Emad H. Atiq,
Professor of Law & Philosophy
“Justice as Law’s Constitutive Virtue: A Functional Reassessment,” lead article in Oxford Studies in Philosophy of Law, vol. 7 (forthcoming 2026).
Some kinds can succeed or fail on their own terms. A clock that loses minutes is defective as a clock; a university that abandons teaching and research becomes deficient as a university. Pebbles and numbers, by contrast, are not evaluable in this way. Philosophers often place law in the first category, and some go further still: they claim that unjust law is defective as law. Yet the leading arguments for this claim—appeals to central cases (Finnis 2011), law’s characteristic activities (Murphy 2006), the logic of legal demands (Alexy 2021), or law’s justificatory role (Dworkin 1986)—fail when tested against canonical cases of kind-relative virtue. Their failure reveals a deeper lacuna in legal philosophy: the absence of a general theory of goodness-fixing kinds. In this paper, Atiq argues that if justice is law’s constitutive virtue, it must be explained using the same functional schemas that ground constitutive standards elsewhere: agentive functions stably intended across contexts; etiological functions that explain emergence and persistence; and systemic functions that locate law’s role within larger social orders. On this reconstruction, whether unjust law is defective “as law” is not a matter of conceptual stipulation or a priori intuition, but an empirical question—one that unsettles familiar readings of Dworkin and Hart, and standard narratives of legal history.
Maggie Gardner, Professor of Law
“The Future of Fuld,” Yale Law Journal Forum (forthcoming 2026).
The Supreme Court purported to say very little in Fuld v. PLO, but it implied a lot. The opinion can be read to support two diametrically opposed approaches to the Fifth Amendment’s due process limits on personal jurisdiction: that those limits largely mirror the Court’s core insight in International Shoe Co. v. Washington, or that there are no limits.
After describing these two potential readings, this essay argues for the first: that like the Fourteenth Amendment, the Fifth Amendment requires an intentional nexus to the forum that makes the exercise of personal jurisdiction reasonable. Reasonableness undergirds much of the Court’s reasoning in Fuld, avoids disrupting settled expectations, and preserves a valuable judicial check on the excesses of the political branches. The essay concludes by suggesting how lower courts might implement Fuld going forward—and how, by focusing on the core insight that underlays International Shoe, they might also help shed new light on the Fourteenth Amendment personal jurisdiction analysis as well.
G.S. Hans, Clinical Professor of Law
“Clinical Academic Freedom: Old Threats, New Protections,” Washington University Journal of Law and Policy (forthcoming 2026).
In 2025, law school clinics and their academic independence took major blows from all directions. Clinical faculty were investigated for their impact and entire programs’ efforts were impeded. This clinical interference came after recent attacks on the legal profession by the Trump administration and the federal government at large. Whether a clinic’s representation of particular clients came under congressional question or their advocacy was hindered and censored by state governments, questions surrounding the scope of clinic academic freedom remain. This essay seeks to survey and evaluate the current legal landscape of clinic independence in late 2025. Exploring the breadth of First Amendment law and its application to clinical work and administration, this essay urges and encourages law schools and universities to protect and implement academic freedom protections. This essay also seeks to support the development of legal theories grounded in the Fifth and Sixth Amendments and the right to counsel to further shield legal clinicians and their work from relentless attacks and undue pressure. As times go on, there will be no shortage of critical work and representation for our students and clinicians to embark on. The question is, how far will we go to protect the legal profession and the clients and clinics that ground it?
Alexandra D. Lahav, Anthony W. and Lulu C. Wang Professor
of Law
“Phase II: Managing the Remedial Phase in Aggregate Litigation,” Cornell Law Review (forthcoming 2026).
This article proposes nine methods for dealing with the damages phase in a mass tort or mass accident situation after an issue class action on liability has been certified and plaintiff has prevailed on liability in phase I or once a case has been filed in a bankruptcy court and needs to be valued. Courts, scholars, and treatise writers generally hand wave regarding the procedures for follow on proceedings after liability has been established, but as defendants appear to be increasingly risk-seeking in their trial strategy, judges cannot rely on settlement to take care of the possible complexities of the remedial phase, sometimes referred to as phase II. The article explains the costs and benefits of each method with the aim of helping judges structure a trial plan to resolve mass torts fairly and efficiently. It proposes that in addition to doctrinal limitations, the choice of procedure in phase II requires consideration of (1) the likelihood that the procedure will resolve substantial numbers of cases; (2) the capacity of the process to achieve consistency or equal treatment among similarly situated plaintiffs; and (3) how well the procedure results in rectitude, or the correct application of the law to the facts of the case.
