The two primary goals of consumer class actions are to provide relief to those who have been harmed and to deter similar behavior in the future. Yet, in many class actions, claims rates are so low that only a small fraction of class members actually receives their share of a settlement, leaving remaining unclaimed funds subject to judicial discretion. This allows for reversion to the defendant, pro-rata distribution, or escheat by the state. While distribution to charities via the cy pres doctrine is often deemed the “next best” use of these funds, inadequate oversight of recipient charities results in distributions that may not effectively address the harms caused by the defendant’s conduct.

Pharmaceutical drugs are pillars of modern medicine and enshrined in the human right to health. Upholding the right to access such essential medicines requires systems that not only incentivize drug development, but that also audit new drugs for adequate safety and efficacy. Amidst a growing antibiotic resistance crisis, current approaches to both patent protection and clinical trial design are failing to adequately support new antibiotic development while upholding the human right to health.

The Supreme Court is well-known to favor granting review in cases implicating circuit splits. When, for example, two federal appeals courts disagree over the meaning of a federal statute, the Supreme Court is likely to step in and resolve the confusion to ensure uniformity in federal law.

But the Court is also increasingly likely to let such splits languish for longer. It is taking fewer and fewer cases, year after year. And the Court dedicates much of the limited space on its docket to cases that do not involve circuit splits—cases that, say, present an opportunity to overrule precedent or that implicate patent matters.

Mallory v. Norfolk Southern Railway Co., decided in June 2023, held that consent remains a method of establishing personal jurisdiction independent of the “minimum contacts” test established by International Shoe Co. v. Washington. To many, the decision resolved ambiguity in personal jurisdiction doctrine and represented a straightforward way of establishing personal jurisdiction. But Mallory failed to consider the many complexities underlying consent.

For the over half-million people currently homeless in the United States, the U.S. Constitution has historically provided little help. In 2018, this changed. A series of Ninth Circuit Court of Appeals decisions gave homeless individuals a right to occupy public spaces with some of their belongings. The surprising source of the right was the Eighth Amendment. The courts held that for people with no way of complying with laws banning public sleeping, punishing them for doing so constituted cruel and unusual punishment.

The constitutional law of confessions has a critical blind spot. In theory, the law serves two interests. First, it protects the autonomy of suspects by stipulating that they can be questioned while in custody only with their consent. Second, it restrains official misconduct by forbidding interrogation methods that overbear a suspect’s will. Even if the law adequately safeguards those interests, something is missing: reliability.

This is an audio supplement to Black English for Lawyers: A Primer. As you read, please follow along by listening to the audio tracks in this supplement.

Lawyers do not know as much about Black English as they should, and people’s freedom hangs in the balance. Differences between language varieties in sounds and grammar can change and have changed the outcome of cases: “He at work” and “He be at work” mean two completely different things. To reduce misinterpretation and therefore wrongful outcomes, this Article provides a primer on the sounds, words, grammar, and social context of Black English targeted directly at legal practitioners. It begins by explaining key concepts in linguistics and making the case for why lawyers must foreground accurate description over normative prescription when facing nonstandard language.

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen elevated history, text, and tradition as the sole criteria for assessing the constitutionality of firearms restrictions. Gun rights advocates have responded to Bruen with a wave of Second Amendment challenges, most employing a three-part argument: (1) X firearms-related issue has existed since the Founding; (2) the Founders did little or nothing about it; and, therefore, (3) we cannot do anything about it, either. Legal scholars are engaged in critical work on parts (2) and (3) of that argument. As a professional historian involved in several ongoing Second Amendment cases, I have the disciplinary expertise to offer a critique of part (1). This Article explains why the argument for continuity in American gun culture is largely a myth and offers a case study of the role that historical research can play in Second Amendment cases in the Bruen era.

In Counterman v. Colorado, the Supreme Court decided an imaginary case. It held that Billy Ray Counterman’s conviction could not stand because it did not meet the First Amendment requirements for prosecutions based on threats. But, in fact, Counterman was not convicted for making threats. He was convicted of stalking, under a law that does not require that the defendant threaten anyone to be guilty of the crime. This Article argues that the Supreme Court’s confusion about the most basic facts of the Counterman case was not an aberration but instead reflects broader pathologies in First Amendment jurisprudence.

