Now showing items 1-20 of 12020

    • How Epic v. Apple Operationalizes Ohio v. Amex

      Yun, John M. (Yale Journal on Regulation, 2025)
      The Supreme Court’s landmark decision in Ohio v. American Express (Amex) remains central to the enforcement of antitrust laws involving digital markets. The decision established a framework to assess business conduct involving transactional, multisided platforms from both an economic and legal perspective. At its crux, the Court in Amex integrated both the relevant market and competitive effects analysis across the two distinct groups who interact on the Amex platform; that is, cardholders and merchants. This unified, integrated approach has been controversial, however. The primary debate is whether the Court’s ruling places an undue burden on plaintiffs under the rule of reason paradigm to meet their burden of production to establish harm to competition. Enter Epic v. Apple (Epic): a case involving the legality of various Apple policies governing its iOS App Store, which, like Amex, is a transactional, multisided platform. While both the district court and the Ninth Circuit largely ruled in favor of Apple over Epic, these decisions are of broader interest for their fidelity to Amex. A careful review of the decisions reveals that the Epic courts operationalized Amex in a practical, sensible way. The courts did not engage in extensive balancing across developers and users as some critics of Amex contended would be required. Ultimately, the courts in Epic (a) considered evidence of effects across both groups on the platform and (b) gave equal weight to evidence of both the procompetitive and anticompetitive effects, which, this Article contends, are the essential elements of the Amex precedent. Relatedly, the Epic decisions illustrate that the burden of production on plaintiffs in multisided platform cases is not higher than in cases involving regular, single-sided markets. Additionally, both parties, whether litigating single-sided or multi-sided markets, are fully incentivized to bring evidence to bear on all aspects of the case. Finally, this Article details how the integrated Amex approach deftly avoids potential issues involving the out- of-market effects doctrine in antitrust, which limits what type of effects courts can consider in assessing conduct.
    • Lost-Premium Damages in M&A: Delaware’s New Legal Landscape

      Chan, Jonathan; Petrin, Martin (Yale Journal on Regulation, 2025)
      In the event of a buyer’s willful breach of a merger agreement, lost-premium provisions allow a target corporation to claim damages that include the lost premium or economic entitlements that its stockholders would have received had the deal closed. In the recent Crispo v. Musk decision the Delaware Chancery Court held these provisions to be unenforceable under the anti-penalty doctrine. In this Article we challenge the analysis in Crispo by arguing that lost-premium provisions are doctrinally defensible, economically sensible, and supported by policy considerations. Lost-premium provisions became enforceable in Delaware from August 1, 2024, following amendments to the Delaware General Corporation Law. But the issue may crop up again in other jurisdictions. This Article explains why courts in other states both can and should uphold lost-premium provisions.
    • Government Control over Qui Tam Suits and Separation of Powers

      Li, Tiffany (Yale Journal on Regulation, 2025)
      The False Claims Act’s qui tam provisions, authorizing private parties or relators to sue on behalf of the U.S. government, have faced renewed constitutional challenges despite record recoveries. Within the past two years, three Supreme Court Justices suggested qui tam may violate Article II of the Constitution, and a district court dismissed a qui tam lawsuit as unconstitutional. The Department of Justice has broad statutory authority to dismiss a qui tam case and veto any settlement or voluntary dismissal by a relator, allowing the Executive to maintain control over qui tam suits. But DOJ rarely exercises these rights, as empirical studies reveal. This Note highlights the disconnect between the importance of executive control over qui tam cases for the FCA’s constitutionality and DOJ’s infrequent oversight in practice. It proposes (1) amending the FCA to further DOJ incentives to dismiss by requiring non-intervened cases proceeding to have merits similar to government-initiated FCA cases and (2) resolving the circuit split in favor of broad government authority to object to a settlement between relator and defendant, weakening separation-of-powers challenges.
    • Contractual Control in Dual-Class Corporations

      Shobe, Gladriel; Shobe, Jarrod (Yale Journal on Regulation, 2025)
      Founders and other corporate insiders go to great lengths to control the companies they take public, and the mechanisms they use to maintain control have been a central theme of corporate law. Dual-class structures, which give insider shareholders voting rights that exceed their economic rights, are a common way for insiders to maintain post-IPO control. Scholars and policymakers have endlessly debated the costs and benefits of these structures, which have surged in popularity over the past 20 years. As one prominent scholar put it, dual-class structures are “[t]he most important issue in corporate governance today.”
    • Altering Rules: The New Frontier for Corporate Governance

