Allison Brownell Tirres

The fact that Black Americans played a pivotal role in the formation and adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments would not come as a surprise to historians of the Reconstruction period working today. Scholars ranging from W.E.B. DuBois to Eric Foner to Kate Masur, and many in between, have painted a rich picture of the activism and engagement of enslaved and formerly enslaved persons and free Blacks, who participated directly in the meaning-making of the Second Founding.

Unfortunately, this remarkable history goes largely unacknowledged by contemporary legal scholars and jurists, including some of those on the Supreme Court. It is this gap between historical reality and jurisprudential attention that David H. Gans seeks to close in his forthcoming article Forgotten Framers: Black Conventions and the Second Founding. Continue reading "Furthering Inclusive Constitutionalism"

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Caprice Roberts

Rivalrous Remedies offers a novel theoretical account of chronic underenforcement. Its primary contribution is to explain and systematize an enforcement phenomenon in which courts and legislators employ an untheorized device. Rather than sanction wrongdoers directly, judges and lawmakers adopt doctrines and tools that deter misconduct by granting a legal advantage to the wrongdoer’s rival, such as a business competitor or litigation counterparty. This institutional design of “rivalrous remedies” regulates behavior indirectly and empowers rivals. As such, these remedies possess significant potential to outperform typical remedies. If overused, however, the benefits may convert to intolerable risks, especially in particular markets. But the benefits are alluring, including benefiting victims while not sanctioning wrongdoers or advancing victims’ benefits without requiring court processes. This arena is ripe for this rich scholarly treatment. Ultimately, the potential promises are worth the reader’s thoughtful consideration.

The reframing of focus is core to the article’s argument. Again, rivalrous remedies focus on conferring benefits to a wrongdoer’s rival. By shifting enforcement away from wrongdoers, and in some instances, away from courts, rivalrous remedies hold a novel path worthy of deeper exploration and application. This work starts by challenging the traditional remedial dichotomy: equitable injunctions stemming from property rules versus monetary damages tied to liability rules. While this conventional property-liability conception, famously advanced by Calabresi and Melamed, has proven extraordinarily influential, the Rivalrous Remedy authors persuasively show that the binary approach overlooks an important middle ground unexplored. In many settings, transaction costs are high, damages are difficult, if not impossible, to quantify, and immediate victims lack the incentives or capacity to vindicate their rights. It is no wonder then that, in such circumstances, classic remedies regularly fail. Continue reading "Rivalrous Remedies"

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Alma Diamond

In early twentieth-century South Africa, the Gordonia School Board refused admission to two children on the grounds that they were not of “European parentage.”¹ In determining the validity and meaning of the relevant empowering legislation, Chief Justice Lord De Villiers invoked “public history”: the first “civilized” legislators in South Africa regarded its indigenous peoples as “an inferior race” whom they were “entitled to rule over.” The legal order De Villiers was reasoning within presupposed that European legislators had the legal right to rule over all inhabitants of South Africa,² and the society of which he was a part continued to accept the soundness of that proposition. In his personal capacity, he might have disagreed. But, qua judge, he could either accept that norm for purposes of legal reasoning or abandon legal reasoning altogether. And if South African society came to disagree with that foundational norm, it would face the same choice: accept the norm while reasoning within the legal order or reject the norm along with the legal order itself.³

That, at least, is the standard view: a legal order’s highest norm might be changed by social and political processes, whether through outright revolution or via a series of “pious fictions.”⁴ But there can be no legal authorization for changing the highest norm of a legal order. To revise a legal order’s highest norm is to abandon it in favor of a new one. As Stephen Sachs has written, adhering to our current law means rejecting unauthorized changes to it.⁵ Manish Oza invites us to reconsider this standard view in his recent Article, Can We Legally Revise the Highest Legal Rule?. Continue reading "Can Law Speak Against Itself?"

