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Volume 78, Issue 2

In Government We Trust: Judicial Deference to Government Evidence in Removal Proceedings

March 2025 | Marie S. Celentino | Article | On its face, the Form I-213 appears to be a humble bureaucratic form unremarkable to the untrained eye. In reality, this document alone can singularly sustain the federal government’s case for the deportation of a noncitizen in removal proceedings. The Form I-213 sits at the cradle of interlocking judicial and procedural norms within immigration practice that largely diminish the due process rights of noncitizens facing deportation. This Article sheds light on two important but relatively underexamined phenomena that undergird this system: how a disregard for evidentiary rules largely eliminates the government’s burden of proof in removal proceedings and how judicial deference to government agents systemically enables this practice.

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Shareholder Litigation in Delaware: An Empirical Investigation

March 2025 | James D. Cox, Randall S. Thomas, Lynn Bai | Article | The empirical study of shareholder litigation in state courts is a seriously underexamined subject. To remedy this gap, we collected data on all 4,741 fiduciary duty complaints filed in the Delaware Court of Chancery over a sixteen-year period, from January 1, 2004, to December 31, 2019. After removing the duplicative cases consolidated into a lead complaint, the number of unique complaints was reduced to 2,958 in our dataset. In our coding, we examined over one hundred variables (with many variables being further subdivided into as many as eight subvariables) for each of these cases, including information about the parties, claims, motions, fees, outcomes of each motion filed, and final disposition of the case.

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Destroy, Rebuild, Repeat: How to Break the Climate Disaster Cycle

March 2025 | Mark Nevitt | Article | Climate change is fundamentally reshaping how we live, where we live, and whether we invest in or retreat from climate-exposed communities—but climate and disaster law is not changing with the climate. This legal latency is driven by antiquated statutes, doctrines, and policies that have not kept pace with the climate moment. Ex ante adaptation decisions governing where to live are life and death choices that shape ex post disaster response. Laws and policies should facilitate sound climate decisionmaking, but too often they frustrate individual and governmental decisions on whether to stay or retreat. In this Article, I argue that laws designed for a different physical environment, an environment more stable than the one we currently have, harm our ability to respond to climate-induced disasters.

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Reasonable AI: A Negligence Standard

March 2025 | Mihailis E. Diamantis | Article | Even as artificial intelligence (“AI”) promises to turbocharge social and economic progress, its human costs are becoming apparent. For example, self-driving technology will someday make traffic jams a thing of the past, but technologists now acknowledge that it will never eliminate all traffic deaths. By design, AI behaves in unexpected ways. That is how it finds unanticipated solutions to complex problems. But unpredictability also means that AI will sometimes harm us. To curtail these harms, scholars and lawmakers have proposed strict regulations (to help ensure firms develop safe algorithms) and strict corporate liability (for injuries that nonetheless occur). These rigid approaches go too far. They dampen innovation and disadvantage domestic firms in the international technology race.

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Retaliation and Confrontation of the State

March 2025 | Jon McNeal | Note | Popular resistance to the weaponization of government has eroded in America. On the political Right, the post-Reagan consensus favoring limited government has given way to a new generation of leaders—like Vice President J.D. Vance and Florida Governor Ron DeSantis—who openly advocate for using state power against their political opponents. Collectively they are the New Right: a populist, antiestablishment, conservative movement opposing pluralistic systems, institutions, and cultural elites. While both political liberals and conservatives have wielded state power against their adversaries, leveraging state power to reward friends and punish enemies is fundamental to the New Right’s worldview.

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Brain-Dead Surrogacy and Testamentary Disposition: Legal Rights over One’s Body for Reproductive Purposes

March 2025 | Cassandra L. Nelson | Note | Through the advancement of modern medical technology, including life-support machines and in vitro fertilization, it may soon become possible to carry out brain-dead surrogacy—that is, gestational surrogacy in brain-dead carriers. When a person experiences brain death, life-support machines can nevertheless artificially maintain the body’s homeostatic functions, including the ability to gestate a fetus, for several years thereafter. There have already been several reported instances of brain-dead pregnant people on ventilation successfully carrying and delivering children. In light of the United States’ historical interest in promoting familymaking, this emerging avenue for surrogacy could increase the availability of surrogates and expand opportunities for infertile couples to welcome a child. Yet so far, no literature has considered the implementation of brain-dead surrogacy from a legal perspective.

