The current approach used by district and circuit courts to test personal jurisdiction in internet data extraction cases has made it increasingly difficult-and sometimes impossible-for plaintiffs to sue companies that collect and exploit their personal data without their knowledge. Lower courts' interpretations of the Supreme Court's precedent on specific personal jurisdiction have resulted in situations where no state is able to assert specific jurisdiction over these claims. In cases involving foreign companies, who are not "at home" anywhere in the United States, as defendants, general jurisdiction is also unavailable, leaving plaintiffs with no avenue for relief when their privacy is violated. This issue has become more prevalent with the rise of cases involving "session replay" code, an internet data-tracking software that frequently violates state privacy and wiretapping statutes. This Note proposes that courts should evaluate whether specific personal jurisdiction is proper in data extraction cases using environmental pollution cases as a template. By analogizing to a more common, less technologically complicated cause of action, courts will better understand when their exercise of jurisdiction over a defendant is fair and comports with the due process requirements of the Fourteenth Amendment.
Third-party litigation funding ("TPLF") is having a moment. The TPLF industry is exploding, with upwards of seventeen billion dollars flowing into the industry; the Supreme Court recently asked litigants how many of the Court's cases are third-party funded; and Congress is considering numerous bills on TPLF that would require changes to the practice of TPLF, such as disclosure of third-party funders during litigation and restrictions on how third-party funders can operate. TPLF, however, operates in the shadows: very little is publicly known about the industry, because most third-party funders are privately held corporations. Even simple questions from the Supreme Court, like "How many of our cases are third-party funded?" or "What types of cases are third-party funded?" are impossible to answer with any sort of empirical precision. This Article empirically studies the rate of TPLF in U.S. federal courts, thus beginning to provide answers to those questions. The data for this Article comes from two U.S. federal courts that have recently attempted to look behind the opaque curtain of litigation funding. The District Court for the District of Delaware have mandated the disclosure of third-party funders in their courtrooms. These courts also require disclosure of the extent-if any-of third-party control over the litigation. The results of this study demonstrate that the amount of TPLF is, at present, highly concentrated in certain areas, especially patent law, in which sixteen percent of cases at one district court studied are third-party funded. Importantly, this study demonstrates that the existence of TPLF disclosure requirements drives parties to file elsewhere: in districts that do not require TPLF disclosure.
Most colleges require applicants to disclose their criminal histories. Sweeping in scope, these admissions questions extend beyond violent crimes to include minor offenses such as shoplifting and marijuana possession. Given that students of color are arrested and punished at disproportionately high rates, colleges that require such disclosures run the risk of reinforcing underlying racial disparities. Soon after the Supreme Court banned race-based affirmative action in college admissions, university presidents vowed to pursue race-neutral admissions strategies that would still yield diverse entering classes. Because criminal history boxes disproportionately affect students of color, removing these boxes from applications represents a race-neutral, diversity-enhancing admissions strategy. To test whether schools are actually pursuing this tactic, the Article presents original data on application questions from the "top 100" national universities during the 2024-2025 college admissions cycle. This novel dataset shows that criminal history boxes remain ubiquitous throughout college admissions. Namely, over two-thirds of schools required applicants to disclose their criminal histories and juvenile offenses. Although colleges are just beginning to grapple with the consequences of criminal background questions, employers have dealt with this issue for decades. Most states have enacted "ban-the-box" laws, which require employers to refrain from posing criminal history questions until later stages in hiring. The Article considers how lessons from employment law can inform the development of similar policies in higher education. By banning the box in admissions, colleges can expand educational opportunities for underrepresented groups, foster inclusion, and combat the racialized consequences of conviction.
