How should a military officer respond to a lawful yet unethical order, unethical in the sense that it conflicts with their professional responsibilities? Army culture, scholarship, and doctrine regard officers as professionals, akin to doctors and lawyers, with expertise in the management of violence and a shared commitment to an ethical code. This code demands obedience to lawful orders to uphold civilian control of the military. But to protect against civilian misuse of the military, the code requires disobedience to unethical orders. Faced with a lawful but unethical order, the military officer is mired in a contradiction in which their professional identity compels both compliance and defiance. This Article unearths and examines an influential interpretation of military professionalism that resolves the contradiction in favor of disobedience and invokes the Constitution as justification. In so doing, the Article makes two primary contributions. First, I document and elucidate this interpretation of professionalism through a six-month ethnography at a military college, interviews with writers of Army doctrine, a first-person account from an Army officer who defied an order regarding transgender service members, and an analysis of conflicts between Donald Trump and the Chairman of the Joint Chiefs of Staff. That interpretation emphasizes that officers take an oath not to the President but to the Constitution and its ideals. Under this oath, the Constitution becomes the core source of an officer's professional code. And this interpretation's stance is encapsulated in the oft-repeated phrase from Army doctrine that officers should "reject" any order if it is "illegal, unethical or immoral." Second, the Article then works to reform this interpretation of the military professional ethic into a more coherent theory of military disobedience. The current interpretation weighs too heavily in favor of refusal. My revisions rebalance the scales. I argue that officers should disobey an order only if it is "illegal or manifestly unethical." Rather than hiding the refusal, officers should report it immediately to their superiors and risk punishment. This theory contributes to debates in constitutional theory over the identity of the ultimate interpreter of the Constitution. It gestures toward a larger concept of professional constitutionalism, in which expertise in abstract knowledge and adherence to an ethical code grant interpretive authority over the Constitution within a professional's specific competence.
As companies increasingly embrace carbon-neutrality commitments, many rely on the voluntary carbon market to offset their emissions rather than reduce them directly. Regulatory and consumer scrutiny has focused on the widespread use of "phantom" carbon credits, i.e., credits that fail to produce meaningful climate benefits. But less attention has been paid to what this Note terms "colonial" carbon credits: those that may technically reduce emissions but do so at the expense of communities abroad. These projects may contribute to land dispossession, human rights abuses, and threats to public and environmental health. Yet, current regulatory and legal frameworks, with their focus on phantom credits, are ill-equipped to provide remedies for affected communities. The Alien Tort Statute (ATS) can be a powerful tool for holding actors accountable for human rights abuses occurring outside of U.S. borders. It is true that the Supreme Court's recent decisions in Kiobel v. Royal Dutch Petroleum Co., Jesner v. Arab Bank, PLC, and Nestl & eacute; USA, Inc. v. Doe heightened the requirements for a domestic nexus, thereby whittling away at the ATS's reach. But these decisions have not foreclosed its use entirely. The direct financial and operational involvement of U.S. corporations in carbon projects distinguishes colonial credit cases from prior ATS litigation concerning traditional supply chains. By examining the structural flaws of the voluntary carbon market, the limitations of existing enforcement actions and consumer litigation, and the evolving ATS doctrine in the wake of Nestl & eacute; v. Doe, this Note both argues that the ATS still offers a legal framework for foreign plaintiffs to seek justice, ultimately reframing carbon offsetting as not merely a question of climate effectiveness, but a transnational justice issue necessitating legal accountability.
Corporate law has undergone a gradual transformation. Founding chief executive officers ("founder-CEOs") and activist hedge funds increasingly dominate leading American corporations despite owning well short of a majority of shares. Founder-CEOs, through personal brands or dual-class voting structures, control firms despite having minority stakes; activist hedge funds, with single-digit holdings, press for major governance changes. We argue that these two types of shareholders, often treated as opposites, both dominate corporations through disproportionate influence rather than majority ownership. We describe these investors who dictate corporate policy through disproportionate influence as high-influence shareholders. Delaware's doctrinal response to high-influence shareholders has been inconsistent, generating market uncertainty. Courts have alternated between deferring to founder-CEOs under the business judgment rule and expanding the definition of control to impose "entire fairness" review. Likewise, courts have upheld poison pills against activist hedge funds to guard against creeping control, yet have struck down pills explicitly aimed at deterring activism. To rationalize this area of law, we propose a disproportionate influence test as a doctrinal reform: whenever a board makes decisions under the influence of high-influence shareholders, courts should apply enhanced scrutiny. Likewise, when boards face the risk of disproportionate activist influence, they should be permitted to adopt defensive measures such as poison pills. Delaware's expert judiciary is well positioned to articulate and refine the contours of disproportionate influence, while also designing cleansing procedures that boards can use to avoid heightened review. Recent Delaware legislative amendments, aimed at enhancing predictability by narrowing the definition of control, have the effect of shielding board decisions shaped by influential but noncontrolling shareholders from meaningful review. We argue that simplified and predictable cleansing procedures can restore legal certainty, but that Delaware courts should retain a central role in evaluating when excessive shareholder influence on board decision-making warrants greater judicial scrutiny.