From Hurricane Katrina to the 2021 West Coast wildfires, recent history shows that prisons are unprepared for natural disasters. As a result, incarcerated people experience smoke-filled cells, toxic flooding, and abandonment in unplanned evacuations. Climate change is accelerating the occurrence of natural disasters, creating pressing issues for modern prison infrastructure. Previous scholarship has explored systemic solutions to the issue of prison climate adaptation, such as climate change mitigation and decreasing prison populations. However, long-term solutions fail to address the immediacy of climate emergencies, which affect prisons now. Incarcerated people trapped in the path of today’s floods and fires need short-term solutions while systemic efforts develop.

In a series of cases stemming from the racist rationales of the Insular Cases, federal courts have created a doctrine that excludes territorial residents from federal elections, thus entrenching their political subordination. The courts have based their decisions on three main principles: First, because the constitutional provisions regarding federal elections refer only to states and are silent as to territories, territorial residents have no right to vote in federal elections. Second, because territorial residents are not a suspect class and do not have a fundamental right to vote, their disenfranchisement is subject to only rational basis review. Third, only statehood or a constitutional amendment can provide such a right. This Note challenges all three principles to provide a constitutional justification for equal enfranchisement.

Section 9-609 of the Uniform Commercial Code, which has been enacted in every U.S. state, authorizes a secured lender to seize the property of a debtor in default without judicial process. The only limit to this power is that the lender cannot “breach the peace” in the process of repossession. This expansive right of self-help has spawned a $1.7 billion “asset recovery” industry in the United States that undertakes hundreds of thousands of repossessions every year. Many of these repossessions lead to violence. Lawyers, judges, and scholars justify the powerful right of self-help by pointing to its roots in the ancient common law right of recaption. The early cases they rely on, however, share little in common with the modern world of self-help repossession. This analysis also leaves out a more relevant history—the history of American slavery.

This article argues that amendment is the foundational if forgotten contribution of American constitutionalism. Adopting a written constitution requires making provision for its future by allowing for change: Americans devised that mechanism. The idea of constitutional repair, correction, and improvement through revision was so essential to the founding of the United States that it can best be described as a system of thought, which I call the philosophy of amendment and describe as the epitome of the eighteenth-century idea of progress.

Professor Lepore is issuing a timely and necessary warning about the need to think deeply about reforming our Constitution. The enemy, in this case, is not the British. Rather, it is ourselves, in our complacent unwillingness to engage with clear deficiencies of the present Constitution. She begins her essay with the extraordinary reminder that everything in the world is subject to decay, including the parchment on which the Constitution was originally written (for starters). That is true, of course, of the more abstract Constitution itself.

Professor Jill Lepore’s Jorde Symposium lecture paints a rich portrait of state constitutional conventions as engines of democratization during the 1800s and issues a dire warning about the United States’ ongoing amendment drought. Citing their unfamiliarity, however, Lepore declines to consider federal constitutional conventions as a possible corrective. In this response Essay, I argue: first, that Lepore’s marginalization of Article V’s convention mechanism is in tension with her own historical and normative account; second, that while Lepore’s wariness of conventions is entirely understandable given the state of our politics…

The Constitution, as I like to remind the students in my Constitutional Law I class, is very old, very short, and very vague. Among the 7,762 words of the Constitution are the twenty-seven amendments, the first and last of which were both proposed in 1789 but were ratified 201 years apart—the First Amendment in 1791, and the Twenty-Seventh in 1992.

Constitutional amendment has become irrelevant to most Americans of the twenty-first century—even to lawyers and leaders pursuing major systemic change. The most recent amendment was added to the U.S. Constitution in 1992, and that amendment was actually written two centuries prior. It has been nearly half a century since the last time Congress adopted an amendment and sent it to the states for ratification, which failed. What remains of the philosophy of amendment without any practice of it?

This Article explains how speech became the constitutional vehicle for the right to discriminate on religious grounds in places of public accommodation. It argues that cause lawyers for the New Christian Right cobbled together a right to exclude from a surprising doctrinal source: the egalitarian tendencies within the First Amendment.

The Ninth Circuit’s decision in Lam v. University of Hawaiʻi is the “high water mark” of intersectional Title VII jurisprudence. However, this Note suggests that despite thirty years since Lam, courts have struggled to conceptualize the intersectional identities of plaintiffs and the multifaceted discrimination they face.