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Local Rulemaking
No full textAny case heard in a United States federal court must adhere to a set of rules—or rather, a few different sets of rules. Regardless of the subject matter of the suit, the parties (and the judge) must follow the relevant Federal Rules. But that is not all. Parties bringing the case must also comply with local rules—those important rules that govern litigation in the space between and around the Federal Rules. These district- and circuit-specific rules govern highly consequential aspects of federal litigation, such as how cases will be assigned to judges, how those cases will then be managed, and whether final decisions will be public and precedential. One would think, as with the Federal Rules, that the process by which such rules are made is well studied. Yet little is known about the process of making local rules, even by the judiciary itself.
This Article is a comprehensive study of local rulemaking in federal district and appellate courts. It includes a first-of-its-kind empirical examination of the rulemaking structure of all ninety-four district and thirteen circuit courts. And it synthesizes qualitative data derived from interviews of fifty rulemakers, including judges, attorneys, and clerks of court. This thick description permits analysis of how local rulemaking processes vary from court to court and vary from the well-studied federal rulemaking process.
Putting this information together also permits a more normative and prescriptive analysis. We focus on the values that both Congress and the federal rulemakers have identified in rulemaking: procedural regularity, transparency, public participation, and information sharing. We show where local rulemaking falls short on these dimensions, and we conclude by offering ways to address such shortcomings—ways that reflect the dynamic system of national, local, and individual judge rulemaking that we document throughout. Ultimately, we hope to improve the process by which local rules are made, and, with it, the rules governing litigation going forward
What Can Legal Knowledge Do for Access to Justice?
No full textWorker misclassification is one of the most pervasive and harmful civil justice problems in the U.S. The inaccurate and illegal categorization of workers as independent contractors costs U.S. workers billions of dollars annually in overtime pay and health benefits—a problem that has become even more pervasive with the expansion of the gig economy.
Yet, worker misclassification is only one dimension of the broader “access to justice crisis” in the United States—the unsolved legal problems and unmet legal needs that touch most people’s lives and livelihoods at many points, but especially impact low-income people and people of color. These legal issues range from consumer overbilling and insurance disputes to unsafe housing conditions and benefits denials. And just like worker misclassification, the onus for redress of these problems usually falls to the people experiencing them. For decades, legal scholars assumed that the main cause of the access to justice crisis was a deficit of affordable lawyers. In more recent years, that hypothesis has been disproven, and a chief barrier turns out to be the simple fact that people do not think about most common legal problems as “legal” in nature. The next step, then, can seem obvious: raise legal awareness. Indeed, “know-your-rights” campaigns and legal self-help tools are predicated on the assumption that knowledge leads to power. But is legal knowledge enough to spur legal action?
To test this crucial question, we leverage an original, nationally representative dataset of over three thousand people living in the U.S. We use the context of worker misclassification to experimentally test how legal knowledge shapes the actions that people say they would take to solve a problem. We find that although legal knowledge increases legal action, its effects are limited: Even when they knew they had been treated illegally, only one in four respondents would consider pursuing legal help.
Yet legal knowledge also catalyzes problem-solving in an unexpected way: It empowers people to consider more varied solutions to their own misclassification. Specifically, legal knowledge reduces two key cognitive and affective barriers to action: self-blame and futility. We explain these findings’ implications for ending worker misclassification and helping solve the access to justice crisis
Banking on Jarkesy
No full textThe 150-year-old bank regulatory system is under threat. Following the Supreme Court’s landmark decision in Jarkesy, bankers have filed numerous lawsuits challenging the ability of the federal bank regulatory agencies to adjudicate cases in non-Article III tribunals. But unlike the agencies tasked with enforcing the securities, antitrust, and consumer protection laws, the banking regulators lack statutory authority to file cases in federal court. A decision invalidating their in-house adjudicative authority strips of them of any forum in which to file enforcement actions.
