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Litigation, Reform, and the Opioid Crisis: From MDL to Bankruptcy
No full textCan bankruptcy solve a public health crisis? Bankruptcy has taken center stage in complex civil litigation, and the massive opioid litigation is no exception. The U.S. Supreme Court in 2024 decided its first recent case about the intersection of bankruptcy and modern public harms litigation in Harrington v. Purdue Pharma L.P., a decision that brought to the fore pressing questions about the increasing use of bankruptcy in mass torts. In raising concerns about bankruptcy courts being used as a "roving commission to solve all such problems" in complex civil litigation," the case potentially signals the Court's growing discomfort with creative uses of bankruptcy as an off-ramp to public harms litigation in the name of settlement. The significance of these developments is not limited to Purdue or even to the opioid litigation. From Purdue to other opioid manufacturers like Mallinckrodt to the Boy Scouts of America, the Catholic Church, and Revlon, we are seeing a surprising number of defendants in cases involving all kinds of public harm claiming they need to file for bankruptcy, even without being in financial distress, as an answer to the demands put on them by the mass tort system. Turning toward such "unorthodox civil procedure" is nothing new. Even before the Purdue bankruptcy, the massive federal opioid consolidated litigation itself--the "multidistrict litigation" ("MDL")--was a prime example of procedural unorthodoxy, as was the parallel New York State opioid trial that is the subject of this symposium. The question now is whether bankruptcy has more to offer the parties than these other forms of creative and complex aggregate litigation and, if so, what might be lost from increasingly unorthodox deviations from the traditional litigation model
After Courts: Democratizing Statutory Law
No full textIn Federalist No. 78, Alexander Hamilton argued for locating interpretive authority over law separately from those institutions tasked with formulating it. Hamilton’s vision, never accurate as a description of American practice, has not been credible for a long time. To the extent enormous power is still allocated to judges, our legal institutions have been out of step with our legal theory, which has long regarded them as political actors and policymakers. More practically, every term it is clearer and clearer that the role of the Supreme Court in statutory cases (including checking administrative rulemaking and other processes) is, if anything, more menacing than its role in the rare instances when it deploys its heaviest weaponry of constitutional invalidation. Against progressive calls to reclaim the judiciary, this Article extends our proposal to disempower courts exercising lawmaking authority—to include when they are interpreting statutes alone. Indeed, the same considerations that counsel the constitutional disempowerment of courts counsel their statutory disempowerment, and the allocation or reallocation of their authority over law to politically accountable agents. The heart of our Article offers a survey of court disempowerment strategies and tools, which are comparable to, though not identical with, the disempowerment mechanisms that have been proposed in the arena of constitutional reform. Such strategies and tools are appealing in the short term; but the long term requires a fuller rethinking of our institutions of legal interpretation. Available and existing disempowerment strategies for courts are best conceived as early and partial versions of full-scale allocation of interpretive authority over law to “political” branches and openly political control
Common-Sense Constitutionalism and Abolition in the Early American Republic
No full textVol. 36:1In this article, I develop a theory of common-sense constitutionalism that contrasts with both “common good constitutionalism” and public meaning originalism. Unlike those theories of constitutional interpretation, common-sense constitutionalism takes seriously the people’s right to self-governance (contra common good constitutionalism) and the importance of their historical engagement with constitutional law (contra originalism). This theory of early constitutional meaning, moreover, is historically discrete: a product of the conditions and premises of the late eighteenth century, and thus not descriptive of constitutional law or interpretation today.
As scholars of popular constitutionalism have shown, early American constitutional law did not derive from constitutional text or judicial mandate alone. Instead, it emerged from competing sources of fundamental law, including natural law, common law, and popular custom. The substance of these authorities depended on the interpretations of a broader public, and the people’s interpretive powers came from their “common sense”—a prerational capacity that everyone shared, and that served as the basis for collective deliberation in the public sphere. As a result, early American common sense shaped the key constitutional debates of the period, including revolution, ratification, and abolition—a central constitutional question once the frame of reference expands beyond the writings of a handful of elite Americans.
