Parties or Not?: The Status of Absent Class Members in Rule 23 Class Actions
When should absent class members—individuals who are bound by and share in a class recovery but who are not active participants in the litigation—be treated as “parties” in Rule 23 class actions? This simple question has confused courts and …
How Clear is “Clear”?
This Article proposes a new framework for evaluating doctrines that assign legal significance to whether a statutory text is “clear.” Previous scholarship has failed to recognize that such doctrines come in two distinct types. The first, which this …
Patents’ New Salience
The vast majority of patents do not matter. They are almost never enforced or licensed and, in consequence, are almost always ignored. This is a well-accepted feature of the patent system and has a tremendous impact on patent policy. In particular, …
Judicial Review in Times of Emergency: From The Founding Through The Covid-19 Pandemic
In the immediate wake of the assassination of President Abraham Lincoln and just ten days after newly sworn-in President Andrew Johnson issued an order calling for a military trial of the alleged conspirators in Lincoln’s killing, the government …
The Animal Crushing Offense Loophole
The Preventing Animal Cruelty and Torture (“PACT”) Act of 2019 established the first federal criminal penalties targeting the most extreme forms of animal abuse. Hailed by humane groups as a watershed moment in the development of animal welfare law, …
Deep in the Shadows?: The Facts About the Emergency Docket
The past few years have witnessed a particular accusation leveled repeatedly and loudly at the U.S. Supreme Court’s conservative supermajority: that they are using the Court’s emergency (or pejoratively, “shadow”) docket to issue highly …
Dynamic Tort Law: Review of Kenneth S. Abraham & G. Edward White, Tort Law and the Construction of Change: Studies in the Inevitability of History
Rarely does a book—let alone one on torts—come along with true staying power. Tort Law and the Construction of Change is such a book. It stopped me in my tracks when I first read it, and it has been a book to which I have returned again and again …
Harmonizing Federal Immunities
This Note aims to shine light on Supremacy Clause immunity as a doctrine based on an outdated conception of the role of federal courts in our federalist system. It ties the Court’s shift in federal tax immunity to a broader philosophical …
Qualitative Market Definition
Modern antitrust law has come under intense criticism in recent years, with a bipartisan chorus of complaints about the power of technology and internet platforms such as Google, Amazon, Facebook, and Apple. A fundamental issue in these debates is …
Disclosing Corporate Diversity
This Article’s central claim is that disclosures can be used instrumentally to increase diversity in corporate America in terms of race, gender, sexual orientation, and disability. Until recently, scholars and policymakers have underappreciated this …
Property against Legality: Takings after Cedar Point
In the American constitutional tradition, a zealous judicial defense of property is closely aligned with the idea of “the rule of law.” Conventional wisdom holds that the Takings Clause of the Fifth Amendment vindicates both property rights and the …
Addressing the School-to-Prison Pipeline Through Three Nontraditional Pathways
Analogous to Nathaniel Hawthorne’s critique of his leaders’ decision to use punishment as a sign of public accountability, and his adoption of the phrase “the black flower of civilized society” to describe the prison, our leaders in the White House, …
The Federal Role in School Funding Equity
Fifty years after the San Antonio Independent School District v. Rodriguez decision, the fundamental reality of school finance inequity remains a central feature of American public schools. Local school funding is still based primarily on local …
The Road to Rodriguez: Presidential Politics, Judicial Appointments, and the Contingent Nature of Constitutional Law
If nothing else, the recent decision in Dobbs v. Jackson Women’s Health Organization should remind us that the evolution of constitutional doctrine will often be shaped by forces that have little or no connection to the merits of the abstract legal …
Foreword: We Have Only Begun to Fight
This story begins with one parent who took his demands for equal educational opportunity for his children all the way to the highest court of our land. Demetrio Rodriguez served our nation in World War II and the Korean War. Yet, back in Texas, his …
Severability First Principles
The United States Supreme Court has decided a number of cases involving severability in the last decade, from NFIB v. Sebelius and Murphy v. NCAA to Seila Law v. CFPB, Barr v. AAPC, United States v. Arthrex, California v. Texas, and Collins v. …
Property’s Boundaries
Property law has a boundary problem. Courts are routinely called upon to decide whether certain kinds of things can be owned—cells, genes, organs, gametes, embryos, corpses, personal data, and more. Under prevailing contemporary theories of property …
Government’s Religious Hospitals
States are not supposed to own or operate religious institutions, but they now do. This Article uncovers that across the country, church and state have merged, joint ventured, and contracted to form public, yet religious, hospitals. It traces the …
Searching for a Meaning: The Enigmatic Interpretation of Virginia’s Statutory Ban on Warrantless Searches
The modern U.S. Supreme Court tells us that the touchstone of the Fourth Amendment is reasonableness. That proposition flows logically enough from the Amendment’s text and helps explain why there are so many situations in which law enforcement does …
State Abortion Bans: Pregnancy as a New Form of Coverture
In June, when the Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization holding that there was no constitutional right to an abortion, the Court was hasty to disavow any likely political consequences. “We do not pretend …