Since the start of his second term, President Trump has issued executive orders at an extraordinary pace, using them to advance a broader ideological agenda across the administrative state. While scholarly attention has largely focused on the most sweeping of these directives, less prominent orders raise similar concerns about the reach of presidential power. This Note examines one such order: Executive Order 14,172, which directs the renaming of the Gulf of Mexico and Denali and expands presidential influence over the U.S. Board on Geographic Names (BGN). Although geographic naming is ostensibly apolitical, place names are deeply entangled with questions of power and ideology. For nearly a century, the BGN has established uniform usage of place names across the federal government through a deliberate, expertise-driven process designed to reflect local sentiment and resist political controversy. Executive Order 14,172 bypasses that process, and current law does little to prevent it. Against this backdrop, this Note argues that existing law provides insufficient safeguards against presidential interference in geographic naming. Drawing on the history of geographic naming, it demonstrates how place names have been used by governments to promote ideology and signal control. It then examines the BGN's history and structure and considers whether the President has the statutory authority to override its decisions, and whether such authority is normatively justified under the unitary executive theory. Situating the BGN alongside other knowledge-producing agencies, the Note concludes that extending unilateral presidential control over place naming would invert the political accountability rationale behind a unitary executive and risk transforming naming into a tool of ideological messaging.
Ex parte Young ushered in a new era of the American judicial system. Most famously, the decision allowed plaintiffs, in certain circumstances, to sue state officials without having to worry about sovereign immunity. Young's other holding, though perhaps lesser known, is no less important: individuals, the Supreme Court held, have an equitable cause of action to sue government officials for injunctive relief. Even today, that second holding remains something of a riddle. Did this cause of action always exist in American law? Or was it an invention of the Young Court? And, at any rate, does the Ex parte Young cause of action have a place among today's federal court doctrines? This Article does not promise firm answers to these difficult questions. What it does offer, however, is fresh research suggesting that the Ex parte Young cause of action would not have been recognized at the Founding and was instead the product of a gradually developing equitable common law. What's more, the Article argues, Young fits uncomfortably with modern federal courts jurisprudence, which tends to view non-statutory causes of action (like the one announced by the Young Court) with considerable skepticism.
The United States entrusts local governments to provide citizens with a wide range of public services, and animal control makes up a small but essential piece of these local responsibilities. In recent years, American localities have largely privatized how they manage the nation's growing free-roaming cat population, relying primarily on animal-loving volunteers and a controversial practice called trap-neuter-return (TNR). Academics have long debated the merits of privatization, but TNR raises a novel question: how should local governments think about regulating a privatized public service when altruism, instead of profits, motivates the service deliverer? This Note argues that TNR demonstrates the need for local governments to retain significant regulatory power and oversight, no matter the private service provider's intentions. Not only does tailored regulation avoid inappropriate delegations of policymaking discretion, but it also limits a locality's exposure to litigation.
