Volume 165, Issue 7 
October 2017

Class Actions and the Counterrevolution Against Federal Litigation

Stephen B. Burbank & Sean Farhang

“To a hammer, everything looks like a nail. And to a Court bent on diminishing the usefulness of Rule 23, everything looks like a class action, ready to be dismantled.”

Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2320 (2013) (Kagan, J., dissenting).

Jacobins at Justice: The (Failed) Class Action Revolution of 1978 and the Puzzle of American Procedural Economy

David Freeman Engstrom

In 1978, top DOJ officials in the Carter Administration floated a revolutionary proposal that would have remade the consumer class action and, with it, the relationship of litigation and administration in the American regulatory state. At the proposal’s core was a “public action” for widespread small‐damages claims that sought to replace Rule 23 with a hybrid public‐private enforcement model. Similar to the False Claims Act, this new mechanism would have granted private plaintiffs the power to bring lawsuits on behalf of the United States and recover a finder’s fee if successful, but it also gave the DOJ substantial screening authority and control over such actions, including the ability to take over suits or dismiss them outright. Despite months of shuttle diplomacy among interest groups, a pair of bills in Congress, and full‐scale committee hearings, this creative blend of private initiative and public oversight soon fizzled. Yet the story of the proposal’s rise and fall nonetheless provides a venue for wider reflection about American civil procedure and the political economy that produces it. Indeed, the failed revolution of 1978 reveals a contingent moment when the American litigation system was splintering into the pluralistic, chaotic one we now take for granted, including hard‐charging state attorneys general, a federal administrative state with litigation authority independent of the DOJ, and a sophisticated and politically potent plaintiffs’ bar. In retrospect, the proposal may have been the last best chance to counter the centrifugal tendencies of an American state that was progressively empowering ever more institutional actors within the litigation system. Just as important, lurking in the background of the story of 1978 is the bracing possibility that the Rules Enabling Act, for all its virtues in revising technocratic procedural rules, has systematically enervated efforts to address larger procedural design questions in an increasingly dense and interconnected regulatory world.

The Short Life and Long Afterlife of the Mass Tort Class Action

David Marcus

Modern class action litigation began in 1966, when the Federal Civil Rules Advisory Committee completed a revolutionary set of revisions to Rule 23 of the Federal Rules of Civil Procedure. Fifteen years of tumult followed, as the legal community struggled to test the new device’s potential and identify its limits. The class action’s waters then calmed, and by the end of the Reagan Administration, some viewed the Rule 23 experiment as nearing its end. But the turbulence started again before the 1980s finished, and heated combat over class action law and policy has continued since then. The late 1980s and early 1990s were therefore a crucial period. During these years the class action moved onto the evolutionary course it continues to follow.

Several episodes triggered policymakers’ reengagement with class action law during these years. But perhaps most consequential was the short but supercharged life of the mass tort class action. I tell this story here, as an installment in my series on the history of the modern class action. My focus is the constellation of events that led to Amchem, the stunning class settlement proposed in 1993 to resolve millions of asbestos‐related claims. Although the story of the mass tort class action has several important chapters, the Amchem one is surely the first among equals, for the potential it had to remake the law of complex litigation, and for its pervasive and lasting influence on class action doctrine. Had Rule 23 proven able to encompass mass tort litigation, it would have shown its mettle in Amchem. The settlement’s failure largely ended the mass tort class action experiment, at least for two decades.

The mass tort class action’s story has abundant intrinsic interest, but it is worth telling for other reasons as well. First, its short life began and ended at a key moment in litigation history. The modern class action debuted during an era when the institutional footprint of private civil litigation expanded considerably. This development sparked a reaction, as critics faulted with increasing vehemence a perceived surfeit of judicial power exercised through the supervision of litigation. By the early 1990s, class action law and policy had become an important front in a larger war, fought over the right response to a basic query—how much weight can private civil litigation legitimately bear? The failure of the mass tort class action, coinciding with other developments, provided a more restrictive answer. Second, the episode has had a long afterlife, one that has continued to influence the law of complex litigation. The mass tort class action contributed significantly to an important shift in the governing structure for the supervision of class action doctrine. This shift has ensured that a restrictive legal regime regulates Rule 23’s administration.

Part I describes the origins of the mass tort class action in the path‐breaking decisions of two judicial mavericks in the early 1980s. Amchem’s story comes in Part II. Part III documents the lasting influence the mass tort episode has had on the governance of class action doctrine.

Happy 50th Anniversary, Rule 23! Shouldn't We Know You Better After All this Time

Deborah R. Hensler

The Supreme Court's “Non‐Transsubstantive” Class Action

J. Maria Glover

Unorthodox Civil Procedure: Modern Multidistrict Litigation’s Place in the Textbook Understandings of Procedure

Abbe R. Gluck

Multidistrict litigation (MDL) is unorthodox, modern civil procedure. It is an old‐but‐new procedural tool that significantly disrupts decades of worked‐out doctrinal equilibria—and, now comprising a shocking 39% of the cases on the civil docket, MDLs warrant more attention than they have received. The MDL puts a thumb on the scale of nationalism over federalism, consent over adversity, procedural exceptionalism over transsubstantivity, and common law over the Federal Rules. In other words, the MDL takes what has generally been the losing side of procedure’s big theoretical and doctrinal debates; it is a symptom of deeper pressures on the system to recalibrate procedure’s traditional baselines.

MDLs are modern because they see the need for a national, not state‐centered, approach to questions of procedure. They disrupt traditional legal relationships, turning judges and lawyers into collaborative partners in practical problem solving and creating a new judicial elite among the federal judges chosen to lead them. MDLs exemplify procedural exceptionalism—a type of litigation that judges insist is too different from case to case to be managed by the transsubstantive values that form the very soul of the Federal Rules. Instead, judges develop their own special MDL procedures—yet this new kind of procedural law is rarely treated as precedential or even subject to customary appellate review.

These deviations from the “textbook” have caused academic anxiety. Scholars worry about lack of transparency, loss of the individual claim, and the dearth of uniform procedural law. Many judges who try MDLs, on the other hand, view them favorably—often as the only way to ensure access to court for massive claims on a national scale—and also as highly enjoyable judicial work. This Article relies on interviews with MDL judges to offer a new set of counterpoints to the academic criticism.

