Law Commons^™

Ai-Powered Lawyering: Ai Reasoning Models, Retrieval Augmented Generation, And The Future Of Legal Practice, Daniel Benjamin Schwarcz, Sam Manning, J.J. Prescott, Patrick Barry, David R. Cleveland, Beverly Rich

Articles

Generative AI is set to transform the legal profession, though its most promising uses and ultimate effects are still unclear. While AI models like GPT-4 improve efficiency, they can also “hallucinate” and may undermine legal judgment, particularly in complex tasks typically handled by skilled lawyers. This article examines two emerging AI innovations that may mitigate these concerns: Retrieval Augmented Generation (RAG), which grounds AI-powered analysis in legal sources, and AI reasoning models, which structure complex reasoning before generating output. We conduct the first randomized controlled trial assessing these technologies, assigning upper-level law students to complete legal tasks using a RAG-powered …

Grading Machines: Can Ai Exam-Grading Replace Law Professors?, Kevin L. Cope, Jens Frankenreiter, Scott Hirst, Eric A. Posner, Daniel Schwarcz, Dane Thorley

Articles

In the past few years, large language models (LLMs) have achieved significant technical advances, enabling legal-advocacy organizations to adopt them as complements to—or substitutes for—lawyers and other human experts. The role of LLMs in legal education, however, is underexplored. While several studies have examined LLMs’ performance in taking law school exams, finding mixed results, there have been no published studies systematically analyzing LLMs’ competence at one of law professors’ chief responsibilities: grading law school exams. This paper presents results of an analysis of how LLMs perform in evaluating student responses to legal analysis questions of the kind typically contained in …

Allocating Electricity, Alexandra Klass, Dave Owen

Articles

The U.S. electricity system is premised on the ideas that utilities have a duty to serve all customers in their service territories and that electricity supply should always meet demand. Until recently, there has been little reason to question these foundational premises. U.S. electricity demand has remained flat for over a decade, and during earlier periods of growth, new energy generation plants were relatively easy to build. Now, however, electricity experts predict massive load growth—most notably from data centers to power artificial intelligence and cryptocurrency—and building new power plants is no longer easy.

Major efforts are underway to increase electricity …

Merger Remedies Unbound, Dhruv Aggarwal, Albert H. Choi, Geeyoung Min

Articles

How should foundational contract law doctrines apply to corporate mergers? This Article argues that recent changes in Delaware law grant parties expansive contractual freedom to define their preferred remedies in merger agreements, untethered from the limits imposed by traditional contract law. A new provision in the Delaware corporate code, or the Delaware General Corporation Law (DGCL), permits penalty clauses in merger agreements, notwithstanding the traditional “anti-penalty doctrine” that forbids punitive liquidated damages in contracts. Delaware courts have also shown deference to specific performance provisions, treating them as presumptively enforceable commitments instead of retaining their traditional judicial discretion over the choice …

Legalistic Noncompliance, Daniel Deacon, Leah Litman

Articles

Will the executive branch comply with court orders? That question has garnered a considerable amount of attention over the first few months of the second Trump administration. But what does it mean to comply? And what if a form of noncompliance is already occurring?

This Article documents an emerging practice that has dominated the second Trump administration's approach to unfavorable court rulings, a practice this Article calls legalistic noncompliance. Legalistic noncompliance occurs when the administration uses the language of the law as cover to claim that it is complying with court orders when in fact it is not. Drawing …

The Crisis Of Appropriations Law, Samuel R. Bagenstos

Articles

Appropriations law is a unique body of federal law.  Appropriations law imposes its own somewhat baroque set of statutory interpretation principles, approves of very broad delegations to the Executive Branch without meaningful limiting principles, and is often exempt from judicial review.  But perhaps that is all about to change.  Donald Trump’s historically aggressive challenge to Congress’s power of the purse has spurred an unusually large volume of exceptionally high-stakes appropriations law litigation. 

The potential implications go beyond the high-profile issues such as enforcement of the Impoundment Control Act.  In general, the unusual features of appropriations law are built on a …

Managing Deportation: How Docket Control Replaced Substantive Relief In Immigration Courts, Linus Chan

Articles

In the modern deportation era, immigration courts saw their ability to grant relief from deportation undergo significant restrictions, constraining individualized discretion in favor of "categorical" denials. Congress dramatically curtailed the discretionary tools available to immigration judges, with the latest being the pair of immigration reforms from 1996, shifting the locus of individualized decision-making away from the courts and toward enforcement officers and prosecutors. Immigration courts lost discretion in being able to decide who could formally be granted status and stay in the United States when facing deportation through various restrictive eligibility requirements written into the law.

