Volume 101, Number 4

The Supreme Court has two sides. On its ordinary docket, the Court answers questions of law after briefing and oral argument. On its extraordinary docket, the Court fields applications from litigants asking it to equitably set the status of a new law or executive action while a lawsuit is pending. Only a decade ago, the equity side was an obscure backwater of Supreme Court practice; today it is where the Court confronts some of the most contested and consequential public law disputes. This aspect of the Court’s work has taken on various labels—the shadow docket, emergency docket, interim docket, to name a few. This Article proposes the “equity docket.” That term best captures what is distinctive about this growing part of the Court’s business and helps us to get a normative handle on where the Court has gone right—and wrong. Any judicial practice grounded in equity will be vulnerable to the charges of arbitrariness and lack of transparency. Historically, equity was able to reform itself successfully in response to these charges. Our basic contention is that the Court has assumed a far-reaching new form of equitable jurisdiction without also accepting the historical guardrails that both limited and legitimated equity. The Article makes three contributions. First, it links the emergence of the equity docket to the Court’s broader engagement with the history of federal equity in recent years—what some have called the “new equity.” Second, it argues that the Court has lost sight of important constraints that kept equity in a subsidiary position. And finally, it suggests that the Court on the equity docket has impoverished the traditional inputs of equitable decisionmaking, relying almost exclusively on hastily formed predictions about the merits. In place of the Court’s current approach, we propose a model of a more objective, “filtered” conscience, drawn from the history of equity, that would give proper weight to precedent and keep the equity docket from engulfing the Court.

Around the country, jurisdictions have begun enacting second-look resentencing statutes that allow individuals serving long prison sentences to seek reduced terms, presenting the opportunity to chip away at mass incarceration. However, implementation has stalled over failures of understanding. In particular, courts and prosecutors have difficulty hearing the experiences of incarcerated petitioners, leading to limited decarceration. Moreover, defense counsels, even if well-meaning, can bring their implicit (and even explicit) biases, privilege, and narrative chauvinism into their relationships with resentencing clients, impeding their ability to effectively present clients’ stories to these decisionmakers.

One solution is for defense counsels to embrace a suite of community-based strategies and partnerships that have already been appearing in the pre-sentence context. The disconnect between lawyers and clients can be epistemic, with attorneys at times failing to fully grasp what their clients are telling them, or, if they do understand, struggling to present those stories in a legible way to decisionmakers. This divide can be even more potent in the resentencing context than pre-sentence, when attorneys are representing clients who have spent years behind bars—an experience these lawyers rarely have shared. The power of these interventions, often termed “participatory defense practice,” is that they enable attorneys to leverage the expertise of those who know their clients best or with lived experience, helping to overcome these disconnects. The interventions this Article proposes for widespread adoption include (1) utilizing community-prepared mitigation packets during resentencing, (2) calling formerly incarcerated expert witnesses to testify about the experience of incarceration, (3) enlisting the help of peer navigators in reentry, and (4) relying on community-produced resentencing toolkits to present their cases most effectively. By putting these tools into widespread use in second-look resentencing, defense counsels can amplify client voices, improve the informational environment in which resentencings are occurring, and achieve better resentencing results. If brought to bear more broadly, these participatory practices have the potential to transform lawyering, shift common understandings about client life experience, and lead to decarceration.

The last half century of American statutory interpretation theory grew out of a U.S. Constitution that never prescribes how to read statutes. This has compelled the mistaken conclusion that constitutional law can have little to say about two of the most fundamental questions in statutory interpretation: whether courts should be able to treat interpretive methods as binding precedents, and whether interpretive methods need to reflect the customs and beliefs of “the people” to be democratically legitimate. But while the U.S. Constitution never directly prescribes how to read statutes, astoundingly twelve state constitutions do. Those state constitutions contain what I call “directly interpretive constitutional provisions”—constitutional provisions that on their own terms supply a mandatory method of statutory interpretation.

In this Article, I gather these overlooked and under-theorized provisions together for the first time, present original historical case studies on the surprising reasons they came into being, and offer the first sustained analysis of how they have been used in practice. In uncovering this neglected category of statutory interpretation law, this Article demonstrates how two critical assumptions of existing statutory interpretation theories derived from the U.S. Constitution—that interpretive methods are justifiable on democratic grounds merely if they reflect a proper balance of power between government institutions and that only weak and sub-constitutional sources of law are available to ground interpretive methodology as binding precedent—are poor fits for state-level statutory interpretation. By developing an alternative account of a directly democratic and constitutional foundation at the state level, this Article both introduces a new framework for understanding state statutory interpretation on its own terms and provides a counterpoint against which we can measure the relative democratic legitimacy and legality of federal statutory interpretation methodology.

Most fundamentally, this Article contends that in most states the democratic and constitutional bases of statutory interpretation methods ultimately rest not on the institutional dialogue among courts, legislatures, and executives (as may be the case with federal statutory provision), but instead on popular sovereignty—on the public’s ongoing formal participation through elections in directly approving, disapproving, or deferring to government on those methods. As this Article further argues, people have exercised their sovereignty in limited yet surprising ways that reveal what I call a “democratic division of interpretive labor”—a formally legitimized allocation of statutory interpretation functions between government and civil society.

These insights lend themselves to three practical upshots. First, courts applying these constitutional provisions should not treat the required methods as if they obeyed the same rules as judge-made canons of interpretation. Second, state constitutions’ distinctive commitments to popular sovereignty and to limiting legislative plenary power provide new grounds for why statutory interpretation methodology should differ between the state and federal levels; meanwhile, the fact that only some states allow citizens to unilaterally amend their constitutions provides a new reason why statutory interpretation methodology should differ from state to state. Finally, the political infeasibility of constitutionally overriding a given interpretive method should be a factor against judicial entrenchment of that method as precedent.

IJA Brennan Lecture

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.