As a variety of the problem-solving court model, community courts have received significant scrutiny and debate. Do they help individuals by addressing the underlying needs that contribute to criminal behavior? Do they extend an unjust criminal legal system by making help conditional upon judicial involvement? This Article moves beyond such debates to ask how community court professionals and the communities who engage with them manage these and other tensions that are inherent to the model itself. As the second in a series of articles drawing on semi-structured interviews and focus groups with diverse stakeholders at the Red Hook Community Justice Center (RHCJC or Justice Center) in Brooklyn, NY, this Article articulates strategies that community court professionals utilize to navigate the opportunities and constraints of justice innovation. Three tensions structure the Article. First, stakeholders describe a human-centered system of care rooted in dignification that coexists uneasily alongside the power of legal coercion. Second, participants offer a doubleedged account of the Justice Center's relationship to the carceral state. While the Justice Center constrains carceral trajectories through tools like noncustodial pathways and rights literacy, it also remains bounded by and dependent upon elements like clients' post-arrest entry and the identity of being "still a court." Third, stakeholders articulate a complex understanding of success that recognizes the long-term outcome of desistance, but privileges shorter term goals around client harm reduction and engagement. These are inherent tensions that the professionals who work inside and the communities who engage with the Justice Center must navigate and manage daily. Using the concept of a "boundary organization," this Article identifies distinct strategies of "boundary work": brokering across legal and community systems, calibrating mandates while preserving choice, and promoting metrics that center engagement and processes. This framework moves beyond debates over justice reform to focus on the law in practice. The future of community court research lies in closely observing how people do the work and in tracing the conditions under which that work produces meaningful change for individuals, communities, and systems.
Recent developments, including reductions in the federal workforce, effective suspension of certain enforcement activities, and attempted centralization of independent agency rulemaking in the White House, have significantly weakened administrative agencies. This administrative retrenchment is concerning as private enforcement of a number of consumer protection statutes has been simultaneously curtailed through the Supreme Court's decisions in Spokeo, Inc. v. Robins and TransUnion LLC v. Ramirez, which dramatically narrowed plaintiffs' standing. These decisions rely in part on a vision of strong executive authority, positing that broad private standing conflicts with an Article II framework where a politically accountable President faithfully implements laws and exercises coordinated enforcement discretion. When the Executive interprets this discretion so expansively as to effectively nullify enforcement of federal statutory schemes, Congress retains few tools to engage in meaningful lawmaking to advance policies across different domains. The Fair Debt Collection Practices Act (FDCPA) and the Consumer Financial Protection Bureau (CFPB) offer a telling case study: as courts have systematically restricted private enforcement, particularly class actions, they have channeled enforcement toward the CFPB-theoretically positioning the agency to address systemic violations through enforcement, monitoring, and information gathering. While individual consumers may still access state courts or raise FDCPA violations defensively, addressing systemic violations requires robust administrative enforcement if the Article II justification for restricting private standing is to remain coherent. The possibility for such enforcement now faces mounting challenges from increased politicization of enforcement, executive disempowerment of agencies, and growing judicial skepticism about the propriety of independent agencies and their investigative and interpretative authority. The risk is that some consumer protection statutes will become effectively unenforceable as neither private litigation nor state alternatives can adequately fill the resulting enforcement gap.
Article tackles a difficult legal and policy challenge-reducing the impact of criminal records on job applicants' chances in a manner that does not spur more discrimination-by looking at how another area of law, tort liability, impacts employers' decision-making. It uses theoretical and empirical methods to study the most common reason employers report being reluctant to hire workers with a criminal record: legal liability generated by the tort of negligent hiring. While the purpose of the tort is ostensibly to protect and make whole those harmed when an employee misbehaves in a foreseeable manner, I show that, in practice, the tort generates additional criminal behavior and worsens employment outcomes. I first provide a survey of the current doctrine across the states and trace the origins of the tort through the common law. Using a difference-in-difference strategy, I examine state legislation clarifying the negligent hiring standard and reducing the likelihood that an employer will be found liable. Using large survey and administrative data, I found that states that changed their negligent hiring law saw employment for people with criminal records increase by 3 to 5 percentage points (up 5% to 9%), and reincarceration for a new criminal offense fall by 2 percentage points (down 10%). Throughout the Article, these findings are contextualized with related policies by considering the effects of legislation restricting the timing of inquiries into criminal histories (Ban-the-Box legislation) and the use of hiring credits (the Work Opportunity Tax Credit).