      Rauterberg, Gabriel; Sanga, Sarath (Yale Journal on Regulation, 2025)
      Corporate law has taken a contractarian turn. Shareholders are increasingly contracting around its foundational rules—statutory rights, the fiduciary duty of loyalty, even the central role of the board—and Delaware courts are increasingly enforcing these contracts. In the one case where they did not, the legislature swiftly overruled the decision and adopted a new statutory provision permitting boards to completely cede their powers to a shareholder by contract. These developments have sparked a polarized debate, with some calling for a return to mandatory rules, while others push for total contractual freedom. We argue, however, that the best approach lies neither in rigid mandatory rules nor unchecked contractual freedom—but in recognizing the potential of corporate law’s altering rules. Altering rules define how parties can opt out of the default rules of governance. Our theory identifies corporate altering rules’ essential features, namely, whose consent is required to change a default (process) and who is bound by that decision (scope). We show that the central role of altering rules in corporate law is not simply to make changing a default more or less difficult, as is widely supposed, but rather to combine process and scope in ways that define distinct bargaining environments, shaping how insiders negotiate over governance. Corporate law can fine-tune these features in ways that both encourage contractual innovation and manage intra-corporate risks. In response to recent cases and legislation, we propose new altering mechanisms that will broaden decision-making to include non-signatory shareholders, protecting them from harmful externalities. Altering rules, as they exist now, represent only a fraction of their potential. Rethinking their design opens the door to a vast, largely unexplored landscape of possibilities that could guide corporate governance in its new era of contractual innovation.
    • Hiding in Plain Sight: ERISA’s Cure for the $1.4 Trillion Health Benefits Market

      Monahan, Amy B.; Richman, Barak D. (Yale Journal on Regulation, 2025)
      Since 1974, the Employee Retirement Income Security Act (ERISA) has imposed fiduciary duties on those who manage and administer employee benefit plans. But for the largest employee benefits—retirement benefits and health plans, which together constitute 13% of total national compensation—ERISA’s fiduciary duties have played very different roles. For retirement benefits, ERISA scrutinizes plan managers and requires employers to select plan investments with care. For health plans, there is a regulatory vacuum, as ERISA imposes few federal requirements yet preempts state efforts to ensure quality plan offerings. In short, ERISA has advanced protections for retirement plans but mostly curtailed protections for the nearly 165 million Americans who receive health insurance from employers. The tragedy is that health benefit plans are in dire need of regulatory scrutiny. The costs of health insurance have risen dramatically faster than inflation, cutting into worker take-home pay and inflicting disproportionate harm on middle- and lower-income workers, while the generosity of employer-provided plans has thinned. The sorry state of employer-sponsored health insurance is due, in part, to inattention and inadequate probity from the parties subject to ERISA’s fiduciary obligations. In sharp contrast, the efficiency and value of retirement benefits have improved over that same period. Because of what ERISA requires, and because of what managers of employee health benefits have failed to do, there is enormous opportunity to employ ERISA to enhance the value of health benefits for employees, which also means enhancing the value of the nation’s entire health sector. A handful of pioneering lawsuits have just started invoking ERISA to subject health benefits managers to fiduciary obligations, and more are certain to come. Now is the time for ERISA jurisprudence to confront the consequences of neglecting health insurance, for courts to consider what demands ERISA imposes on health benefits managers, and critically, for the Department of Labor to exercise its regulatory authority under ERISA and enforce fiduciary obligations that the statute imposes and the market sorely needs. This Article documents ERISA’s authority over health benefits managers, explains why ERISA litigation is on the upswing, and offers guidance on how the Department of Labor could establish regulatory safe harbors to bring accountability and predictability to the enormous health benefits marketplace.
    • The Public Law of Public Utilities

      Macey, Joshua C.; Richardson, Brian (Yale Journal on Regulation, 2025)
      This Article describes the constitutional history of public utility regulation to make sense of apparent puzzles and inconsistencies in modern administrative law. In chronicling this history, we first show that utilities’ special constitutional right to challenge regulations on substantive-due-process grounds is based on a public-private distinction that courts have otherwise rejected. Second, we argue that modern efforts to invoke Article III to restrict agency adjudication do not reflect a consistent understanding of the public-private distinction, but instead revive the distinction in some contexts (adjudication) but not others (rulemaking). Third, we provide a new framework for understanding the Supreme Court’s turn to structural arguments to check administrative agencies. On the last point: for nearly five decades prior to 1935, courts used rights-based arguments, not structural ones such as the nondelegation doctrine, to deduce the scope and content of the legislative, executive, and judicial powers. Once the Supreme Court abandoned its freedom-ofcontract jurisprudence, it was a public utility case that breathed new life into the nondelegation doctrine. Public utilities were a natural battle ground for reshaping the public law of administration. Like today, private rights, delegation, and agency adjudication were all central preoccupations of this public utility moment, but the frameworks courts advanced to answer these puzzles have vanished from our modern debate. Today’s administrative law thus reflects an ad hoc revival of public utility legal concepts, and it reinvents these concepts such that they bear little resemblance to their public utility genealogy.
    • Unfairness, Reconstructed

