Class actions for monetary relief have long been the subject of intense legal and political debate. The stakes are now higher than ever. Contractual agreements requiring arbitration are proliferating, limiting the availability of class actions as a vehicle for collective redress. In Congress, legislative proposals related to class actions are mired in partisan division. Democrats would roll back mandatory arbitration agreements while...
Note
Buildings in the United States are responsible for nine percent of the world’s greenhouse gas emissions, and improvement of building energy efficiency through strong building energy codes can help achieve significant emissions reductions and cost savings. But building energy code regulation across the country is inconsistent: Some states have statewide codes with ambitious clean energy targets, while others have no statewide codes at all....
The COVID-19 pandemic has laid bare the severe public health danger that institutional and congregate care settings pose to people with disabilities, older adults, and the care professionals who work in those settings. While the populations residing in congregate care settings are naturally more susceptible to the virus, the COVID-19 crisis in these settings could have been far more limited if there had been broader access to home and community-based...
The COVID-19 pandemic has triggered an unprecedented increase in unilateral lawmaking by governors under each state’s emergency executive power statute. These actions have been met with controversy and a significant amount of resistance. This Note argues that the resistance to COVID-19 rules in the United States may be partially attributable to the way state emergency power statutes concentrate virtually all the power to enact emergency rules...
As immigration courts work through never-ending dockets and as detention centers operate beyond capacity, scholars and advocates have raised questions about the effects of pretrial immigration detention on outcomes for noncitizens. While pretrial detention is studied frequently in the criminal context, few empirical studies have addressed the consequences of pretrial immigration detention in particular. To help fill this gap in the literature,...
Agency delay has become a chronic issue in administrative law. As Congress increasingly relies on reducing appropriations to implement its agenda, agencies have shouldered the conflicting burdens of meeting preexisting statutory deadlines for agency action, while also adhering to their newly reduced budgets. The result has been delayed agency action across a broad range of policy areas, such as environmental protection, health care, and economic...
Federal law enforcement’s deployment of malware (Network Investigative Technique, or NIT) raises a jurisdictional question central to remote searches of electronic data: Where does the search occur?
Litigation arising from two prominent NIT searches—Operations Pacifier and Torpedo—illustrates the challenge courts confronted in defining the...
The Supreme Court has made clear that a district court may grant class action certification only after conducting a rigorous analysis to ensure that the requirements of Rule 23 of the Federal Rules of Civil Procedure have been met. Less clear, however, is what exactly a rigorous analysis entails. As precertification scrutiny has become more robust, reliance on expert testimony has become nearly indispensable for obtaining class certification....
Rule 10b-5 and the securities-fraud action provide a private enforcement tool only where litigants can show a defendant’s misrepresentation impacted the price of a security. But investors increasingly demand disclosure about how a corporation interacts with stakeholder groups such as employees, consumers, and communities. Because these “sustainability disclosures” are aimed at long-term value, misrepresentations will only...
In the 1951 case United States ex rel. Touhy v. Ragen, the Supreme Court determined that courts can’t hold federal agency officials in contempt for refusing to comply with nonparty subpoenas if they do so pursuant to valid agency regulations. Though the Court suggested that litigants could still challenge these noncompliance decisions, it didn’t flesh out what that process would look like. Following Touhy, federal...