Commentators have bemoaned the role that petitions and citizen suits play in driving the regulatory agendas of environmental agencies. The argument is that these forms of public participation too frequently distract agencies from the priorities that experts believe should be the focus of regulatory efforts. Using data from the listing of species protected under the U.S. Endangered Species Act, we...
Racial Territoriality
Law treats race as a characteristic of individuals. Applying insights from social science, this Article argues that places can also have a racial identity and meaning based on socially engrained racial biases regarding the people who inhabit, frequent, or are associated with particular places and racialized cultural norms of spatial belonging and exclusion. This racial meaning has consequences...
Seeing Through Colorblindness: Implicit Bias and the Law
Once upon a time, the central civil rights questions were indisputably normative. What did “equal justice under law” require? Did it, for example, permit segregation, or was separate never equal? This is no longer the case. Today, the central civil rights questions of our time turn also on the underlying empirics. In a post–civil rights era, in what some people exuberantly embrace as post-racial...
Shooting the Messenger: How Enforcement of FLSA and ERISA Is Thwarted by Courts' Interpretations of the Statutes' Antiretaliation and Remedies Provisions
Two pillars of employment law—the Fair Labor Standards Act (FLSA) and the Employee Retirement Income Security Act (ERISA)—rely on employee complaints to detect and cure violations by employers. However, enforcement of these statutes is undermined by three circuit splits that place employees with personnel duties in an unenviable position: While their job duties require them to report FLSA and...
Revolution in Progress: Third-Party Funding of American Litigation
There is a growing phenomenon of for-profit investment in U.S. litigation. In a modern twist on the contingency fee, third-party lenders finance all or part of a plaintiff’s legal fees in exchange for a share of any judgment or settlement in the plaintiff’s favor. There are a number of international corporations, both public and private, that invest exclusively in this new “market.” Critics...
Originalism and the IP Clause: A Commentary on Professor Oliar's "New Reading"
In his New Reading article, Professor Oliar set forth a detailed and, in many respects, plausible reconstruction of the Framers’ intent when drafting the Intellectual Property (IP) Clause. But it is a reconstruction predicated on conjecture and supposition in the absence of any historical record actually setting forth such intent. He contends that the Framers’ intent is important because it has...
The Welfarist Approach to Human Rights Treaties: A Critique
This Essay provides analysis and some criticism of the argument that international human rights treaties should focus more on development and welfare and less on basic negative rights. It argues that “welfarist” treaties that completely ignore human rights concerns will in theory harm heterogeneous societies with significant minority populations. In focusing only on development goals—for example...
Property and Transitional Justice
Transitional justice is the study of the mechanisms employed by communities, states, and the international community to promote social reconstruction by addressing the legacy of systematic human rights abuses and authoritarianism. The transitional justice literature discussing how states can address past civil and political rights violations through truth commissions and international and...