A principal justification for textualism is the constraint hypothesis. Conservative Justices and leading textualist scholars contend that-in stark contrast to reliance on legislative history-focus on the ordinary meaning of enacted text leaves little room for the Justices to be policy-oriented or ideological in their interpretations. This Article represents the first systematic study probing the validity of the constraint hypothesis, one that employs both quantitative and qualitative analysis. The Article examines the Justices' reliance on interpretive resources in over 660 statutory decisions in the field of labor and employment, decided by the Burger Court, the Rehnquist Court, and the Roberts Court-during the ascendancy of textualism from 1969 to 2024. Decisions involving the employment relationship (comprising roughly one-fourth of the Court's statutory docket) make them an especially suitable vehicle for addressing whether increased reliance on the textualist resources of ordinary meaning, dictionaries, and language canons, and sharply diminished reliance on the intentionalist resources of legislative history and purpose, have exerted a constraining effect on ideological decision-making. Using a series of empirical analyses, we find that the textualist approach has had virtually no constraining effect on the ideological predispositions of the Justices. Our findings are especially robust for majorities authored by conservative Justices in the Rehnquist and Roberts eras. By contrast, and somewhat ironically, there is evidence that conservative Justices in the Burger era were constrained ideologically when authoring majorities that relied on legislative history, not when they relied on ordinary meaning and other textualist resources. The Article then explores in case-specific terms why textualism seems not to constrain ideological decision-making. We focus on Burger Court decisions in which majority and principal dissent relied on legislative history, and Roberts Court decisions where majority and principal dissent relied on the ordinary meaning of text. The Justices' persistent disagreements in these two eras are precisely parallel: conflicting interpretations of identical words in text (or identical portions of legislative history) and conflicts over which pieces of text (or of legislative history) are correctly applicable. The disagreements illustrate how reliance on these two resources has been similarly malleable in application by the Justices. The Supreme Court's guidance function for lower court judges, practicing attorneys, and the public at large, is predicated in important respects on the asserted objectivity and ideological neutrality of textualism. By establishing that such objectivity and neutrality are not promoted by textualist methods in this large subset of the Court's statutory decisions, and demonstrating the comparable malleability of ordinary meaning and legislative history in the Justices' opinions, the Article raises serious questions about the privileged position of the textualist approach.
It is undeniable that the escalating price of biopharmaceuticals is a critical issue, as high prices limit patients' access to life-saving medications and strain our healthcare system. Biologics, or large-molecule drugs, which are revolutionizing modern healthcare, are significantly contributing to the escalating cost of prescription drugs. While biologic drugs represent only 2% of all U.S. prescriptions, they comprise close to 50% of net drug spending. Policymakers have proposed a series of interventions to decrease drug prices that target the patent practices of pharmaceutical firms. Yet due to differences in law, we have a robust source of patenting information for small-molecule drugs and a woefully incomplete source of patenting information for biologics. As a result, policymakers are attempting to solve a problem without understanding the patenting landscape of biologics, which comprises the most expensive segment of the prescription drug market. To fill this gap, we build the first comprehensive patent database associated with all 515 Food and Drug Administration approved biologics, which comprises over 11,500 patents. We then utilize our novel database to examine the controversial patenting practices of pharmaceutical firms. We find that both patent thicketing-building a dense web of patents for each drug-and patent evergreening-extending the exclusivity period of a drug by obtaining more patents-are significantly more prevalent with biologics than small-molecule drugs. We also find that patents are more effective at delaying biosimilar entry in the biologic market than generics in the small-molecule market. Finally, we utilize our novel database to evaluate various policy proposals aimed at decreasing patent thickets and provide much needed empirical evidence at how many biological patents these proposals would affect.
Indian country commerce generates tens of billions of dollars annually and is a constant source of litigation. These disputes typically revolve around jurisdictional conflicts: whether states, tribes, or both possess regulatory authority over the business operating in Indian country, particularly those involving non-Indians. Despite numerous court cases, no clear legal framework has emerged, creating pervasive uncertainty regarding fundamental issues, such as state taxation of tribal transactions and the proper forum for resolving Indian country contract disputes. Interestingly, these commercial cases overlook the Indian Commerce Clause-the constitutional provision designed to address such matters. This Article argues the Indian Commerce Clause prohibits state regulation of Indian country commerce. The clause's plain text and original understanding support this interpretation. While the Supreme Court departed from this understanding in the late 19th century, it has never adequately justified this shift. During the 1980s, the United States argued the Indian Commerce Clause bars state taxation of tribal commerce, and the Supreme Court rejected this argument with scant judicial reasoning. Consequently, courts continue to rely on ambiguous, fact-specific tests that undermine tribal sovereignty and economic development. This Article proposes a revitalized application of the Indian Commerce Clause, advocating for a clear, constitutionally grounded framework. By categorically preempting state intrusion into Indian country commerce, this approach would provide the certainty necessary for tribal economic self-determination to flourish. This Article demonstrates how such a framework would resolve the current jurisdictional chaos, offering specific guidance for its implementation and ultimately promoting a more just and equitable relationship between tribes and states.
