Mass torts have inspired a number of innovative procedural approaches. They include creative uses of class actions, multidistrict litigation ("MDL") and, more recently, the bankruptcy system. These procedural innovations have been challenged as a "revolution" that departs from "traditional litigation goals," particularly our "deep-rooted tradition" of one having their "day in court." In this Essay, we question just how "traditional" or "deep-rooted" these goals are. While mass torts do indeed raise challenging issues of due process and federalism, we show that these issues are neither new nor do they depart from a "deep-rooted tradition," at least not one that isn't often honored only in the breach. Instead, we suggest that history reveals an alternative "tradition," one that we argue is much more normatively appealing, sensitive to the interests of the parties, and accommodating of practical procedural efforts to resolve nationwide and dispersed disputes.
This Article proposes nine methods for dealing with the damages phase in a mass tort or mass accident situation after an issue class action on liability has been certified and plaintiff has prevailed on liability in Phase I or once a case has been filed in a bankruptcy court and needs to be valued. regarding the procedures for follow-on proceedings after liability has been established, but as defendants appear to be increasingly risk-seeking in their trial strategy, judges cannot rely on settlement to take care of the possible complexities of the remedial phase, sometimes referred to as Phase II. The Article explains the costs and benefits of each method with the aim of helping judges structure a trial plan to resolve mass torts fairly and efficiently. It proposes that in addition to doctrinal limitations, the choice of procedure in Phase II requires consideration of (1) the likelihood that the procedure will resolve substantial numbers of cases; (2) the capacity of the process to achieve consistency or equal treatment among similarly situated plaintiffs; and (3) how well the procedure results in rectitude, or the correct application of the law to the facts of the case.
This Article tackles an increasingly important question: Can police round up people on American streets and keep secret the names of those they detain without violating the First Amendment? Alarmingly, the government made this very argument in the summer of 2020 when it sought to break up Black Lives Matter protests occurring in cities across the country. Based in part on a Supreme Court decision from the 1970s involving access to prisons, the government argued that the First Amendment imposes no constraints on government secrecy. If it is true that the government can shield its exercise of police powerfrom public oversight, then this raises profound concerns about accountability and the rule of law in a constitutional democracy. In this Article, I dissect the Supreme Court's tangled web of "right to know" cases, uncovering a glaring inconsistency in the Court's First Amendment jurisprudence: while the Court champions open criminal trials, it has left the door open for unchecked government secrecy elsewhere. This is a perilous place to be for a republic founded on the principle of self-government. As recent events have shown, the norms of democratic governance are dangerously shallow. Reconciling seemingly conflicting lines of Supreme Court cases, the Article establishes that the First Amendment's guarantees extend beyond the courtroom to encompass a broader right of access to government information. It then builds upon the Supreme Court's judicial access framework to articulate a general First Amendment right to know, applicable across all branches of government. Focusing on the context of police power and arrests, the Article demonstrates that public access to arrestee information is essential for holding the government accountable and preventing abuses of power. It concludes by showing that access to this information is a cornerstone of democratic accountability, ensuring that the government's use offorce and coercion remains subject to public scrutiny and aligns with the principles of self-government.
This Article empirically examines the effect of the dangerous patient exception to the psychotherapist-patient evidentiary privilege. The U.S. Supreme Court first recognized the psychotherapist-patient privilege in Jaffee v. Redmond. This evidentiary privilege prevents mental health professionals from testifying about confidential statements made by patients for the purposes of treatment. Since Jaffee, federal circuit courts have split on whether there should be an exception to this privilege in cases involving so-called dangerous patients that pose a serious risk to themselves or others. Central to this debate has been a disagreement among federal courts about whether the dangerous patient exception discourages vulnerable patients from receiving life-saving mental health treatment. While commentators have predicted that the U.S. Supreme Court may soon resolve this circuit split, no prior studies have empirically tested the effect of the dangerous patient exception. By taking advantage of the timing of this circuit split, we find that the introduction of the dangerous patient exception is associated with a statistically significant increase in suicides, but no change in homicides. Both results are consistent with claims by prominent critics, including the American Psychiatric Association, that the dangerous patient exception provides minimal public safety benefit while discouraging vulnerable patients from seeking mental health treatment. These results caution against recognizing or extending the dangerous patient exception in future cases.
