Lawyers have always been storytellers, and cognitive science is increasingly demonstrating that human beings are wired to learn through story. But legal stories may have a dark side if, as theorists have recently suggested, stories motivate pro-social action by reinforcing in-group identification and out-group hatred. In an increasingly divided polity, are we doomed to stories that drive us toward social disintegration? A solution to the legal storyteller’s dilemma may be found in an ancient source: Aristotle’s Poetics. By crafting legal stories that track the elements of the Tragedy as described by Aristotle and adapted by modern storytellers from Broadway to Hollywood, legal storytellers may use the powerful and inevitable mechanism of story to create a body of “legal Poetics” in which gripping obstacle, drama, and crisis require no Other to act as villain. This brand of legal storytelling has the power to move audiences to pro-social action in law and policy without further dividing society into the dangerously rigid us-versus-them division that currently threatens to harden into intractable conflict.
First Amendment rights came into conflict with nondiscrimination principles in the Supreme Court’s 2010 decision in Christian Legal Society v. Martinez. This Note explains the background of the case, developments of subsequent cases, and errors in the Court’s reasoning. It then explains the proper way to resolve cases like Martinez is to apply the church autonomy doctrine to religious organizations in universities, leaving them to govern themselves. It concludes with an explanation ofthe church autonomy doctrine’s application to this case, a dispelling of potential counterarguments against its application, and a call for the Court to overturn Martinez.
The proliferation of artificial intelligence (“AI”) in criminal proceedings has brought the technology’s propensity to err into sharp focus. Whether AI is more or less accurate than human judgment is a favorite subject of recent scholarly debate, but what is certain is that AI methods generate particular kinds of errors that are distinct from those produced by humans. Indeed, the data science techniques that underlie many AI applications can involve processes so distinct from human reasoning and investigation—for instance, large language model (“LLM”)’s practice of converting words to numbers and back to words—that the resulting errors can be difficult to anticipate or altogether detect. This poses a special challenge for constitutional criminal procedure, andparticularly the harmless error doctrine. Harmless error, which has been describedby Landes and Posner as “probably the most cited rule in modern criminal appeals,” provides that appellate courts can uphold criminal sentences even where trial courts made errors—including constitutional errors—so long as said errors would not be dispositive of the outcome. As AI-generated errors may not align with traditional notions of harmlessness, they complicate courts’ ability to assess the impact on defendants’ rights. Moreover, the technological valence of these errors may obscure constitutional violations. Courts thus need more particularized standards for evaluating the harms associated with AI error. This Article takes the first step towards addressing this challenge by proposing a procedural adjustment: the creation of an “AI error threshold” to distinguish errors amenable to traditional harmless error analysis from those demanding heightened scrutiny akin to structural constitutional errors. By recognizing arbitrariness as a doctrinal fault line, courts can better uphold defendants’ rights amidst technological evolution, ensuring fair adjudication in the AI age.
Although commentators have sharply criticized the Supreme Court’s decision in Trump v. United States, none has been critical enough. None apparently recognized that responses by Trump’s counsel at argument deprived the Court of jurisdiction to hear the defendant’s appeal. Moreover, none noted the Court’s failure to address the only issue a pretrial appeal could properly have brought before it—whether, on the record before the Court, Trump was immune from prosecution for the crimes the Special Counsel’s Office had charged. Disregarding those crimes, the Court treated a series of evidentiary acts alleged in the Special Counsel’s “speaking indictment” as though each had been charged as a distinct offense. Its misconception produced an opinion devoted entirely to evidentiary issues, yielding such strange rulings as that evidence of acts not charged as crimes must be excluded if prosecuting those acts would pose a risk of intrusion on the authority and functions of the Executive Branch. Commentators also have failed to note the extent to which the Special Counsel’s Office contributed to the Court’s unfortunate decision. It was the lawyers who prosecuted Trump rather than Trump’s counsel who maintained that “core” presidential powers entitle Presidents to commit any crimes they like without sanction. Moreover, Counsel’s decision not to charge Trump with the most serious of his likely crimes—giving aid and comfort to the attack on the Capitol—might have affected not only the Supreme Court’s immunity ruling but also the Court’s earlier decision in Trump v. Anderson that Trump was eligible to become President again. This Article provides a history of Trump’s prosecution for the crimes of January 6. It also considers the possible effect of the Supreme Court’s immunity ruling on Trump’s conduct during his second term as President and on American life generally.
