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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...

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...

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...

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...

State invocations of God are common in the United States; indeed, the national motto is “In God We Trust.” Yet the Establishment Clause forbids the state from favoring some religions over others. Nonetheless, courts have found the national motto and other examples of what is termed ceremonial deism constitutional on the ground that the practices are longstanding, have de minimis and nonsectarian...

The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), a federal statute enacted to safeguard religious freedoms from governmental interference, has been broadly and forcefully condemned by academics. In the decade since RLUIPA was passed, scholars have repeatedly denounced the statute as a tool that religious individuals and organizations may use to thwart municipal zoning...

Even though most scholars and judges treat intellectual property law as a predominantly content-neutral phenomenon, trademark law contains a statutory provision, section 2(a), that provides for the cancellation of marks that are “disparaging,” “immoral,” or “scandalous.” This provision has raised intrinsically powerful constitutional concerns, which invariably affect two central metaphors that...

Computer scientists have recently undermined our faith in the privacy-protecting power of anonymization, the name for techniques that protect the privacy of individuals in large databases by deleting information like names and social security numbers. These scientists have demonstrated that they can often “reidentify” or “deanonymize” individuals hidden in anonymized data with astonishing ease...

Regulatory takings plaintiffs will increasingly litigate their cases in state court after San Remo Hotel v. City of San Francisco. Previous U.S. Supreme Court precedent held that in order to ripen federal constitutional takings claims, plaintiffs had to first request just compensation from state courts. In San Remo Hotel, the Court held that the federal courts would not make an exception to the...

This Article proposes a fundamental shift in the movement to reform employment termination law. For forty years, there has been a near consensus among employee advocates and worklaw scholars that the current doctrine of employment at will should be abandoned in favor of a rule requiring just cause for termination. This Article contends that such calls are misguided, not—as defenders of the...

This Article posits that the Supreme Court’s decision in Ricci v. DeStefano does not evaluate all claims of discrimination on a level playing field but rather “whitens” discrimination and “races” test fairness. The authors explicate how Ricci whitens discrimination by reframing antidiscrimination law’s presumptions and burdens to focus on disparate treatment of whites as the paradigmatic and...

In the vivid imagination of Delaware courts, the shareholder franchise is “the ideological underpinning” upon which corporate power rests. A corporate election to choose who should lead the firm is corporate democracy at work since such elections give shareholders the power “to turn the board out.” However, in reality, the vast majority of corporate elections are ho-hum affairs. The current board...