Notes

Assisted reproductive technology (ART), which encompasses fertility treatments in which eggs or embryos are handled, is a frontier of family law and reproductive justice, and developments in abortion jurisprudence may shape its borders. Abortion restrictions and other laws regulating pregnant people are often framed with rhetoric emphasizing fetal personhood or fetal rights. Now that abortion is legally unshielded from criminalization, the consequences of Dobbs will reach, as did fetal-personhood laws before, even those who are not seeking abortions. As commentators have observed, this collateral damage threatens to touch potential parents seeking to use ART. Yet so far, the most abortion-restrictive states tend to carve out protections for ART from their laws regarding fetuses. This Note argues that states touting fetal personhood protect ART users—while persecuting people who partake in a multitude of other types of conduct thought to harm fetuses—because ART furthers the creation of white, affluent families that suit these states’ normative values. Fetal personhood, then, is a tool for social control. Advocates of reproductive freedom should surface this truth in efforts to stave off the proliferation of fetal-personhood laws at the state and federal levels.

The United States pays half-a-trillion dollars to defense contractors every year. Although the U.S. military could not operate without profitable contractors, excessively profitable contracts reduce manufacturing output and can imperil soldier safety. Stretching back to the founding, there is a long history of the executive branch compelling ex post modifications of military contracts to a lower price than the parties agreed to at signing. Sometimes authorized by Congress (but not always), this executive practice of “downward revisions” has fallen into disuse. Nevertheless, at least one statute might authorize this practice today: Public Law 85-804. Commonly understood to provide higher payments to defense contractors, this Note argues that Public Law 85-804 should be interpreted in light of its text and history to authorize downward revisions to excessively profitable defense contracts. Such an interpretation could save soldiers’ lives and lower defense costs during today’s challenging fiscal and geopolitical times.

Climate change is here. Anthropogenic warming is currently increasing temperatures, the devastation of storms, and the incidence of droughts. If humanity continues on its current path, the next fifty years will see millions die due to extreme weather events, along with a drastic increase in the number of climate refugees seeking haven. In the face of this crisis, government inaction at all levels has fueled the flames. Private actors and state and municipal governments have stepped into the breach, bringing suits against polluters for the harms to their localities and citizens. The challenge that this Note seeks to address is how to take these dire predictions of the future, and damages of the present, and translate them into workable, reliable legal evidence that can be used in a court of law. While most courts have declined to allow suits to proceed on threshold questions, they will soon have to deal with scientific evidence of climate change as these suits grow more numerous and the plaintiffs more resourceful.

This Note serves as a plea to judges to approach climate modeling methods in the same way they approach comparable types of evidence. Under Federal Rule of Evidence 702, climate science should be admissible as sufficiently reliable, by a preponderance of the evidence. Climate science exists somewhere between pure science and specialized expert knowledge, due to the subjective nature of the discipline. While climate science may not be seen as sufficiently “scientific,” if climate scientists are considered a group of experts, the discipline should easily pass muster under lower court interpretations of the Supreme Court’s Kumho Tire decision. By comparing climate science to criminal forensic methods, the case for admissibility becomes obvious. Thus, if judges take their roles seriously as neutral, consistent referees of justice, the admissibility of climate science should not be a serious hurdle for plaintiffs.

In the early days of our Republic, federal judges explicitly relied on general law—an unwritten set of gap-filling principles—to drive their decisions. This practice ceased after Erie Railroad Co. v. Tompkins, in which the Supreme Court formally abandoned the concept of general law. But the current Supreme Court, with its emphasis on originalism, has revived general law by interpreting several constitutional provisions as codifying the general law of the Founders. To determine the content of the Founders’ general law, it conducts an inchoate version of the general law analyses of the past: It surveys a large corpus of legal and historical sources from multiple jurisdictions, none of which are authoritative, and from them distills a general principle which provides the rule of decision in the case at hand. The Court’s sub-silentio adoption of the general law analytic method is troubling for originalists and non-originalists alike.

This Note has three basic aims, all of which are novel contributions. First, it delineates the precise methodology used by seventeenth- and eighteenth-century judges to determine the content of the general law. Second, through careful study of Second Amendment and Confrontation Clause jurisprudence, it recognizes the deep similarities between the historical and modern originalist general law analytic processes. And third, it outlines the practical difficulties and internal tensions that arise from the Court’s originalist revival of general law.

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.