A recent spate of major mass tort bankruptcies has renewed interest in Chapter 11 as a tool for resolving mass torts. Mass tort bankruptcy proponents argue that even highly solvent defendants should be able to take advantage of bankruptcy because it is a better procedural system for resolving mass tort controversies than multidistrict litigation (MDL). Bankruptcy has tools for delivering closure that MDL lacks, and closure in mass tort litigation creates value. Of course, mass tort defendants have no right to closure, but if the resulting surplus is shared, it can leave defendants and plaintiffs better off. This Article accepts the premise that bankruptcy can be an appropriate vehicle for resolving mass torts so long as it leaves tort victims no worse off than they would have been outside of bankruptcy. But it shows that when there is enough money to go around, tort claimants are unlikely to do better in bankruptcy than in MDL for two reasons. First, contrary to some claims, MDL has proven highly successful at resolving mass tort controversies. Second, if tort claimants are going to share in any surplus created by the move to bankruptcy, they need leverage to bargain for it. MDL enables tort claimants and their lawyers to aggregate on their own terms, while bankruptcy empowers the defendant to impose aggregate resolution unilaterally. As a result, bankruptcy is not an appropriate forum for resolving mass torts when the defendant is not in financial distress.

A genetic genealogy search for a match to a crime scene profile identifies eight relatives, one of whom is almost certain to be the perpetrator. A geofence warrant returns an anonymized list of four cell phones present at a series of bank robberies. A facial-recognition software analysis of a surveillance video generates fifteen persons of interest. By now, these scenarios are commonplace. Equally as commonplace are the two strands of case law and scholarship that have unfurled around them. What is missing, however, is an account of the middle. All too overlooked is a third tapestry, woven from both of these threads. Specifically, technological searches have dramatically increased both the frequency with which law enforcement confronts a closed universe of suspects rather than a single suspicious target, as well as the probability that the true perpetrator of a crime can be found by engaging in invasive technological searches within that closed universe. This Article is the first to identify and define closed universe searches as (1) searches of a small pool of persons connected by happenstance to a crime; (2) one of whom is almost certainly the perpetrator, but the rest of whom are equally certainly innocent; (3) using new technological tools that can identify the perpetrator from within the pool with certainty or near certainty. Applying this new concept, it then considers how Fourth Amendment doctrine has or might resolve closed-universe-search questions—questions like how intrusively police can investigate the suspects in that closed universe; how transparent investigative actions must be; and how accountable police are to rules designed to prevent abuse, misuse, or excess.

For nearly a century, American laws have required mines, oil and gas companies, and other potentially hazardous industries to restore land affected by their activities to a safe condition when they are done with it. These laws represent a grand bargain—they allow operators to make profitable but damaging use of land today in exchange for the promise of expensive remediation tomorrow. However, this bargain has proven hard to enforce. This Article offers the first comprehensive account of this century-old doctrine: the law of environmental repair. In doing so, it documents a regime in crisis and identifies a new systemic risk to environmental repair law: the global transition to renewable energy. The energy transition threatens to destroy the fossil fuel companies liable for environmental repair obligations while simultaneously undermining the legal tools that enforce those companies’ environmental promises. In response to this threat, and to the long-standing failures of environmental repair law, this Article proposes a new model of environmental law, the “environmental earnout.” Environmental earnouts are conceptually simple: They hold back part of the profits from damaging land uses until environmental repair is complete. While simple, environmental earnouts offer a new and sophisticated tool to reshape the fundamental bargain of environmental repair and protect the public from the environmental harm caused by abandoned fossil fuel infrastructure.

The principle of parental involvement is nonpartisan: Red and blue states agree that parents should generally be involved in the lives of their children. Meanwhile, the goal of children’s well-being—which may sometimes be at odds with parental involvement—has become a touchstone for legal reform efforts across a variety of domains. The embrace of both the goals of children’s well-being and parents’ rights to be involved in decision-making regarding their children conceals deeply contested questions about when, why, and how the law should require parental consent of minors’ decisions. Drawing on archival material housed at six different universities, we make sense of present-day conflicts about parental approval by revisiting the long legal history of parental involvement, from early common law cases to struggles of the civil rights era. Building on a rich literature on child well-being, we then use lessons from this history to construct a framework for determining when legislators and judges today should require parental involvement and when minors should be allowed to make their own decisions.