      Herrine, Luke (Yale Journal on Regulation, 2025)
      A paradigm shift is afoot at major federal consumer protection agencies. For four decades, a bipartisan bloc of bureaucrats has seen the purpose of consumer protection as promoting informed consumer choice or “consumer sovereignty.” The idea was that informed consumers in competitive markets would protect themselves by choosing among sellers. Ensuring access to information would then shore up markets’ self-correcting tendencies without requiring moral judgment. In the past few years, by contrast, regulators have prioritized sector-wide regulation, enforcement sweeps, and strategic cases against market leaders. They have justified their actions not (exclusively) in terms of informed choice or efficiency but in terms of values like protecting the vulnerable, preventing harassment, preserving privacy, and correcting for unjust inequalities. Focusing doctrinally on uses of the unfair-practices authority shared by several agencies, this Article situates the shift both historically and theoretically. Historically, it argues that consumer sovereignty lost ground after the global financial crisis of 2007 and controversies over Big Tech. Theoretically, it argues that the consumer sovereignty framework relied on a too simple model of markets as deviations from “perfect competition” that needed only better information to get back in line and that the paradigm emerging in its place is properly committed to correcting for power asymmetries in irredeemably imperfect markets. I call the new paradigm an “antidomination framework” and defend it.
    • Antitrust Abandonment

      Douglas, Erika M. (Yale Journal on Regulation, 2025)
      This Article identifies the problem of “antitrust abandonment”: a pattern of long-term, unexplained disuse of antitrust-like enforcement powers held by industry regulators. Much of antitrust scholarship focuses on the primary federal enforcers, the Federal Trade Commission (FTC) and the Department of Justice (DOJ). This Article looks instead at several other federal agencies that hold statutory antitrust powers in specific industries, some exclusively. It finds a striking pattern in which these regulators rarely use their antitrust enforcement authority. The Article critically evaluates the track record of antitrust-like enforcement by three industry regulators—in ocean shipping, rail, and meatpacking— using primary research, historical accounts of agency (in)action over time, and the perceptions of scholars, policymakers, and the agencies themselves of their competition oversight. The Article finds an alarming result: these agencies have brought only a handful of antitrust claims, sometimes none at all, over the span of decades, and, in one case, over a century. The Article argues that this antitrust abandonment is a problem, because it leaves unintended gaps in competition enforcement across pockets of highly concentrated, economically important industries. The Article then considers how to cure and prevent antitrust abandonment. It calls for an immediate shift in policymaker expectations, away from the recent push for regulators to use their long-dormant antitrust powers, and toward the empowerment of expert antitrust enforcers—the FTC and the DOJ—to act in abandoned spaces. Achieving this change will require Congress to repeal arcane legislative exceptions, as well as more subtle shifts in agency perceptions of the need for antitrust enforcement in regulated industries.
    • The Video and the Algorithm: Democracy, Antitheatricality, and Paranoia in the Age of Streaming Media

      Stone Peters, Julie (Yale Journal of Law & the Humanities, 2024)
      As debates about “digital democracy” remind us, democracy is one of our central political keywords, but its meaning is difficult to pin down. It can point to any one of a wide variety of political norms, act rhetorically to buttress a set of contradictory claims, or sometimes merely gesture vaguely toward the general political good. This essay looks at democracy not as a set of normative claims but as an idea that takes shape in the spatial-visual imaginary. Exploring democracy as a set of images, I argue that two persistent “models” have helped us to envision it, models I describe as “the performing polis” and “the dispersed demos.” These models often appear in idealized form, but they also appear as corrupt Doppelgängers of the idealized versions: in antitheatrical images of the “evil theatrocracy”; in paranoid renderings of invisible networks of marauding automatons and invisible agents. I offer a compressed history of these models, which show up in both their utopian and dystopian forms in a variety of texts: ancient Greek philosophy, Early Modern and Enlightenment political treatises, modern and postmodern political and media theory. I then turn to two cases recently decided by the Supreme Court: Twitter v. Taamneh and Gonzalez v. Google. While these cases are formally about the liability of internet platforms for their users’ incendiary posts, they are also about democracy in the digital age. I look at how the two models of democracy I have identified inform them, appearing in the cases in both their utopian and dystopian forms. At the heart of the visions of democracy these cases proffer are the figures of the video and the algorithm: vehicles of democracy and its nightmare antitheses; synecdoches for its promises and pathologies; the central forces of our digital future.
    • Identifying Youth Sport

