Arbitration at the Supreme Court: The FAA from RBG to ACB

Justice Ruth Bader Ginsburg left a profound mark on countless areas of law: gender equality, discrimination law, and voting rights, to name just a few. These weighty subjects have rightfully occupied the many scholars and journalists who have analyzed her legacy. These same subjects have animated vigorous conversations around former President Donald Trump’s selection of Justice Amy Coney Barrett—previously of the U.S. Court of Appeals for the Seventh Circuit—to replace her.

Supreme Court Appointments in Presidential Election Years: The Case of John Hessin Clark

When Supreme Court Justice Antonin Scalia died unexpectedly on February 13, 2016, Republicans in the U.S. Senate immediately made clear that they would not consider any nominee proposed by President Barack Obama. Because 2016 was a presidential election year, Majority Leader Mitch McConnell declared within hours of Scalia’s passing: “The American people should have a voice in the selection of their next Supreme Court Justice.”

Ruth Bader Ginsburg: An Appreciation

Ruth Bader Ginsburg was a unique figure in American history: as Chief Justice Roberts put it, she was “a jurist of historic stature.” She was that, of course, but she was so much more. If she had never served on the Supreme Court, Ruth Bader Ginsburg would still have been a person of historic stature. She was a leading legal scholar who wrote major works about procedure, jurisdiction, comparative law, and constitutional law.

“An Outrage Upon Our Feelings”: The Role of Local Governments in Resistance Movements

After the election of 2016, many who opposed President Trump and his policies argued that local governments and local power would be the best tools to resist those policies and strengthen democracy. Among the most prominent acts of local resistance in the last decade have been resolutions that declare a town or a city a “Sanctuary” and refuse to cooperate with federal authorities in the deportation of undocumented immigrants. This Article situates these resolutions in a long tradition of local… Read More

Assumption of Risk in Consumer Contracts and the Distraction of Unconscionability

For years, courts have struggled to determine when to enforce exculpatory clauses that would prevent personal injury victims from availing themselves of tort remedies under the doctrine of express assumption of risk. In the past, when courts declined to enforce these clauses, they did so on the ground that enforcing such a waiver for the activities in question was “against public policy.” Recently, however, many courts have addressed the issue through the contract doctrine of “unconscionability.” This change in focus… Read More

State Energy Cartels

Fracking has made America the center of global oil production and the engine of the world’s economy. But haste makes waste. America’s new oil wells are releasing natural gas as well, which is prized as a clean and reliable fuel around the world but must be simply burned off or “flared” if there are no pipelines to bring it to the customers that need it. The pace of the oil boom and the challenges of building new pipelines have forced… Read More

Firing Employment at Will and Discharging Termination Claims from Employment Discrimination: A Cooperative Federalism Approach to Improve Employment Law

Introduction On the whole, the labor and employment law of the United States is not, in a global comparative sense, very protective of employees and restrictive of employers. United States law does not compare favorably with that of other countries in what generally may be termed “employment protection.” To be fair, the substantive law “on the books” is only one measure of how protective a legal system is, and compliance, coverage, enforcement, and other issues also are important. Nonetheless, U.S.… Read More

Populism and Constitutionalism: An Essay on Definitions and Their Implications

Introduction Around the world governments characterized by observers as populist have taken power. Many of their actions have been incompatible with tenets of modern liberalism. This has generated commentary suggesting that populism is itself incompatible with constitutionalism. This Essay challenges that commentary. We agree that some variants of populism are incompatible with modern liberal constitutionalism but argue that the tension between populism as such and constitutionalism as such, though real, is significantly narrower than much commentary suggests. We begin in… Read More

Deceive, Profit, Repeat: Public Deception Schemes to Conceal Product Dangers

Companies in numerous industries have misled the public by hiding the dangers posed by their products. Sugar manufacturers hid the dangers of high fructose corn syrup and misdirected the public’s attention to fat, causing an epidemic of diabetes, obesity, and heart disease. Opioid manufacturers hid the dangers and addictiveness of opioid painkillers, leading to the opioid crisis. Fossil fuel companies misled the public about the causes, certainty, and effects of global warming, resulting in massive unregulated CO2 emissions and causing… Read More

Environmental Rights for the 21st Century: A Comprehensive Analysis of the Public Trust Doctrine and Rights of Nature Movement

This Article contrasts two theoretically distinct approaches to pursuing related objectives of environmental protection: the public trust doctrine and the rights of nature movement. It reviews the development of public trust and rights of nature principles in both domestic and international legal contexts, and explores points of theoretical commonality and contrast between the two, giving special attention to the opposing systems of environmental ethics from which the anthropocentric public trust and ecocentric rights of nature principles arise. The marked jurisdictional… Read More