James Nelson

Free Expression in the Shadow State

First contribution to @knightcolumbia.org’s new initiative on “Reconstructing Free Expression” is from @jamalgreene.bsky.social—and it is exceptionally insightful and worth reading. knightcolumbia.org/blog/free-ex...

Weekly Roundup: Feb 13 Vincent Joralemon on the flawed legal architecture behind drug pricing, Eamon Coburn on the anti-worker character of "no taxes on overtime," and Emmanuel Mauleón on the gradual erosion of law…

The weekly roundup from @lpeblog.bsky.social is here - lpeproject.org/blog/weekly-..., and it flags some exciting new work by Prof. @lauraportuondo.bsky.social (which I learned about at the fantastic recent ALPE conference) [1/2]

Francus on Purdue Pharma and Statutory Interpretation Michael Francus (University of Virginia; University of Notre Dame - Notre Dame Law School) has posted The Truth About Consequences: Purdue Pharma's Lessons for Statutory Interpretation on SSRN. Here is the abstract: The Supreme Court's opinion in Harrington v. Purdue Pharma LP made waves in the world of bankruptcy. Scholars and practitioners alike have discussed the opinion's impact on bankruptcy practice and on mass-tort resolution.

Francus on Purdue Pharma and Statutory Interpretation

Michael Francus (University of Virginia; University of Notre Dame - Notre Dame Law School) has posted The Truth About Consequences: Purdue Pharma's Lessons for Statutory Interpretation on SSRN. Here is the abstract: The Supreme Court's opinion…

My latest article with the one and only @spenceroverton.bsky.social called “Digital Ethnonationalism” forthcoming in University of Pennsylvania Law Review. Here is the papers.ssrn.com/sol3/papers....

My latest, "Free Exercise and the Redistribution of Liberty," is now posted (and forthcoming in @yalelawjournal.bsky.social). It argues that free exercise doctrine uses selective market logic to redistribute both public resources and liberty itself.

Comments welcome: papers.ssrn.com/abstract=618...

Ahdout on Political Mootness Payvand Ahdout (University of Virginia School of Law) has posted Political Mootness (111 Va. L. Rev. 841 (2025)) on SSRN. Here is the abstract: Congress and the executive have engaged in major clashes over the scope of their powers, particularly involving Congress's subpoena power and power of the purse. In the last two decades, none of these disputes with the government represented on both sides of the "v" has ended in a final judgment on the merits.

Ahdout on Political Mootness

Payvand Ahdout (University of Virginia School of Law) has posted Political Mootness (111 Va. L. Rev. 841 (2025)) on SSRN. Here is the abstract: Congress and the executive have engaged in major clashes over the scope of their powers, particularly involving Congress's…

As part of @yalelawjournal.bsky.social’s new online Supreme Court review, my latest focuses on Catholic Charities. I ask about the role of religious motivation in granting exemptions and in limiting state support for religion — and why it matters for one but apparently not for the other.

Is the GAO the Next Battlefield in the Fight for Separation of Powers? The expiration of the comptroller general’s term is an opportunity for Congress to reassert itself, or retreat further.

Hugely important piece by @mblawrence.bsky.social on the future of GAO and why you should care. www.lawfaremedia.org/article/is-t...

Helpful thread below -- after listening to the en banc argument in Roake v. Brumley, a few more impressions: (1) it's hard to overstate how badly CA5 conservatives want to reverse the panel that invalidated laws requiring display of the 10 Commandments in public schools /1

My colleague @amandafrost.bsky.social is excellent on this panel about birthright citizenship. Her response on what sources to read to understand the issue (at ~1:14) — as compared to the other answers given — is notable. @uvalaw.bsky.social

www.youtube.com/live/scYYIy9...

Payvand Ahdout, Leslie Kendrick and Rachel Bayefsky

Dean Leslie Kendrick ’06 joined the awards ceremony recognizing Profs. @payvandahdout.bsky.social and @rachelbayefsky.bsky.social for their research in civil procedure at @theaals.bsky.social annual meeting Wednesday.

Christian mission wins right to keep religious hiring exemption The Washington church is free to hire only those who agree with its religious beliefs — such as abstaining from

The Ninth Circuit today holds that religious organizations have a First Amendment right to discriminate based on religion in hiring/firing non-ministers. The panel grounds its decision in the “church autonomy doctrine,” which the Supreme Court recognized for the first time in 2020. /1

Religious Rows on Pronoun Policy, Weekend Work Loom in New Year As Covid-19 vaccine exemption lawsuits wane, other religious worker accommodations will drive both private litigation and government enforcement in the year ahead over some employees’ beliefs clashing...

I discuss these issues at length in Disestablishment at Work: yalelawjournal.org/article/dise...

Many more cases on the way.

h/t @zalmanr.bsky.social

news.bloomberglaw.com/daily-labor-...

Loper Bright prompted a tidal wave of reaction throughout the legal community when the Supreme Court announced it was overruling Chevron, the most frequently cited Court decision in administrative law. But Loper Bright cannot mean what it says. This article identifies three respects in which the majority opinion’s claim to have overruled Chevron distorts the real substance of the Court’s logic. First, we apply Loper Bright’s framework to the facts of Chevron and show that it would have produced the same outcome—if nothing else, an exceedingly curious result if Chevron were indeed overturned. Second, even as applied to other cases, the Loper Bright framework does not truly depart from the Chevron framework. Chevron’s premise was that Congress had delegated the authority to interpret an ambiguous statutory term in an agency’s enabling statute to the agency. Loper Bright may eschew the word “deference” but without changing the underlying analysis. We show that this kind of wordplay is of little value in making institutional decisions about the allocation of authority. Finally, the very craft of the Loper Bright opinion betrays the perils of the exercise that Loper Bright demands of reviewing courts. Loper Bright instructs judges to identify the “best reading” of administrative statutes, suggesting that an even-handed exercise in recovering semantic meaning can identify extant lines of authority in the administrative state. But the decision rests on an interpretation of the Administrative Procedure Act that is itself selective and slipshod. Ultimately, Loper Bright’s formalist rhetoric turns out to mask what is going on under the hood. When judges substitute their views of what is “best” for those of agencies, arguments about statutory meaning can quickly succumb to choices about policy. Avoiding such an outcome, of course, was one of Chevron’s core aims.