The Article also sets MDLs in the broader context of “unorthodox lawmaking”—a phenomenon documented in the legislative context but not yet in procedure. MDLs, like omnibus legislation and other forms of nontraditional lawmaking, are responses to pressure on the system, some way in which legal rules have not kept up with the obstacles of modern times when the consensus is that Congress and the courts must nevertheless take action. All of these unorthodox vehicles thus tend to operate outside the relevant rules, raising questions about the value of the rules themselves. They raise the question: What do we care about most? Is it access to court (or, analagously, the production of legislation)? Or is procedure for procedure’s own sake the more important value—even if upholding that value means fewer cases get resolved? MDLs highlight this tension. They are likely more symptom than cause of procedure’s modern challenges.

Something Less and Something More: MDL’s Roots as a Class Action Alternative

Andrew D. Bradt

Three Models of Adjudicative Representation

Margaret H. Lemos

“Vital” State Interests: From Representative Actions for Fair Labor Standards to Pooled Trusts, Class Actions, and MDLs in the Federal Courts

Judith Resnik

This Article maps the transformation of constitutional understandings of the forms of aggregation that due process permits by putting these expanding views into the context of the changes in the federal docket during the past half century. In the 1940s, jurists interpreting the representative action provisions of the Fair Labor Standards Act thought individuals who had not personally agreed to be part of those cases could not be bound by the results. In the 1950s, however, the Supreme Court approved aggregation to serve the “vital state interest” in protecting banks from large numbers of claims when trust accounts were pooled. And in 1966, Rule 23 created a broader mechanism to bind absentees without their affirmative consent or their participation at the inception of a lawsuit. Through analyzing unpublished memos by Rule 23 drafters, I show how remarkably successful they were in displacing once conventional constitutional wisdom by disentangling autonomy, consent, and individualization in litigation from the strictures of the Due Process Clause.

One marker of change comes from data on the related aggregate form of multi‐district litigation, which in 2015 accounted for almost forty percent of the federal courts’ docket of pending civil cases. Other data mark the need for aggregation: twenty‐five percent of the civil filings in federal court, and fifty percent of the appeals, are by litigants without lawyers. Aggregation provides infusions of resources that are central to enabling litigation, and hence aggregation continues to serve the “vital interest” of the government—in need of legitimate court systems to which diverse users have access.

The Triangle of Law and the Role of Evidence in Class Action Litigation

Jonah B. Gelbach

Choice of Law and Jurisdictional Policy in the Federal Courts

Tobias Barrington Wolff

The Globalization of Entrepreneurial Litigation: Law, Culture, and Incentives

John C. Coffee, Jr.

Volume 165, Issue 6 
June 2017

Independent Directors and Controlling Shareholders

Lucian A. Bebchuk & Assaf Hamdani

Independent directors are an important feature of modern corporate law. Courts and lawmakers around the world increasingly rely on these directors to protect investors from controlling shareholder opportunism. In this Article, we argue that the existing director‐election regime significantly undermines the ability of independent directors to effectively perform their oversight role. Both the election and retention of independent directors normally depend on the controlling shareholders. As a result, these directors have incentives to go along with controllers’ wishes, or, at least, have inadequate incentives to protect public investors.

To induce independent directors to perform their oversight role, we argue, some independent directors should be accountable to public investors. This can be achieved by empowering investors to determine or at least substantially influence the election or retention of these directors. These “enhanced‐independence” directors should play a key role in vetting “conflicted decisions,” where the interests of the controller and public investors substantially diverge, but not have a special role with respect to other corporate issues. Enhancing the independence of some directors would substantially improve the protection of public investors without undermining the ability of the controller to set the firm’s strategy.

We explain how the Delaware courts, as well as other lawmakers in the United States and around the world, can introduce or encourage enhanced‐independence arrangements. Our analysis offers a framework of director election rules that allows policymakers to produce the precise balance of power between controlling shareholders and public investors that they find appropriate. We also analyze the proper role of enhanced‐independence directors as well as respond to objections to their use. Overall, we show that relying on enhanced‐independence directors, rather than independent directors whose elections fully depend on the controller, can provide a better foundation for investor protection in controlled companies.

Health Information Equity

Craig Konnoth

In the last few years, numerous Americans’ health information has been collected and used for follow‐on, secondary research. This research studies correlations between medical conditions, genetic or behavioral profiles, and treatments, to customize medical care to specific individuals. Recent federal legislation and regulations make it easier to collect and use the data of the low‐income, unwell, and elderly for this purpose. This would impose disproportionate security and autonomy burdens on these individuals. Those who are well‐off and pay out of pocket could effectively exempt their data from the publicly available information pot. This presents a problem which modern research ethics is not well equipped to address. Where it considers equity at all, it emphasizes underinclusion and the disproportionate distribution of research benefits, rather than overinclusion and disproportionate distribution of burdens.

I rely on basic intuitions of reciprocity and fair play as well as broader accounts of social and political equity to show that equity in burden distribution is a key aspect of the ethics of secondary research. To satisfy its demands, we can use three sets of regulatory and policy levers. First, information collection for public research should expand beyond groups having the lowest welfare. Next, data analyses and queries should draw on data pools more equitably. Finally, we must create an entity to coordinate these solutions using existing statutory authority if possible. Considering health information collection at a systematic level—rather than that of individual clinical encounters—gives us insight into the broader role that health information plays in forming personhood, citizenship, and community.

Legislating in the Shadows

Christopher J. Walker

Federal agencies are deeply involved in both the foreground and shadows of legislative drafting. In the foreground, agencies draft the substantive legislation the Administration desires to submit to Congress. In the shadows, agencies provide confidential “technical drafting assistance” on legislation that originates with congressional staffers. This technical drafting assistance provides Congress with agency expertise on the subject matter, which helps Congress avoid considering legislation that would unnecessarily disrupt the current statutory scheme. It also allows the agency to play an active—yet opaque—role in drafting legislation from the very early stages. In fact, the empirical findings presented in this Article, based on extensive interviews and surveys at some twenty federal agencies, suggest that agencies provide technical drafting assistance on the vast majority of proposed legislation that directly affects them and on most legislation that gets enacted.

The underexplored yet widespread practice of legislating in the shadows has important implications for administrative law theory and doctrine, as well as the conventional principal–agent bureaucratic model. On one hand, this phenomenon perhaps supports the growing scholarly call that agencies should be allowed to engage in more purposivist interpretation (than their judicial counterparts) because of their expertise in legislative history and purpose as well as their role in statutory drafting. On the other, this phenomenon may cast some doubt on the foundations for judicial deference to agency statutory interpretations. Agencies are usually intimately involved in drafting legislation that ultimately delegates—to themselves—the authority to interpret that very legislation. In other words, many of the criticisms of agency self‐delegation raised against Auer deference could apply with some force to Chevron deference as well. At the very least, scholars should consider more closely the administrative state’s role in drafting legislation—especially drafting legislation in the shadows—when evaluating the level of deference courts should give to agency statutory interpretations. Such reconsideration is particularly warranted given the lack of transparency implicated by legislating in the shadows.