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Pamela Samuelson

In May 2025 the Trump Administration summarily fired Librarian of Congress Carla Hayden and Register of Copyrights Shira Perlmutter and announced that Deputy Attorney General Todd Blanche would become the Acting Librarian and Associate Deputy Attorney General Paul Perkins the Acting Register.

The Library and the Copyright Office did not contest Trump’s ability to fire the Librarian, but they successfully blocked Blanche and Perkins from assuming the acting roles. Perlmutter has sought a declaratory judgment that the Administration lacks authority to fire her as the Register and asserts that she is still the Register. The D.C. Circuit Court of Appeals ruled in Perlmutter’s favor, but the Supreme Court will review that ruling. (Blake Reid explores the issues raised in Blanche v. Perlmutter in his Separation of Copyright Powers article, which is also slated for publication in the Seattle U.L. Rev. Online).

Street and Runyon are concerned primarily with preserving the independence of the Library of Congress from executive branch interference. They explain very well the important role the Library has played not only as a substantial resource for members of Congress, but also as the country’s national library, with more than 178 million items in its collection. The Library adds more than 10,000 items to its collection every working day, largely by virtue of the mandatory deposit copies of works of authorship it obtains from the Copyright Office when copyright owners provide deposit copies when they register their claims of copyright. Continue reading "Copyright’s Constitutional Crisis"

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Nadia Sawicki

Prof. Zack Buck’s scholarship regularly focuses on the tension that health care providers and institutions face between ensuring their own financial sustainability and serving the needs of vulnerable patients. In Patients as Stakeholders, Prof. Buck turns to the challenges posed by for-profit acquisitions of non-profit hospitals, and introduces the corporate governance theory of stakeholderism as a potential solution. Recognizing patients as core stakeholders in hospital operations and governance, Prof. Buck argues, will allow health care institutions to achieve both mission and margin.

Stakeholderism is the theory that a corporation’s duty to maximize shareholder wealth should be balanced against its obligations to other actors who are meaningfully affected by its decisions. Corporate law scholars are engaged in ongoing debates about the merits and implementation of stakeholderism – and the rise of the environmental, social, and governance (ESG) movement across industries suggests that many companies are already putting elements of stakeholderism into practice. In this article, Prof. Buck persuasively shows that stakeholderism as a governance model is particularly well suited to the health care industry, especially as a tool for filling regulatory and oversight gaps that arise when nonprofit hospitals convert to for-profit status. Continue reading "A Corporate Governance Model Serving Patient Interests"

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Naomi R. Cahn

Defining and redefining the family law canon is an ongoing project, with family law casebooks and scholars increasingly questioning the boundaries (or even the existence) of a canon. Kaiponanea Matsumura’s chapter, Close Resemblances: The Legal Construction of the Asian American Family, enters this conversation with an initial observation that: “Most of the laws and cases that comprise the current family law canon are race-neutral.” (p. 2). Matsumura identifies others, including Dorothy Roberts, Angela Onwuachi-Willig, and Solangel Maldonado who are challenging this race-neutrality, and he celebrates these efforts. Placing the chapter within these challenges to the canon, Matsumura argues that Asian Americans largely “continue to be ignored.” (p. 3)

The chapter asks what happens when we bring Asian American families into the family law conversation – or even center them. That critical question is the basis for the chapter’s dual goals; first, bringing Asian Americans into family law scholarship; and second, in actually doing so, showing how family law has centrally shaped the “model minority concept” that has an ongoing, and profound, effect on Asian Americans and the families they form. In the process, Matsumura shows that laws governing immigration, marriage, citizenship, labor, and military policy did not merely discriminate against Asians. They helped define what qualified as an “American” family in the first place. Continue reading "Strangers in a Family Law World?"

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Sheila Vélez Martínez

In his recent book, Critical Wage Theory: Why Wage Justice Is Racial Justice, Professor Ruben Garcia argues that wage justice is inseparable from racial justice and offers a framework for understanding the intersection of race, class, and labor law through what he terms “Critical Wage Theory” (CWT). García’s work builds on decades of scholarship in critical legal studies and labor law, weaving together historical struggles for fair wages, social movements, storytelling  and structural critiques of inequality.