For victims of abuse, safety means hiding. Not just hiding themselves, but also their contact details, their address, their workplace, their roommates, and any other information that could enable their abuser to target them. Yet today, no number of name changes and relocations can prevent data brokers from sharing a victim’s personal information online. Thanks to brokers, abusers can find what they need with a single search, a few clicks, and a few dollars. For many victims, then, the best hope for safety lies in obscurity—that is, making themselves and their information harder to find. This Article exposes privacy law’s complicity in this phenomenon of “brokered abuse.” Today, victims seeking obscurity can ask data brokers to remove their online information.

This Article is the first to scrutinize presidential trade authority under the Constitution. The Constitution grants the President no independent power to regulate foreign commerce. That conclusion, while apparent from a straightforward reading of Articles I and II, stands in stark contrast to executive conduct of U.S. trade policy in recent years. This Article traces the roots of this constitutional distortion to a confluence of doctrinal drift and academic oversight. Courts and commentators have increasingly relied on an expansive conception of executive power grounded in a perceived general foreign affairs authority. In doing so, they have blurred the line between diplomacy and commerce and used this confluence to justify unilateral economic actions by a “trader in chief” that circumvent the Constitution’s allocation of power.

This Article provides the first comprehensive account of the reconstruction of energy tax law that has occurred in the 2020s. In the past, federal energy policy offered carrots and sticks aimed selectively at specific sources of emissions (e.g., power plants) and specific green alternatives (e.g., solar and wind), even as academics urged the use of universal sticks like a carbon tax. But Congress has now charted a new path: performance-based carrots, or tax credits for any zero-emission energy technology (subject to certain politically driven exclusions). The only way to implement universal, performance-based carrots is to estimate the carbon intensity of every subsidy applicant. This is the task of carbon accounting. The Article makes two main arguments about the emergence of carbon accounting inside tax law.

To comply with the colorblind impulses of American antidiscrimination law, computer programmers tend to exclude race as a data input when constructing a machine learning algorithm. Yet scholars and advocates consistently argue that even these formally race-blind algorithms can racially discriminate by relying on so-called “proxies for race,” or variables that have a strong correlation with race, such as zip code, income, or prior criminal arrest. While a programmer wishing to respond to this argument might attempt to remove both race and all racial proxies from input data, their task is complicated by a key dilemma: The definition of a racial proxy is far from obvious. This Article examines the myriad definitions of a racial proxy proffered by courts, scholars, and state and private actors to demonstrate how race and racial assumptions become embedded in the machine learning algorithms that increasingly structure human life.

Commercial activities, like selling a car or serving hot coffee, can generate a risk of loss to which multiple individuals are exposed. When burdens and losses are distributed across multiple stakeholders, when should negligence law tolerate or condemn the risky choice? A famous answer at the center of the first-year curriculum invokes the Hand formula: The failure to avoid a risk is negligent when the sum of the burdens of risk-avoidance is less than the sum of the expected losses. This Article argues that the Hand formula should be applied to multiparty cases by, first, disaggregating burdens and losses and comparing them on a pairwise basis, starting with the individual who bears the highest burden and the one who bears the highest expected loss.

Article II vests the executive power in the President. Yet Congress routinely empowers private plaintiffs, not just the President, to enforce public regulatory laws. Because of this, in almost every area of law—from environmental and antitrust law to civil rights and securities law—the bulk of enforcement occurs through private civil suits rather than government-initiated litigation. Our original historical investigation of “penal statutes”—a category of Founding-Era regulatory legislation that anticipated modern private rights of action—uncovers the deep constitutional foundation of this tradition of private enforcement. We conclude that private enforcement does not violate Article II, except under extremely narrow conditions.

In debates about the future of work, scholars and policymakers often treat economic efficiency and distributive justice as the principal values at stake. In this Article, I argue that neither a transaction cost-centric analysis of employment nor one focused only on distributive justice or equality fully conceptualizes all that is at stake in the institutional design and legal regulation of how we work. Here, I provide the first in-depth theorization of work as a site of relational transaction benefits, with a specific focus on law’s role in shaping them.