Particularity Discovery in Qui Tam Actions: A Middle Ground Approach to Pleading Fraud in the Health Care Sector

Brianna Bloodgood

Health care fraud in the United States is policed in a unique enforcement landscape. The False Claims Act, one major piece of that landscape, grants private citizen whistleblowers the ability to sue on behalf of the government to remedy fraud. Plaintiffs in these qui tam actions are subject to procedural requirements characteristic of any federal civil fraud lawsuit, including the rigid pleading standard of Federal Rule of Civil Procedure 9(b). The Supreme Court has repeatedly declined to resolve a circuit split as to the precise particularity of the claim required under the rule; some circuits require a representative sample of false claims for a complaint to survive a motion to dismiss, while others relax the requirement and hold that general allegations supporting a strong inference of fraud will suffice. Ample literature exists in support of the latter, more lenient approach to evaluating a complaint, but little, if any, explores the possibility that a resolution outside the existing dichotomy could optimize results in the health care fraud qui tam context.

This Comment explores one such solution: pre‐merits “particularity discovery” designed to allow a qui tam plaintiff to plead a representative sample of false claims in her complaint. By exploring the merits and shortfalls of the particularity requirement as it applies to False Claims Act qui tam plaintiffs, this Comment first suggests that health care fraud cases may warrant special considerations at the pleadings stage. Then, this Comment uses examples of pre‐merits discovery in other contexts, namely class certification and jurisdictional disputes, to illustrate relevant, albeit imperfect, blueprints for a particularity discovery procedure. Finally, this Comment proposes a framework for ruling on a qui tam plaintiff’s motion for particularity discovery that could operate within the district court’s existing discretion. Because of the importance of remedying health care fraud, this middle ground could provide opportunities for plaintiffs to bring meritorious claims to court without sacrificing the benefits and purpose of the particularity requirement. This Comment will hopefully encourage courts to consider adopting the more rigid representative sample standard for particularity pleading, recognizing that the addition of targeted particularity discovery to the procedure creates a viable middle ground between the two existing approaches to pleading.

Brewing Better Law: Two Proposals to Encourage Innovation in America's Craft Beer Industry

Andrew D'Aversa

The craft beer industry is one of the most innovative industries in America. Craft brewers blend tradition, regional tastes, and artistry to make some of the best beers in the world. Against all odds, the craft brewing business has boomed in an outmoded and ill‐fitting regulatory environment. As more countries—and multinational brewers—follow in the footsteps of American craft brewers by cultivating their own fledgling markets, the fragile international dominance of our industry is threatened by our own stifling rules.

This Comment proposes two methods that state and federal governments can use to spur competition and thus innovation. First, the federal excise tax should match the size of the brewer. Tax rates must be reduced to lower a significant barrier to entry for the smallest brewers. Second, all states should allow brewpubs to operate with direct sales and reasonable barrelage limits. Barrelage limits threaten growth without furthering a legitimate regulatory purpose. These two small changes in federal and state law will lower barriers to entry, improve the odds of success for existing craft brewers, and create more competition—innovation follows. Importantly, for the regulators and legislators, these changes can coexist harmoniously with the current, post‐Prohibition moral framework.

Volume 165, Issue 5 
April 2017

On Mandatory Labeling, with Special Reference to Genetically Modified Foods

Cass R. Sunstein

As a result of movements for labeling food with genetically modified organisms (GMOs), Congress enacted a mandatory labeling requirement in 2016. These movements, and the legislation, raise recurring questions about mandatory product labels: whether there is a market failure, neoclassical or behavioral, that justifies them, and whether the benefits of such labels justify the costs. The first goal of this Article is to identify and to evaluate the four competing approaches that agencies now use to assess the costs and benefits of mandatory labeling in general. The second goal is to apply those approaches to the context of genetically modified (GM) food.

Assessment of the benefits of mandatory labels presents especially serious challenges. Agencies have (1) claimed that quantification is essentially impossible; (2) engaged in breakeven analysis; (3) projected various endpoints, such as health benefits or purely economic savings; and (4) relied on private willingness‐to‐pay for the relevant information. All of these approaches run into serious normative and empirical challenges. In principle, (4) is best, but in practice, (2) is sometimes both the most that can be expected and the least that can be demanded.

Many people favor labeling GM food on the ground that it poses serious risks to human health and the environment, but with certain qualifications, the prevailing scientific judgment is that it does no such thing. In the face of that judgment, some people respond that even in the absence of evidence of harm, people have “a right to know” about the contents of what they are eating. A simple response to this argument is that the benefits of such labels might well be lower than the costs. Consumers would obtain no health benefits from labels. To the extent that they would be willing to pay for them, the reason (for many though not all) is likely to be erroneous beliefs about health risks, and erroneous beliefs are not a sufficient justification for mandatory labels. Moreover, GMO labels might well lead people to think that the relevant foods are harmful and thus affirmatively mislead them.

Some people contend that GMOs pose risks to the environment (including biodiversity), to intelligible moral commitments, or to nonquantifiable values. Other people think that the key issue involves the need to take precautions in the face of scientific uncertainty: because there is a non‐zero risk that GM food will cause irreversible and catastrophic harm, it is appropriate to be precautionary, through labels or through more severe restrictions. The force of this response depends on the science: If there is a small or uncertain risk of serious harm, precautions may indeed be justified. If the risk is essentially zero, as many scientists have concluded, then precautions are difficult to defend. The discussion, though focused on GM foods, has implications for disclosure policies in general, which often raise difficult questions about hard‐to‐quantify benefits, the proper use of cost–benefit balancing in the face of uncertainty, and the appropriate role of precautionary thinking.

Freedom of Information Beyond the Freedom of Information Act

David E. Pozen

The U.S. Freedom of Information Act (FOIA) allows any person to request any agency record for any reason. This model has been copied worldwide and celebrated as a structural necessity in a real democracy. Yet in practice, this Article argues, FOIA embodies a distinctively “reactionary” form of transparency. FOIA is reactionary in a straightforward, procedural sense in that disclosure responds to ad hoc demands for information. Partly because of this very feature, FOIA can also be seen as reactionary in a more substantive, political sense insofar as it saps regulatory capacity; distributes government goods in an inegalitarian fashion; and contributes to a culture of adversarialism and derision surrounding the domestic policy bureaucracy while insulating the far more secretive national security agencies, as well as corporations, from similar scrutiny. If this Article’s core claims are correct to any significant degree, then open government advocates in general, and progressives in particular, ought to rethink their relationship to this landmark law.