This essay argues that these lawsuits should fail. Because the Seventh Amendment jury trial right exempts “public rights,” it is inapplicable to the banking regulators’ enforcement actions that protect the services that the banking agencies themselves provide. In other words, Congress has required that the banking agencies establish numerous benefits that banks may elect to receive. And when banks fail to keep up their end of the bargain, Congress allows the agencies to adjudicate their violation in-house
Supervising the Omnipresent Casino: Evaluating the Role of State and Local Regulation in Stemming Youth Addiction to Sports Gambling
No full textSince 2018, state legalization of sports betting and the industry’s corresponding proliferation has driven an epidemic of youth addiction. Current state legislation and regulations do little to combat youth addiction. Many legal scholars emphasize the value that a federal regulatory regime would provide to reign in youth sports betting. This Note explores the value that state and local government can have in the sports gambling space. To illustrate the unique importance of state and local legislation and regulation of sports betting, this Note analogizes to another addictive product with a history of youth addiction: nicotine.
Nicotine has been a regulatory target of states and localities for decades. By investigating the analogous histories of the nicotine and sports betting industries, this Note highlights three main advantages to allowing states and localities to regulate an addictive product: speed, proximity to constituents, and the ability to experiment with policy innovation. At bottom, this Note asserts that regardless of the prospect of federal sports betting legislation, state and local governments must remain empowered to legislate and regulate sports betting
The Corpus Juris of (Alaska Native) Inherent Tribal Sovereignty
No full textThe inherent Tribal sovereignty of Native nations predates the formation of the United States and is reflected in the constitutional vision of tripartite sovereignty. Yet their sovereignty is oft diminished explicitly by federal law or implicitly by federal courts. This implicit divestiture is often the result of the federal judiciary’s inconsistent interpretations of Indigenous Peoples law. This Article argues that a more principled and coherent approach for federal judges would be to consistently make use of the corpus juris, or whole body of law, including the in pari materia or affiliated statutes canon. The Article posits that the corpus juris of inherent Tribal sovereignty requires understanding whether any federal laws have explicitly abrogated or diminished a specific Native nation’s rights to traditional self-governance and understanding traditional Tribal law. The corpus juris inherent Tribal sovereignty approach illustrates how, where the Supreme Court has utilized the in pari materia canon, the consistency and coherence of Indigenous Peoples law increases. Through an analysis of select cases, involving Native nation traditional land and ways of life, I illustrate how Alaska Native nations have been particularly impacted by the explicit and implicit diminishment of traditional ways of life. However, through traditionally informed governance systems, Alaska Native nations continue to assert their inherent Tribal sovereignty, especially when faced with Alaska’s “sole state sovereignty” arguments in federal courts. The Article utilizes the corpus juris of inherent Tribal sovereignty argument and the constitutional vision of tripartite sovereignty to illustrate how the State of Alaska’s “sole state sovereignty” arguments must fail when utilizing this more coherent approach
Environmental Law’s Missing Piece: The Right to Nature
No full textFor decades, environmental law has been trapped in a binary value system: it either treats nature instrumentally, as property to be used for human benefit, or views it as intrinsically valuable, deserving protection for its own sake. Both approaches, though ethically powerful, have struggled to deliver consistent and enforceable protections. As ecological crises deepen, this conceptual stalemate is no longer just inadequate—it is dangerous.
This article argues that environmental law remains structurally incomplete. It has overlooked a third category of value—relational value—long recognized in ethics and conservation science but largely absent from legal doctrine. Relational values arise from the lived, identity-shaping relationships people form with land, species, and ecosystems—bonds of belonging, care, and interdependence that are essential to both human flourishing and ecological resilience.
By ignoring these values, the law has failed to account for the most immediate and meaningful ways people experience and respond to environmental harm. This article introduces the Right to Nature—a legal framework that embeds these relationships into existing legal systems. By grounding environmental protection in the interdependence of people and place, this approach offers a coherent, enforceable, and normatively compelling foundation for environmental governance—one that reflects how people actually live with, depend on, and care for the natural world