This article reviews the role of common sense in each of these contests before exploring two prominent forms of common-sense constitutionalism in early abolitionist practice. Freedom suits and antislavery petitions, I argue, demonstrate that a diverse array of early Americans engaged in constitutional interpretation at the state as much as the federal level, before legislative and executive bodies as much as judicial ones, and amongst themselves as much as their representatives. While the perspectives of these participants are typically elided in constitutional histories, they indicate that constitutional meaning was continually contested and ultimately indeterminate in the early republican period. Similarly, no one authority or interpretive methodology needs govern constitutional law today: the fact of dissension in the past should instead inspire continued debate in the present
It’s Not What You Do, It’s the Way that You Do It: Increasing Women’s Presence at the Supreme Court
No full textVol. 36:2Despite occasional arguments that women deserved judicial representation, no woman sat on the nation’s highest court until 1981, and they are only now nearing parity on the bench. While women’s presence on the Court is symbolically important and substantively meaningful in its own right, research also suggests it should create more opportunities for women to work within the broader Court system as clerks and advocates. We examine the composition of the clerk and advocacy corps between the 1984 and 2018 terms to see if that is true. Our results suggest it is. We find that more women get named to coveted clerkships as more women join the Court, and more women are leading briefs and appearing as oral advocates than they did as the past, especially in the Office of the Solicitor General. Our results suggest diversity at the top of the Court creates opportunities to work inside and appeal to it, which can have lasting consequences for the broader legal profession and, ultimately, the judiciary itself
Universal Injunctions on Appeal
No full textVol. 36:2In Trump v. CASA, the Supreme Court held that district courts do not have the authority to issue “universal” injunctions that protect nonparties. While the Court put an end to this controversial practice, it did not eliminate the need for interim relief when the executive branch engages in legally questionable action with broad impact. These concerns are especially acute in light of President Trump’s barrage of executive orders in the first few months of his second administration and the dozens of legal challenges that have been filed in response. Going forward, courts will need to grapple with whether and how to provide preliminary relief to thousands or millions of affected people while the legality of executive action is being litigated.
Importantly, the Court’s holding did not affect the availability of several alternative forms of preliminary mass relief. District judges may still issue injunctions that incidentally protect nonparties, as long as the remedies are necessary to provide complete relief to named parties. The Court left open the possibility that organizations may use associational standing to seek injunctive relief on behalf of their members. Challengers raising similar factual and legal claims may file class actions, and courts may provide temporary injunctive relief prior to certification. The Court disclaimed that its holding would have any effect on universal remedies in cases challenging agency action under the Administrative Procedure Act. Finally, in some instances it may be infeasible for the government to provide different treatment to protected and unprotected parties, so even a limited injunction could effectively force the executive to temporarily suspend enforcement.
Given these alternatives, it remains to be seen how much Trump v. CASA will limit the availability of mass relief, and also how it will affect some of the problems associated with universal injunctions. Litigants challenging federal policies often engaged in judge-shopping, filing petitions for universal injunctions in single-judge districts so that they could draw a sympathetic district judge. Because denials were only preclusive as to the specific petitioner, different litigants could also file petitions in multiple districts to enjoin the same policy, giving them “multiple bites at the apple.
Law-Following AI: Designing AI Agents to Obey Human Laws
No full textArtificial intelligence (AI) companies are working to develop a new type of actor: "AI agents," which we define as AI systems that can perform computer-based tasks as competently as human experts. Expert-level AI agents will likely create enormous economic value but also pose significant risks. Humans use computers to commit crimes, torts, and other violations of the law. As AI agents progress, therefore, they will be increasingly capable of performing actions that would be illegal if performed by humans. Such lawless AI agents could pose a severe risk to human life, liberty, and the rule of law. Designing public policy for AI agents is one of society's most important tasks. With this goal in mind, we argue for a simple claim: in high-stakes deployment settings, such as government, AI agents should be designed to rigorously comply with a broad set of legal requirements, such as core parts of constitutional and criminal law. In other words, AI agents should be loyal to their principals, but only within the bounds of the law: they should be designed to refuse to take illegal actions in the service of their principals. We call such AI agents "Law-Following AIs" (LFAI). The idea of encoding legal constraints into computer systems has a respectable provenance in legal scholarship. But much of the existing scholarship relies on outdated assumptions about the (in)ability of AI systems to reason about and comply with open-textured, natural-language laws. Thus, legal scholars have