Will Tax Reform Be Stable?

Jason S. Oh

Stability is essential to any reform’s success, yet it is hardly guaranteed. This is particularly true in tax policy, where Congress persistently tinkers. This Article offers a novel approach to studying the stability of reform proposals in taxation. Any reform proposal can be decomposed into its constituent policies. I show that politically extreme policies are more likely to be reversed than are moderate ones. This basic intuition allows one to decompose any tax reform proposal into stable and unstable pieces.

Stability analysis has important implications for tax reform, potentially upending normative prescriptions. First, reform is often justified by appeals to efficiency and fairness. These claims must be appropriately discounted for instability. I demonstrate that some “efficient” or “fair” reforms can be quite inefficient or unfair due to their inherent instability. Second, the overall revenue effect of a proposal depends on its stability. Many so‐called “revenue‐neutral” proposals may actually reduce revenue once stability is incorporated into the analysis. Such reforms are particularly troubling today given the growing federal deficit.


Implicit Bias as Social-Framework Evidence in Employment Discrimination

Annika L. Jones

The role of implicit bias as evidence in employment discrimination claims continues to evolve, as does research attempting to explain and quantify the concept of implicit bias. In Walmart Stores, Inc. v. Dukes, the Supreme Court curbed plaintiffs’ use of implicit bias as evidence in support of the commonality requirement of Rule 23. Post‐Dukes, plaintiffs have looked for creative ways to leverage scientific developments in implicit bias within the legal framework of employment discrimination law.

The most promising answer to the “Dukes problem” looks to implicit bias as substantive, rather than procedural, evidence. By repackaging implicit bias as social‐framework evidence, plaintiffs can persuasively contextualize for factfinders the ways in which differential treatment plays out in a workplace, even in the absence of overtly discriminatory attitudes or stereotypes. Whether courts will adapt to this use of implicit bias is increasingly important, as modern workplace discrimination is becoming more subtle and often is the result of unconscious biases.

The Machine Author: What Level of Copyright Protection Is Appropriate for Fully Independent Computer‐Generated Works?

Robert Yu

U.S. copyright law is grounded in a utilitarian philosophy: authors are granted a limited monopoly to incentivize production of original expressive works for the benefit of society as a whole. This philosophy may need to be applied to non‐human, machine authors in the very near future. Works of literature, music, and art are increasingly being generated through the execution of software programs, suggesting that these machine‐authored works may become the norm rather than the exception. The burgeoning of computer‐generated works raises novel and fascinating questions of copyrightability, but the existing literature neglects to address a basic question: does extending copyright protection to machine‐authored works promote or hinder the purpose of copyright law?

This Comment makes several contributions to the scholarship on copyright law. First, it poses fundamental questions regarding how the existing copyright framework would be applied to the various players that contribute to machine‐authored works and notes the problematic aspects of such application, particularly in identifying the legal author of the work. Second, it evaluates whether—in the case of machine‐authored works—the human author should be allocated rights based on the economic incentive theory. It argues that inflexible application of copyright law creates a contribution/rights paradox because the party that contributed most to the creation of the work—its author—is not the party to whom we would like to allocate copyright protection. Finally, the Comment posits that because copyrights provide little economic incentive to the players involved in creating machine‐authored works, it would be inappropriate from a social policy standpoint to extend protection to fully independent computer‐generated works.

Volume 165, Issue 4 
March 2017

Priority Matters: Absolute Priority, Relative Priority, and the Costs of Bankruptcy

Douglas G. Baird

Chapter 11 of the Bankruptcy Code is organized around the absolute priority rule. This rule mandates the rank‐ordering of claims. If one creditor has priority over another, this creditor must be paid in full before the junior creditor receives anything. Many have suggested various modifications to the absolute priority rule. The reasons vary and range from ensuring proper incentives to protecting nonadjusting creditors. The rule itself, however, remains the common starting place.

This Article uses relative priority, an entirely different priority system that flourished until the late 1930s, to show that using absolute priority even as a point of departure is suspect. Much of the complexity and virtually all of the stress points of modern Chapter 11 arise from the uneasy fit between its starting place (absolute instead of relative priority) and its procedure (negotiation in the shadow of a judicial valuation instead of a market sale). These forces are leading to the emergence of a hybrid system of priority that may be more efficient than one centered around absolute priority.

“A Radical Proposal”: The Multidistrict Litigation Act of 1968

Andrew D. Bradt

One of the central stories in current procedural law is the recent and rapid ascendance of federal multidistrict litigation, or, as it is commonly known, MDL. As the class action has declined in prominence, MDL has surged: to wit, currently more than a third of the cases on the federal civil docket are part of an MDL. With MDL’s growth has come attention from scholars, much of it critical. One recurring aspect of this criticism is that MDL judges have expanded the MDL statute beyond its modest ambitions. But what were the original purposes of MDL, and where did the statute come from? This Article unearths the origins of MDL by examining the papers of its principal drafters. Those papers reveal that the aims of the small group—a handful of federal judges and one scholar—who developed and lobbied for the statute’s passage were anything but modest. Rather, the group believed that a mass‐tort “litigation explosion” was coming and that a mechanism was needed to centralize power over nationwide litigation in the hands of individual judges committed to the principles of active case management. Moreover, the papers show that the judges were relentless in their pursuit of the statute’s passage and engaged in sharp‐elbowed tactics and horse‐trading to succeed. In short, MDL was a power grab—a well‐intentioned and brilliant one, but a power grab all the same. Understanding the roots of the judges’ accomplishment clarifies current debates about MDL and should shift those debates away from fights over the scope of the statute to more normative assessments of the concentration of power the drafters sought and successfully achieved. In short, MDL currently does what its creators intended; critiques of the statute should proceed on those terms, not from the position that MDL has somehow grown beyond its modest ambitions.

The Value of the Right to Exclude: An Empirical Assessment

Jonathon Klick & Gideon Parchomovsky

Property theorists have long deemed the right to exclude as fundamental and essential for the efficient use and allocation of property. Recently, however, proponents of the progressive property movement have called into question the centrality of the right to exclude, suggesting that it should be scaled back to allow the advancement of more socially beneficial uses of property. Surprisingly, the debate between the proponents and detractors of the right to exclude is devoid of any empirical evidence. The actual value of the right to exclude remains unknown.

