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...
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...
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...
The Death of Twentieth-Century Authority
The case of Bush v. Gore stands out as the seminal decision that decided the disputed presidential election of 2000. For legal researchers, it was a herald of a different sort. With the citation in the per curiam opinion to an online newspaper article, Bush v. Gore fired the first salvo in the death of twentieth-century authority. While courts in the past relied on a select group of print...
Multijurisdictionality and Federalism: Assessing San Remo Hotel’s Effect on Regulatory Takings
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...
Broken Promises of Privacy: Responding to the Surprising Failure of Anonymization
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...