      Koller, Dionne (Yale Journal of Law & the Humanities, 2024)
      The United States is steeped in the prevailing discourse that youth sport is part of a “good” childhood. With approximately 60 million children participating, it would seem that the conventional wisdom is true. Yet the dominant narrative occurs within a troubling empirical reality. What is often referred to as the “professionalization” of youth sport, which emphasizes early sport specialization, over-training to the point of injury, competition, and the drive to win, leads the majority of children who enter youth sport to quit by adolescence. Because professionalized youth sport is also costly, millions more, particularly children of color and children with disabilities, never have the opportunity to play. Despite the known harms of the current system, there has been little legal scholarly attention to youth sport and little meaningful reform. This article seeks to lay the foundation for a different approach by taking a crucial threshold step: fully identifying what, in the U.S., youth sport is. While the answer may seem apparent, given our perceived familiarity with sport, I argue that it is more complex. This article explains that U.S. youth sport is a particular model infused with the power of the legal and policy choices, including the choice not to regulate, that reflect our historical moment. Youth sport occurring in this environment is not, as commonly thought, just a private family matter, but a site of significant societal production that supports all other levels of athletics. It is, in short, much more than simply play. Operating in this way, I argue that the U.S. youth sport model produces a surplus value that is distributed across society, from parents and fans to sports sponsors and state and local governments. By identifying youth sport by what it is, and not what it purports to be, this article reveals why the current system is resistant to change and sets the stage for more meaningful approaches to reform.
    • Affective Reproductive Legality: Navigating the Borderland of Life and Death

      Naaman, Noy (Yale Journal of Law & the Humanities, 2024)
      Birth and death are traditionally viewed as antithetical moments. They divide our relations in the world: from their instantaneous creation at the point of birth to their dissolution at the point of death. From partner to widow, from expectant to grieving parent, in confronting the life death threshold, we become someone other. This conventional view presupposes a clear demarcation between life and death, suggesting that beyond this threshold, our relationships experience a definitive change. Yet, while our relationship with the deceased is physically taken from us, could our affective bond with them not only hold firm but also be helped to flourish? If so, what might be the tradeoff of blurring the borderland between life and death? This Article considers these questions as a matter of law, particularly in the context of reproductive rights. It assesses and juxtaposes the jurisprudence surrounding two reproductive experiences where birth and death meet: stillbirth and posthumous assisted reproduction. Both delivering a stillborn child and conceiving a child posthumously using artificial reproductive technologies challenge accidentally or intentionally the life death borderland, posing a dilemma for policymakers regarding how to regulate such scenarios. Examining the question centered in this Article, I argue, could inform policymakers contemplating the regulation of these experiences.
    • A Political Approach to Legal Evidence

      Kenneth, Tomer (Yale Journal of Law & the Humanities, 2024)
      Legal evidence is often seen as exceptional. Its focus on facts distinguishes it from legal fields, and the particular legal setting in which it operates distances it from other fact-finding endeavors. This article challenges this view. It argues that legal evidence is closely connected to political theory. The article explains the similarities between legal and political decisions about facts: both are practical decisions, made by state institutions, under conditions of uncertainty, and aimed at determining the factual basis that underpins substantive judgements. Given these similarities, legal evidence can learn a lot from theories that govern political decisions, especially political decisions about facts. One emerging line of scholarship political epistemology seems particularly useful for this endeavor. Unfortunately, existing legal evidence scholarship overlooks these resources. Drawing on and developing these insights, this article makes three related arguments. First, legal evidence has close relations with political theory. Second and following, legal evidence should focus on the legitimacy, rather than the accuracy, of decisions about facts. Third, political epistemology can offer guidance on how to achieve this legitimacy. The article then employs this political approach to legal evidence. It developing evidence doctrines such as hearsay and the Confrontation Clause, jury biases, and epistemic injustices of specific rules. Finally, this approach also invites legal evidence to improve legal decisions about facts beyond the Federal Rules of Evidence, including decisions by the Supreme Court and quasi-judicial institutions.
    • "Who Was Your Grandfather on Your Mother's Side?" Seduction, Race, and Gender in 1932 Virginia