My new article with @cary-coglianese.bsky.social, titled "Loper Bright's Disingenuity," has been published in the University of Pennsylvania Law Review. We argue that, even as the Loper Bright decision claimed to overrule Chevron, it preserved Chevron's core.

pennlawreview.com/2025/12/23/l...

Trump Administration Emphasizes Religion in Official Christmas Messages

I don't think there's any understanding of the First Amendment under which this ("our Savior") is constitutional. Yet they don't care, and they've eliminated all the attorneys who would've objected.

Kudos to the Goldwater and Cato Institutes for condemning it.

www.nytimes.com/2025/12/25/a...

The Supreme Court signaling that Mahmoud may extend beyond curricular opt-outs. We anticipated this move in the vaccine context in our recent comment, @richschragger.bsky.social and @nelsontebbe.bsky.social, harvardlawreview.org/print/vol-13....

Professors Recognized by AALS for Civil Procedure Research Professor Rachel Bayefsky of the University of Virginia School of Law has won the Association of American Law Schools’ Junior Scholarship Award for her scholarship in civil procedure. Professor Payvan...

Prof. @rachelbayefsky.bsky.social has won @theaals.bsky.social Junior Scholarship Award for her article “Judicial Institutionalism.” Prof. @payvandahdout.bsky.social earned an honorable mention.

Pleased to share that, last week, the UH Law Faculty voted to grant me tenure.

I’m grateful to my colleagues across the academy, my mentors, friends, and especially my family for their support along the way.

Since postliberalism is having another moment where people seems to be confused about what it is, here are a few papers that might be helpful:

1. The intellectual energy comes from Catholic integralism — for an early critique, see digital.sandiego.edu/sdlr/vol56/i...,

White speech bubble on dark background. Headline reads “breaking news.” Subheadline reads “Court of Appeals Affirms Most of Decision Holding Blue Cross Blue Shield of Illinois Liable for Exclusions in Self-Funded Plans”

NEWS: The U.S. Court of Appeals for the Ninth Circuit today issued a decision broadly affirming most of a decision holding Blue Cross Blue Shield of Illinois liable for its administration of discriminatory exclusions in self-funded plans.

Read our full statement: lambdalegal.org/newsroom/cp_...

Wonderful! No surprise that I'm not the only one who realizes the utter fabulousness that is @daniellecitron.bsky.social

Grateful to my amazing colleagues at @uvalaw.bsky.social for the whole ride getting to this point. For the advice, listening, and most importantly, friendship.

The Structure of Religious Preference - Harvard Law Review A revolution has occurred in the law of religious freedom. At this point, the picture is reasonably clear. The Supreme Court has greatly expanded the scope of the Free Exercise Clause.

The Supreme Court had three religious freedom cases last Term. With @richschragger.bsky.social and @nelsontebbe.bsky.social, our latest comments on them, extending our analysis of religious preferentialism under the First Amendment.

harvardlawreview.org/print/vol-13...

Skrmetti Beyond Scrutiny - Harvard Law Review In United States v. Skrmetti, the Supreme Court upheld Tennessee Senate Bill 1 (SB 1), a state law that prohibits transgender minors from accessing gender-affirming care.

Out today in HLR, my piece Skrmetti Beyond Scrutiny. What happened, what it means for trans rights and sex equality more broadly: harvardlawreview.org/print/vol-13...

Tanner Lecture on Human Values: David D. Cole Progressives have increasingly lost faith in the First Amendment—at least as it has been interpreted and applied by the Supreme Court.  They argue that free speech has been “weaponized” by big busines...

I look forward to defending free speech from its progressive critics — and conservative assailants == as the Tanner Letures Nov. 12 and 13 @princeton.edu

A timely topic, sadly

lectures.princeton.edu/lectures/202...

I am excited to host Alice Abrokwa today at the @umnlawschool.bsky.social Public Law Workshop. She will be speaking about her paper, “Anticipating Disability.” I am looking forward to the conversation!

Image of the first page of the casebook

Law Profs teaching First Amendment: I have put together a FREE, recently updated, and easy to use casebook for use in free speech classes. If you are interested in using such a casebook, send me an email or DM and I would be happy to share!

Coach Sampson on the court with his wife after earning his 800th career win.

Congratulations to Coach Sampson on his 800th career win! 🔥

The Debate Dividing the Supreme Court’s Liberal Justices

This piece on Kagan/KBJ mainstreams discussion of an argument about judicial strategy that @nelsontebbe.bsky.social and I staked out in our article “Establishment Clause Appeasement” several years ago: papers.ssrn.com/sol3/papers..... /1

Professor Talks Blood, Guts and Her Interest in ‘Repugnant Transactions’ Professor Kim Krawiec of the University of Virginia School of Law discusses blood and organ donations, her support for the End Kidney Deaths Act and the complexities of “taboo” markets.

Are blood and guts too scary for the open marketplace? Not for Prof. @kimkrawiec.bsky.social. The “Repugnant Transactions” professor discusses why society recoils at paying donors.