Private Enforcement’s Pathways: Lessons from Qui Tam Litigation

By:  David Freeman Engstrom

 

How does making law through private lawsuits differ from making law by other means? That question is especially important where legislators deputize “private attorneys general” as statutory enforcers, from antitrust and securities to civil rights and consumer ...READ MORE

Risky Arguments in Social-Justice Litigation: The Case of Sex Discrimination and Marriage Equality

By:  Suzanne B. Goldberg

 

This Essay takes up the puzzle of the risky argument or, more precisely, the puzzle of why certain arguments do not get much traction in advocacy and adjudication even when some judges find them to be utterly ...READ MORE

Adopting “Biology Plus” in Federal Indian Law: Adoptive Couple v. Baby Girl‘s Refashioning of ICWA’s Framework

By:  Shreya A. Fadia

 

This Note argues that the Supreme Court’s decision in Adoptive Couple v. Baby Girl creates an apparent tension in federal Indian law. The Court’s characterization of the broader aims of the Indian Child Welfare Act of 1978 and ...READ MORE

 

Hey, That’s Cheating! The Misuse of the Irreparable Injury Rule as a Shortcut to Preclude Unjust-Enrichment Claims

By:  Eric J. Konopka

 

In a recent case, the Eighth Circuit, following the lead of other courts interpreting Minnesota law, hinted that a plaintiff may not be able to pursue an unjust-enrichment claim if a statutory cause of action is available. ...READ MORE

The Negotiated Structural Constitution

By:  Aziz Z. Huq

 

The Constitution allocates entitlements not only to individuals, but also to institutions such as states and branches of the federal government.  It is familiar fare that individuals’ entitlements are routinely deployed both as shields against unconstitutional action ...READ MORE

Taking Images Seriously

By:  Elizabeth G. Porter

 

Law has been trapped in a stylistic straitjacket. The Internet has revolutionized media and communications, replacing text with a dizzying array of multimedia graphics and images. Facebook hosts more than 150 billion photos. Courts spend millions on ...READ MORE

 

The Attorney General Veto

By:  Jeremy R. Girton

 

Constitutional standing doctrine requires that a private party seeking to defend the validity of a state statute must possess a “particularized” interest in the statute’s validity. When California officials refused to defend the constitutionality of Proposition 8, ...READ MORE

The Shrinking Sovereign: Tribal Adjudicatory Jurisdiction Over Nonmembers in Civil Cases

By:  M. Gatsby Miller

 

Tribal jurisdiction over nonmembers is limited to two narrow areas: consensual economic relationships between tribes and nonmembers, and nonmember activity that threatens tribal integrity. Even within these two narrow fields, the Supreme Court has stated that tribal ...READ MORE

Narrowing Precedent in the Supreme Court

By:  Richard M. Re

 

“Narrowing” occurs when a court declines to apply a precedent even though, in the court’s own view, the precedent is best read to apply. In recent years, the Roberts Court has endured withering criticism for narrowing in ...READ MORE

 

Forcings

By:  Lee Anne Fennell

 

Eminent domain receives enormous amounts of scholarly and popular attention, and for good reason—it is a powerful form of government coercion that cuts to the heart of ownership. But a mirror-image form of government coercion has been ...READ MORE

Dictatorships for Democracy: Takeovers of Financially Failed Cities

By:  Clayton P. Gillette

 

States have traditionally offered support to their fiscally distressed municipalities. When less intrusive forms of assistance fail to bring stability, some states employ supervisory institutions that exercise approval authority over local budgets or, more intrusively, displace locally ...READ MORE

“The Second Chance They Deserve”: Vacating Convictions of Sex Trafficking Victims

By:  Alyssa M. Barnard

 

Section 440.10(1)(i) of the New York Criminal Procedure Law allows victims of sex trafficking to vacate convictions for certain offenses they were forced to commit by their traffickers. This vacatur provision and similar laws in other states ...READ MORE

 

No IDEA What the Future Holds: The Retrospective Evidence Dilemma

By:  Dennis Fan

 

The Individuals with Disabilities Education Act’s predecessor established a multilevel administrative and judicial review system for special education decisions, and ever since, the volume of special education cases in federal court has ballooned. Most present cases involve disputes ...READ MORE

Toward a Constitutional Review of the Poison Pill

By:  Lucian A. Bebchuk & Robert J. Jackson, Jr.

 

We argue that the state-law rules governing poison pills are vulnerable to challenges based on preemption by the Williams Act. Such challenges, we show, could well have a major impact on the ...READ MORE

The Administrative Origins of Modern Civil Liberties Law

By:  Jeremy K. Kessler

 

This Article offers a new explanation for the puzzling origin of modern civil liberties law. Legal scholars have long sought to explain how Progressive lawyers and intellectuals skeptical of individual rights and committed to a strong, ...READ MORE

 

Free Speech and Guilty Minds

By:  Leslie Kendrick

 

It is axiomatic that whether speech is protected turns on whether it poses a serious risk of harm—in Holmes’s formulation, a “clear and present danger.” If this is correct, then the state of mind, or intent, of the ...READ MORE

Prosecuting Leakers the Easy Way: 18 U.S.C. § 641

By:  Jessica Lutkenhaus

 

18 U.S.C. § 641 prohibits the theft or misuse of federal government “things of value.” The federal government has used this statute to prosecute leakers of information: The government considers disclosure to be a type of theft or ...READ MORE

Overcoming Administrative Silence in Prisoner Litigation: Grievance Specificity and the “Object Intelligibly” Standard

By:  Antonieta Pimienta

 

The Prison Litigation Reform Act (PLRA) requires that prisoners exhaust available administrative remedies before filing a federal action challenging prison conditions. Thus, an inmate can only file a lawsuit in federal court after proceeding through each step ...READ MORE

 

Intertemporal Statutory Interpretation and the Evolution of Legislative Drafting

By:   Jarrod Shobe

 

All theories of statutory interpretation rely on an idea of how Congress operates. A commonly held supposition among scholars is that the procedures used in the creation of legislation are unsophisticated and almost anarchic. This supposition ...READ MORE

Tort Law vs. Privacy

By:  Eugene Volokh

 

Tort law is often seen as a tool for protecting privacy. But tort law can also diminish privacy, by pressuring defendants to gather sensitive information about people, to install comprehensive surveillance, and to disclose information. And the ...READ MORE