Prosecutors and the police regularly pay informants and other witnesses in criminal cases. These payments can be in the form of rewards, relocation expenses, crime victims funds, and even simple cash. Although witness payments are legal, prosecutors are supposed to disclose them under the Brady doctrine because they are favorable evidence that the defense could use to impeach the witness. Yet prosecutors often fail to disclose witness payments because of communication failures with the police, poor training, excessive caseloads, and occasional ethical lapses. This Article examines dozens of hidden witness payments that prosecutors failed to disclose. In nearly eighty percent of these cases, courts rejected Brady challenges on the ground that the evidence was not significant enough to change the outcome. This Article catalogues the often unpersuasive reasons that courts give for finding witness payments immaterial, such as the witness only receiving a small amount of money or the defense cross-examining the witness about an unrelated issue. In minimizing the importance of witness payments, courts ignore decades of psychological research about the reciprocity effect-the idea that a person who receives a benefit feels obligated to reciprocate and behave favorably toward the person who gave the benefit. Considering the robust literature on the reciprocity effect, this Article proposes an automatic prejudice rule that eliminates Brady's materiality prong when the government paid a witness and failed to disclose the payment. Eliminating the materiality prong would bring the Brady doctrine in line with the ineffective assistance of counsel doctrine, which has long recognized an automatic prejudice exception for situations involving a conflict of interest.
Banning or significantly restricting short-term rental properties ("STRs") has become a common strategy in addressing the housing crisis for local lawmakers around the United States. As Airbnb rapidly grew throughout the 2010s, STRs became a global phenomenon. They soon began to monopolize the real estate market, taking homes away from local residents. With the ever-enduring challenge of housing affordability as their backdrop, local municipalities began tightly limiting or completely banning STRs. These regulations, however, significantly curb individuals' rights to property and travel. Simultaneously, STR regulations have failed to effectively address the housing crisis and deliver on the promises of local lawmakers. To successfully balance the rights to property and travel against the right to housing, this Note argues that certain STR regulations that impose operational restrictions are unconstitutional under the Dormant Commerce Clause and that the remaining regulatory scheme should be accompanied by a government-subsidized home share program. The resulting scheme will allow property owners to more freely utilize their private properties as STRs while presenting a revenue-generating alternative, prevent-ing governments from inhibiting travel, and providing a method for direct output of affordable housing.
The U.S. electricity system is premised on the ideas that utilities have a duty to serve all customers in their service territories and that electricity supply should always meet demand. Until recently, there has been little reason to question these foundational premises. U.S. electricity demand has remained flat for over a decade, and during earlier periods of growth, new energy generation plants were relatively easy to build. Now, however, electricity experts predict massive load growth-most notably from data centers to power artificial intelligence and cryptocurrency-and building new power plants is no longer easy. Major efforts are underway to increase electricity supply. However, there are also important lessons from legal frameworks developed for other resources-natural gas and water-for which short-or long-term scarcity is or was the norm rather than the exception. This Article uses these lessons to reevaluate electricity law's foundational principles, like the duty to serve, and to propose new approaches to meeting electricity demand. Based on principles distilled from federal natural gas markets and U.S. Western water law doctrine, this Article proposes a contracts-and trading-based framework for regulating data centers. We call this framework "demand-side connect-and-manage." This framework can reduce the likelihood of overbuilding energy generation plants, allocate risks to and encourage innovation from major data center companies, and accelerate data center grid interconnection. Moreover, our analysis supports a shift in basic assumptions of electricity law and a reexamination of the roles of regulators and markets in electricity systems.
Under international law, Indigenous peoples have the right to the return of their human remains. More broadly, multiple international human rights tribunals have recognized the general human right to the return of the remains of a loved one or family member. In the United States, the Native American Graves Protection and Repatriation Act ("NAGPRA") governs the return of the bodies of Indigenous peoples under the control of museums or government agencies. Although NAGPRA has been useful in facilitating the return of some cultural artifacts and human remains to associated Indigenous peoples, it has failed to cover a critical category: the cemeteries of former residential schools. In light of the sordid history of thousands of Indigenous children being forcibly sent to off-reservation boarding schools and in order to effectuate NAGPRA's broad statutory intent and bring the United States into compliance with international human rights law, this Note proposes to amend NAGPRA. The Act should be amended to explicitly include government-controlled cemeteries within its statutory mandate, thereby reaching the resting places of children buried at the sites of former residential schools. Furthermore, the Act should be amended to reach the graves of students not currently under the control of a federal agency but who were in the care of the federal government at the time of their death. Finally, a purpose statement should be added to NAGPRA to express the congressional policy of compliance with international law, namely the United Nations Declaration on the Rights of Indigenous Peoples.