In this Article, we set out to fill this void by measuring, for the first time, the value of the right to exclude. To that end, we use the passage of the Countryside and Rights of Way Act of England and Wales in 2000 as a natural experiment to provide empirical insight into this issue. We show that the Act’s passage led to statistically significant and substantively large declines in property values in areas of England and Wales that were more intensively affected by the Act relative to areas where less land was designated for increased access. While property prices might not capture all social value, our findings provide a critical input to the debate regarding access to private property. Given that the access rights provided by the “right to roam” included in the Act represent seemingly minimal intrusions on private property, our findings indicate that property owners view even small restrictions on their right to exclude very negatively.

We believe that our findings are of significant importance to lawmakers in the United States, as they provide an empirical basis for policymaking in the realms of property and land use. In the United States, private property rights enjoy constitutional protection under the Takings Clause of the Fifth Amendment. Hence, any attempt to formalize a general right to roam or other intrusions on the right to exclude may require the government to pay just compensation to affected property owners. Our study suggests what the just compensation amounts are likely to be. This information would allow lawmakers to make better decisions about the social desirability of various land use measures. We would like to emphasize that our findings should not be read as a call against the adoption of a right to roam or any other public privilege. Our only goal is to furnish a needed empirical foundation that would permit lawmakers to conduct a more precise cost–benefit analysis of different policies.


Class Action Notice in the Digital Age

Alexander W. Aiken

Technology is advancing dramatically each year, reshaping our society in the process. Despite these rapid changes, however, many federal courts continue to rely on traditional means of disseminating notice, including mail and newspapers, to inform class action members of their rights. As technology continues to progress in the digital age, these methods are becoming increasingly anachronistic. Inadequate notice risks a class member not learning of the action, and failing to learn of an action risks an individual losing a potentially large claim. Moreover, inadequate notice may open a judgment or settlement to direct or collateral attack.

Recognizing limitations in traditional forms of notice, some courts and parties have begun using modern technologies. They are using email notice to deliver individual notice, and banner and pop‐up advertisements on websites, as well as dedicated websites, to try to reach unknown class members. Although these efforts are a promising first step, courts and parties can do more. For example, machine learning systems—which analyze massive accumulations of data to discern unobserved patterns—could be used to identify previously unknown class members, with the ultimate goal of sending them individual notice. Social media also offers an inexpensive way for parties to reach a potentially vast, diverse class. Finally, text messaging could allow parties to deliver notice directly to class members in a matter of seconds. In the digital age, it is imperative that courts and parties harness modern technologies to provide the best notice practicable and protect the interests of class members.

Improving the Patent System by Encouraging Intentional Infringement: The Beneficial Use Standard of Patents

Kai Yi Xie

With the growing importance of intellectual property in the global economy, “patent infringement” has become a dirty phrase for patentees and defendants alike. For plaintiffs, it raises thoughts of the theft of one’s just deserts. Yet defendants may think of nuisance‐value suits and artificial impediments to the free flow of information. Neither side is happy because the American patent system adopts a blunderbuss approach to granting and protecting inventions. We have a one‐size‐fits‐all solution regulated by an administrative agency, the U.S. Patent and Trademark Office, incapable (perhaps intentionally) of reliably screening out low‐quality patent applications. The result has been a deluge of patents that have been granted when they should not have been—i.e., patents that remain unlitigated, impose high costs, and chill follow‐on innovation. But because all patents are treated alike, good patents and bad patents are equal under the law; the patent right is always of equal “strength.”

In this Comment, I argue that patent infringement is something to be embraced, not avoided. Much as the legal academy and practitioners have adopted the counterintuitive idea of the efficient breach of contracts, I note that there is such a thing as the efficient infringement of patents; we should be encouraging infringement in certain circumstances to address to the vast private and social costs in today’s patenting system. In this Comment, I analyze the economic and philosophical underpinnings of patent rights, and also make comparisons to trademark law and water law—another area of law that assigns rights under conditions of scarcity. Through this analysis, I demonstrate that sometimes incentivizing patent infringement by varying the strength of the patent right is preferable to the status quo. There is no reason for us to have a one‐size‐fits‐all patent right when granted patents are often of low quality and there is room to fit the strength of the right to the underlying value of the patent.

Simply put, I show that a “beneficial use” standard for patents, one that identifies whether the patent owner is exploiting the granted patent right in a societally beneficial manner, is more efficient and makes for better policy than our current system.

Volume 165, Issue 3 
February 2017

The President and the Detainees

Aziz Z. Huq

Entering the White House in 2009, President Barack Obama committed to closing the military detention facility at Guantanamo Bay in Cuba. Eight years later, the facility remains open. This Article uses the puzzle of why Obama’s goal proved so recalcitrant as a case study of separation‐of‐powers constraints upon presidential power. Deploying a combination of empirical, doctrinal, and positive political science tools, it isolates the salient actors and dynamics that impeded Obama’s goal. Its core descriptive finding is that a bureaucratic–legislative alliance was pivotal in blocking the White House’s agenda. This alliance leveraged its asymmetrical access to information to generate constraints on the President. The most significant of these constraints operated through political channels; statutory prohibitions with the force of law were of distinctly secondary importance. The analysis, furthermore, sheds light on why individualized judicial review, secured through the mechanism of habeas petitions under the Constitution’s Suspension Clause, had scant effect. Contrary to standard approaches to the Constitution’s separation of powers, the case study developed here points to the value of granular, retail analysis that accounts for internally heterogeneous incentives and agendas instead of abstract theory that reifies branches as unitary and ahistorical entities.

The Vanishing Common Law Judge?

Neal Devins & David Klein

The common law style of judging appears to be on its way out. Trial courts rarely shape legal policymaking by asserting decisional autonomy through distinguishing, limiting, or criticizing higher court precedent. In an earlier study, we demonstrated the reluctance of lower court judges to assert decisional autonomy by invoking the holding–dicta dichotomy. In this Article, we make use of original empirical research to study the level of deference U.S. district court judges exhibit toward higher courts and whether the level of deference has changed over time. Our analysis of citation behavior over an eighty‐year period reveals a dramatic shift in judges’ practices. In the first fifty years included in our study, district court judges were not notably deferential to either their federal court of appeals or the U.S. Supreme Court. District court judges regularly assessed the relevance and scope of precedents from those higher courts and asserted their prerogative to disregard many of them. Since then, judges have become far more likely to treat a given higher court precedent as dispositive. In so doing, lower courts have embraced a hierarchical view of judicial authority at odds with the common law style of judging. The causes of this shift are multifold and likely permanent; we discuss several of them, including dramatic changes in legal research, the proliferation of law clerks throughout the legal system, the growing docket of lower court judges, the growth of the administrative state, and the Supreme Court’s increasing embrace of judicial hierarchy.

