VOLUME 165, ISSUE 7 OCTOBER 2017

ARTICLES

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

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

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

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 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

ARTICLES

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

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

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

COMMENTS

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

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

VOLUME 165, ISSUE 5 APRIL 2017

ARTICLES

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

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 “

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

COMMENTS

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

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

VOLUME 165, ISSUE 4 MARCH 2017

ARTICLES

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

“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 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,

COMMENTS

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

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

VOLUME 165, ISSUE 3 FEBRUARY 2017

ARTICLES

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

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

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.

COMMENTS

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

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

VOLUME 165, ISSUE 2 JANUARY 2017

ARTICLES

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

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

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

COMMENTS

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

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

VOLUME 165, ISSUE 1 DECEMBER 2016

ARTICLES

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

 

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

 

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

 

COMMENTS

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

 

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,

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