Scholars remain generally skeptical of substantive canons of statutory interpretation even as courts continue to employ such canons in important cases. Unlike semantic canons, which help judges discern the best meaning of statutory text in context, substantive canons provide tiebreakers when the text is unclear or require special clarity in order for the text to perform certain functions. Among the substantive canons, the so-called "federalism canons" have been singled out for special scrutiny. The federalism canons are a family of canons that require courts to avoid interpreting an act of Congress to divest states of certain sovereign rights or powers-including their preexisting rights to sovereign immunity, to structure their own governments, and to exercise jurisdiction over transitory actions-unless the act does so in clear terms or by unavoidable implication. Such canons, critics charge, are incompatible with textualism because judges simply invented them as a way to promote judicially favored values (such as federalism) in disregard of the natural meaning of statutory texts. This charge, however, is based on a false premise. The federalism canons are not a novel judicial creation. They are specific applications of well-established rules of interpretation older than the Constitution itself. These rules instruct courts not to read a legislative act to divest a government of a right or power unless the terms of the act do so clearly or by unavoidable implication. Understood against this background, the traditional federalism canons are fully consistent with mainstream textualism. Like other long-standing interpretive conventions, these canons reflect background context that is an essential part of ordinary interpretation. In applying the federalism canons, courts do not violate-but uphold-their constitutional role as faithful agents of Congress. Properly understood, judicial adherence to such canons reinforces the Constitution's allocation of powers both between the political branches and the courts, and between the federal government and the states.
Policing agencies are indiscriminately collecting, retaining, and using vast quantities of personal data from people who are suspected of no unlawful conduct whatsoever. This has caused expressions of concern or caution from many quarters, including-notably-the Director of National Intelligence (DNI). In a declassified report, the Office of the DNI stated that massive amounts of data are being collected "on nearly everyone that is of a type and level of sensitivity . . . that could be used to cause harm to an individual's reputation, emotional well-being, or physical safety." This practice of universal data collection presents a conundrum. As many have argued, it poses the risk of serious harms: violations of personal privacy and security, erroneous targeting of innocent individuals, racial bias, and even the threat that the data will fall in the hands of hackers or authoritarian leaders. At the same time, those who favor such collection maintain that the data, properly used and analyzed, holds out hope of enhancing public safety by locating serious law violators and preventing dangerous threats. This Article offers up a novel solution to the conundrum posed by the collection, retention, and use of personal data: policing agency data trusts. Data trusts are a new form of legal instrument that allow data creators to instruct trustees on how their data may be used; the trustees ensure in turn the data is used in no other ways. There now is a small but growing body of literature-and even some experimentation-explaining how data trusts could be employed in the context of commercial data uses. This Article turns the idea of data trusts to the problem of policing agency indiscriminate collection, retention, and use of personal data. Data that is collected would be held outside policing agency hands. Those agencies could query the collected data only according to legislative authorization and regulations established by independent data trustees. Requests would be vetted through data stewards, and only those requests consistent with governing law and the data trust rules would be permitted. Further, use of the data would not be limited to law enforcement. Rather, the data would be available to others to query-including defense counsel, and researchers who and These data trusts would allow capturing any benefits of collection, while minimizing or mitigating entirely the harms and assuring a degree of democratic accountability.
This Note argues that religious offenses, meaning laws which penalize conduct for religious purposes, should be barred by the Establishment Clause of the Constitution, as the Clause was interpreted in Kennedy v. Bremerton School District. This is because Kennedy interpreted the Establishment Clause to prohibit each of the several types of laws which early Americans associated with religious establishment-the historical practice wherein early states would adopt a religion as the state religion and pass various types of laws for its support. And religious offenses, this Note argues, were amongst the types of laws which early Americans so associated with religious establishment. This Note performs an extensive analysis of historical evidence to support this conclusion, relying upon early American statutes and the writings of William Blackstone, Joseph Story, and Richard Mentor Johnson. Because early Americans understood religious offenses to be linked to religious establishment, this Note argues that the Establishment Clause should also prohibit contemporary religious offenses, which similarly penalize conduct for religious purposes. Such contemporary offenses include, amongst others, laws penalizing the teaching of evolution in public schools.
