Notes

This Note analyzes a circuit split over the application of the Forfeiture Rule, which holds that plaintiffs forfeit American Pipe tolling when they file individual actions before class certification has been resolved in the underlying putative class action. This Note rejects the Forfeiture Rule and argues that it misunderstands the purpose and rationale of American Pipe and class action tolling. Given the increased uncertainty facing class action plaintiffs, the policy and equity interests that motivated courts to adopt the Forfeiture Rule now require courts to abandon it. This is the first article to analyze the Forfeiture Rule’s history and evolution, to explore the impact of changes in class action jurisprudence on statutes of limitations on the Forfeiture Rule, and to argue against the continued viability of the Forfeiture Rule across the federal judicial system.

In late 2017, the U.S. Judicial Panel on Multidistrict Litigation ordered the consolidation of a few hundred cases pending around the country against opioid manufacturers and distributors into a Multi-District Litigation (MDL) in the Northern District of Ohio. Today, the Opioid MDL consists of over 1900 opioid-related cases brought primarily by states, cities, counties, and other local entities, and that number is growing weekly. Strikingly, these lawsuits are not, in their main, seeking damages for injuries to individuals. Rather, they are seeking compensation for the cost of public services needed to address the consequences of addicted communities, ranging from emergency response capabilities to rehabilitation services. The Opioid MDL is the first mass litigation to involve this number of local government plaintiffs, and although this Note predicts that the Opioid MDL, like most MDLs, will resolve in an aggregate settlement, the presence of local governments poses a unique problem for achieving that outcome. Mass litigation can only result in settlement if the settlement provides some guarantees to the defendants of “global peace”—meaning that the settlement forecloses all, or close to all, current and future litigation against the defendants—and any settlement arising out of the Opioid MDL will have to contend with resolving the claims of around 33,000 city, township, and county governments. Even though only a fraction of these local governments are currently part of the Opioid MDL, their presence leaves open the threat that absent localities will sue later, undermining the likelihood or value of any settlement. This Note discusses the various ways that a settlement could be structured with local governments by looking to prior mass tort litigation and applying the settlement tactics used in those cases to the Opioid MDL. In doing so, this Note proposes that even though the players in this MDL are unique, the solutions are not.

This Note argues that policy proposals mandating law enforcement involvement in campus sexual assault cases are harmful to survivors of sexual assault and are inconsistent with Title IX. Title IX’s gender-equality goals require schools to address sexual assault as a civil rights issue, with a focus on its impact on survivors’ continued access to education. Mandatory police involvement proposals will frustrate that goal. These proposals take a criminal law view rather than a civil rights approach, and in doing so, import obstacles that survivors have long faced in the criminal system into the campus process. What is more, these proposals will have the effect of making it more difficult for survivors, particularly those from marginalized communities, to report their sexual assaults to their schools. If survivors are not able to report, they will not be able to access the accommodations they need to continue their education, and schools will not have the information they need to adequately combat sexual assault on campus. Efforts at reform would be better served by focusing on improving the campus process than on limiting survivors’ options.

“That Mexican’s probably off right now in some bar, laughing at us.” Humberto Casarrubias-Sanchez, thirty-six, was a husband, father of three, and first-time beneficiary of the United States’ H-2A temporary agricultural worker visa. Hailing from Morelos, Mexico, he had just begun his first day of detasseling corn in Illinois when, by day’s end, Humberto was nowhere to be found. Presuming he had fled, crew leaders shrugged their shoulders, ending the search for him early. His body was found fifty days later in the middle of that same cornfield. Using Humberto’s story and the crew leader’s words as evidence, this Note argues that historic racialization of Latina/o immigrants has transcended into the H-2A agricultural workers visa program, and that burgeoning migrant farmworker coalitions are rewriting these racialized narratives through political action that may create the cultural groundswell for government change. Racialization, or the way in which society places nonwhites within a racial hierarchy, has resulted in a system of abuses of H-2A workers, including wage theft, sexual harassment, and human trafficking. Through direct appeals to top food purchasers, coalitions of migrant farmworkers have subverted their racialized identities via political empowerment, perhaps ultimately attaining a “dual solution” to this racialization that would include necessary government support.

