Notes

Plastic pollution is a pervasive and growing problem. Plastic products pose significant risks to public health and the environment throughout their lifecycle—from production and consumption to disposal or recycling. In response, the Earth Island Institute, a California-based non-profit environmental group, filed a novel lawsuit in 2020. Earth Island alleges that several major plastic product producers created a public nuisance with their products in California. While Earth Island’s case is still pending, it represents the frontier of using public nuisance law to address mass harms.

Drawing on lessons from public nuisance cases against the opioids industry and fossil fuel producers, this Note comprehensively considers how public nuisance liability for plastic pollution would work in theory and in practice. Two possible framings of today’s “public plastic nuisance” are the negative effects of plastic pollution on (1) public waterways and lands and (2) the public’s access to clean air and water. Both framings are consistent with historical and traditional conceptions of public nuisance law. This Note explains how public nuisance claims based on these framings would be viable in another state facing the widespread effects of plastic pollution: New York.

In the absence of comprehensive regulation of plastic products throughout their lifecycle, public and private litigants both can and should use the “public plastic nuisance” theory. Litigation offers an avenue for holding the plastic industry accountable for pollution related to their products. Moreover, the prospect of public nuisance liability could pressure the plastic industry to change its business practices for the benefit of public health and the environment. Earth Island’s case should therefore provide a roadmap and foundation for future plastics litigation.

For nearly sixty years, litigants have challenged congressional and state redistricting maps, raising claims of partisan gerrymandering. Each time, the Supreme Court would hear and reject the challenge but continued to entertain the possibility that a claim of partisan gerrymandering could succeed. Then, in 2019, the Court in Rucho v. Common Cause took the dramatic step of holding that claims of partisan gerrymandering were nonjusticiable political questions. This both walked federal courts out of the picture and signaled the Court’s tacit approval of gerrymandering. The decision came down at a time when gerrymandering was at an all-time high—in 2020, only 7.5% of the seats in the House of Representatives were “competitive.” Now, despite clear attempts by lawmakers to subvert democracy through partisan gerrymandering, federal courts can no longer police district maps for partisan imbalance. Though some states have created independent redistricting commissions to draw district maps, these commissions are neither common enough nor strong enough to withstand political tendencies to gerrymander.

Time and time again, litigants and scholars have searched for (and failed to find) a substantive standard by which partisan gerrymandering claims might succeed. This Note offers a new approach, grounded in classic legal principles: process instead of substance. Identifying both normative reasons for why process can better protect against partisan gerrymandering and highlighting instances in certain states where bolstering and, crucially, enforcing the processes by which district maps are drawn has helped mitigate gerrymandering, this Note argues that states (and litigants) should turn to process-based arguments to counter gerrymandered maps. Through process, states can strengthen their redistricting procedures and commissions, allowing for the creation of more balanced, competitive maps. Democracy hinges on competitive elections, and we need solutions to the problem of partisan gerrymandering; this Note offers a new framing of the problem and a path forward.

Unlike in most other industrialized democracies, in the United States, most elections—at the federal, state, and local levels—are conducted using the plurality voting system, also known as first-past-the-post (FPTP) voting. As a number of scholars and advocates have argued, there is an alternative voting system, well suited to American democratic traditions, that would provide for proportional representation: the single transferable vote (STV). This Note focuses primarily on state and local elections, arguing that the courts should both endorse the use of STV in these elections as constitutional and adopt STV in state and local elections as a remedy for a variety of legal harms.

A person is killed by law enforcement. There’s outrage. Hurt communities cry for reform. Things change on the margin. People move on. And the story repeats.

Every year, hundreds of individuals die at the hands of police officers despite repeated attempts at reform. This senseless cycle has caused many to question the efficacy of reform in favor of a more revolutionary proposal—police abolition.

Police abolition is a worthy and necessary ambition, but one that needs practical steps to achieve it. To that end, this Note excavates the history of failed attempts at police reform and finds a nugget of hope among the wreckage—The Jurisdiction-Stripping Consent Decree.

The Jurisdiction Stripping Consent Decree reimagines police litigation through the lens of abolitionism by using existing tools at the disposal of the Department of Justice to force police departments to reduce their domain of power in society through court-enforced consent decrees.