Foreign policy abstention is a novel and unsettled doctrine in international litigation. Unlike other established international litigation abstention doctrines, foreign policy abstention permits courts to decline jurisdiction when adjudication implicates significant foreign policy concerns. First invoked in 2004, the doctrine has since appeared sporadically in case law, most recently in the Eighth Circuit's decision in Reid v. Doe Run Resources. Yet, its analytical framework remains muddy and amorphous, leading to inconsistent judicial application. This Note examines one critical factor courts consider when determining whether to apply the foreign policy abstention: the strength of U.S. foreign policy interests in the litigation. In making this determination, courts value the U.S. State Department's views, expressed through amicus briefs or Statements of Interest (SOIs). Courts have interpreted the State Department's failure to file a brief to mean that the U.S. government does not have strong foreign policy interests in the litigation. And because the Department is sporadic and inconsistent in its filing practices, the judiciary's inferences from the Department's silence have exacerbated doctrinal muddiness in foreign policy abstention. This Note argues that courts' interpretations of State Department silence may not accurately reflect the U.S. government's interests, as the Department's inaction may stem from various reasons unrelated to the absence of foreign policy interests, including a mere lack of knowledge that the litigation exists at all. To address this issue, this Note discusses two potential solutions. It first considers an agency-implemented policy requiring the State Department to file an SOI in every case invoking foreign policy abstention. This, however, would place an undue burden on the Department. A more practical alternative is the adoption of a procedural rule mandating that parties notify the State Department when they invoke foreign policy abstention, ensuring the State Department is aware of the litigation and provided with an opportunity to speak. Under this framework, if the Department remains silent after notification, courts could more justifiably presume that U.S. foreign policy interests are weak. This approach offers a pragmatic framework that balances the judiciary's need for clarity with the State Department's administrative constraints. By clarifying the State Department's role and the weight of its statements, this approach seeks to promote consistency, transparency, and analytical rigor in invocations of the foreign policy abstention doctrine.
Hyperpartisanship has hit century-long highs in American politics and is emboldening state government attempts to undermine election outcomes by using control over state lawmaking structure to strip away authority, and sometimes outright unseat, partisan opponents after they win elected office. Even as traditional norms against such moves have eroded, the Supreme Court has taken a pro-partisanship turn in removing judicial checks against such moves under equal protection and constitutional structure. This Article proposes shifting from challenges under those doctrines to a new approach under electoral due process for confronting this new generation of antidemocracy. Federal due process law restricts the government from committing by state law to a set of rules only to change the rules after the election has been held. On these terms, electoral due process similarly restricts the government from meaningfully stripping the authority of an elective office after the election, and from abusively expelling or impeaching the winning candidate after the election, as an antidemocratic means of undercutting the election result for partisan gain. The government commits to an allocation of government lawmaking authority dictated by the election result and must abide by that commitment, as a due process matter, even when a partisan opponent wins and assumes that authority. This Article explains the jurisprudential advantages of shifting from equal protection and constitutional structure to electoral due process as well as details the political context of hyperpartisanship and the multiplying threats to democratic elections.
judicial opinions be interpreted with an eye to their purpose, context, or the intent of their authors, or should interpreters focus on the ordinary meaning of the text? Opinions present the same sorts of interpretive puzzles as other legal texts, and yet they have been omitted from the debates over interpretive methodology that dominate the fields of constitutional and statutory interpretation. The omission is no accident: the Supreme Court has stated repeatedly-and with increasing frequency in recent years-that judicial opinions are not to be read like statutes. Yet neither courts nor commentators have explained why the principles that ground judges' interpretations of other legal texts should not apply to texts judges themselves author. This Article seeks to fill that gap. It provides a descriptive account of the courts' use of what I call the "not-statutes trope"-a rhetorical device that invokes a mode of interpretation decidedly different from the textualism that characterizes most statutory interpretation today-and shows how the trope can be employed to finesse the demands of stare decisis. The Article then unpacks and analyzes the reasons that might support an interpretive distinction between judicial opinions and statutes, ultimately concluding that none of the proposed distinctions fully explains the not-statutes trope. The upshot is not that opinions should be parsed in a strictly textualist manner, however. There are good reasons to reject such an approach- reasons that bear a striking resemblance to arguments that have been levied against textualism in statutory interpretation. For textualist judges, then, the challenge is to explain why a mode of interpretation that feels so inappropriate when applied to their own writing should be applied to the work of Congress.