This Article argues that …

The Efficiency Paradox Of Majoritarian Democracy, Barbara Luppi, Francesco Parisi

Articles

Majoritarian democracy is widely regarded as the canonical procedure for converting heterogeneous individual preferences into collective decisions, yet its welfare properties are far more fragile than legal and political theorists suggest. This paper contributes to the literature on the limits of majoritarianism by applying a spatial voting model to demonstrate that the conditions under which majoritarian democracies produce efficient outcomes are narrowly constrained by the structural features of majority rule itself. We formalize a multidimensional policy environment in which voters bargain over both the policy vector and lump‑sum transfers. We show that—even with transferable utility among members of the majority …

Insuring Algorithmic Liability: A Response To Artificial Intelligence, Judicial Evolution, And Insurance, Daniel Schwarcz

Articles

No abstract provided.

Legalizing Magic Mushrooms: A Different Set Of Laws For A Different Kind Of Drug, Edward S. Adams

Articles

This Article explores the regulation of the cannabis industry, highlighting its origins, history, and shortcomings. The Article then compares the cannabis and psilocybin industries, arguing against the replication of the cannabis regulatory structure for psilocybin. Instead, this Article will propose tailored regulatory solutions designed to address the unique characteristics of psilocybin and foster a well-regulated, safe, and effective market.

Style And Substance: A Review Of Jill Barton's The Supreme Guide To Writing, Christina Frohock

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No abstract provided.

Boundaries Of Rules: Social Reactions To Legal Intervention, Francesco Parisi

Articles

This chapter examines what happens at the boundaries of rules: when social practices acquire legal recognition, when legal rules seek to reshape social expectations, and when formal and informal enforcement operate together. The conventional economic model treats the expected formal sanction as the principal source of compliance. Although this model provides a fundamental benchmark, it captures only part of the effects of legal intervention. The taxonomy developed here identifies the different ways in which legal, moral, and social incentives may interact. The kinds of public and private enforcement through which individuals express norms shape the additive, nonadditive, and countervailing effects …

Age, Law, And Political Economy, Alexander Boni-Saenz

Articles

This Article examines the intersection of age, class, and the law. Its central claim is that age is an essential dimension for the analysis of law and political economy. There are two primary reasons why. First, age is embedded in a large body of legal rules that structure the labor market and address vulnerabilities associated with particular life stages. Child labor laws set minimum ages for entry into the workforce, while social welfare laws use age eligibility criteria to shape the material conditions for older adults. Second, age and its sibling concept, generation, indirectly shape economic and political relations by …

The End Of Territoriality?, Reuven S. Avi-Yonah

Articles

The One Big Beautiful Big Act (OBBBA) of 2025 is generally consideredto be a continuation of the Tax Cuts and Jobs Act (TCJA) of 2017.1Thatis definitely true as far as the individual tax provisions are concerned, be-cause the OBBBA merely made permanent the TCJA provisions with minorchanges, such as increasing the cap on the state and local tax deduction from$10,000 to $40,000. For the corporate tax, the OBBBA continued some of thechanges in the TCJA (such as expensing) while relaxing others (such as amorti-zation of research and experimentation (R&E) expenditures and a stricter limiton interest deductions) without changing the overall …

Liability For Non-Disclosure In Ipos, Albert H. Choi, Kathryn E. Spier

Articles

A privately-informed entrepreneur may withhold material information from prospective investors who may sue the firm ex post for (alleged) non-disclosure. Absent liability, the entrepreneur has an excessive incentive to withhold bad news and pursue socially-wasteful projects. Liability deters inefficient non- disclosure and prevents capital misallocation. Any damage award received by investors is partially offset by a reduction in equity value. Depending on the likelihood of court error and litigation cost, the socially-optimal damage award may be either zero or the minimum necessary for full deterrence. The private incentive to waive liability may be socially excessive or insufficient. Positive and normative …

States As Gatekeepers In Global Governance, Kristina Daugirdas

Articles

Over the last several decades, private actors—corporations, philanthropic foundations, and non-governmental organizations—have increasingly contributed to the development and implementation of public international law. In some cases, private actors are developing standards that serve as substitutes for public regulation. In other cases, private actors have been “invited in” to public international organizations as funders, accredited observers and consultants, and even representatives of member states. According to one estimate, 56 percent of international organizations offered some form of access to private actors in 1990; two decades later, more than 90 percent did.