Pre-abortion counseling laws-often framed as informed consent requirements-remain widespread even as the legal landscape surrounding abortion has shifted dramatically following the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization. These laws, which mandate that pregnant patients receive specific information prior to obtaining an abortion, frequently disseminate biased, inaccurate, or medically unnecessary content designed to dissuade patients from choosing abortion. This Note argues that such laws undermine medical ethics and impede a patient's decisional autonomy. It begins by examining the current state of pre-abortion counseling laws in a post-Dobbs world. It then explores the intersection of informed consent and the fiduciary duty concept in a doctor-patient relationship. The Note concludes by proposing an ethical fiduciary theory for pre-abortion counseling laws. Through this lens, pre-abortion counseling laws can be reformed to promote ethical medical practice and protect the autonomy of those seeking abortion care.
This Article explores the challenges and opportunities that generative artificial intelligence ("AI") presents for student assessment in legal education. Traditional assessment methods, such as final exams and written assignments, are poorly suited for the AI-enriched practice environment that law students will encounter after graduation. This necessitates a shift towards evaluating the learning process rather than evaluating a final written product. To address these new challenges, the Article proposes integrating metacognition and self-regulated learning ("SRL") strategies as a component of assessing student learning. These strategies emphasize students' awareness of their own learning processes, encouraging reflection and the development of critical thinking skills. By adopting metacognitive assessments, law schools will better prepare students for the evolving legal landscape where AI tools are prevalent. The Article outlines practical methods for implementing these assessments, including the use of detailed rubrics to ensure objective and transparent evaluation. This approach not only addresses the limitations of traditional assessments in the age ofAI but also enhances students' ability to think like lawyers, fostering deeper learning and adaptability in their future careers.
A study by the Law Commission of England and Wales resulted in amendments in 2025 to the Arbitration Act 1996 that include a default rule that an arbitration agreement will be governed by the law of England and Wales if the arbitration is seated in that territory. Given the importance of London as an arbitration center, this has implications for many international commercial contracts. In this Article, I challenge the premise behind the amendment that there is a single "law of the arbitration agreement." Instead, I demonstrate that there are multiple laws applicable to an arbitration agreement. I explain this multiplicity of applicable laws by considering the possible grounds for challenge of jurisdiction of an arbitral tribunal based on the arbitration agreement. Such an analysis demonstrates that very different laws may apply to questions of the existence, formal validity, substantive validity, scope, and exclusivity of an arbitration agreement. I review these issues in the broader context of choice of forum clauses generally, including both arbitration and choice of court agreements. I then consider a hypothetical international commercial transaction in which questions might arise about the first four of these five jurisdictional questions-demonstrating both the problems with the idea of a single "law of the arbitration agreement," as well as the practical impact and importance of well-drafted choice of forum agreements, including provisions on choice of law. Although prompted by the proposed change in English law, this discussion has implications for the law in every jurisdiction regarding agreements to arbitrate, indicating that both transaction planners and dispute resolution lawyers need to be cognizant of the laws applicable to arbitration and choice of court agreements.
Cigarettes are the deadliest product marketed in world history. Tobacco kills up to half of its users who do not quit, including an estimated 1.3 million non-smokers who are exposed to second-hand smoke. Cigarette smoking accounts for more than seven million deaths per year worldwide. Cigarette smoking is the leading avoidable cause of disease, disability, and death in the United States, with sixteen million Americans suffering from a smoking-related disease. Tobacco companies have yet to pay even a small fraction of the direct economic costs of addicting millions of children to cigarettes. To date, the tobacco industry has thwarted all attempts by either the government or the direct victims of smoking to reimburse them for the direct health costs of cigarette smoking. Part I of this Article explains why the major tobacco companies ("Big Tobacco") had a perfect batting average, winning every products liability case decided between 1950 and 1995 in state and federal courts nationwide. The tide began to turn against Big Tobacco with a 1988 Settlement originally between the four largest United States tobacco companies (Philip Morris Inc., R. J. Reynolds, Brown & Williamson, and Lorillard and state attorneys general). The tobacco liability era expanded shortly after the Florida state case of Engle v. R.J. Reynolds in 2000. In Engle, a Florida state jury imposed a $145 billion punitive damages verdict against the major U.S. cigarette companies. Engle resulted in the largest classaction award in history, with an award to punish Big Tobacco for 300,000 to 700,000 Florida smokers