tended to imagine a process of "hard-coding" a small number of specific legal constraints into AI systems by translating legal texts into formal machine-readable computer code. Existing frontier AI systems, however, are already competent at reading, understanding, and reasoning about natural-language texts, including laws. This development opens new possibilities for their governance. Based on these technical developments, we propose aligning AI systems to a broad suite of existing laws as part of their assimilation into the human legal order. This would require directly imposing legal duties on AI agents. While this would be a significant change to legal ontology, it is both consonant with past evolutions (such as the invention of corporate personhood) and consistent with the emerging safety practices of several leading AI companies. This Article aims to catalyze a field of technical, legal, and policy research to develop the idea of law-following AI more fully. It also aims to flesh out LFAI's implementation so that our society can ensure that widespread adoption of AI agents does not pose an undue risk to human life, liberty, and the rule of law. Our account and defense of law-following AI is only a first step and leaves many important questions unanswered. But if the advent of AI agents is anywhere near as important as the AI industry supposes, then law-following AI may be one of the most neglected and urgent topics in law today, especially in light of increasing governmental adoption of AI
Administrative Law as a Choice of Business Strategy: Comparing the Industries Who Have Routinely Sued Their Regulators with the Industries Who Rarely Have
No full textFor some large and powerful industries, it has long been normal and even routine for businesses to sue their federal regulator. For other large and powerful industries, it has been rare for the last twenty-five to forty years or more. This variation is enormous yet almost entirely unknown to the literature on administrative law. This Article documents and analyzes this variation in one type of federal regulation: public health and safety. For every major federal health-and-safety regulator, I search dockets to identify every judicial challenge to the agency’s actions brought by the agency’s principal regulated industry—whether by individual companies therein or by trade associations—during the period from 2013 to 2021 and, for several of the agency-industry pairings, for additional time periods extending as far back as the 1980s and as recent as 2024. The pairings covered are the following: the Food Safety and Inspection Service at the U.S. Department of Agriculture and meat and poultry processors; the Food and Drug Administration and drugmakers; the National Highway Traffic Safety Administration and automakers; the Federal Aviation Administration and airlines; the Consumer Product Safety Commission and children’s product companies; the Nuclear Regulatory Commission and nuclear plant operators; the Occupational Safety and Health Administration and employers generally; the Mine Safety and Health Administration and coal mines; the Environmental Protection Agency and power companies; the Federal Motor Carrier Safety Administration and for-hire trucking companies; and the Centers for Medicare and Medicaid Services and hospitals and nursing homes. For each pairing, I use the data on judicial challenges as the starting point for a qualitative discussion of how big or small a role litigation plays in agency-industry interaction. I find that industry judicial challenges tend to be few and marginal when two conditions are met. The first condition is that companies in the industry have a thick relationship with the regulator—that is, each company knows the regulator will be making repeat decisions impacting its business into the indefinite future, so each company has a stake in winning the agency’s trust and goodwill. The second condition is that, with regard to the agency action at issue, industry economic interests are aligned with the mission of the regulator. This is especially the case for agency action that has the official purpose of protecting the health and safety of the industry’s own consumers, as opposed to protecting industry workers or victims of externalities of industry conduct. In protection of consumer health and safety, the industry and the regulator are more likely to view each other as on the “same team,†and industry tends to (1) see the regulator as a source of credible guarantees that help attract business, (2) fear the “bad look†with consumers that conflict with the regulator could cause, and (3) seek influence and leverage over the agency by less open and adversary means than litigation
Structural Indeterminacy and the Separation of Powers
No full textDespite ongoing disagreement about how the Constitution allocates powers among the different branches, the two dominant schools of thought in American separation-of-powers debates—formalism and functionalism—agree on three premises: Certain powers inhere in certain government branches, some powers are vested exclusively in one or another branch, and the judiciary is the final arbiter of separation-of-powers disputes. Disagreement is largely about how powers should be parsed and which should be shared. Yet over the long lifespan of our constitutional tradition, momentous doctrinal upheavals are relatively commonplace. This Article describes four tectonic shifts in separation-of-powers doctrine: Founding-era debates about how to define and blend powers, nineteenth-century debates about the constitutionality of the nascent civil service, Lochner-era debates about legislatures’ authority to define and regulate public utilities, and mid-nineteenth-century debates about the sources of international law. The first, which we call the Inherency Theory, assumes that certain powers and functions are vested by force of the Constitution, are core to a single