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Volume 78, Issue 1

On Entityness and Takeovers: Acquisition Valuation, Theory of the Firm, and Coase’s Error

January 2025 | Robert J. Rhee | Article |
This Article advances a theory of entityness that theorizes the firm and its relationship to the acquisition premium. This theory is the first scholarly analysis to construct a general model of takeover valuation by integrating the modern finance theory of asset value and a corrected Coasean theory of the firm. The acquisition premium is an enigma. Acquirers must pay it. But why? Isn’t the market price tethered to fundamental value through an efficient market? This enigma reveals a key insight about firms. The theory of entityness postulates that the acquisition premium is compensation for a capitalized asset intrinsic in the firm structure.
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Discharging Government Debt

January 2025 | Nicole Langston | Article |
This Article advocates for targeted reforms to the bankruptcy system and discharge guidelines to promote a more generalized standard of discharge for government-owed debt and further advances the debate about whether there should be nondischargeable debt in the consumer bankruptcy system.
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Fighting Mass Arbitration: An Empirical Study of the Corporate Response to Mass Arbitration and Its Implications for the Federal Arbitration Act

January 2025 | Richard Frankel | Article |
Mass arbitration represents the newest battleground between corporations and consumer and employee advocates over mandatory arbitration and access to justice. Companies thought they had finally won the arbitration wars after the U.S. Supreme Court ruled that they could insert class action bans into their arbitration clauses, bestowing companies with widespread immunity from a large swath of consumer and employee claims.
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Original Discontent

January 2025 | William Magnuson | Article |
This Article argues that, in doing so, judges, scholars, and policymakers have underestimated an important feature of the process of constitution-making: the discontent of the enactors themselves with the Constitution they were enacting. Their discontent went to the very foundation of the Constitution. In short, many founders believed that the Constitution they created was not, in fact, good law.
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Cleaning the Plastic Spring

January 2025 | Trip Johnson | Note |
Plastic, unlike aluminum, glass, or paper, poses barriers to recycling that diminish a region’s recycling capabilities. Despite knowing most Americans lack the knowledge necessary to properly discard plastic waste, plastic-producing companies continue to plaster chasing arrows symbols and resin identification codes onto their products. Worse yet, these companies do so without explaining the available recycling opportunities or challenges associated with recycling most plastics. This in turn misleads consumers to believe they are aiding the environment when they “recycle” plastic products that are actually destined for a landfill—thereby contributing to a phenomenon known as greenwashing.
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Reversing Perverse Incentives and Aligning Interests: A Statutory Approach to Combatting Sex Trafficking in the Hospitality Industry

January 2025 | Sara Seymour | Note |
The hospitality industry has a sex trafficking problem: Seventy-five percent of sex trafficking victims report coming into contact with a hotel at some point during their trafficking. Though hotel franchisors publicly tout their efforts to combat sex trafficking, they are not properly or adequately incentivized to intervene in a meaningful way. The majority of hotels in the United States are franchised, and for every franchised room that is rented out—whether for sex trafficking or otherwise—hotel franchisors receive royalties.
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Volume 77, Issue 6

The Internal Law of Democracy

November 2024 | Kevin M. Stack | Article
The conventional focus of election law is the constitutional, statutory, and judicial constraints on election officials. But the operation of elections also depends on the law that election officials themselves create. This “internal law of democracy”—produced by state and local election officials and addressed to election personnel and workers—provides on-the-ground guidance on registration, voting, and vote counting; specifies internal processes and protocols; and interprets and translates the meaning of constitutional and statutory law for use within the election bureaucracy.
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Genealogy in Constitutional Law

November 2024 | Charles W. Tyler | Article
Genealogy is a form of argument that seeks to discredit social phenomena by exposing their pernicious ancestry. In recent years, the U.S. Supreme Court has used genealogy to undermine key provisions of written law, doctrinal rules, longstanding practices, and private conduct in cases involving a wide range of constitutional issues.
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Central Bank Undersight: Assessing the Fed’s Accountability to Congress

November 2024 | Andrew T. Levin and Christina Parajon Skinner | Article |
As America’s central bank, the Federal Reserve (“Fed”) is unique among independent agencies in exercising powers that the U.S. Constitution granted to the legislative branch—namely, regulating the value of money and borrowing funds directly from the public. In delegating these powers, Congress designed the Fed to ensure that its monetary policy decisions would be insulated from political interference.
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The New Social Contracts

November 2024 | Andrew Keane Woods | Article |
Contracts rule our digital world. Platform terms of service determine speech rights, privacy rights, and much more. This is no accident—from the very beginning, the U.S. model of internet governance was explicitly built around private ordering. In this context, it is worth asking what contract law and contract scholarship have to say about the public harms of digital dealmaking.
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Dismantling a Marketplace for Private Violence: Reclaiming the Modern Weapons of War to Forestall Filibusters of the Web

November 2024 | Rachel Dodge | Note |
Civilian military activism is a challenge that U.S. policymakers have struggled with since the Founding. The United States’ first answer to this issue was the Neutrality Act of 1794, which embodied the young nation’s rejection of private violence and fear of being dragged into international conflicts by overzealous citizens. For decades, the Neutrality Act remained an important tool in the government’s repertoire and was amended to close newfound loopholes and respond to evolving technologies. In the mid-1800s, however, the government’s enforcement efforts waned, culminating in a period where the acts of the government and those of the governed bled together to cultivate a marketplace for private violence.
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Is Sunlight the Best Disinfectant? The Role of Regulation in Addressing Cybersecurity Concerns