Accountable Algorithms

Joshua A. Kroll, Joanna Huey, Solon Barocas, Edward W. Felten, Joel R. Reidenberg, David G. Robinson & Harlan Yu

Many important decisions historically made by people are now made by computers. Algorithms count votes, approve loan and credit card applications, target citizens or neighborhoods for police scrutiny, select taxpayers for IRS audit, grant or deny immigration visas, and more.

The accountability mechanisms and legal standards that govern such decision processes have not kept pace with technology. The tools currently available to policymakers, legislators, and courts were developed to oversee human decisionmakers and often fail when applied to computers instead. For example, how do you judge the intent of a piece of software? Because automated decision systems can return potentially incorrect, unjustified, or unfair results, additional approaches are needed to make such systems accountable and governable. This Article reveals a new technological toolkit to verify that automated decisions comply with key standards of legal fairness.


Invalidating Issue Preclusion: Rethinking Preclusion in the Patent Context

Stephen C. DeSalvo

Preclusion is a complex doctrine to apply in any given case, and patent litigation presents no exception. Ever since the Supreme Court ruled in Blonder‐Tongue Laboratories, Inc. v. University of Illinois Foundation that issue preclusion applies to prevent litigation on a patent that previously has been declared invalid in a court of competent jurisdiction, courts have applied issue preclusion summarily to end disputes over previously invalidated patents. But issue preclusion may not be an appropriate procedural tool in all such cases. In fact, analysis of a number of district court opinions demonstrates that some judges may explicitly or implicitly realize the same. This Comment both systematically analyzes the application of issue preclusion in the patent validity context from a doctrinal perspective and addresses significant practical concerns derived from the doctrinal findings. Interestingly, this analysis suggests that the Federal Circuit and most district courts are applying the law of issue preclusion incorrectly and that this practice has significant implications for litigants. Primarily, courts’ treatment of patent invalidity as a whole as a “single issue” for the purposes of issue preclusion is out of line with the application of that doctrine in other areas of civil law. Although the misapplication of issue preclusion is a moot point in most cases where a patent is adjudged invalid and that holding is maintained on appeal, it is of practical significance for simultaneous litigation over a single patent in multiple district courts. A new procedural framework is proposed to remedy the doctrinal and practical problems raised by the current application of issue preclusion in the patent validity context. Instead of entering judgment based on issue preclusion, which is inappropriate in many cases, there are substantial policy concerns favoring either applying claim preclusion, dismissing the plaintiff’s action for failure to state a claim upon which relief may be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure, or simply staying the patent litigation pending final appeal of an earlier proceeding over the same property right.

Cruel and Unusual Construction: The Eighth Amendment as a Limit on Building Prisons on Toxic Waste Sites

Kelsey D. Russell

Over the last four decades, the United States has witnessed the emergence of a leviathan prison industrial complex. Eager to restore stagnating economies previously driven by coal‐mining operations, many rural communities sought to take advantage of this prison‐building boom through bids for facility construction contracts. As a result, a startling number of prisons have been built on active and former coal mines, coal ash dumps, and other environmentally hazardous locations. Long‐term confinement in facilities located in, on, and near such locations poses severe and demonstrable health risks to the inmate populations through exposure to polluted air and water twenty‐four hours a day, seven days a week, for the duration of their sentences.

This Comment examines the doctrinal promise of a lawsuit to enjoin the construction of prisons on toxic waste sites based on the Eighth Amendment, before inmates are exposed to dangerous and sometimes fatal living conditions. Specifically, it asks whether planning to build a prison in a location bearing environmental risks known to cause serious illness and death constitutes cruel and unusual punishment. Despite certain obstacles, this Comment contends that the Supreme Court’s conditions‐of‐confinement jurisprudence bears the weight of such a claim. Due in large part to the tireless efforts of prisoners’ rights organizations and activists, there is ample evidence demonstrating that inmates confined in facilities on or around toxic waste sites are developing exposure‐related illnesses at alarming rates. Accordingly, planning to build a prison in a location with identical risks raises serious concerns under the Eighth Amendment.

The import of this situation was perhaps best articulated by the Human Rights Defense Center, a prisoners’ rights organization actively engaged in putting an end to this disturbing trend: “If we can recognize the problem with forcing people to live in close proximity to toxic and hazardous environmental conditions, then why are we ignoring prisoners who are forced to live in detention facilities impacted by such conditions?” This Comment seeks not only to recognize the problem with forcing people to live in such conditions, but also to engage with a potential, albeit imperfect, solution.

Volume 165, Issue 2 
January 2017

Evaluating NFL Player Health and Performance: Legal and Ethical Issues

Jessica L. Roberts, I. Glenn Cohen, Christopher R. Deubert & Holly Fernandez Lynch

This Article follows the path of a hypothetical college football player with aspirations to play in the National Football League, explaining from a legal and ethical perspective the health and performance evaluations he will likely face throughout his career. Some of these evaluations are commonplace and familiar, while others are more futuristic—and potentially of unproven value. How much information about themselves should aspiring and current professional players be expected to provide in the employment context? What are the current legal standards for employers collecting and acting on an individual’s health‐ and performance‐related information? Drawing on disability law, privacy law, and the law governing genetic testing, this Article seeks to answer those questions, as well as to provide recommendations to better protect the health and privacy of professional football players.

The upshot of our analysis is that it appears that some of the existing evaluations of players, both at the NFL Scouting Combine (Combine) and once drafted and playing for a club, seem to violate existing federal employment discrimination laws. Specifically, (1) the medical examinations at the Combine potentially violate the Americans with Disabilities Act’s (ADA) prohibitions on pre‐employment medical exams; (2) post‐offer medical examinations that are made public potentially violate the ADA’s confidentiality provisions; (3) post‐offer medical examinations that reveal a disability and result in discrimination—e.g., the rescission of a contract offer—potentially violate the ADA provided the player can still perform the essential job functions; (4) Combine medical examinations that include a request for a player’s family medical history potentially violate the Genetic Information Nondiscrimination Act (GINA); and (5) the preseason physical’s requirement that a player disclose his family medical history potentially violates GINA.

We believe all employers—including the NFL and its clubs—should comply fully with the current law. To that end, our recommendations center around four “C”s: compliance, clarity, circumvention, and changes to existing statutory schemes as applied to the NFL (and perhaps other professional sports).

