Why, in a nation thought pervasively committed to “adversarial legalism,” did mass litigation and, in particular, the class action lawsuit not emerge as significant regulatory tools until at least the 1970s? Standard answers point to New Deal faith in bureaucracy or to an Advisory Committee that was not moved to amend Rule 23 of the…
Apple’s high-profile 2016 fight with the FBI, in which the company challenged a court order commanding it to help unlock the iPhone of one of the San Bernardino terrorists, exemplifies how central the question of regulating government surveillance has become in U.S. politics and law. But scholarly attempts to answer this question have suffered from…
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980 transformed environmental law by imposing joint and several strict liability on those who contaminate the environment, referred to as potentially responsible parties (PRPs). Under the auspices of CERCLA, the U.S. Environmental Protection Agency (EPA) has overseen cleanup at thousands of sites, protecting public health…
As the LGBT rights movement has begun to achieve tangible successes at the national level—in particular, marriage equality and workplace protections—legislatures and courts alike have grappled with how to address those who claim their religious beliefs require them to discriminate. Since Obergefell v. Hodges, this process has gone into overdrive: Both legislative and judicial accommodations…
Women’s right to access abortion remains one of the most hotly contested legal issues in the United States. The current constitutional test states that an abortion regulation is unconstitutional under the Fourteenth Amendment if it imposes an “undue burden” on the right to an abortion. But determining whether a burden is undue confounds legislatures and…