This is a Moment of Wage Policy Rollbacks

In the first ten months of his presidency, Donald Trump signed 217 executive orders, 54 memoranda, and 109 proclamations, addressing issues ranging from foreign policy to artificial intelligence.¹ Given this volume and the immense variety of rights targeted, it is entirely possible that many people might have missed the fact that the current administration has, in a very systematic way, been limiting the access of workers to a living wage. Continue reading "Wage Justice for the Working Poor Across Race and Gender"

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Christopher Slobogin

In Criminal Justice in Divided America, David Sklansky argues that populist democracy has been a significant cause of our criminal justice problems and that those problems, in turn, are largely responsible for the continued degradation of American democracy. But he also contends that, if properly defined and implemented, democracy can end this vicious cycle and help remedy both sets of failures.

Those failures are well known. On the criminal justice side, police and prosecutors abuse their authority, plea bargaining has replaced jury trials, crime rates remain constant despite exceedingly harsh sentencing dispositions, and communities of color unfairly bear the brunt of the system’s dysfunction. On the democracy side, we have become a seriously divided nation with seemingly intractable disagreements on a host of issues, and this polarization has, again, inflicted the most suffering on the disadvantaged. Sklansky’s contention is that application of the right democratic principles to policing, adjudication and punishment can not only improve criminal justice but also help reconstruct a healthy democracy. Continue reading "The Role of Democracy in Criminal Justice Policy"

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James E. Pfander

Like the weather in the Midwest, about which more is said than done, so too with the Supreme Court’s “shadow docket” or, depending on your preferred locution, the “emergency” or “interim” docket. Now that may change. In an engaging paper, Thomas Schmidt and Kellen Funk propose a new name and a new way of conceptualizing the growing and increasingly important power (and predisposition) of the Supreme Court to intervene in ongoing disputes in the lower federal courts.

As a central element of the Court’s response to Trump II, the spate of shadow docket decisions over the past fifteen months has been nothing less than astonishing. The Trump Administration sought emergency relief in twenty significant cases in the second half of the October Term 2024, almost half as many as the forty-one the First Trump Administration sought in four years. Not only has the Court been setting the status quo pending final resolution, in Justice Kavanaugh’s telling, it has been remaking the substantive law along the way. Caught in the crossfire between an impetuous president and a cautious Court that has accommodated and sought to avoid direct conflict, lower federal courts have been whipsawed. Unable to overrule settled precedent, lower courts have applied the law on the books only to find their orders stayed or vacated by a Court that sees the law differently or strikes a different equitable balance. For example, the Court in the officer removal cases rejected lower court applications of Humphrey’s Executor, then circled back to clarify the situation. Continue reading "Equity Emerges from the Shadow (Docket)"

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Robert Rosen

In Altering Rules: The New Frontier for Corporate Governance, the non-parties whose interests are to be protected are shareholders. With respect to agreements by some shareholders that alter current corporate governance law’s default arrangements, the authors make the case for rejecting either granting unlimited contractual freedom or imposing mandatory terms, in favor of designing “flexible” bargaining frameworks and environments that “can manage the interests of [insider parties] both signatories and non-signatories alike” (P. 316).

One of the pleasures of this article is its elaboration of the “richness” (P. 329) in how corporate law designs institutions. Another is its elaboration of the mechanisms by which corporate law gives “voice” (P. 300) to unrepresented interests when necessary. Students of corporate law can draw on wisdom about design that applies to organizations generally, not only statutory corporations (Pp. 324-25). The authors call for a realignment of corporate law (for which Delaware is well-positioned) towards (re)designing institutions. They anticipate that such a realignment will “unleash” “private actors and contractual innovation” (P. 306). Corporate lawyers take heed. Continue reading "Protecting the Interests of Non-Parties in Corporate Governance"

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