The appendices cited in this article are available below:

Appendix A

Appendix B

Appendix C

What We Buy When We Buy Now

Aaron Perzanowski & Chris Jay Hoofnagle

Imagine you purchase a new book from Amazon. You visit Amazon.com, find a book that looks promising, click the familiar Buy Now button, wait a mere two days for Amazon Prime delivery, and promptly place that new volume on your bookshelf, waiting for the perfect rainy day to crack it open. The next morning, you wake up to find a book‐sized gap on your shelf. Your book has disappeared. Just then, you receive an email from Amazon customer service explaining that—at the copyright holder’s request—the book has been recalled.

Amazon informs you that it dispatched a drone to your home to silently and carefully retrieve the book while you slept in order to avoid any inconvenience. But not to worry, Amazon reassures you, your account has already been credited with a refund.

Most consumers would be outraged at such an intrusion, not only because of the physical violation it entails, but also because it contravenes some basic assumptions about the nature of personal property rights. When we buy a book, we own it; it is our property. And one right traditionally associated with personal property is the ability to keep the things you own for as long as you choose. They cannot be taken from you without your consent, certainly not by private actors for their own benefit. Yet something very similar happens online when consumers buy a product.

This Article presents the results of a study that demonstrates that a sizable percentage of consumers is misled with respect to the rights they acquire when they “buy” digital media goods. They mistakenly believe they can keep those goods permanently, lend them to friends and family, give them as gifts, leave them in their wills, resell them, and use them on their devices of choice.

Not only are consumers misled, they are misled about ownership rights that are important to them. A sizable percentage of consumers express a desire for those rights and many say they are willing to pay more to preserve them. Importantly for retailers and copyright holders, respondents in our study indicated that they would turn to streaming services and BitTorrent if they were unable to engage in the uses typically associated with personal property ownership.

The Myth of the Nondelegation Doctrine

Keith E. Whittington & Jason Iuliano

For much of the nineteenth and early twentieth centuries, the nondelegation doctrine served as a robust check on governmental expansion. Then, during the New Deal revolution, the Supreme Court reined in the doctrine, thereby paving the way for the rise of the modern administrative state. This story is one we all know well. It is taught in every constitutional law class and has been endorsed by constitutional law scholars since the 1930s. In this Article, we are the first to challenge this narrative.

Our investigation draws upon an original dataset we compiled that includes every federal and state nondelegation challenge before 1940—more than two thousand cases in total. In reviewing these judicial decisions, we find that the nondelegation doctrine never actually constrained expansive delegations of power. Ultimately, our analysis reveals that the traditional narrative behind the nondelegation doctrine is nothing more than a myth.


Revoking the Revocable License Rule: A New Look at Resale Restrictions on Sports Tickets

Alexander P. Frawley

Most sports fans consistently rely on the secondary ticket market. After all, the secondary ticket market provides fans with numerous benefits, including the opportunity to obtain tickets to sold out, high‐profile events and the ability to resell tickets to recoup the cost of a ticket for an event they cannot attend. But some key players—namely, primary ticket sellers like sports teams—have lamented the rise of the secondary market, complaining that resale exchanges unfairly profit from the teams’ labor and diminish the value of buying tickets directly from the teams. Consequently, teams have begun to develop new initiatives to curb the growth of the secondary market, including establishing official team resale exchanges to compete with sites like StubHub, prohibiting season ticket holders from selling tickets on unofficial resale exchanges, and implementing ticket delivery procedures that make it more difficult to resell tickets. Fortunately for teams, the law cuts squarely in their favor as courts, academics, and industry professionals alike adhere to the late nineteenth century notion of tickets as fully revocable licenses. As such, teams are free to impose resale restrictions as they see fit.

But in this Comment, I argue that lawmakers should reconsider the extent to which teams can continue to use the revocable license rule to restrict ticket holders’ resale rights. I show how the revocable license rule, though widely accepted today, was criticized and often rejected by early twentieth century courts and academics for seemingly allowing proprietors to unfairly and arbitrarily exclude innocent ticket‐holding patrons. I then explain how business incentives nevertheless prevented proprietors from abusing the rule and how judges and lawmakers relied on the assumption that these incentives would prevent the rule from being abused. In doing so, I show that the rule was actually adopted for a very limited purpose—namely, to protect a proprietor’s right to exclude unruly patrons. Given that limited purpose, I argue that courts and scholars have gradually—but improperly—extended the rule of tickets as revocable licenses such that primary ticket vendors now wield a type of unilateral power over ticket holders that the original proponents of the rule never intended to establish. Therefore, I urge that lawmakers stop allowing the notion of tickets as revocable licenses to inform the industry’s discourse about ticket holders’ rights. Finally, I explore various practical legislative solutions to reform the secondary market, which are free from the rigid assumptions of the revocable license rule and which account for the legitimate concerns of both ticket holders and teams.

Circuit Split: How Far Does Whistleblower Protection Extend Under Dodd–Frank?

Thomas J. McCormac, IV

Khaled Asadi and Daniel Berman worked for companies that were subject to various U.S. securities laws. During the course of their employment, both became aware of potential violations of law and dutifully reported this information to their superiors. Soon thereafter, both men lost their jobs; they believe this was in retaliation for their whistleblowing activity. Both brought suit under Dodd–Frank’s whistleblower protection provisions, which define a whistleblower as “any individual who provides . . . information relating to a violation of the securities laws to the Commission.” Because Mr. Asadi and Mr. Berman only reported violations to their supervisors internally and not to the Securities and Exchange Commission (SEC), their protection under Dodd–Frank was uncertain. The Fifth Circuit held that Dodd–Frank did not protect Mr. Asadi because it only protects employees who report to the SEC directly. The Second Circuit, in contrast, held that Mr. Berman’s internal reporting was sufficient for him to gain protection under Dodd–Frank. These conflicting outcomes have created a circuit split with major implications for the law of whistleblower protection. This Comment ultimately argues that both the text and purpose of Dodd–Frank support the Second Circuit’s conclusion: whistleblowers who report suspected violations of law internally, but not to the SEC, are protected by Dodd–Frank’s anti‐retaliation provisions.