and their estates that suffered from smoking-related diseases. The Florida Supreme Court decertified the Engle class action, but permitted individual smokers or their estates to pursue tobacco products liability cases. The Florida Supreme Court refers to these individual cases by smokers or their decedent estates as "Engle-Progeny" actions. Part II of this Article describes our research methodology in creating an allinclusive database ofpunitive damages awarded against Big Tobacco between 1995 and September 1, 2024. Greater than eight out often tobacco punitive awards in our sample of 142 verdicts were Engle-Progeny cases. Part II presents statistical findings from our original database of every tobacco punitive damages case decided from 1995 to September 1, 2024. To supplement the findings from our statistical database of tobacco products liability cases, we interviewed nearly every plaintiff's attorney who tried a tobacco punitive damages case in the past thirty years. The interviews with the plaintiff's attorneys gave us an in-depth understanding of the aggravating circumstances leading to tobacco punitive damages in each of the 142 verdicts imposed in the last thirty years. Experiential marketing tactics deployed by tobacco companies include persuading young people to smoke through social media, sponsoring musical concerts, and sponsoring sporting events. Wealth-based punishment is necessary to optimally deter multi-billion-dollar corporations such as Philip Morris and R.J. Reynolds from spending tens of millions of dollars each year to addict children. Part III presents the major findings from our twenty-nine year study of tobacco punitive damages awarded from 1995-2024. Punitive damages were awarded in only 142 tobacco products liability cases decided between 1995 and September 2024 nationwide. Greater than eight out of ten tobacco punitive awards in our sample were Engle-Progeny cases. (117 out of 142 or 82%). Three out of four tobacco plaintiffs died by the time their case was filed (75%, 107 of 142). Nearly a quarter of the plaintiffs suffered permanent disability from smoking. Tobacco products liability plaintiffs asserted diverse causes of action including strict products liability, negligence products liability, conspiracy, and consumer fraud as well as intentional torts such as fraudulent misrepresentation. Punitive damages were awarded in only 142 cases between 1995 and 2024 in tobacco products liability litigation. The tobacco industry defendants blamed the smokers victimized by smoking-related disease deflecting attention away from the industry's conspiracy to addict young people. In nearly a third of the 142 tobacco punitive awards, the punitive damages award was either reversed or reduced in the post-verdict period. Punitive damages in tobacco products liability cases were imposed for extremely aggravated misconduct by tobacco companies. Finally, punitive damages are not only rarely awarded in tobacco cases, but are too small in size to optimally deter billion dollar tobacco companies. Wealth-based punitive damages send a message to multi-billion-dollar companies like R.J. Reynolds and Philip Morris that tort does not pay.
The Visual Artists Rights Act of 1990 ("VARA") has a concealment problem. While VARA grants visual artists the right to prevent the distortion, mutilation, or modification of their works of visual art, things become complicated for large works of public art. Works of public art often cannot be moved without risking their damage. And when such works fall out of favor, owners may conspicuously conceal them rather than move them to avoid risking liability under VARA. In two cases from the last twenty years-Massachusetts Museum of Contemporary Art Foundation, Inc. v. B & uuml;chel and Kerson v. Vermont Law School, Inc.,-the U.S. Courts ofAppeals for the First and Second Circuits each held that the conspicuous concealment of a work of public art does not constitute an impermissible distortion or modification under VARA. But these concealments were highly public to their audience, placing both the works and their artists into possible disrepute. This Note argues that the First and Second Circuit's decisions contravene the original purpose of VARA. It begins by examining the history of the status of artists as visual authors, growing from relative anonymity into public notoriety. It then analyzes the history of the moral rights doctrines off of which VARA was based to ascertain VARA's legislative purpose. By doing so, the Note contends that the decisions of the First and Second Circuits showcase that VARA must be reformed to prevent the conspicuous concealment of public art. The Note concludes by offering two reforms that balance the interests of visual artists in the preservation of their works against the interests of owners ofpublic art in adapting their properties to suit changing social norms.
Money in politics is ever-increasing in the United States, and the ways in which it manifests are ever-changing. The 2024 election cycle was no different in this regard, with numerous unique issues in campaign finance arising. The election now being over, a retrospection of these newer problems seems due. This Essay provides just that. Among the issues discussed are cash-for-donations schemes, cash-for-registration schemes, the use of social media moderation to block opponent fundraising (i.e., "contra-butions"), the leveraging of self-funding for vicepresidential nomination, the growth in candidate self-loaning post-FEC v. Cruz, and the uncertain future of laws targeting foreign-influenced corporations. With each issue, I offer potential legislative and doctrinal fixes (within the bounds of present campaign finance jurisprudence).
