Articles

This Article identifies a market-based solution for monitoring large-scale litigation proceeding outside of Rule 23’s safeguards. Although class actions dominate the scholarly discussion of mass litigation, the ever increasing restrictions on certifying a class mean that plaintiffs’ lawyers routinely rely on aggregate, multidistrict litigation to seek redress for group-wide harms. Despite sharing key features with its class action counterpart—such as attenuated attorney-client relationships, attorney- client conflicts of interest, and high agency costs—no monitor exists in aggregate litigation. Informal group litigation not only lacks Rule 23’s judicial protections against attorney overreaching and self-dealing, but plaintiff’s themselves cannot adequately supervise their attorneys’ behavior. Plaintiffs’ attorneys may represent thousands of geographically dispersed clients, which fosters collective-action problems and makes individual, case-specific information hard to obtain.

An answer to this monitoring problem comes from an unlikely and potentially controversial source: alternative litigation financing. Self-dealing and high agency costs arise in aggregate litigation principally because of the contingent-fee attorney’s dual roles as agent and investor. These roles can pull lawyers in divergent directions; because attorneys front massive litigation costs, they may be tempted to coerce clients into settling so that they can recoup and profit from their investment. Third-party litigation financing, which involves hedge funds, private investors, and venture capitalists investing in and profiting from large-scale litigation, can ameliorate this critical conflict of interest by allowing the financier to bear the financial risk. Shorn of financial self-interest, the lawyer is then free to act as a faithful agent. Although alternative litigation financing can be controversial, this Article seeks to marry profit-seeking capitalists and aggregate litigation in a way that benefits society as a whole and plaintiffs in particular.

This Article examines the enforcement of racialized gender norms through the regulation of dress in prisons. Dress, including hair and clothing, is central to the ways government and other institutions enforce hierarchical social norms. These norms are based on the intersection of race and gender, as well as religion, sexuality, class, age, and disability. For many people, dress is a way to express identity, exercise autonomy, practice religion, participate politically, experience pleasure, preserve health, or avoid violence. My review of prison dress regulations shows that prison systems commonly impose penalties including solitary confinement for deviations from dominant social norms. Examples of these deviations include wearing hair in an Afro, covering hair with a headscarf, or having long hair if incarcerated as a man. I situate prison rules in the historical context of dress regulation and prison evolution in the United States. The justifications—such as repression of homosexuality and group affiliation, prevention of attacks and escapes, and promotion of hygiene and rehabilitation—that prison officials offer for these rules raise normative and instrumental concerns. Nonetheless, courts frequently diminish individual and community interests in dress while deferring to prison regulations that lack complete or credible justifications. In furtherance of the goal of prison abolition, I propose an integrated approach for change through policy amendments, doctrinal shifts, and broader grassroots efforts for social transformation.

It has been suggested, with growing frequency, that the United States may be losing its influence over constitutionalism in other countries because it is increasingly out of sync with an evolving global consensus on issues of human rights. Little is known in an empirical and systematic way, however, about the extent to which the U.S. Constitution influences the revision and adoption of formal constitutions in other countries.

In this Article, we show empirically that other countries have, in recent decades, become increasingly unlikely to model either the rights-related provisions or the basic structural provisions of their own constitutions upon those found in the U.S. Constitution. Analysis of sixty years of comprehensive data on the content of the world’s constitutions reveals that there is a significant and growing generic component to global constitutionalism, in the form of a set of rights provisions that appear in nearly all formal constitutions. On the basis of this data, we are able to identify the world’s most and least generic constitutions. Our analysis also confirms, however, that the U.S. Constitution is increasingly far from the global mainstream.

The fact that the U.S. Constitution is not widely emulated raises the question of whether there is an alternative paradigm that constitutional drafters in other countries now employ as a model instead. One possibility is that their attention has shifted to some other prominent national constitution. To evaluate this possibility, we analyze the content of the world’s constitutions for telltale patterns of similarity to the constitutions of Canada, Germany, South Africa, and India, which have often been identified as especially influential. We find some support in the data for the notion that the Canadian Charter of Rights and Freedoms has influenced constitution making in other countries. This influence is neither uniform nor global in scope, however, but instead reflects an evolutionary path shared primarily by other common law countries. By comparison, we uncover no patterns that would suggest widespread constitutional emulation of Germany, South Africa, or India.

The immunity of foreign officials from legal proceedings in U.S. courts has drawn significant attention from scholars, advocates, and judges in the wake of the Supreme Court’s decision in Samantar v. Yousuf, which held that foreign official immunity is governed by the common law rather than the Foreign Sovereign Immunities Act (FSIA). The common law of foreign official immunity, which the Samantar Court did not define, operates at the intersection of international and domestic law, and it implicates the constitutional separation of powers between the executive and judicial branches. Conflicting visions of the substance and process of common law immunity have already emerged following the Samantar opinion and will continue to compete until the Supreme Court revisits this issue in a future case. At stake is not only the ability of suits to proceed against foreign officials, but also the relationship between the executive branch and the judiciary in matters affecting foreign affairs.

The original research into eighteenth-century practices presented in this Article yields two important observations. First, claims that defendants acted in their official capacities did not automatically bar adjudication on the merits: Foreign officials who were neither diplomatic officials nor heads of state were on the same “footing” as “every other foreigner” with respect to their “suability.” Second, the Executive believed that it did not have constitutional authority to instruct courts to dismiss private suits on immunity grounds. Although twenty-first century advocates might make policy arguments for blanket immunity or absolute executive discretion, such choices are not consistent with—let alone compelled by—the eighteenth-century practices and understandings recovered here.

Can religion or race ever be the basis for legitimate government policies? For several decades, constitutional law concerning both religion and race has moved toward a model of formal neutrality. At its most expansive, the formal neutrality model bars all religion- or race-based decisions by government.

Recently, though, the Court has rejected an absolutist version of neutrality in the religion context. While maintaining that the First Amendment’s religion clauses themselves require only impartiality, the Court has allowed governments space to pursue substantive, constitutionally grounded concerns about religion, even if the resulting policies favor or disfavor individuals based upon their religion. The Court calls this space the “play in the joints” of the religion clauses: It allows governments to pursue separation of church and state or affirmatively protect religious exercise. But in the equal protection context, the Court has not shown such flexibility toward race-based action that is inspired by constitutional concerns, whether the policies are aimed at racial integration or substantive racial equality.

In this Article, I argue that the religion clauses and the Equal Protection Clause serve similar dual goals: protecting minorities from substantive harms and preventing majorities from entrenching their own power via the state. Formal neutrality prevents governments from addressing these constitutionally based concerns. The Court apparently grasps this difficulty in the religion context and has resisted this outcome by providing play in the joints. Yet formal neutrality generates the same problems in the equal protection context. I argue that the Court should extend the notion of play in the joints to race doctrine. I conclude by explaining what this approach would require and how it would address the normative concerns underlying formal neutrality.

The Article sets forth a conclusive answer to one of the most fundamental questions in tort law, which has bedeviled and divided courts and scholars for centuries: Should reasonableness be a normative or a positive notion? Put differently, should the reasonable person be defined in accordance with a particular normative ethical commitment, be it welfare maximization, equal freedom, ethic of care, and so forth, or in accordance with an empirically observed practice or perception? Only after answering this question can one move on to selecting a concrete definition of reasonableness. Our own answer is radical but inescapable: Only normative definitions are logically acceptable. The Article does not endorse a particular definition of reasonableness. Instead, it focuses on the fundamental choice between the two conflicting paradigms. We put forward and defend the thesis that normative definitions are categorically preferable to positive definitions, because the latter are logically unacceptable, whereas the former merely raise partially surmountable practical problems. Although the Article focuses on the reasonable person in torts, the implications of our analysis are far-reaching, because the concept of reasonableness prevails in most areas of American law.

This Article explores how the path of the common law shaped some of the Supreme Court’s most important decisions regarding constitutional remedies. The Article first introduces the original system of common law remedies for constitutional rights. It then explains how these remedies atrophied, both doctrinally and pragmatically, and how this posed deep problems for the constitutional rights that depended on them. The Article selects three cases—Mapp v. Ohio, Monroe v. Pape, and Bivens v. Six Unknown Named Agents—to demonstrate how concerns about those remedies shaped constitutional rights. These cases have been debated many times over, but for all the debate, there has been scarce attention paid to the problem the Court was addressing: the relationship between the Constitution and common law remedies and, more specifically, what to do about constitutional rights that depended on dwindling common law remedies. Indeed, this relationship hardly receives any attention in classrooms or scholarship today, yet it is at the core of the judiciary’s role in implementing the Constitution. This descriptive gap has distorted our normative debate about the relative merits of these cases. The last part of the Article suggests four potential methodologies for coherently managing the relation- ship between the Constitution and common law remedies.

This Article explores, through the lens of speech I refer to as “autobiographical lies,” the extent to which the First Amendment protects one’s ability to craft one’s own public persona. Thus far, courts and commentators have generally neglected to address the degree to which this particular autonomy-based value—the interest in individual self-definition—carries distinct weight under the First Amendment. This is unsurprising, since it is rare that an issue arises that directly implicates this interest in a manner that isolates it from more traditional free speech principles.

Recently, however, litigation has arisen surrounding the constitutionality of the Stolen Valor Act, a federal statute that criminalizes lying about having received military honors. The Act’s regulation of a particular subset of speech—knowing, factual falsehoods about oneself—uniquely crystallizes the question of whether, and to what extent, the self-definition interest merits protection under the First Amendment. By and large, there is no strong reason rooted in traditional First Amendment interests to protect these sorts of autobiographical lies. But if the self- definition interest has any meaningful constitutional force, then circumstances would surely exist under which such speech merits First Amendment protection, since freely choosing what to tell others about oneself—whether truth, half-truth, or falsehood—is a vital means of controlling how one defines oneself to the world.

After reviewing the current dispute surrounding the Stolen Valor Act, which has divided lower courts and at the time of this writing is pending before the Supreme Court, this Article outlines the doctrinal origins and basic characteristics of the self-definition interest. I argue that if one takes seriously the Supreme Court’s repeated assertions that the First Amendment is designed, at least in part, to preserve individual autonomy, then courts should accord at least some distinct constitutional weight to this interest. I then explore some of the practical implications of recognizing a constitutionally protected self-definition interest and apply these observations to the Stolen Valor Act, concluding that the Act, as currently constituted, should be deemed unconstitutional. Finally, I observe that a constitutionally protected right to define one’s public persona via one’s speech fits comfortably within the Constitution’s general protection of interests deemed essential to individual personhood.

In the last decade, a number of scholars have called the American criminal justice system a new form of Jim Crow. These writers have effectively drawn attention to the injustices created by a facially race-neutral system that severely ostracizes offenders and stigmatizes young, poor black men as criminals. This Article argues that despite these important contributions, the Jim Crow analogy leads to a distorted view of mass incarceration. The analogy presents an incomplete account of mass incarceration’s historical origins, fails to consider black attitudes toward crime and punishment, ignores violent crimes while focusing almost exclusively on drug crimes, obscures class distinctions within the African American community, and overlooks the effects of mass incarceration on other racial groups. Finally, the Jim Crow analogy diminishes our collective memory of the Old Jim Crow’s particular harms.

This Article identifies how the current spate of state and local regulation is changing the way elected officials, scholars, courts, and the public think about the constitutional dimensions of immigration law and governmental responsibility for immigration enforcement. Reinvigorating the theoretical possibilities left open by the Supreme Court in its 1875 Chy Lung v. Freeman decision, state and local officials characterize their laws as unavoidable responses to the policy problems they face when they are squeezed between the challenges of unauthorized migration and the federal government’s failure to fix a broken system. In the October 2012 term, in Arizona v. United States, the Court addressed, but did not settle, the difficult empirical, theoretical, and constitutional questions necessitated by these enactments and their attendant justifications. Our empirical investigation, however, discovered that most state and local immigration laws are not organic policy responses to pressing demographic challenges. Instead, such laws are the product of a more nuanced and politicized process in which demographic concerns are neither necessary nor sufficient factors and in which federal inactivity and subfederal activity are related phenomena, fomented by the same actors. This Article focuses on the constitutional and theoretical implications of these processes: It presents an evidence-based theory of state and local policy proliferation; it cautions legal scholars to rethink functionalist accounts for the rise of such laws; and it advises courts to reassess their use of traditional federalism frameworks to evaluate these subfederal enactments.