Volume 165, Issue 1 
December 2016

Consent Is Not Enough: Why States Must Respect the Intensity Threshold in Transnational Conflict

Oona A. Hathaway, Rebecca Crootof, Daniel Hessel, Julia Shu & Sarah Weiner

It is widely accepted that a state cannot treat a struggle with an organized non‐state actor as an armed conflict until the violence crosses a minimum threshold of intensity. For instance, during the recent standoff at the Oregon wildlife refuge, the U.S. government could have lawfully used force pursuant to its domestic law enforcement and human rights obligations, but President Obama could not have ordered a drone strike on the protesters. The reason for this uncontroversial rule is simple—not every riot or civil disturbance should be treated like a war.

But what if President Obama had invited Canada to bomb the protestors—once the United States consented, would all bets be off? Can an intervening state use force that would be illegal for the host state to use itself? The silence on this issue is dangerous, in no small part because these once‐rare conflicts are now commonplace. States are increasingly using force against organized non‐state actors outside of the states’ own territories—usually, though not always, with the consent of the host state. What constrains the scope of the host state’s consent? And can the intervening state always presume that consent is valid?

This Article argues that a host state’s authority to consent is limited and that intervening states cannot treat consent as a blank check. Accordingly, even in consent‐based interventions, the logic and foundational norms of the international legal order require both consent‐giving and consent‐receiving states to independently evaluate what legal regime governs—this will often turn on whether the intensity threshold has been met. If a non‐international armed conflict exists, the actions of the intervening state are governed by international humanitarian law; if not, its actions are governed instead by its own and the host state’s human rights obligations.

Something to Talk About: Information Exchange Under Employment Law

Joni Hersch & Jennifer Bennett Shinall

To avoid the appearance of sex discrimination that would violate Title VII of the Civil Rights Act, Equal Employment Opportunity Commission (EEOC) guidance coupled with a common misunderstanding of the law have resulted in little or no information about family status being provided in pre‐employment interviews. To investigate whether concealing family information actually improves women’s employment prospects, we conducted an original experimental study fielded on more than 3000 subjects. Our study provides the first ever evidence that concealing personal information lowers female applicants’ hiring prospects. Subjects overwhelmingly preferred to hire candidates who provided personal or family information, regardless of content—any explanation improved employment prospects relative to no explanation for an otherwise identical job candidate. Our results are consistent with the behavioral economics theory of ambiguity aversion, which finds that individuals prefer known risks over unknown risks. These findings have broader implications regarding permissible pre‐employment questions, as they suggest that restrictions on questions about matters such as criminal history and credit history, both of which are currently targeted by legislatures and by the EEOC for prohibition, may likewise have adverse effects on the classes of workers such restrictions are intended to protect. Finally, our findings suggest that the interactive process model of reasonable accommodation, embodied in the enforcement guidance for the Americans with Disabilities Act, may provide a better model for accommodation of work–family balance.

Policing as Administration

Christopher Slobogin

Police agencies should be governed by the same administrative principles that govern other agencies. This simple precept would have significant implications for regulation of police work, in particular the type of suspicionless, group searches and seizures that have been the subject of the Supreme Court’s special needs jurisprudence (practices that this Article calls “panvasive”). Under administrative law principles, when police agencies create statute‐like policies that are aimed at largely innocent categories of actors—as they do when administering roadblocks, inspection regimes, drug testing programs, DNA sampling programs, and data collection—they should have to engage in notice‐and‐comment rulemaking or a similar democratically oriented process and avoid arbitrary and capricious rules. Courts would have the authority to ensure that policies governing panvasive actions are authorized by statute and implemented evenhandedly, both in individual instances and as they are distributed within the agency’s jurisdiction. Furthermore, these principles would apply regardless of whether the panvasive practice has been designated a search or seizure under the Fourth Amendment.


Maybe Publius Was Right: Relying on Merger Price To Determine Fair Value in Delaware Appraisal Cases

Daniel E. Meyer

In this Comment, I argue that calls for reform to the appraisal remedy should be aimed at the Delaware Court of Chancery. The purpose of this Comment is not to express a normative judgment about the overall desirability of appraisal arbitrage; rather, I propose a shift away from the Chancery Court’s oft‐favored valuation technique, discounted cash flow (DCF) analysis, in appraisal cases arising out of certain third‐party, or arm’s‐length, transactions. The Chancery Court should instead rely on merger price as the best estimate of the “fair value” of an appraisal petitioner’s shares when (1) the inputs required for a DCF analysis are unreliable and (2) there has been a genuine market test.

Reliance on the merger price under these conditions would allay concerns on both sides of the debate. For proponents of appraisal arbitrage, this valuation approach does not impinge on shareholders’ ability to resort to the appraisal remedy by restricting their deadline to the record date. Additionally, the Chancery Court’s embrace of merger price would incentivize additional disclosure by target companies in order to demonstrate that the sale process was fulsome. For opponents of appraisal arbitrage, when there has been a genuine market test and a DCF analysis is unreliable, the use of merger price punishes appraisal petitioners when their claims are unwarranted (i.e., purely speculative investments aimed at low‐premium transactions). Appraisal arbitrageurs cannot profit from “buying into” a lawsuit when the merger price is used as fair value; they must bear litigation expenses and additionally may face a “synergy deduction,” as appraisal claimants cannot capture any value arising from the expectation of the merger. Thus, this approach to valuation would only encourage claims where there is real reason to believe that the price achieved in the merger was not “fair”—namely, in controlling shareholder and parent/subsidiary mergers—and would remove some uncertainty from third‐party mergers (the transactions that are the primary focus of M&A lawyers).

Our Antitotalitarian Constitution and the Right to Identity

Brian T. Ruocco

Underlying the United States Constitution is an antitotalitarian principle—i.e., the government cannot define, regulate, or compel aspects of life that are fundamental to identity and personhood. Prohibitions of compulsory childbirth, flag salutes, ideological education, and racial separation most clearly evince this bulwark against totalitarianism.

Nonetheless, from birth, the government enforces legal gender, restricts the availability of legal gender reclassification, and prevents individuals from removing themselves from the legal gender system. The government thus affirmatively produces and compels identity on an individual level. Moreover, for trans* people, these laws cause expressive and dignitary harm, increase exposure to violence, and diminish life opportunities. Although these gender identity laws constitute a totalitarian occupation of individual lives, they have evaded constitutional scrutiny.

This Comment (1) evaluates the right to identity situated in the midst of the Constitution’s proscription of totalitarianism and (2) investigates constitutional arguments supporting trans* people’s right to self‐determine their gender identity. Specifically, this context illuminates the right to identity and how the government engages in compulsory, affirmative identity formation. Ultimately, this Comment demonstrates that for trans* people and our Constitution alike, we must eliminate totalitarian gender identity laws and totalitarianism in all forms.

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