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Purdue’s Side Effects: Using Due Process to Realign Mass Tort Bankruptcies
Full text linkIn Harrington v. Purdue Pharma, the United States Supreme Court held that victims of the opioid crisis could not be forced to release their independent claims against the Sacklers, who owned and controlled Purdue, without the victims’ consent. Such releases had become a controversial mainstay of mass tort bankruptcy filings. Yet Purdue was decided on narrow, textualist grounds, leaving as a side effect many seemingly disparate and difficult questions unanswered. This Article argues that Purdue and its open issues should be analyzed through a broader due process lens in tension with some aspects of current bankruptcy practice but consistent with the Court’s recent bankruptcy jurisprudence.
Although the Court now requires consent to settle claims against third parties, it expressly declined to define consent. Similarly, it explicitly refused to determine whether a plan that fully satisfies claims against nondebtors can be approved over creditor objections. After analyzing the complexities of these issues, this Article explores two more questions, entirely ignored by the Court, that are essential to understanding future mass tort bankruptcies. First, it investigates when and how governments, which are often the largest creditors in a mass tort bankruptcy, should consent to releases in favor of third parties or bind inferior levels of government to settlements they make. Second, it analyzes how debtors, governments, and third parties use and abuse antilitigation injunctions—a mainstay of mass tort bankruptcy practice. Collectively, these are critical issues in mass tort bankruptcies, both pending and on the horizon.
This Article argues that, despite the lack of direct guidance from the Supreme Court, these disparate questions can be unified through the Court’s recent bankruptcy jurisprudence emphasizing the importance of due process. Bankruptcy may offer exceptional powers, but these powers must be tempered by reforms that respect a litigant’s ultimate control of its claim. These reforms include more robust statements of consent, limitations on injunctions (and their circumvention), and guardrails around case-determinative settlements. If Purdue is part of a broader trend of realigning bankruptcy law with other areas of litigation, due process provides the cipher to resolve the problems that will inevitably arise in future mass tort bankruptcies
“Absolute and Arbitrary”: How the Supreme Court’s Certiorari Power Violates the Nondelegation Doctrine
Full text linkThe Exceptions Clause of Article III of the Constitution is clear that “Congress” “shall make” the rules prescribing the Court’s “appellate jurisdiction.” And so Congress did for almost 150 years. But in the twentieth century, Congress delegated its power to the Supreme Court in the form of—as Chief Justice Taft demanded—”absolute and arbitrary” discretion to pick its appellate cases. Today, under the resulting certiorari regime, the Court enjoys that unbridled discretion in selecting its cases.
Because Congress delegated its power to the Court without articulating “an intelligible principle,” certiorari jurisdiction violates the nondelegation doctrine and is unconstitutional. This Article is the first to advance this bold and novel claim. In addition to its constitutional argument, the Article sets forth a roadmap for litigants to challenge the certiorari process.
This Article first provides an overview of numerous facets of the doctrine as it has developed to demonstrate that, whatever the mode of analysis, the doctrine applies regardless of the branch to which Congress is delegating. It then examines the Exceptions Clause, which reserves exclusively to Congress the power to regulate the Supreme Court’s appellate jurisdiction. Because Congress has this power, it has a duty to articulate an intelligible principle in delegating away that power—yet it plainly did not.
In addition to calling attention to an important, continuing constitutional violation, this Article also aims to add to the current field of scholarship, which focuses on delegations to the Executive Branch. This Article aims to reinvigorate the discussion surrounding the nondelegation doctrine, including the discussion of delegations among other branches—in both directions
The Emperor’s New Clothes and § 502(b)’S Unmatured Interest Rule
No full textWhen it comes to claims for unmatured interest—most notoriously make-whole provisions—the text of the Bankruptcy Code does not necessarily say what everyone says it does. The common interpretation is that the Code requires courts to disallow all claims for unmatured interest except those involving an oversecured creditor. This Note presents an alternative reading that resolves conflicts within the Code, moves away from unreliable legislative history, and reconciles circuit splits on the enforceability of make-whole provisions and unmatured interest claims in general. As discussed in this Note, this alternative reading is the more accurate one—especially from a textualist perspective.
Due to philosophical and practical problems that often arise when courts enforce claims for unmatured interest, this Note further argues that the Code does not do enough to limit such claims. Although it resolves interpretive issues, this alternative reading of § 502(b) does not solve the underlying policy problems. This Note therefore proposes an amendment to § 502 that would provide courts with the textual direction to dismiss all claims for unmatured interest not explicitly protected elsewhere in the Code
Clark Memorandum: Fall 2025
No full textOur Constitutional Anchor Divine Law The Courage of Our Convictions Our Call to Actionhttps://digitalcommons.law.byu.edu/clarkmemo_gallery/1074/thumbnail.jp
The Inconvenience Doctrine
No full textIn a nation of stark inequalities, the Roberts Court is often portrayed as siding with the wealthy and powerful. Many scholars argue that the Court has abandoned legal principles altogether and instead simply chooses winners and losers based on the conservative majority’s political agenda. Meanwhile, scholarly examinations of the legal reasoning underlying the Court’s most impactful decisions are largely confined to specific subject areas. Such compartmentalized analyses, though, overlook broader patterns in the Court’s rulings that transcend substantive legal boundaries.
This Article bridges the gap in these parallel conversations by connecting the Roberts Court’s reasoning across many legal fields with its perceived ideological biases. In making this connection, the Article reveals the Court’s use of a consistent but problematic framework, which I term “the inconvenience doctrine.” Under the inconvenience doctrine, the Court invalidates nearly any limitation on what it views as the full exercise of “core rights,” while permitting the imposition of “mere inconveniences” that make exercising a right more difficult but not impossible. Although facially neutral, the inconvenience doctrine punishes marginalized communities, who lack the resources to easily circumvent inconveniences; and it rewards the wealthy and powerful, who are uniquely able to exercise the outermost limits of rights the Court vigilantly protects. The Court’s trivialization of inconveniences is rooted in free-market economic theory, which prizes profit-seeking while rationalizing away harmful collateral effects on workers, consumers, and bystanders. But the adoption of economic theory as legal doctrine is inconsistent with the Court’s purported adherence to American “history and tradition.” This Article mines Founding-era writings, speeches, and judicial opinions to demonstrate that the Framers viewed minimization of public inconveniences as a central function of government, with courts serving as a crucial safeguard.
The inconvenience doctrine thus amounts to a harmful and ahistorical shortcut around the judicial responsibility to appreciate and give weight to the real-world consequences of inconveniences. By calling out the Roberts Court’s approach, this Article provides a foundational first step toward a more pragmatic and equitable judicial philosophy