branch, and are discernible by the judiciary. This is a taxonomical theory of how the Constitution allocates powers, and it animates nearly all of today’s separation-of-powers debates. The second, an Antidomination Theory, denies that the words executive, legislative, and judicial imply any new or distinct powers and instead creates formal separation between the three branches based on the procedures federal actors deploy to enact, enforce, and interpret policy. The third, a rights-based Public Utility Theory, distinguishes between a public sphere that is subject to congressional, presidential, and administrative control, and a private sphere that is not. Recently, this public-private distinction has been marshalled to define the judicial power. Historically, however, it was used to deduce a whole panoply of structural limits, including the constitutionality of agency adjudication and deference. And the fourth, a General Law approach, discerns the limits of government power by reference to the eclectic authority of the common law and right reason. Recovering these theories reveals a rich set of tools for resolving interdepartmental disputes, highlights that current receptions of past settlements are nearly unintelligible without understanding the theoretical context in which they emerged, and suggests that, while different theories have risen and fallen, no one theory of separation of powers has been liquidated in our constitutional tradition
Super-Canons
No full textEspecially since 2017, the Roberts Court has been imposing a new
regime onto American public law. The new regime is paring back the authority
of expert agencies to implement their delegated responsibilities, reducing the
power of Congress to make long-term delegations while enhancing the power of
the states and the President (and the U.S. Supreme Court itself), protecting and
encouraging expression of religious values in public and commercial fora,
limiting women’s rights to reproductive choice, and reducing the capacity of
state and private institutions to inculcate diversity and inclusion.
This Article maintains that the new regime is not entirely driven by
constitutional and statutory precedents, nor even by a neutral reading of legal
texts and original public meaning. Relevant legal materials are filtered through
political philosophies valued by the majority Justices. Inspired by Friedrich von
Hayek, Edmund Burke, and Patrick Henry, the Roberts Court’s ideal America
is not an administrative state dictating enlightened plans for a structured
market economy, a woke pluralism, and a society of rights-entitled citizens. The
majority is moved by a vision that starts with our historically situated
American culture and traditions, the dynamics of which are dominated not by
collective reason and scientific expertise but by the spontaneous play of
innumerable minds within a matrix of moral values, beliefs, and customs.
This Article applies that suite of closely related political philosophies to
understand the Court’s big regime-changing decisions, which have been widely
criticized as lacking support in standard legal sources (text, structure,
precedent). The Justices have tried to bridge the gap by translating the political
philosophies into novel or supercharged clear statement rules and by reading
statutory and constitutional texts through the lens of “Super-Canons†reflecting
the political philosophies. This is a breathtaking constitutional revolution
seeking to remake America in light of a vision that is revolutionary.
Can the Roberts Court’s vision and doctrinal regime change be
defended? The political philosophies reflected in the Super-Canons are strongly
related to the “Old Whig†tradition important to the Founding Era of American
constitutional history. And it is a vision that half the country seems to accept—
but half the country does not. Also, the Super-Canons represent a challenge to
the ability of the United States, and the world community, to confront several
existential challenges facing us in the next thirty years. In a final irony, the
Court’s recent presidential-powers jurisprudence is at war with the philosophies
of the Super-Canons and with the rule of law itself
The Public Law of Public Utilities
No full textVol. 42:179This Article describes the constitutional history of public utility regulation to
make sense of apparent puzzles and inconsistencies in modern administrative
law. In chronicling this history, we first show that utilities’ special constitutional
right to challenge regulations on substantive-due-process grounds
is based on a public-private distinction that courts have otherwise rejected.
Second, we argue that modern efforts to invoke Article III to restrict agency
adjudication do not reflect a consistent understanding of the public-private
distinction, but instead revive the distinction in some contexts (adjudication)
but not others (rulemaking). Third, we provide a new framework for understanding
the Supreme Court’s turn to structural arguments to check administrative
agencies. On the last point: for nearly five decades prior to 1935,
courts used rights-based arguments, not structural ones such as the nondelegation
doctrine, to deduce the scope and content of the legislative, executive,
and judicial powers. Once the Supreme Court abandoned its freedom-ofcontract
jurisprudence, it was a public utility case that breathed new life into
the nondelegation doctrine. Public utilities were a natural battle ground for
reshaping the public law of administration. Like today, private rights, delegation,
and agency adjudication were all central preoccupations of this public
utility moment, but the frameworks courts advanced to answer these puzzles
have vanished from our modern debate. Today’s administrative law
thus reflects an ad hoc revival of public utility legal concepts, and it reinvents
these concepts such that they bear little resemblance to their public utility
genealogy