What we are witnessing, in other words, is the growing …

State Climate Superfunds, Rachel Rothschild

Articles

The harmful effects of climate change have already arrived in cities and states across America, with disasters increasing markedly in recent years along with more gradual environmental changes like sea-level rise and drought. To protect populations and natural resources, significant funding will be necessary for preventative measures as well as disaster response.

At present, it is states and ordinary taxpayers who must shoulder the enormous costs and planning for climate adaptation. A number of state legislators, however, have recently proposed enacting new laws that would require the companies who have most profited from fossil fuel usage to assist in funding …

Ai-Powered Lawyering: Ai Reasoning Models, Retrieval Augmented Generation, And The Future Of Legal Practice, Daniel Schwarcz, Sam Manning, J. J. Prescott, Patrick Barry, David R. Cleveland, Beverly Rich

Articles

Generative AI is set to transform the legal profession, though its most promising uses and ultimate effects are still unclear. While AI models like GPT-4 improve efficiency, they can also “hallucinate” and may undermine legal judgment, particularly in complex tasks typically handled by skilled lawyers. This article examines two emerging AI innovations that may mitigate these concerns: Retrieval Augmented Generation (RAG), which grounds AI-powered analysis in legal sources, and AI reasoning models, which structure complex reasoning before generating output. We conduct the first randomized controlled trial assessing these technologies, assigning upper-level law students to complete legal tasks using a RAG-powered …

Authorship Nonsense, Jessica Litman

Articles

Copyright law’s primary device for promoting progress is to bestow rights on the authors of works. Rights vest automatically and last for a very long time. Authors’ choices to retain, license, or transfer those rights fuel opportunities to communicate the works to their audiences. The copyright system’s mechanisms for determining who authored works (and therefore automatically obtained copyright rights) should be both accurate and reliable, since misidentifications will undermine the law’s working as intended.

This article examines authors’ creation of works and copyright law’s handling of authorship disputes. Many works result from creative collaboration. Although the copyright statute incorporates mechanisms …

Monitoring, Oversight, And Learning In Medical Ai, W. Nicholson Price Ii

Articles

When medical AI errs, it often goes unnoticed. If there’s a specific patient injury, and the link to AI is obvious, that problem might be reported to the Food and Drug Administration (FDA), but not always. And many other types of problems, like worse performance on specific groups or ineffective integration into health system workflows, simply don’t fall within the contours of regularized reporting. Even if they are noticed by the health system—far from a given—there’s no obvious way to share that information more broadly. Against this backdrop, there are justified calls for better oversight and reporting. But there’s the …

Read But Not Understood? An Empirical Analysis Of Consumer Comprehension In Homeowners Insurance, Daniel Schwarcz, Brenda J. Cude, Kyle D. Logue, German Marquez Alcala

Articles

Modern contract law assumes that consumers meaningfully assent to the standard forms that govern their daily lives. However, this assumption is widely regarded as a legal fiction for two key reasons: first, most consumers do not read standard forms, and second, even those who do often struggle to fully comprehend their terms and implications. Although the lack of consumer reading has been well documented through empirical research, consumers’ ability to comprehend standard-form contracts has received surprisingly little attention.

This Article addresses the latter issue by empirically examining whether providing excerpts from the dominant standard-form homeowners insurance policy improves consumer understanding …

The Basis Of The Labor Exemption Reconsidered, Sanjukta Paul

Articles

Broadly speaking, this symposium queries the question of expanding some actors’ coordination rights under antitrust law as a way of effectuating legal goals relating to “power relations.” I commend the organizers of the symposium for opening this conversation, for asking about the use of “collective bargaining” beyond the traditional labor domain, and for taking on the question in a creative way. These broader questions are essential, and yet my own article will (paradoxically, perhaps) try to contribute to this effort by going back to the core domain of the labor exemption itself—where, it turns

How The U.S. Constitution Shapes International Tax Law: Instrument Choice In Tax Agreements, Noam Noked, Young Ran (Christine) Kim, Reuven Avi-Yonah

Articles

The U.S. Constitution’s Treaty Clause, which requires Senate approval by a two-thirds vote for treaties, has significantly influenced the development of international tax law. This Article examines the implications of Senate supermajority requirements on bilateral and multilateral tax treaties and agreements, alternative instruments, relevant international tax standards, and global tax governance.