Frank Pasquale, Professor of Law
(with coauthors Thomas W. Malone and Andrew Ting)
“Copyright, Learnright, and Fair Use: Rethinking Compensation for AI Model Training,” Northwestern
Journal of Technology and Intellectual Property, vol. 23, no. 1 (2025).
Generative AI can rapidly output vast amounts of expressive content, some of which has great value for society. This new computational process also raises a deep question of fairness: Will the original creators of the content used to train these systems share in the value they create? The question becomes particularly urgent as the potential effects of generative AI on markets for creative works become clearer. Artists with a distinctive style may find it nearly impossible to sell their new work when very low-cost substitutes can be generated automatically. News publishers whose content can now be paraphrased by generative AI systems without violating copyright laws may lose significant advertising revenue from readers who no longer need to click through to publishers’ websites. Millions of workers may be wholly or partially displaced by generative AI trained on their works.
Numerous scholars have begun to address this issue. Some have focused on challenging generative AI providers’ claims that their ingestion of copyrighted works for training models and outputting new works is fair use. Others have conceded or bracketed the fair use question and proposed levies or compulsory licenses to compensate for these uses. The authors of this essay take a distinct approach, proposing a new right for copyright holders with respect to AI training using their work. This protection is appropriate given massive AI systems’ ability to process vast amounts of information far faster and less expensively than humans can. An exclusive right to license AI training, called a “learnright” for short, would enable copyright holders to claim some share in the revenues arising out of automated systems that learn from covered material.
This essay examines the rationale and potential mechanisms for implementing such laws. It explains the high degree of legal uncertainty surrounding the many current lawsuits against generative AI providers, and it proposes learnrights to complement the existing exclusive rights guaranteed to copyright holders. Given the many sources from which AI can “learn,” market mechanisms would likely permit a fair and reasonable degree of revenue sharing pursuant to copyright holders’ assertion of their learnrights. Compensation for learnrights would also redress some striking imbalances apparent in current copyright policy that favor mechanical processing of texts over human engagement with them.
K. Sabeel Rahman, Professor of Law
“Towards a Reconstructive Politics,” Law and Contemporary Problems, vol. 88 (2025).
In its first year, the second Trump Administration has seized federal power to advance an explicitly reactionary agenda, attacking the institutional and normative foundations of civil rights, economic inclusion, and democracy itself. These transformations are especially destabilizing coming on the heels of mass social movements calling for egalitarian transformations of an unequal economy and the problems of racial injustice just a few years prior.
First, this paper diagnoses mechanisms of reactionary power and how particular institutional configurations in our political economy operate to neutralize potential moments of progressive transformation. These infrastructures in turn serve as the building blocks for a more openly authoritarian political economic order, of the sort that may be in the process of emerging today. These infrastructures of reaction and mechanisms of authoritarian rule are modern revivals of long-standing practices that shaped the establishment and defense of home-grown pockets of authoritarian rule and reactionary power throughout American history, whether in context of racial subordination in the context of slavery, empire, and post-Civil War Jim Crow and racial capitalism; gender domination in the private realm; or economic domination in the workplace and marketplace.
Second, in response to these reactionary power structures, this paper argues for an ethos of reconstructive politics—an approach that both aspires to a more inclusive democracy and political economy, and which takes seriously the task of degrading and dismantling reactionary power and building durable egalitarian institutions and power relations. A reconstructive politics puts a higher premium in institutional proposals on the potential for deliberate entrenchment and durability of citizenship-expanding policies. This emphasis on reconstruction as a response to reactionary power opens up a broader implication about norms and discourses of public law and reformist politics. The upshot of this shift is that a politics premised on either simple material delivery of results to constituencies, or on restoration of supposedly cross-partisan norms of the rule of law and institutional respect both will fail. For public law to reground a democratic politics capable of overcoming the reactionary turn, it will have to jettison these appealing alternatives and commit to a messy, conflictual, but ultimately morally-just vision of reconstruction instead.