      Nicolas, Taylor (Yale Journal of Law & the Humanities, 2024)
      Was Dorothy Short Black? And, more importantly, did she know it? These questions, odd-sounding and perhaps unsettling to the contemporary reader, were the ones raised by Leonard Harry Wood in the hopes of avoiding prison for the crime of seduction. This Article examines the story of Dorothy Short and Leonard Wood, their relationship, and the criminal case that followed it in order to explore the ways in which seduction laws worked to create ( and recreate) gendered categories of race. The Article's main contribution is shedding new light on the 1932 Virginia Supreme Court case Wood v. Commonwealth of Virginia, and more broadly on the ways in which seduction jurisprudence influenced racialized understandings of gender.
    • The Lawyer, the Witch, and the Witness: Proving Witchcraft in the English Courts

      Maddox, Trace M. (Yale Journal of Law & the Humanities, 2024)
      In the sixteenth century, a new crime arrived on the scene of the secular courts: witchcraft. Over the following two hundred years, tens of thousands of individuals across Europe and its colonies would be tried and convicted of this offense. In England alone, hundreds of men and women were executed for covenanting with the Devil or using harmful magic against their neighbors. Almost universally, this "age of credulity and injustice"5 has provoked a kind of retrospective horror that "rational, highly educated men 'could have been so bigoted as to put people to death for ... patently impossible acts' ." In popular thought, convictions for witchcraft must have been miscarriages of justice: because witchcraft does not exist, witchcraft prosecutions are, almost by definition, sham trials. And certainly, many aspects of the witch trials seem barbaric by modem standards. In particular, much of the evidence relied upon seems nonsensical. The criminal justice systems of early modem Europe lacked many of the evidentiary rules that, today, seem most fundamental - and contemporary commentators clamored for the suspension of those that did exist. Because witchcraft was "an extraordinary matter," the argument ran, it required "extraordinary dealing."
    • Dred Scott's Daughter: Gradual Emancipation, Freedom Suits, and the Citizenship Clause

      Frost, Amanda (Yale Journal of Law & the Humanities, 2024)
      The Fourteenth Amendment's Citizenship Clause connected borders, birth, and egalitarian status to forge a new definition of U.S. citizenship, freed for the first time from constraints of race and lineage. This Article locates a forerunner to the Citizenship Clause in antebellum laws enacted by six northern states under which all persons born within their borders were deemed free, regardless of their parents' race or enslaved status. In subsequent freedom suits, courts in these states declared this rule applied even to children born to fugitive slaves, holding that the child's status turned solely on location of birth, not the mother's enslavement. The Article begins by analyzing the development of "birthright freedom" an antebellum doctrine that was well known at the time to lawyers, politicians, and at least some enslaved women, who freed their children by escaping to free states while pregnant. These six states not only declared the children of slaves born within their borders to be free albeit required to serve lengthy periods ofindenture to their mother's enslaver they also mandated that these children be educated, treated as "servants" (not slaves), and that their births be registered with the state to protect their free status. The Article then argues that this linkage of location of birth, legal status, and membership rights provided socio-legal context for the drafting and ratification of the Citizenship Clause. In conclusion, the Article describes how the doctrines of birthright freedom and birthright citizenship have shaped legal rules and social practices around borders, birth, and status throughout U.S. history.
    • Copyright, Moral Rights, and the Social Self

      Simon, David A. (Yale Journal of Law & the Humanities, 2024)
      Moral rights—non-economic rights that enable authors to control how their copyrighted work is divulged, attributed, modified, and withdrawn—are grounded on the Investment Theory: when an author creates a work, she invests part of her self in it. Because the work is an extension of the author’s “self,” special rights—not merely economic rights—are needed to protect it. Although intuitive, the rationale raises two central questions any moral rights theorist must address: how can an author invest her “self” in a work, and how might the law protect this investment? Moral rights scholars have not provided a satisfactory answer to the first question, making the second one difficult to address. This Article argues that an idea from social psychology might help answer the first question and shape how we respond to the second. Rather than some philosophical or abstract conception of the self, the authorial self the law protects is the social one: the self created and maintained through social interaction. On this account, moral rights are tools to present and manage aspects of this social self. They are limited “rights of impression management.” This framing enables two analytical moves. First, it precisifies what moral rights protect (the social self as externalized in the work) and the harm they protect against (potential inconsistencies in that self). Second, it provides a framework for discussing how moral rights ought to protect the self from harm, raising the ultimate questions of whether and to what extent the Investment Theory is justified.
    • Cooperating to Resist: Society and State during China's COVID Lockdowns

