“Split My Award with Whom?” A Case for Plaintiff Incentive Awards and Plaintiff-Attorney Fee Splitting in Class Action Lawsuits

Named plaintiffs are the heart of class action lawsuits—without them, there is no class action. To motivate these individuals to be the face of the class and compensate them for their role in the litigation process, courts typically approve named plaintiff incentive awards when such awards are included in settlement offers. Recently, however, the Eleventh Circuit held that these awards are prohibited under purported Supreme Court precedent from the late 1800s. This decision undermines the future of class actions by… Read More

Two Forms of Formalism in Contract Law

Formalism in contract interpretation has had many defenders and many critics. What lawmakers need, however, is an account of when formalism works and when it does not. This Article addresses that need by providing a general theory of contract exposition and differentiating between two forms of formalism in contract law. Formalities effect legal change by virtue of their form alone, thereby obviating interpretation. Examples include “as is,” the seal, and sometimes contract boilerplate. Evidentiary formalism, in distinction, limits the evidence… Read More

A One-Egg Wonder: Working to Cure Judicial Gender Bias and Increase Access to Pre-Embryos for Infertile Parties

The first live birth of a child conceived from in vitro fertilization (“IVF”) happened in 1978. Today, over eight million children have been born through IVF procedures. The first dispute over the resulting pre-embryos was in 1990 when the Tennessee Supreme Court outlined a balancing approach with a presumption favoring non-use of the pre-embryos for courts to follow when resolving these matters. Numerous states have taken differing approaches—some have taken a contractual approach, others an approach requiring contemporaneous mutual consent… Read More

A Distinct System for Presidential Succession on Inauguration Day: Getting the Most Out of Section 3 of the Twentieth Amendment

The current presidential-succession statute uses the same line of succession for every conceivable situation. But there are many different types of potential succession scenarios. Succession need not—and should not—be governed by a one-size-fits-all approach. Before the Twentieth Amendment was ratified in 1933, the Constitution authorized Congress to provide only for double vacancies during the term, when there already is a President and Vice President. Recognizing this gap, Section 3 of the Twentieth Amendment empowered Congress to cover inauguration-day double vacancies:… Read More

Human Capital Disclosure & Corporate Governance: The New Evidence

This Article explores the evolution of human capital disclosure—firm-supplied information about various workforce-related matters—as a factor in contemporary corporate governance. Regulatory and nonregulatory developments from recent years have upended longstanding practices and generated extensive new evidence. Most notably, the Securities and Exchange Commission (SEC) adopted a human capital management (“HCM”) disclosure mandate in 2020, which, though long overdue, was criticized from the outset for its modest scope and lax design. In the meantime, courts have taken a renewed interest in… Read More

Predetermined Event Wagering and Betting on the Past

The newfound freedom of states to legalize sports betting following the demise of the Professional and Amateur Sports Protection Act in 2018 has led to rapid growth of the sports betting market. In an attempt to further capitalize on the appetite for sports wagering, states and sportsbooks have recently started to expand their offerings by opening betting lines on entertainment award shows. This move, paired with WWE’s recent interest in entering the market, has raised concerns that predetermined events are… Read More

Dignifying Queerness

In recent years, courts that have affirmed the right of lesbian, gay, bisexual, and transgender (LGBT) people to engage in same-sex activity have often invoked the value of dignity. They have done so in spite of the fact that same-sex activity, and many other kinds of sex, have historically been deemed undignified and subject to criminal prohibition. This Article examines a rapidly growing body of comparative jurisprudence to examine how dignity has become an unlikely cornerstone of efforts to decriminalize… Read More

A Missed Opportunity: Clarifying Presidential Power Under the Procurement Act

In late 2021, President Biden relied on the Procurement Act to sign an Executive Order effectively requiring every employee of any private company that contracts with the federal government to be fully vaccinated for COVID-19. While the mandate was ultimately rescinded less than two years later, it produced four inconsistent federal circuit court opinions that together expose the problems with existing judicial frameworks for analyzing executive authority under the Procurement Act. This Note explores the growth of the federal procurement… Read More

Privacy Law’s Role in an Information Economy

What do we lose when we lose our privacy? A slew of recently enacted state laws suggest that the loss of privacy is merely a loss of individual choice in the market exchange of services for personal information. This Article argues that a loss of privacy risks something greater: the collapse of complex and fluid social identity. Without privacy, individuals cannot nurture their own senses of self because they are no longer free to try on different social roles across… Read More

Anyone You Are Related to Can Be Used Against You: Criminal Discovery Statutes and Investigative Genetic Genealogy

The use of investigative genetic genealogy (“IGG”) as a basis for arresting suspects in complex and dormant investigations is raising serious concerns about whether the due process rights of criminal defendants in these cases are being violated. This Note provides a comprehensive look at the role of this groundbreaking, yet little-understood technology in criminal prosecutions. Technological advances have historically necessitated that courts expand and reinterpret legal principles. As a novel derivative of traditional DNA testing, this Note argues IGG should… Read More