Across the economy, employers' widespread deployment of digital internal communications platforms-such as Slack, Microsoft Teams, and more-has radically altered the patterns of intraworkplace communication. For employers, these platforms present evolving opportunities for increasing productivity and worker engagement-but only a docile, agreeable kind of engagement. For workers and their unions, these platforms can be uniquely helpful tools in the continuing struggle for workplace democracy. As employers have repeatedly asserted their property right to regulate their workers' use of internal digital communications platforms, the National Labor Relations Board ("Board") has struggled to clearly define the proper role of these platforms under Section 7 of the National Labor Relations Act. Although the Board has vacillated between different conclusions on statutory interpretation and policy judgment grounds, 2014's Purple Communications, Inc.-in which the Board explicitly recognized workers' right to use their employers' internal email systems for organizational purposes-constitutes the Board's most expansive definition to date of workers' rights vis-& agrave;-vis these platforms. As the Board may consider expanding that right, this Note examines the merits of a potential challenge to such an expansion-specifically, a constitutional theory that has already threatened the original rule and will no doubt threaten future iterations: that it constitutes an uncompensated taking under the Fifth Amendment. This challenge poses a serious threat to the current iteration, as well as possible future iterations, based on the scope of the conduct authorized by the rule and the lack of clarity in its exceptions. To patch this weakness, this Note proposes a simple modification that would help insulate the rule from the vagaries of takings jurisprudence. Specifically, this Note proposes that the Board, in formulating a future rule, clarify that it is not authorizing any worker conduct that would cause actual harm to employer-owned digital communications systems under relevant state property law. Modifying the rule in this way would have the effect of cutting any takings challenge at the knee because it would clarify that no interest identifiable as "property" would be affected, meaning no taking has occurred. Doing so would avoid the thornier questions awaiting the Board beyond the relevance of the Fifth Amendment's Takings Clause while causing minimal harm to the policy impact of the rule.
Deepfakes are visual and audio media that use artificial intelligence to portray people saying things they never said, doing things they never did, and experiencing events that never happened. Because deepfakes can be both persuasive and pervasive, many commentators fear that humanity will soon take another step into the post-truth abyss. This Article evaluates the threat deepfakes pose to truth by anticipating how they will impact the area of law most directly concerned with truth: the law of evidence. Deepfakes present an obvious challenge to the administration of justice in modern courtrooms, where audiovisual evidence plays an important role. Solutions offered in past legal scholarship-like relying on experts to identify deepfakes or criminalizing deepfake production-optimistically assume that deepfakes will always have a tell. To truly appreciate the threat deepfakes pose, the law must brace itself for the likely prospect of "deepest" fakes, which will be indistinguishable in every respect from authentic media. Drawing on tools from philosophy, legal history, and technology studies, this Article demonstrates how evidence law can and likely will adapt to a world saturated with deepest fakes. This Article finds that deepest fakes present no different challenge for modern courts than oral testimony, paintings, photographs, and other easily falsifiable evidence presented for their early twentieth-century counterparts. The safeguard then, as now, is a nuanced adversarial process that refuses to take evidence at face value and probes each submission with contextual indicators of reliability. What emerges is an empowering picture in which human judgment, rather than blind trust in media, is the ultimate arbiter of truth.