Brian Richardson, Professor of Law
(with coauthor Joshua Macey)
“Structural Indeterminacy and the Separation of Powers,” California Law Review, vol. 113 (2025).
Despite ongoing disagreement about how the Constitution allocates powers among the different branches, the two dominant schools of thought in American separation-of-powers debates— formalism and functionalism—agree on three premises: Certain powers inhere in certain government branches, some powers are vested exclusively in one or another branch, and the judiciary is the final arbiter of separation-of-powers disputes. Disagreement is largely about how powers should be parsed and which should be shared. Yet over the long lifespan of our constitutional tradition, momentous doctrinal upheavals are relatively commonplace. This article describes four tectonic shifts in separation-of-powers doctrine: Founding-era debates about how to define and blend powers, nineteenth-century debates about the constitutionality of the nascent civil service, Lochner-era debates about legislatures’ authority to define and regulate public utilities, and mid-nineteenth-century debates about the sources of international law. The first, which we call the Inherency Theory, assumes that certain powers and functions are vested by force of the Constitution, are core to a single branch, and are discernible by the judiciary. This is a taxonomical theory of how the Constitution allocates powers, and it animates nearly all of today’s separation-of-powers debates. The second, an Antidomination Theory, denies that the words executive, legislative, and judicial imply any new or distinct powers and instead creates formal separation between the three branches based on the procedures federal actors deploy to enact, enforce, and interpret policy. The third, a rights-based Public Utility Theory, distinguishes between a public sphere that is subject to congressional, presidential, and administrative control, and a private sphere that is not. Recently, this public-private distinction has been marshalled to define the judicial power. Historically, however, it was used to deduce a whole panoply of structural limits, including the constitutionality of agency adjudication and deference. And the fourth, a General Law approach, discerns the limits of government power by reference to the eclectic authority of the common law and right reason. Recovering these theories reveals a rich set of tools for resolving interdepartmental disputes, highlights that current receptions of past settlements are nearly unintelligible without understanding the theoretical context in which they emerged, and suggests that, while different theories have risen and fallen, no one theory of separation of powers has been liquidated in our constitutional tradition.
Nelson Tebbe, Jane M.G. Foster Professor of Law
(with coauthors Micah Schwartzman and Richard Schragger)
“The Structure of Religious Preference,” Harvard Law Review, vol. 139 (2025).
Over the last decade, the Supreme Court has revolutionized the law of religious freedom. At this point, the picture is reasonably clear. The Court has dramatically expanded the scope of the Free Exercise Clause, routinely siding with religious claimants by requiring equal access to public funding and by authorizing exemptions from a wide range of state and federal laws. At the same time, the Court has abandoned precedents that limited government religious expression and taxpayer support for religious institutions under the Establishment Clause.
If the picture is clear, however, it emerges through a kind of jurisprudential pointillism. The Court’s decisions may appear distinct, but, stepping back, any observer can see that they mark the end of “strict separation” between church and state. The Court now demands equal treatment of religious organizations in receiving public benefits, while simultaneously requiring special accommodations from general laws that burden religion. When these doctrines converge, they create a structure of preference for religion, which entails constitutional favoritism for religious over nonreligious views and for some religious denominations over others.
In this comment, the authors argue that the Court’s religious freedom decisions from the 2024 Term—Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission, Mahmoud v. Taylor, and Oklahoma Statewide Charter School Board v. Drummond—extend and deepen this preferentialist turn. We then ask what, if anything, is wrong with structural preferentialism? Although the separationist consensus has collapsed, its warnings against religious establishment are especially salient in this antiliberal moment, marked by intense polarization, rising religious disaffiliation, and increasing calls for ethno-religious nationalism. The case for disestablishment—requiring neutrality not only among denominations but also between religious and nonreligious views—has fallen on hard times. But the arguments for it, which the authors renew, warn against the expansion and entrenchment of religious preferentialism.