By engaging in radical civil rights litigation through non-reformist reforms of police departments’ most invidious abuses, the Jurisdiction-Stripping Consent Decree can put America on a viable path towards police abolition.

The relationship between policing and automobiles is long and complicated. Law enforcement’s ability to stop and search a vehicle comprises a distinct line of Fourth Amendment jurisprudence. But searching a vehicle no longer means what it did even twenty years ago. Today, automobiles collect data on us from when we open the car door to the moment we turn off the engine. Much of this information is retained in an automobile’s hardware and funneled to third party companies, who can share at their discretion. Law enforcement agencies have made use of auto data, obtaining it without a warrant both by extracting auto data from the vehicle itself and by contacting the companies collecting the data firsthand to ask that they share the information. The constitutionality of such a practice may seem up for debate, given the disagreements among lower courts over how auto data fits into a larger web of Fourth Amendment jurisprudence. This Note brings together two strands of Fourth Amendment case law—the automobile exception and the third-party doctrine—and argues that an animating principle motivating the Supreme Court’s recent digital search cases provides a clear answer to the auto data confusion: Police need a warrant before they can access auto data, because auto data, much like cellphones and cell site location information, reveals automatically collected diaristic information.

Under Rule 23(a) of the Federal Rules of Civil Procedure, a class action must meet four requirements before it can be certified: numerosity, commonality, typicality, and adequacy of representation. But courts infer an antecedent requirement to these four—that of ascertainability, the idea that the court must be able to define the class as an entity that exists prior to allowing it to litigate on behalf of absent parties. While the idea behind this requirement is uncontroversial (surely, a court should ensure that a class exists prior to certifying one), the Third Circuit has staked out an unusually stringent, atextual position, requiring that a putative class present an “administratively feasible” method for identifying its members prior to certification. That requirement, nowhere present in the text or purpose of Rule 23, presents a near-insurmountable barrier to small-dollar consumer class actions, thus undermining the intent of Rule 23 to ensure that such claims can be pursued. Despite predictions that the Third Circuit would back down from its position, and despite at least five circuits’ explicit rejection of the heightened ascertainability requirement, the Supreme Court has yet to weigh in on this glaring rift in class action jurisprudence. After the Eleventh Circuit’s 2021 rejection of the heightened requirement, the time is ripe to once again ask whether this outlier position is defensible.

By examining dozens of cases that apply the ascertainability standard, both within and without circuits that endorse the heightened requirement, this Note affirms that ascertainability in its current form is a scattershot cudgel that undermines small-dollar consumer class actions. Across several factors newly identified by this Note that figure prominently in ascertainability analyses, the requirement adds nothing but inconsistency to the class certification analysis. This Note endorses the position that, absent Supreme Court intervention, an amendment to Rule 23 clarifying that the class must merely be defined objectively would both rectify the circuit split and restore the Rule 23 inquiry to its textual and policy roots: to ensure that small-dollar claims, too little in value to pursue independently but no less meritorious, can be maintained.

Bankruptcies now dominate mass-tort litigation. Defendants file for bankruptcy because the class action and multi-district litigation devices have failed to deliver parties meaningful finality, and new legal tools—nondebtor releases, complex claims-processing schemes, and the Texas Two-Step—have made bankruptcy a more attractive forum for resolving mass-tort liabilities. Troublingly, litigants, courts, and scholars struggle to consistently evaluate a reorganization plan’s legitimacy. This Note takes a novel approach, arguing federal preclusion law and due process principles of exit, voice, and loyalty provide the best framework for evaluating a mass-tort bankruptcy. Bankruptcy resolutions are generally “otherwise consistent” with due process because they substitute claimants’ exit rights for voice rights. Whether a reorganization plan violates due process depends not on the formal legal tools mass-tort debtors deploy but on whether those tools infringe upon claimants’ voice rights or undermine aggregate litigation’s core goals of finality and equitable redress. This Note concludes that bankruptcy remains a valuable forum for resolving complex mass-tort crises and identifies several cases that can guide future stakeholders.