The Major Questions Doctrine ("MQD"), a controversial recent innovation of the Roberts Court that applies stricter scrutiny to "major" actions taken by federal agencies, has faced criticism for being atextual, unprincipled, and nakedly ideological. But these critiques miss the fact that the doctrine has near-exact analogues in many other legal systems, where it is an established tool for reining in executive overreach. This Article argues that although such "majorness" tests play an important role in enforcing the rule of law, the MQD as currently formulated lacks theoretical clarity, consistency, and limits. More important, the Court itself lacks a theory of what the MQD is. This Article provides an answer to these concerns grounded in a theory of legality and proposes a revised doctrinal test for its application. This Article shows that across legal systems, judicial majorness tests are rooted in the principle of legality, which requires that all government action be traced back to a legal authority. In an American administrative law context, discussions over legality have mainly been the domain of those who want to dismantle the regulatory state. This Article's approach is different. It argues that legality is a principle, not a rule: a sliding scale, not a binary variable. Therefore, a test of majorness can and should both hold government to the rule of law and allow it to function efficiently. This Article proposes a revised test for MQD review with that aim in mind. First, the Article clarifies what should qualify as a major action, as opposed to routine matters or total delegations. Then, it explains that majorness can take two distinct forms: (1) actions that pose a risk to fundamental rights or the political process, or (2) actions that are exceptionally large in scale or significance but do not carry such risks. Each type warrants a different judicial response depending on the clarity or ambiguity of the statutory delegation. The Article then applies this test to a pair of case studies-the student loan debt relief case and a hypothetical executive program banning abortion pills under the Comstock Act-to illustrate its utility. Legality is about the line between legislation and execution--a line which is fuzzy at best, but which can and should be enforced by judges. As such, this Article offers two novel contributions. First, it provides a better account of the MQD, offering both a critique and a constructive path forward. Second, it advances a theory of legality that better grounds executive power in the rule of law while suggesting how judicial review can place principled limits on its exercise. In the unfolding Trump era and post-Loper Bright world, both are significant.
The right to a civil jury trial is often dismissed as an inefficient anachronism ill suited to the complexities of modern litigation, and these efficiency concerns have long overshadowed any serious defense of the Seventh Amendment. This Article argues that such skepticism profoundly misunderstands the constitutional function and enduring value of civil jury rights. The Article observes that the Seventh Amendment's jury right was adopted with the understanding that it would come with some inefficiencies and that contemporary concerns about its inefficiencies tend to be overstated. Ultimately, the Article finds that civil juries are essential for structural reasons such as preserving the fact-law distinction and limiting government. The Article thus defends civil jury rights on historical and structural grounds. Its argument is particularly urgent in the wake of SEC v. Jarkesy, in which the Supreme Court limited the administrative state's evasion of jury rights. That case was only a first step toward restoring jury rights, and federal agencies are already trying to circumvent it. So, it is crucial to recognize not only the constitutional foundation of civil jury rights but also their value.
Juries and jury trials are an important pillar of American democracy but have increasingly become obsolete, due largely to the professionalization of lawyers and the resulting complexity of litigation. Judges can do much to reverse this trend-for instance, by streamlining pretrial management, limiting discovery, employing time limits, simplifying jury instructions, and curbing wasteful questioning. These modest reforms would not restore juries to their historic prominence overnight, but they would make jury trials more accessible and help preserve the jury's essential role in legitimizing justice.