November 2024 | Reagan Leverett | Note |
The technological landscape in the United States is changing rapidly, and this transformation carries with it unprecedented challenges for administrators, companies, and investors alike. In particular, cybersecurity concerns are growing in light of the new opportunities for cyber malfeasance in this landscape—opportunities to pillage corporate databases and exploit the sensitive consumer information housed therein. For administrators, these new threats challenge prevailing regulatory frameworks and demand novel solutions. For companies, this landscape brings financial and reputational threats. For stakeholders, the cyber era presents the risk of investment losses and, in some cases, loss of personal data.
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Volume 77, Issue 5

Dobbs and the Destabilization of Clinical Trials

Oct 2024 | Allison M. Whelan | Article | 77 Vand. L. Rev. 1381
This Article explores an important yet overlooked collateral consequence of the U.S. Supreme Court’s elimination of the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization: the destabilization of clinical research. Specifically, this Article focuses on the harms to pregnant persons, persons capable of pregnancy, and persons of color that may transpire as a result of new barriers to clinical research in the aftermath of Dobbs. By hindering clinical research, these new obstacles will exacerbate existing health disparities experienced by these populations, which have historically been excluded from or exploited by the American healthcare and research systems.
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Painting a Clearer Picture: Introducing New Federal Rule of Evidence 107 Regulating Illustrative Aids

Oct. 2024 | Daniel J. Capra & Liesa L. Richter | Article | 77 Vand. L. Rev. 1469
They say a picture is worth a thousand words—and charts, drawings, diagrams, computer animations, and even tangible items are utilized at trial in virtually every case tried in the federal and state court systems. Litigants have come to depend heavily upon such aids to engage visual learners in the jury box and to present a compelling narrative. And the creative use of trial aids has only increased with the rapid technological advancements of recent decades. The ubiquity of such aids notwithstanding, there is no written standard governing their use, no agreed-upon lexicon for describing them, and no set of uniform principles guiding courts and litigants in navigating their presentation at trial. Instead, trial lawyers and judges rely on a murky set of latent norms that can be learned only through literal trial—and unavoidable error. When difficult questions arise that require litigants to make concrete arguments about the use of such aids and trial judges to issue definitive rulings and to craft comprehensible jury instructions, those vague norms often prove inadequate to the task.
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The Constitutional Right to Peremptory Challenges in Jury Selection

Oct. 2024 | Richard Lorren Jolly | Article | 77 Vand. L. Rev. 1529
The peremptory challenge is one of the oldest and most well-established jury selection procedures. Its use dates back to the earliest days of English common law, and it was a firmly established and protected practice at the United States’ founding and into the early twentieth century. But while peremptory challenges are foundational, they remain perhaps the most controversial aspect of jury selection today. This is because they are regularly used by the government and private parties to advance racist, sexist, and bigoted ends. For this reason, over the last three decades, calls to abolish the practice have been regularly made by U.S. Supreme Court Justices and law students alike. And in 2022, Arizona became the first state in U.S. history to take that dramatic step—eliminating peremptory challenges in all cases.
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Losing Lives Despite “Lifesaving” Exceptions: Examining the Fatal Flaws of Vague Abortion Bans and the Spectrum of Medical Decisionmaking in Cancer Care

Oct. 2024 | Kiersten Wood | Note | 77 Vand. L. Rev. 1589
On June 24, 2022, the Supreme Court upended decades of precedent pertaining to reproductive health when it held that abortion fell outside the purview of constitutionally protected rights. Since then, conservative states have raced to institute stringent abortion bans, with many lacking explicit exceptions for pregnant individuals enduring medical emergencies that necessitate care. Ambiguous statutory language has induced a chilling effect in the medical arena, where providers risk criminal and civil liabilities by performing requested and medically recommended abortions for emergent patients when fetal development would risk the life of the pregnant individual. Seized in the crossfire of hyperpolarized politics, cryptic laws, and medical ethics, many healthcare providers hesitate to furnish assistance to their patients, invoking risk assessments to gauge whether the patient’s condition falls within the categories of statutorily warranted care. This murky landscape is especially nuanced in an area of medicine that is commonly overlooked by lawmakers: pregnancy-associated cancer.
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Volume 77, Issue 4

Dead Bodies as Quasi-Persons

May 2024 | Ela A. Leshem Associate Professor, Fordham University School of Law | Article | 77 Vand. L. Rev. 999
This Article argues that American law treats dead bodies as quasi-persons: entities with a moral status between things and persons. The concept of quasi-personhood builds on dead bodies’ familiar classification as quasi- property. