Notes

Personal injury mass torts, like litigation over asbestos exposure or opioid addiction, put a unique strain on the judicial system, overwhelming dockets and creating complex, protracted litigation that can create financial uncertainty for defendants and functionally deny claims to litigants who are often suffering from severe health issues. Efforts to resolve the biggest, most complex mass torts through existing judicial aggregation have yet to meaningfully survive appellate review because of due process, fairness concerns, and the strictures of American civil procedure, with the Supreme Court’s decision in Harrington v. Purdue Pharma being the latest potential blow.

This Note will argue that stakeholders—parties, their attorneys, judges, and policymakers—should prioritize resolving mass torts via Claims Resolution Facilities rather than seeking the distant prospect of global aggregative relief via class actions, multi-district litigation, or bankruptcy. In doing so, it joins an early wave of work incor- porating the Supreme Court’s recent decision in Harrington v. Purdue Pharma, L.P. into aggregation doctrine. It also builds on existing scholarship on Claims Resolution Facilities by highlighting a recent success: a Facility used to resolve claims in the Monsanto Roundup multi-district litigation.

Aggregation has been unable to effectively provide a template for efficient, fair resolution of complex personal injury mass torts. This Note will chart the doctrinal history of aggregation’s limitations and contrast it with Claims Resolution Facilities’ historical ability to effectively resolve mass torts. It will then conclude by discussing best practices in Claim Resolution Facilities design and uplifting two models for future stakeholders to consider.

This Note considers what may be the next major constitutional attack on American labor law: a First Amendment challenge to private sector exclusive representation. In the wake of Janus v. AFSCME, public sector employees filed hundreds of lawsuits alleging that exclusivity compels speech and association by requiring employees to be represented by and associate with a union whose views they oppose. Although those challenges uniformly failed, some commentators have suggested that the same constitutional theory applies with equal force in the private sector, where the state action requirement is satisfied and the Supreme Court has not spoken directly to uphold the arrangement.

Drawing on compelled speech and expressive association doctrine, as well as the post-Janus cases, this Note argues that private sector exclusive representation can survive a First Amendment challenge. It notes that the constitutional impingements imposed by exclusivity are real yet sufficiently attenuated that they fail to outweigh the state interests in labor peace, unitary representation, and workplace majoritarianism. Collective bargaining over the terms and conditions of employment is primarily economic rather than expressive activity, and the involuntary association with unions under the National Labor Relations Act does not interfere with employees’ ability to express their own views, even as unions wade deeper into partisan politics. At the same time, dismantling exclusive representation would invite competing unions in a single workplace and the proliferation of individual employment contracts, threatening the stability of labor relations.

Noting the Supreme Court’s treatment of integrated bar associations and other mandatory relationships, this Note situates exclusive representation within a broader debate about the boundary between economic and political association. Ultimately, it concludes that, even under the current Court’s expansive view of compelled speech and association, the harms imposed by exclusivity are constitutionally permissible because of the federal government’s strong interest in preserving an orderly system of collective bargaining.

The doctrine of personal jurisdiction is in a precarious state. The Supreme Court’s most recent attempt to apply its “settled principles” of personal jurisdiction to the evolving world of complex litigation left the law anything but settled. Specifically, in Bristol-Myers Squibb v. Superior Court of California, San Francisco County, the Court held that California courts could not constitutionally exercise personal jurisdiction over claims in a coordinated mass action that were not transactionally related to the state. The potential implications of BMS’s reasoning for class actions are profound: Applying BMS’s logic to absent class members’ claims would severely hinder plaintiffs’ abilities to sue on behalf of nationwide classes. An abundance of scholarship has since sought to divine whether BMS spells the end of nationwide class actions. The lower courts have divided on the question, with both the majority and the minority relying on simple definitions of absent class members as either parties or nonparties. This Note articulates an alternative to the formalistic are-they-parties-or-not inquiry and, instead, resolves the question by returning to personal jurisdiction’s first principles. It begins by tracing the evolution of personal jurisdiction doctrine back to its animating principles of sovereignty and due process. Applying them to the class action context, this Note concludes that adherence to the requirements for class certification inevitably allows courts to resolve absentee claims over which they would otherwise lack personal jurisdiction without running afoul of the sovereignty and due process principles that underlie personal jurisdiction doctrine.

A focal point of corporate law is the set of duties owed by the board of directors to the corporation and its stockholders. When directors harm the corporation in breach of their fiduciary duties, stockholders can sue those directors on behalf of the corporation via derivative litigation. One type of derivative suit is an oversight claim, which existed in Delaware law for more than half a century before reaching trial for the first time in July 2025. The increased viability of oversight claims has brought into sharp relief the stakes, fault lines, and limits of Delaware corporation law. Yet, the future of Delaware oversight doctrine remains unclear.

This Note argues that the concept of attention helps to explain the development of Delaware oversight law and clarify the path forward for this contested doctrinal area. Part I sets the terms of analysis, clarifying that oversight is properly understood as an obligation of corporate fiduciaries, rather than a standalone fiduciary duty on par with loyalty and care. Part II reveals the incumbent paradigm of oversight as action and its shortcomings, locating attention even in cases that were decided under the action theory of oversight. Part III contends that attention is a meaningful but neglected dimension of oversight. Taken together, oversight as action and oversight as attention yield an integrated account of Delaware oversight doctrine and a way to render coherent this unsettled body of law.

Prices for consumer goods as wide-ranging and essential as groceries, over-the-counter drugs, and rental housing are now commonly set by automated algorithmic systems, which process enormous volumes of data to rapidly adjust prices in response to market conditions. Antitrust regulators have raised concerns that these systems can be used, intentionally or inadvertently, to facilitate anticompetitive collusion, ultimately harming consumers by raising prices and reducing competition on the merits. In this Note, I argue that the imposition of a collusion framework designed around human behavior is misguided, and that algorithmic systems should instead be analyzed in terms of their structural characteristics. By thinking of pricing algorithms in terms of traits like strategic commitment, the scope of data use, and platform intermediation, regulators can better understand the true extent of algorithm-driven pricing harms and design more effective, targeted regulations to address them.

Retail trading platforms increasingly incorporate “gamified” elements that encourage more frequent trading. These “gamified” elements include banners, nudges, badges, streaks, confetti animations, push notifications, and trade prompts. While these design choices help reduce barriers for new investors and have grown in popularity by providing easy, mobile-first access to financial markets, they also raise concerns about exploiting behavioral biases to increase the retail trading platforms’ profits. This issue is especially pertinent under Payment for Order Flow (PFOF) structures, in which broker-dealers benefit from higher trade volumes rather than strictly focusing on providing best execution for their clients.

To better educate retail investors of these risks, this Note proposes a disclosure- based framework that mandates that broker-dealers reveal the principal factors driving each recommendation or nudge. By relying on explainable AI methods— namely, approximated Shapley values—to highlight the variables steering trading prompts, regulators can empower investors to make more informed decisions without imposing blanket restrictions. While some challenges like protecting trade secrets, managing smaller-firm compliance costs, avoiding information overload, and targeted transparency, are likely to remain, this solution safeguards retail investors while maintaining an open, competitive marketplace.

In the past ten years, jurisdictions across the United States have witnessed an explosion of fossil-fuel-industry-backed laws targeting anti-pipeline and anti-critical infrastructure protestors. In passing these laws, state legislators throughout the country have sought to criminally punish activists who dissent against the construction of infrastructure sites atop their homes and in their neighborhoods. These activists resist a trend in which local governments designate their communities as “sacrifice zones.” In these areas, local governments allow companies to build polluting industries and facilities that subject residents to severe health and safety risks. Because these infrastructure sites disproportionately displace and harm communities of color, some have deemed this practice “the new Jim Crow” and have argued that it functions as a relic of slavery. In cracking down on these communities’ opposition to the creation of sacrifice zones, state legislatures and the oil and gas industry silence Black- and Indigenous-led racial justice movements across the country.

Using dissent in sacrifice zones as an example, this Note argues that modern suppression of racial justice advocacy hearkens back to a long tradition of silencing movements that promote racial equality. This repressive practice traces its roots back to pre-abolition times. As this Note explicates, the Framers of the Thirteenth Amendment (which formally abolished slavery) sought to curtail such speech- silencing efforts. Thus, suppression of racial justice advocacy—and specifically, suppression of anti-sacrifice zone advocacy—should be considered a “badge and incident of slavery” violative of the Thirteenth Amendment.

This Note offers two Thirteenth Amendment avenues for challenging what this Note calls “sacrifice zone speech suppression,” a subset of anti-protest speech suppression aimed at silencing dissent in sacrifice zones specifically. First and foremost, this Note proposes a litigation pathway, and second, it proposes a legislative pathway. In proposing these solutions, this Note shares the hope of the many activists who have spent years, decades, and centuries fighting for an end to the legacies of slavery: the conviction that, in the words of Bill Quigley, “justice is possible.”

State constitutions promise what the federal Constitution does not: affirmative guarantees of democratic participation, among a broad array of positive rights. But state courts tasked with enforcing those rights routinely fail to properly engage with their constitutions, defaulting instead to the federal judiciary’s clause-isolation and tiered scrutiny. The result is a methodological mismatch that allows state legislatures, many of them elected by a plurality or minority of their state’s voters, to erode democratic rights unchecked. This Note argues that the Michigan Supreme Court charted an independent path in Mothering Justice v. Attorney General, where it struck down an unaccountable legislature’s gutting of two voter-initiated laws by reasoning holistically about Michigan’s constitutional commitment to democracy. Drawing on the work of Professors Bulman-Pozen and Seifter—who identified the democracy principle as a synthesis of state constitutional commitments to popular sovereignty, majority rule, and political equality; proposed democratic proportionality review, which asks whether the burdens a law places on democratic participation are proportionate to and justified by the government’s legitimate objective, as an alternative to federal methods; and coined the term “methodological lockstepping” to describe the problem—this Note uses Mothering Justice as a prototype of the judicial application of a new framework.

Upon the foundation that Mothering Justice laid, this Note constructs a three-part doctrinal test: (1) assess the strength of the state constitution’s commitment to the democracy principle; (2) balance the burden on a democratic right against the legislature’s justification for imposing it; and (3) craft a “remedy-plus” that resolves the immediate dispute while establishing prospective safeguards against recurrence. Applied to voter identification laws and partisan gerrymandering, the test reveals at once its range and its aim: to equip state courts with a structured, state-grounded framework for curbing legislatures that have themselves sought to limit the sovereignty and power of the very people who elect them and whose rights their constitutions enshrine.

“It is also that, in the constitution of that Other of Europe, great care was taken to obliterate the textual ingredients with which such a subject could cathect, could occupy (invest?) its itinerary—not only by ideological and scientific production, but also by the institution of the law.”

Legal history transforms stories into state-backed power. Courts, acting as historical exegete, foreclose possible historical worlds to create law. However, in recent years, the kind of “history and tradition” courts and originalists have been prepared to grace with legal meaning has become myopic. This is so not just because of the limited range of historical subjects on which courts have focused their attention, but also because of the normative questions originalist methodology eschews and the teleology it obscures. However, originalism need not have the final word on legal history.

This Note will argue that one way to move beyond originalism and toward liberatory legal meaning is to embrace a postcolonial approach to American legal history—a postcolonial legal historiography. Certainly, this approach, like postcolonial theory more broadly, seeks to understand the world in relationship to the history of imperialism and colonial rule. But that understanding requires more than just a critique of what history is told. A postcolonial legal historiography requires a radical shift in methods—especially relative to how originalism engages in legal historiography. To illustrate how different a postcolonial historiographical inquiry could be, this Note will discuss the debates engendered by the Subaltern Studies Group, a group of postcolonial historians who raised issues of representation in traditional historiographies of India. While those debates occurred decades ago and are just one facet of postcolonial approaches to telling history, I argue that looking at them afresh might allow advocates to chart a way out of originalism.

This Note will proceed in four parts. Part I will briefly summarize originalism’s methodology and justification before moving into an overview of two of its critiques, with an eye toward underscoring what might already be obvious: Originalism prevents liberatory approaches to legal history from emerging. Part II will introduce postcolonial approaches to historiography, focusing on the discourse around the Subaltern Studies Group and, in particular, the tensions between two giants of postcolonial studies: Ranajit Guha and Gayatri Spivak. Guha’s and Spivak’s respective contributions and disagreements offer alternative answers for how and why we engage in historical inquiry. Part III will then compare and contrast postcolonial historiography with originalism and argue that postcolonial historiography has a stronger answer to the questions of how and why we do legal history in the first place, particularly for those interested in liberatory legal meaning. Part IV will conclude by briefly examining how a postcolonial approach to American legal history might create alternative and liberatory legal meanings—especially as questions of colonialism and conquest begin to take a more prominent role in domestic American legal scholarship.

Nearly sixty years after the passage of the Fair Housing Act (FHA), racial segregation, housing discrimination, and consequent disparities in health and opportunity stubbornly persist. Yet the Department of Housing and Urban Development has made limited use of the FHA’s most powerful provision: its mandate to affirmatively further fair housing. In recent years, new barriers to meeting this mandate emerged. Still, affirmatively furthering fair housing remains constitutionally viable and urgently necessary, even in the face of shifting equal protection doctrine. This Note begins by tracing the contested meaning of “affirmatively furthering fair housing” in the courts and executive branch. It then examines how Students for Fair Admissions v. Harvard creates new constitutional roadblocks to governments seeking to affirmatively further fair housing today. In response, this Note proposes a process for crafting race-conscious policy within the many constraints of current equal protection jurisprudence. Finally, it outlines an application of this process to affirmatively furthering fair housing. By doing so, this Note reaffirms the continued need for affirmatively furthering fair housing, the continued possibility of this work in the face of constitutional changes, and specific avenues forward for state and federal actors dedicated to building “truly integrated and balanced living patterns.”