This Foreword overviews the rich fund of ideas for reform of the jury that were discussed at The George Washington Law Review’s fall 2024 Symposium. The Symposium was inspired by my book The Jury: A Very Short Introduction (Oxford University Press 2023). In many countries, rates of jury trial have been declining. The decline is steepest in the United States, which ironically has one of the most robust formal rights to jury trial in the world. This Symposium brought together distinguished judges, lawyers, and academics and exposed audience members and panelists alike to new ideas and methods of reform concerning a venerable and formative legal institution. My purpose in this Foreword is to draw out some of the major themes and to emphasize the deep connections between the participants’ ideas. Along the way, I highlight some direct interactions. Several key topics emerge from the presentations and discussions. Most fundamental are the twin questions of the rationale for the jury and when juries should be used; these are not self-evident. Then comes how to make the jury trial workable so that it can be used when desired. Many contributors emphasized the importance of streamlining methods of jury selection, and several recommended abolishing peremptory challenges. The conduct of trials received much attention, including the necessity of simplifying cases for the jury and telling a story together with the desirability of judicial comment on evidence to the jury. Two participants performed important comparative research into foreign legal systems and emerged with critical information about how to increase lay participation by using different forms of the jury and modifying legal culture to reduce plea bargaining. Participants not only generated solutions for the problem of the disappearing jury, but they also mapped out strategies for how to make these solutions a reality.
Jury impartiality in the contemporary court often justifies the perpetuation of exclusionary selection practices that make juries more-not less-biased. This Article calls for a rethinking of this important but flawed concept. Constitutional interpretations and conceptions of "impartiality" frame it as a transient orientation toward particular evidence or parties. Yet, during voir dire, the prevailing conception of jury impartiality is that it is an immutable character trait that must be discovered-if not created-by professional legal actors. What voir dire creates is not an impartial jury, but precisely the opposite: a venire shaped by the strategic biases of lawyers. This Article offers an alternative. The presumption of impartiality applied to judges should inspire a new approach to their lay counterparts. The norms of judicial impartiality show that the criminal legal system largely assumes judges are, unless shown otherwise, impartial actors who deserve discretion to decide whether their relationship to a case warrants recusal. In this way, impartiality is something a legal actor must take responsibility for in their role in the trial. Prospective jurors should be empowered in the same way. By reforming voir dire techniques already in use, courts can hold jurors to a comparable standard of impartiality and dispense with the advantage-seeking ethos of jury selection that allows lawyers to impute partiality to prospective jurors. This reform will help juries realize an ideal of impartiality premised on representativeness rather than exclusion and empower jurors to take greater responsibility for their special role in the legal process.
Years ago, the United Kingdom ("U.K.") recognized the fact-intense nature of employment cases and developed a system for their adjudication-a mixed tribunal system that uses two laypeople and a judge to decide employment cases. While there have been changes to the jurisdiction of these tribunals, employment discrimination cases have been recognized as particularly fact intense among employment cases and, until recently, have been exclusively decided by the three-person tribunal. This Article compares the mixed tribunal system for employment discrimination cases in the U.K. to the system in the United States to a jury trial. The Article concludes that despite the right to a jury trial in the U.S. and no such right in the U.K., U.K. claimants have a better opportunity to have their cases decided on the merits by a neutral party than U.S. plaintiffs. First, in the U.S., many employers require employees to consent to arbitration for any disputes that may arise. As a result, arbitrators who are paid by employers often decide employment cases, including discrimination cases, and most of the time, arbitrators find for employers and against employees. In contrast, the U.K. does not permit forced arbitration in employment cases. This Article focuses on a second reason that U.K. claimants have a better opportunity to have their cases decided on the merits by a neutral decision-maker. In the U.S., in the federal courts, where most employment discrimination cases are decided, judges dismiss these types of claims on summary judgment at a high rate before trial. In the U.K., judges do not strike employment discrimination cases at the same high rate, and instead, almost invariably, a tribunal with a judge and two laypeople tries these cases.
In his 2014 article Unearthing Mansfield's Rule: Analyzing the Appropriateness of Federal Rule of Evidence 606(b) in Light of the Common Law Tradition, Andrew Hull takes issue with the Mansfield Rule, which prohibits verdict impeachment by juror testimony, and its modern-day embodiment in Rule 606(b). Hull contends that the Mansfield Rule fails to align with English common law precedent. This Essay begins by arguing that Hull is mistaken for two reasons. First, the English common law was not as well settled as Hull seems to argue. Second, there is no evidence of a twelve-judge consultationwhich would have had binding precedential effect-having occurred regarding the Mansfield Rule. This Essay then explores how the Mansfield Rule has developed since 2014, when Mr. Hull's article was published.