The role of stare decisis in constitutional law is a ubiquitous one. It shows up almost everywhere, leaving controversy and chaos in its wake. Yet despite the prominence of stare decisis, its jurisprudence remains perpetually unsettled. The Supreme Court identifies several factors that affect the strength of prior precedent. However, these factors are not consistently defined or even wholly agreed upon. How can something as crucial as the law of stare decisis have such scattered precedents? Something more, something deeper, is going on here. A hint of this deeper issue comes out in contentious cases like Payne v. Tennessee, Planned Parenthood v. Casey, and Dobbs v. Jackson Women’s Health Organization, where the Justices speak to or acknowledge democratic disagreement and its effect on the Supreme Court’s legitimacy. But to understand these cases as the Court simply confronting its own legitimacy, while partly correct, is much too narrow. A closer inspection of these opinions reveals more than just a simple debate about democratic disagreement. It is a debate about what role democratic disagreement should play in stare decisis and, therefore, in the Supreme Court as an institution. Thus, it is no wonder that stare decisis, as a doctrine, is unsettled. Stare decisis has become the battleground for America’s oldest contest: departmentalism or judicial supremacy.

This Note argues that stare decisis is much better understood when one analyzes the doctrine in connection with the broader discussions surrounding departmentalism and judicial supremacy. In doing so, this Note develops in three Parts. Part I examines the necessary background of stare decisis and its relationship to interbranch conflict. Part II surveys the three cases of Payne, Casey, and Dobbs, paying particular attention to how the Justices in these cases are, in truth, guided by their views of departmentalism or judicial supremacy. Part III further highlights the relationship between disputes over stare decisis and departmentalism versus judicial supremacy and provides the reader with a potential theoretical framework to explicitly incorporate the concept of departmentalism within precedent. Departmentalism and judicial supremacy will forever be negotiated. Ultimately, in stare decisis, a home has been found for this great American debate.

Autonomous vehicles are now driving people around in cities from San Francisco to Phoenix. But how to regulate the safety risks from these autonomous driving systems (ADS) remains uncertain. While state tort law has traditionally played a fundamental role in controlling car crash risks, this Note argues that the development of novel data tracking and simulation tools by the ADS industry has led to a regulatory paradigm shift: By leveraging these tools for regulatory analysis, the federal National Highway Traffic Safety Administration (NHTSA) could iteratively adapt and improve its regulatory standards after each crash. While many scholars have advanced proposals for how state products liability can adapt to ADS crashes, this Note is the first to propose such a model of “crash-adaptive regulation” for NHTSA and to show that this model will prove superior to tort liability in controlling ADS crash risks. In presenting this new regulatory model, this Note engages with two rich theoretical debates. First, it compares the efficacy of tort liability and agency regulation in controlling ADS crash risks. Second, it evaluates whether ADS safety standards should be set at the federal level or at the state level. It concludes that ADS’ technical characteristics call for an agency regulatory scheme at the federal level and urges NHTSA to build the technological and operational expertise necessary to operate a crash-adaptive regulatory regime.

The National Labor Relations Board (NLRB or Board) is charged with enforcing the keystone statute of U.S. labor law, the National Labor Relations Act (NLRA or Act), including its prohibition against employers’ firing workers in retaliation for union organizing. In a time of rising labor agitation, however, the NLRB’s procedures for remediating such alarmingly frequent discharges are woefully inadequate. This Note examines the perennially underutilized section 10(j) of the NLRA, which provides for injunctive relief in discriminatory discharge cases where the Board’s own slow-moving administrative procedures would defeat the purpose of the Act, and explains why current 10(j) procedures are plagued by delay and failure. It then proposes an alternative administrative procedure for 10(j) cases—including a delegation of prosecutorial discretion, quick evidentiary hearings, and review of Administrative Law Judge determinations by the Board—that would address many of the section’s shortcomings. The Note considers the salutary consequences of implementing this alternative procedure through notice and comment rulemaking before concluding by demonstrating how this procedure would enhance the Board’s enforcement of the Act. Ultimately this Note argues that section 10(j) can, through long-overdue procedural reform, become a robust guarantee of the statutory rights of workers that are at the heart of the NLRB.