The American consumer bankruptcy system is a costly regime with profound societal implications. Between 2008 and 2023, consumers filed 13.8 million bankruptcy cases across the ninety-four federal bankruptcy districts in the United States, generating over $4 billion in court filing fees alone. When accounting for attorney fees, trustee expenses, creditor costs, and broader economic externalities-such as increased interest rates borne by other consumers-the total financial impact easily reaches tens of billions, if not hundreds of billions, of dollars. Against that backdrop, this study uncovers a startling phenomenon: nearly 46% of the consumers who filed bankruptcy in 2023 were repeat filers, defined as individuals with at least one prior bankruptcy record since 1997. This percentage has followed an overall upward trend, increasing at an average annual rate of 52 basis points since 2016. There are significant geographic disparities in the prevalence of repeat bankruptcy filings. The U.S. District Court for the Western District of Tennessee has the highest percentage of repeat filers, with 76% of all filings coming from individuals with prior bankruptcy records. In contrast, the Southern District of West Virginia has the lowest percentage, with "only" 36% of filings attributed to repeat filers. Historically, repeat filing has been most common in the South, but by 2023, many jurisdictions outside the region-such as districts in Pennsylvania and Utah-also began to exhibit elevated rates of repeat filings. These findings challenge foundational assumptions in bankruptcy scholarship and raise urgent policy questions about the system's efficacy in delivering a true "fresh start" to debtors. At a minimum, this Article calls to revise the estimated number of people benefiting from the bankruptcy system and reevaluate policies designed to address the prevalence of bankruptcy in American society. As the first comprehensive national study of bankruptcy recidivism that covers both Chapter 7 and Chapter 13 bankruptcy, this Article leverages credit report data and court records to reveal novel insights about repeat filers. Contrary to the prevailing narrative that serial filings are driven by bad faith debtors exploiting Chapter 13, the study finds that the majority of repeat filers had previously received a discharge, with nearly half initially filing under Chapter 7. Furthermore, most repeat filings occur after a significant gap-typically exceeding seven years-suggesting that these debtors are not engaging in short-term strategic abuse of the system but are instead grappling with persistent financial instability. This study also demonstrates that prior bankruptcy filings are a robust predictor of future filings, even after controlling for financial and demographic factors. This means that individuals with a bankruptcy history are disproportionately likely to file again when faced with financial distress compared to those without such a history. As repeat filers account for a growing proportion of all bankruptcy filings, their heightened sensitivity to financial shocks must be considered when evaluating policy changes. By shifting the focus from short-term Chapter 13 abuse to the broader structural patterns of repeat bankruptcy, this Article offers a novel framework for understanding the long-term dynamics of consumer bankruptcy. These findings can have profound implications for bankruptcy law, financial regulation, and social safety net policies, urging a reevaluation of how the system addresses the enduring financial vulnerabilities of debtors.
of the debate over the constitutionality of universal or nonparty protective relief in the federal court system has focused on lessons drawn from historical practice. But with its emphasis on injunctive relief, the literature has largely ignored forms of adjudication that arose outside the courts of equity and led to judgments and decrees affecting the rights of nonparties. As a result, the story of nonparty protective relief has not yet been fully told. This Article offers a more complete story, highlighting proceedings in which federal courts issued judgments that settled a matter once and for all. Some familiar examples include proceedings in admiralty and naturalization judgments, where a decree was understood to operate on those who did not appear in the litigation. We focus here on the power of federal courts, acting under the patent laws of the 1790s, to entertain individual suits to cancel or annul a patent for all purposes. Such cancellation proceedings, based on a practice that developed in England on the writ of scire facias, were understood to operate as a general matter and could confer benefits on artisans and manufacturers who did not appear in the litigation. Nonparty protective patent cancellation relief was later administered by federal courts of equity and remains a part of the federal judicial role today. While the Supreme Court in Trump v. CASA, Inc. found that federal courts lacked statutory power to issue universal injunctions, it did not directly address the constitutional question. We show in a brief concluding section that early examples of nonparty protection make it challenging to argue on historical grounds that Article III of the Constitution bars federal courts from granting such relief today. We therefore suggest that assessments of nonparty protective relief focus on deciding whether lower federal courts have been authorized to decide legal issues once and for all. Such a focus helps distinguish free-floating universal injunctions from those based on such sources of legislative authority as the set-aside power conferred in 706 of the Administrative Procedure Act.