Can civil settlements be coercive? Conventional wisdom suggests they generally cannot, as the inherent power dynamic of private law is accepted as inevitable. The media fuels this perception by publishing stories of lucrative bargained-for settlements and ignoring those offered on a take-it-or-leave-it basis by disproportionately powerful defendants. Courts have done the same. Despite the lack of judicial oversight of the settlement process and disadvantaged parties' limited access to legal representation, courts generally refuse to reopen settlement agreements except in cases of fraud or mutual mistake. And although scholars have extensively addressed coercion in plea bargains, they have not paid much attention to their civil, presumably choice-driven, counterparts. This Article challenges these conventions, arguing that some private settlements-which it labels "high-risk civil settlements"-might be coercive. Using confidential settlements as an example, this Article contends that acquiescence to a defendant's demand for silence in exchange for forgoing a legal claim can reflect coercion when additional factors are present. These factors include position of authority or power, information asymmetry, the context of the dispute, and time pressure. The Article builds on psychological research to show how a plaintiff's voluntariness can be negated by using subtle methods of social influence. Further, this Article draws an analogy between the role of coercion in high-risk civil settlements and in criminal plea bargains. It then leverages this analogy to suggest recommendations for reform. Recognizing the coercive power that stronger parties wield in some private disputes, this Article urges the legal system to step up to assure that civil settlement agreements are in fact mutually desirable deals.
For some large and powerful industries, it has long been normal and even routine for businesses to sue their federal regulator. For other large and powerful industries, it has been rare for the last twenty-five to forty years or more. This variation is enormous yet almost entirely unknown to the literature on administrative law. This Article documents and analyzes this variation in one type of federal regulation: public health and safety. For every major federal health-and-safety regulator, I search dockets to identify every judicial challenge to the agency's actions brought by the agency's principal regulated industry-whether by individual companies therein or by trade associations-during the period from 2013 to 2021 and, for several of the agency-industry pairings, for additional time periods extending as far back as the 1980s and as recent as 2024. The pairings covered are the following: the Food Safety and Inspection Service at the U.S. Department of Agriculture and meat and poultry processors; the Food and Drug Administration and drugmakers; the National Highway Traffic Safety Administration and automakers; the Federal Aviation Administration and airlines; the Consumer Product Safety Commission and children's product companies; the Nuclear Regulatory Commission and nuclear plant operators; the Occupational Safety and Health Administration and employers generally; the Mine Safety and Health Administration and coal mines; the Environmental Protection Agency and power companies; the Federal Motor Carrier Safety Administration and for-hire trucking companies; and the Centers for Medicare and Medicaid Services and hospitals and nursing homes. For each pairing, I use the data on judicial challenges as the starting point for a qualitative discussion of how big or small a role litigation plays in agency-industry interaction. I find that industry judicial challenges tend to be few and marginal when two conditions are met. The first condition is that companies in the industry have a thick relationship with the regulator-that is, each company knows the regulator will be making repeat decisions impacting its business into the indefinite future, so each company has a stake in winning the agency's trust and goodwill. The second condition is that, with regard to the agency action at issue, industry economic interests are aligned with the mission of the regulator. This is especially the case for agency action that has the official purpose of protecting the health and safety of the industry's own consumers, as opposed to protecting industry workers or victims of externalities of industry conduct. In protection of consumer health and safety, the industry and the regulator are more likely to view each other as on the "same team," and industry tends to (1) see the regulator as a source of credible guarantees that help attract business, (2) fear the "bad look" with consumers that conflict with the regulator could cause, and (3) seek influence and leverage over the agency by less open and adversary means than litigation.