Historically, tax treaties have been approved exclusively as Article II treaties requiring Senate approval. The difficulty of entering into treaties with the United States has influenced the instrument choice and design of U.S. and international tax standards. To address this challenge, several U.S. and international tax reforms have employed …

Covid And The Great Retrenchment, Samuel R. Bagenstos

Articles

The past six years have seen two dramatic shifts in federal health and benefits policy. First, during the COVID pandemic, the government dramatically expanded public benefits. These expansions had incredibly positive effects, and recipients were largely satisfied with them. But after a relatively short time, Congress rolled back nearly all of the expansion. Worse, the immediate pullback set the stage for even more significant retrenchments in the second Trump Administration. Where in 2023 the United States came closest to universal health care in its history—with a record low uninsured rate of 7.7%—the Trump Administration’s Medicaid cuts and failure to extend …

Useful Noise: Understanding Dicta And Knowing What To Do With It, Len Niehoff, Tucker Gribble

Articles

Sometimes we approach the idea of obiter dictum as if it were Latin for “Here the court says something I wish it didn’t.” When a judicial opinion includes a statement that hurts our case, we labor to cast it as dicta and we give it the first name “mere.” If the opposing party quotes the statement, we huff about its irrelevance and dismissively proclaim that it can, indeed must, be ignored. We treat dicta as background noise, and we encourage the court to plug its ears and hum.

Noneconomic Tort Damages And Biased Beliefs About Vulnerability To Harm, Roseanna Sommers

Articles

The American tort system aspires to provide fair compensation to injured plaintiffs, regardless of socioeconomic status, race, religion, or gender. Recent experimental evidence from psychology suggests, however, that factfinders consistently judge identical harms as less severe when experienced by individuals of lower socioeconomic status (SES). People presume, for instance, that a paper cut hurts a wealthy person more than a less well-off person, that domestic violence inflicts greater suffering on a high-SES woman than a lower-SES woman, and that bullying harms a fiveyear- old from a high-SES family more severely than one from a low- SES family. This Essay examines …

Designing Contract Modification, Albert H. Choi, George G. Triantis

Articles

For long-term commercial contracts, modification tends to be the norm rather than the exception. While modification often takes place in response to an arrival of new information, contracting parties frequently modify the terms in response to a shift in bargaining power. In this Article, we explain how the flexibility to renegotiate in response to a shift in bargaining power can facilitate long-term contracting and thereby beneficial reliance investments and risk allocation. The prospect of modification can induce contracting parties who expect their bargaining power to improve, such as from the emergence of outside opportunities, to enter into contracts earlier and …

In Service Of The State: Foreign Financing, Infrastructure, And Imperialism In Tsarist Russia, Christopher A. Hartwell, Paul Vaaler, Boris Vinogradov

Articles

Russia’s imperialism in the nineteenth century has been far less scrutinized than other episodes of great power colonization, but the Tsar’s expansion into the Caucasus was indeed an ongoing imperial project. The movement of Russian troops and settlers was only feasible with the creation of a large railway network, an undertaking for which the Tsarist regime lacked adequate funding. In response, the regime developed a system of state guarantees and incentives to attract foreign investors looking for higher returns and willing to finance railways serving the imperial project. We illustrate this point with a case study of Paris-based Crédit Lyonnais …

The Durability Of Protections Against Abuse At Interpol Amidst Rising Authoritarian Pressures, Kristina Daugirdas

Articles

Over centuries and across continents, authoritarian governments have demonstrated a large appetite for international cooperation to target political opponents across borders. In 1851, the “first modern police organization”—the Police Union of German States, whose members included Austria and Prussia—was established “with the express purpose of policing the political opposition of established autocratic regimes.” During the 1970s and early 1980s, military regimes in South America participated in a secret scheme known as Operation Condor to coordinate their efforts to suppress subversion. A recent analysis of twenty-nine “hard authoritarian” regional organizations found that twenty-five were engaged in police cooperation. The Shanghai Cooperation …

Can – And Should – The Un Charter Be Saved?, Steven Ratner

Articles

World leaders from Canada’s Mark Carney to Germany’s Friedrich Merz have announced the demise of the international rules that provided some degree of order to international relations since the Second World War.2 The immediate cause is clear to them and others – a seeming abandonment of international law, and the UN Charter in particular, by the United States government, its chief architect and advocate. The U.S. actions and rhetoric over Venezuela and Iran – wars the United States has started – as well as Greenland and Ukraine seem to have confirmed the worst about the future of international law.