As popularly conceived, environmental conservation is a backward-looking exercise that aims to restore and protect the biodiversity of our parents and grandparents. But this static view of nature is a fiction. Scientists have grown increasingly aware that species are still evolving and, in some cases, doing so rapidly. What’s more, scientists are beginning to be able to make predictions about when and how evolution will occur. This Note argues that such nascent biodiversity is worthy of protection. Furthermore, the text and purpose of the Endangered Species Act require protecting populations likely to evolve in the foreseeable future. Without changing the administrative criteria for implementing the Act, agencies could protect nascent biodiversity under the statutory provisions covering threatened “distinct population segments.” Finally, this Note responds to some possible difficulties with this approach. As scientific understanding of evolution and biodiversity continues to advance, agencies must consider that their statutory mandate is not to recreate the past, but to enrich the future.

Every year, billions of dollars are awarded as compensation for pain and suffering. A hard question—one that has vexed courts, legislators, and academics alike—is how we should tax them (if, indeed, we should tax them at all). In this Note, I articulate a new answer. If we take seriously the value of equality between injured people and uninjured people, we ought to tax compensatory damages for pain and suffering.

In Part I, I criticize an influential approach to the taxation of compensatory damages for pain and suffering. This approach appeals to various intuitive normative principles to justify exempting pain and suffering damages from tax. I argue that these principles are estranged from their normative foundations. Such principles are intuitive because they seem to embody an ideal of equality between injured people and uninjured people. But, as I show in Part I, equality does not always justify exempting pain and suffering damages from tax. Sometimes, a well-designed tax on pain and suffering damages serves equality better than an exemption does.

In Parts II and III, I determine which tax regime best respects the ideal of equality between the injured and the uninjured, giving that value neither too little nor too much weight. Following the optimal tax literature, I divide the work into two parts. First, I determine which tax policies would be best under the assumption that no one modifies their behavior in anticipation of tax consequences. To do this, I formulate an appropriate social welfare function, I estimate the relevant parameters, and I simulate optimal tax rates. I then consider whether the resulting taxes should be modified in light of behavioral responses that we should expect in the real world.

I conclude that we should tax some, and likely many, compensatory damages for pain and suffering—and we should do so at rates that increase with damages. Perhaps counterintuitively, this tax scheme is the best way of balancing the competing demands of creating well-being and distributing it equally.

Algorithms are capable of racism, just as humans are capable of racism. This is particularly true of an algorithm used in the context of the racially biased criminal justice system. Predictive policing algorithms are trained on data that is heavily infected with racism because that data is generated by human beings. Predictive policing algorithms are coded to delineate patterns in massive data sets and subsequently dictate who or where to police. Because of the realities of America’s criminal justice system, a salient pattern emerges from the racially skewed data: Race is associated with criminality in the United States. Because of the “black-box” nature of machine learning, a police officer could naively presume that an algorithm’s results are neutral, when they are, in fact, infected with racial bias. In this way, a machine learning algorithm is capable of perpetuating racist policing in the United States. An algorithm can exacerbate racist policing because of positive feedback loops, wherein the algorithm learns that it was “correct” in associating race and criminality and will rely more heavily on this association in its subsequent iterations.

This Note is the first piece to argue that machine learning-based predictive policing algorithms are a facial, race-based violation of the Equal Protection Clause. There will be major hurdles for litigants seeking to bring an equal protection challenge to these algorithms, including attributing algorithmic decisions to a state actor and overcoming the proprietary protections surrounding these algorithms. However, if the courts determine that these hurdles eclipse the merits of an equal protection claim, the courts will render all algorithmic decision-making immune to equal protection review. Such immunization would be a dangerous result, given that the government is hurling a growing number of decisions into black-box algorithms.