Amid the avalanche of recent important administrative law decisions, one case has received almost no scholarly attention: Corner Post, Inc. v. Board of Governors of the Federal Reserve System. In part, Corner Post expands judicial review for claims that an agency regulation violates the authorizing statute or the Constitution by allowing such substantive claims indefinitely. Congress should implement a six-year time bar for administrative procedure claims that accrues at the time of agency action, so that procedural claims would be allowed only for six years following a rulemaking. Otherwise, a court might invalidate a longstanding regulation because of an agency’s years-old violation of procedural requirements, even if the regulation perfectly implements the authorizing statute and is consistent with the Constitution.

The Pregnant Workers Fairness Act entitles many workers to “reasonable accommodations” for pregnancy-related medical conditions—so long as they do not impose an “undue hardship” on their employer. This Article addresses how the chaotic Americans with Disabilities Act doctrine will impact the PWFA’s implementation. The Article proposes a framework for litigants and courts assessing claims under the PWFA.

Scholars’ framing of Section 1983 as a “constitutional tort” and their focus on the qualified immunity doctrine miss the fundamental issue of Section 1983's transformation into a fault-based tort. This Article demonstrates how the judicial rewriting of Section 1983 has undermined its effectiveness and diverged from the Reconstruction Congress’ intent. The Article argues that Section 1983 should be interpreted as a strict liability statutory tort.

Past-due child support debt cannot be forgiven or discharged in bankruptcy. This policy is grounded in the assumption that all child support debt goes to a parent taking care of a child. However, billions of dollars of unpaid child support debt are instead owed to the government. Welfare debt often leads to a cycle of incarceration and criminal fines. This Article argues that for the bankruptcy system to uphold its normative principle of forgiving burdensome debt for the most economically vulnerable individuals, welfare debt must be forgiven.

“Suicide by cop” refers to encounters in which civilians intentionally provoke a lethal response from law enforcement. Police and their advocates have developed suicide by cop into junk science that serves as a broad defense against liability. This Article explores the origins and use of suicide by cop, and argues that police should be required to exercise a higher duty of care to protect people from excessive use of force.

What duties do Americans owe the state? Today, this question seems almost incomprehensible. Compulsions in the common interest are received coolly in our rights-obsessed culture, and the Supreme Court has never announced a framework for identifying the burdens of citizenship. This Article corrects the historical record by documenting how civic duties have developed over time. The evidence reveals that these obligations are constantly in motion; society has constructed, reshaped, and discarded them in decades-long struggles over the meaning of freedom. Put simply, the duties of citizenship are not fixed features of our constitutional order.

Most people agree that the institution of contract serves autonomy—or that it should. But how? Philosophical theories of contract link contract and autonomy by way of an appealing intermediate principle, such as the authority of the individual will, promissory morality, or conventions of agreement. However, each of these theories is focused on the mental and verbal acts surrounding contract and is thus at odds with both contract as a social practice and contract law. The theories fail to account for basic features of modern contracting such as anonymity, mass scale, and market determination of contract terms—facts to which both the common law and statutory regulation have long adjusted. This Article proposes a different approach to contract theory.

This Article employs recent philosophical advances in action theory and moral responsibility to critically examine the traditional purpose-knowledge-recklessness-negligence (PKRN) mens rea hierarchy of the Model Penal Code. It is a foundational assumption of the traditional mens rea hierarchy that the commission of intentional harm ought to be subject to greater criminal liability than actions that foreseeably result in risk of those same harms. The Article critically rethinks the standard mens rea hierarchy and show how we might amend current homicide doctrine (and the PKRN mens rea regime more generally) to allow more criminal liability for non-intentional police homicides like Derek Chauvin’s killing of George Floyd, relative to reluctant purposeful defendants.

Artificial intelligence (AI) systems depend on massive quantities of data, often gathered by “scraping”—the automated extraction of large amounts of data from the internet. A great deal of scraped data contains people’s personal information. Although scraping enables web searching, archiving of records, and meaningful scientific research, scraping for AI can also be objectionable and even harmful to individuals and society. This Article explores the fundamental tension between scraping and privacy law. With the zealous pursuit and astronomical growth of AI, we are in the midst of what we call the “great scrape.” There must now be a great reconciliation.