Litigation finance makes the world go round. The capital financiers provide is the lifeblood for plaintiffs' firms and individual claimants attempting to run the litigation gauntlet in high-stakes battles with wealthy corporate entities. Third-party litigation funding in general litigation is well documented and frequently discussed. But the role financiers play and the dynamics they create in billion-dollar, mass-tort cases have been overlooked. This exclusion is confusing. Modern mass torts-including those involving Purdue Pharma, Johnson & Johnson, 3M, and Boy Scouts of America-each impact hundreds of thousands of individuals, seizing headlines and driving legal and policy debates. Most mass-tort financiers are principled actors, content to passively invest in cases and allow claimants and their attorneys to guide outcomes. Hidden among this group is a divergent breed: private equity firms and multi-strategy hedge funds that I have termed "opaque capital." A new apex predator has entered the mass-tort ecosystem, and its tactics have been obscured by its ability to strike from the shadows. These puppeteers will never be passive investors. Opaque capital is moving into mass torts to dictate outcomes. Opaque capital's unique brand of chaos is manifested most clearly at two distinct points. Primarily, opaque capital has the means to orchestrate the claim marshaling process to build- and in some cases create-a lucrative case. This idea provides the foundational premise for my theory, the Alchemist's Inversion. Many claims in a mass-tort dispute are nonmeritorious. If litigated, there is a high probability that these claims would be rejected by the judicial system. Opaque capital understands, however, that if these claims are bundled with meritorious ones, the resulting critical mass could force a defendant to pay a premium to settle all claims. The Alchemist's Inversion describes a litigation financier's use of unethical and potentially illegal tactics to create, enhance, and marshal low-value claims with the hope of turning them into gold. The corollary to the Alchemist's Inversion is that opaque capital must control when cases settle to maximize the value of the asset it has created. In order to do so, opaque capital is (i) exerting contractual control through the capital provision agreement it signs with plaintiffs' law firms and claimants, and (ii) relying on relational leverage to persuade key actors to remain compliant at seminal moments. By unpacking opaque capital's governing dynamics and assembling the full picture of modern mass-tort resolution, this Article seeks to help policymakers understand the consequences when power stays in the shadows.
American eviction proceedings are governed by a fusion of property and contract law. The law's narrow understanding of eviction ignores the importance of a dwelling place to its occupants. Property is not merely land or a structure on that land, it is a home with the power to shape communities, social relationships, and human values. Current eviction law, however, is not designed to consider these facets of property. Rather than balancing the interests of the landowner against those of the tenant, courts render judgment based on superior title and contract obligations without regard for what will happen to the tenant after displacement. The result is a system where the average hearing concludes in under two minutes, and landlords succeed in over eighty percent of cases. It doesn't have to be this way. The International Covenant on Economic, Social and Cultural Rights, signed and ratifed by nearly every nation except the United States, obligates member states to protect tenants against eviction. In Europe, specifcally, tenants can invoke a proportionality defense in eviction proceedings. Asserting their rights under Article 8 of the European Convention on Human Rights, tenants may implore courts to weigh the harms of eviction against the rights of the landlord. The result is increased residential stability, improved health, and decreased unemployment. Scholars have thus far ignored the possibility of incorporating such a balancing test into American eviction jurisprudence in large part because there is not a constitutionally protected right to housing in the United States. This Article argues that the absence of a constitutional right to housing does not bar the introduction of proportionality into American eviction proceedings, a change that has the potential to reshape the lives of individuals and communities. Drawing on sociological literature, this Article documents twentieth century policies that led to the privatization of housing for marginalized communities, which in turn catalyzed the commodifcation of home and created systemic exploitation of the rental housing market. These processes are reinforced by eviction law doctrine that disproportionally centers the interests of property owners while minimizing the possessory interests of tenants. The incorporation of proportionality in eviction hearings, therefore, is a corrective counterbalance that respects private property rights while recognizing the paramount importance of home.
