Volume 69, Number 2
(March 2016)
Redundant Public-Private Enforcement
Mar. 21, 2016—Redundant Public-Private Enforcement ABSTRACT Redundancy is a four-letter word. According to courts and scholars, redundant litigation is costly, unfair, and confounding. Modern civil procedure has a (nearly) maximalist preference for centralization, and various rules seek to limit duplicative suits within and across court systems. This seemingly dominant view stands in marked contrast to the reality...
The Rise and Fall of Plausibility Pleading?
Mar. 21, 2016—Rise and Fall of Plausability Pleading? ABSTRACT The Supreme Court’s 2007 decision in Bell Atlantic Corp. v. Twombly and its 2009 decision in Ashcroft v. Iqbal unleashed a torrent of scholarly reaction. Commentators charged these decisions with adopting a new pleading regime, “plausibility pleading,” that upended the notice-pleading approach that had long prevailed in federal...
Regulation of Emerging Risks
Mar. 21, 2016—Regulation of Emerging Risks ABSTRACT Why has the EPA not regulated fracking? Why has the FDA not regulated e-cigarettes? Why has NHTSA not regulated autonomous vehicles? This Article argues that administrative agencies predictably fail to regulate emerging risks when the political environment for regulation is favorable. The cause is a combination of administrative law and interest group politics. Agencies must...
The Management of Staff by Federal Court of Appeals Judges
Mar. 21, 2016—The Management of Staff by Federal Court of Appeals Judges ABSTRACT Federal court of appeals judges have staffs consisting usually of a secretary and four law clerks; some judges have externs as well (law students working part time without pay). These staffs are essential, given judicial workloads and judges’ limitations. Yet not much is known about how the...
Human Trafficking in Multinational Supply Chains: A Corporate Director’s Fiduciary Duty to Monitor and Eliminate Human Trafficking Violations
Mar. 21, 2016—Human Trafficking in Multinational Supply Chains: A Corporate Director’s Fiduciary Duty to Monitor and Eliminate Human Trafficking ABSTRACT When Congress passed the Trafficking Victims Protection Reauthorization Act of 2008 (“2008 TVPRA”), it included language criminalizing and creating civil liability for any person who “knowingly benefits, financially or by receiving anything of value, from participation in...
No Clean Hands in a Dirty Business: Firing Squads and the Euphemism of “Evolving Standards of Decency”
Mar. 21, 2016—No Clean Hands in a Dirty Business: Firing Squads and the Euphemism of “Evolving Standards of Decency” ABSTRACT When it comes to executions, “the enterprise is flawed.” While this statement from Judge Kozinski was chiefly concerned with the problems of lethal injection, it applies with equal force to America’s development of execution methods in general....