      Qiao, Shitong (Yale Journal of Law & the Humanities, 2024)
      China's lockdown during the COVID-19 pandemic was widely considered a stark demonstration of the unconstrained power of an authoritarian state. Yet this power may not be as limitless as it appears. This article, the result of extensive fieldwork encompassing over ninety interviews and on-site visits to Chinese cities, primarily focusing on Shanghai and Wuhan, where the most significant lockdowns occurred, delves into the intricacies of the Chinese partystate's response to the pandemic. It offers a unique perspective on the constraints that societal forces impose on the party-state's exercise of power and, in doing so, challenges conventional wisdom. While the Chinese Communist Party (" CCP") touted its COVID-19 response as a testament to the robustness of its institutions, critics pointed to the widespread infringement of individual rights and the suffering endured during China's pandemic lockdowns. However, one aspect has been largely overlooked: the role of society itself. This study uncovers the hitherto unexamined role of society in monitoring and resisting the party-state's encroachments on individual rights during the pandemic, a phenomenon I term" cooperating to resist." My research reveals the state's inherent limitations in enforcing neighborhood lockdowns and providing essential services to locked-down communities. Crucially, I demonstrate that the cooperation of citizens, particularly homeowners, was indispensable to the state's ability to maintain its COVID-19 control measures. Yet, this cooperation was not without its implications. When homeowners, who had been willing partners of the government, invoked legal narratives to voice their concerns, the government found itself compelled to respond. This interdependence between the government and homeowners unveils a dynamic where dependence begets power, complicating the prevailing narrative of China's" strong state, weak society." It also offers fresh insights into the dynamics of power and legality in authoritarian regimes and casts new light on the relationship between property rights and sovereignty. In an authoritarian regime, property law emerges as a sanctuary of resistance for citizens.
    • Before Law and Literature: Law or Literature

      Blumberg, Frederick (Yale Journal of Law & the Humanities, 2024)
      This article draws attention to an overlooked set of situations and some responses to them integral to the longer history of law and literature. These situations I call law-or-literature dilemmas: when a desire to pursue the humanities meets external pressure to study or practice law, and by all indications the choice between them is mutually exclusive. Out of dissatisfaction with the predicament, efforts emerge to outmaneuver the options, and in certain instances the law-or-literature problem has found a law-and-literature solution. The source of these syncretic initiatives, a literary bent confronting a straitened vocational choice, is perhaps so obvious that we have not entertained it as a primitive impetus for the lawand- literature enterprise. It is worthwhile to look at how law-or-literature conflicts get reframed as complementarities because it can enhance our perspective of the motives and provenance of law and literature as a field. If we wish to understand what has brought law and the humanities together, it is essential to see what has kept them apart. The paper does not proceed chronologically but like a triptych with each panel based on a different kind of pressure—social, professional, and institutional—bearing down against the litterateurlawyer and each illustrating a notable individual effort to resist that pressure and make literature a part of lawyers’ education, practice, or edifying leisure.
    • Why a Serf is Not a Slave: Humans and Land in the Medieval Scholastic Imagination.

      Conte, Emanuele (Yale Journal of Law & the Humanities, 2024)
      James Whitman observed more than once that historians of law should boldly set out to formulate 'grand theories,' long-term interpretive hypotheses that draw together the infinite number of details into an overall picture, rather than merely proposing detailed studies of individual sources or particular legal institutions. While specialists in legal history dwell on the details, these overviews are offered by others: economists, anthropologists, and now even social psychologists, who attribute a key role in the interpretation of the world to the transformations of legal institutions. 1 Some of us acknowledge these and other shortcomings in our own fields, yet we tend to advise others how to go about addressing these issues rather than personally engaging in the work. For more than three decades, however, Whitman has been offering 'grand theories,' ie, interpretations of major historical and social phenomena, demonstrating that the contribution of legal history can still be fundamental to understanding social transformations: on dignity, on the status of persons, on the responsibility of the judge, on the ambiguous relationship between libertarian and capitalist ideologies in twentieth-century America. Now he addresses the immense problem of property rights in Western legal consciousness in his latest book, which is being published as I write this article.