which should be made widely accessible to the public. Federal agencies in the United States do disclose online many legal documents—sometimes voluntarily, sometimes in compliance with statutory requirements. But the scope and consistency of these disclosures leaves considerable room for improvement. After conducting a year-long study for the Administrative Conference of the United States, we identified seventeen possible statutory amendments that would improve proactive online disclosure of agency legal materials. …

Rethinking Taxing Excess Profits, Reuven S. Avi-Yonah, Tamir Shanan

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This article discusses the application of excess profit taxes (EPTs, also referred to as windfall taxes) that have gained renewed interest and popularity over the past several years. The revival of these windfall taxes gained renewed interest following the COVID-19 outbreak, which led to a sharp price increase in corporate revenues of medical equipment and within pharmaceutical industries. However, the revival of such taxes was also used following the recent rise in energy prices mainly in Europe, leading to a sharp increase in corporate revenues of energy corporations and the recent surge in borrowing interest rates that was not accompanied …

A History Of Corporate Law Federalism In The Twentieth Century, William Wilson Bratton

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This Article describes the emergence of corporate law federalism across a long twentieth century. The period begins with New Jersey's successful initiation of charter competition in 1888 and ends with the enactment of the Sarbanes-Oxley Act in 2002. The federalism in question describes the interrelation of state and federal regulation of corporate internal affairs. This Article takes a positive approach, pursuing no normative bottom line. It makes six observations: (1) the federalism describes a division of subject matter, with internal affairs regulated by the states and securities issuance and trading regulated by the federal government; (2) the federalism is an …