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Lone Pine Orders: A Critical Examination and Empirical Evaluation

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Invented in 1986 and now a prominent feature of the mass tort landscape, Lone Pine orders require plaintiffs to provide to the court prima facie evidence of injury, exposure, and specific causation—sometimes early, and usually on pain of dismissal. Though they’ve taken root in a hazy space outside of the Federal Rules of Civil Procedure, these case management orders are frequently issued, and they play an important role in the contemporary litigation and resolution of mass torts. But although Lone Pine orders are common, potent, and increasingly controversial, they have mostly fallen under the academic radar. Even their key features are described inconsistently by commentators and courts. This Essay pulls back the curtain. Drawing on a unique hand‐coded dataset, this Essay describes the origin and evolution of Lone Pine orders, sketches poles of the debate surrounding their use, and offers empirical evidence regarding their entry, content, timing, and effect.

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The New Doctrinalism: Implications for Evidence Theory

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This Article revisits and refines the organizing principles of evidence law: case specificity, cost minimization, and equal best. These...

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The Recommendations Clause and the President’s Role in Legislation

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Article II, Section 3 of the Constitution is the source of the President’s recommending function, stating that the President...

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The Specification Power

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When agencies implement their statutes, administrative law doctrine describes what they do as interpretation. This raises the question of how much deference courts ought to give to such agency interpretations of law. This Article claims, however, that something else is usually going on when agencies implement statutory schemes. Although agencies interpret law, as they must, as an incident to enforce the law, agencies also exercise another power altogether: an interstitial lawmaking, gap‐filling, policymaking power, a power that I shall call the “specification power.” This Article aims to advance existing accounts of agency activity and judicial deference by demonstrating that agencies exercise distinct powers of law‐interpretation and law‐specification when implementing a statutory scheme. Most significantly, it provides a constitutional account for why agencies may exercise this specification power as a formalist matter, even if they cannot have final say over the interpretation of law. If this account is correct, then calls to overturn modern judicial deference may be overblown if agencies are usually exercising their powers not of interpretation, but of specification.

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Infinite Arbitration Clauses

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For decades, the Supreme Court has expanded the Federal Arbitration Act (FAA) and companies have placed arbitration clauses in hundreds...

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Estimation Evidence

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This Article radically rethinks the treatment of statistical estimation evidence in civil litigation, focusing for convenience on the...

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“Best” Interests and “Bad” Parents: Immigration and Child Welfare Through the Lens of SIJS and Foster Care

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At first glance, the immigration system and the domestic child welfare system may appear to be worlds apart, but in fact they have much in common and often overlap. This Comment offers a targeted look at a particular process within the U.S. immigration system, Special Immigrant Juvenile Status (SIJS), and how it intersects with and parallels the domestic foster care system. Both SIJS and foster care struggle to meet the competing goals of preserving and reuniting families on the one hand and punishing “undesirable” families on the other. The tendency of these systems to see families in terms of innocent children against “bad” parents, and the ability of our society to tolerate systems that punish parents in this way, is part of a long history of discrimination in this country, particularly against poor families of color. This comparison between SIJS and the domestic foster care system will highlight some of the underlying assumptions that make both processes so harsh for the families involved and discuss how the apparent tensions between the two systems are actually rooted in the same harmful normative ideas.

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Catch Rule 22: When Interpleader Actions Violate Statutory and Constitutional Diversity Jurisdiction Requirements

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Since the time of the Founding, actions in strict interpleader have allowed parties in possession of a fund or other asset to sue...

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Federalism, ERISA, and State Single‐Payer Health Care

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While federal health reform sputters, states have begun to pursue their own transformative strategies for achieving universal coverage,...

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Avoidance Creep

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At first glance, constitutional avoidance—the principle that courts construe statutes to avoid conflict with the Constitution when possible—appears both unremarkable and benign. But when courts engage in constitutional avoidance, they frequently construe statutory language in a manner contrary to both its plain meaning and to the underlying congressional intent. Then, successive decisions often magnify the problems of avoidance—a phenomenon I call “avoidance creep.” When a court distorts a statute in service of constitutional avoidance, a later court may amplify the distortion, incrementally changing both statutory and constitutional doctrine in ways that are unsupported by any rationale for constitutional avoidance.

This Article identifies the phenomenon of avoidance creep and demonstrates its wide‐ranging effects by explaining how it has warped the development of labor law in two areas. First, courts have limited unions’ abilities to engage in “secondary” strikes and picketing. Second, the Supreme Court has reduced or eliminated unions’ abilities to assess dues or other fees from represented workers, culminating in the Court’s decision in Janus v. AFSCME. Collectively, these avoidance‐driven shifts in labor law amount to a profound change in its overall character. Yet these decisions often do not result from freestanding analysis of the relevant statutes. Rather, many of these decisions flow directly from prior cases invoking constitutional avoidance as a means of reaching a decision that is dubious as a matter of statutory interpretation, constitutional analysis, or both. After documenting these problems, the Article proposes measures to promote honest examination of the role constitutional avoidance plays in doctrinal development and to mitigate its harmful consequences.

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