It has often been said that the internet lacks public property. Unlike the offine world, denizens of cyberspace cannot gather in the digital equivalent of public parks, cannot shame websites by picketing on adjacent cyber-sidewalks, and cannot loiter in online streets and alleys if they lack a cyber-place of their own. Yet scant attention has been paid to an even more consequential fact. Not only does cyberspace lack public property, but it also lacks private property. In the early 2000s, scholars debated whether entities should possess property rights in their websites, email services, and other cyber-resources and thereby enjoy the right to exclude others from otherwise open areas of the internet. That debate was effectively settled when courts found that cyberresources indeed constituted property-cyberproperty-and that holders therefore enjoyed certain property-based rights to exclude others from those resources. Yet since that time, a key feature of property has remained elusive. Although providers and users alike can often possess, develop, monetize, transfer, sell, and even exclude others from their cyberproperty, they cannot own it. The perfectly service-oriented nature of the internet creates an environment in which licenses, leaseholds, and other possessory property interests may be had, but title is not among them. An internet devoid of ownership is, by defnition, an internet devoid of private property. In times past, when the internet functioned merely as a tool or supplement to our daily lives, the lack of title-held cyberproperty was no more concerning than the absence of ownership rights in telephone or satellite services. But as more and more aspects of society move online, the inevitable consequence is that society itself will become increasingly unpropertied. History shows that many troubling phenomena may emerge when private property rights are weak or nonexistent, from tragedies of the commons to the absence of privacy to deep, structural inequality. Drawing on lessons from pre-internet practices such as feudalism, coverture, and Communism, this Article explores the degree to which problems that have presented themselves in unpropertied or under-propertied societies are likely to represent themselves in a modern society that lives online. It also argues that for all the scholarly concern about an internet in which property rights are too strong, insuffcient attention has been paid to the dangers that can arise when property rights are too weak. Finally, it offers a handful of proposals to introduce or at least approximate ownership in cyberspace, with options spanning regulation, private ordering, and technological solutions.
Generative AI poses deep questions for copyright law because it defies the assumptions behind existing legal frameworks. The tension surfaces most clearly in debates over fair use, where established tests falter in the face of generative systems' distinctive features. This Article takes up the fair-use question to expose copyright's limitations as well as its latent commitments, particularly its allowances for the exploitation of non-authorial value. Fair use's transformative use paradigm, which compares the purpose of the use with that of the original work, faces difficulty evaluating copying during the training of AI models. Close examination of the technology-from training through the operation of completed systems-reveals that the purpose of copying may be contingent because a model's capabilities and ultimate uses are indeterminate at the time of training. This hurdle can be sidestepped by recognizing that purpose serves as a proxy for determining whether the use intrudes on markets rightly belonging to the copyright owner. However, this raises the question of which markets those are. Answering the market question requires delving into copyright's latent space-the unarticulated principles and commitments embedded in its jurisprudence. This Article identifes a dividing line between market value that stems from an author's creative choices and market value that does not, with courts permitting users to tap into the latter even to the copyright owner's detriment. The reoriented test would ask whether a user exploits non-authorial value like that which stems from facts, tropes, and third-party investment versus the authorial value arising from an artist's creative decisions. The precise line remains to be hashed out-courts have historically drawn the line differently across creative felds to balance copyright's competing objectives in specifc contexts. The fair-use question also reveals deeper structural limitations of the copyright regime. Concretely, the argument that copyright's pro-artist policies compel denial of fair use misses that AI systems trained on licensed works may still displace human creators. The lack of unauthorized use takes the problem outside copyright's domain. The core problem is not the duplication of specifc works, but the ability to produce comparable works cheaply and quickly. The challenge cannot be resolved through the mere extension or denial of fair use. Instead, it demands we put copyright in dialogue with other regimes for promoting the arts, blunting the misuse of these tools, and confronting the technology's capacity to consolidate power.
Courts and commentators take it as given that the word "property" in the Fifth Amendment's Due Process Clause refers to a broader class of assets than does the word "property" in the Fifth Amendment's Takings Clause. In this Note, I challenge that assumption and argue that takings "property" ought to include the same assets that due-process "property" already includes, namely, entitlements like Social Security and tenured public employment. Both the text and purpose of the Due Process and Takings Clauses support a uniform meaning. And the consequences of leveling up takings "property" to include entitlements would be quite sensible.
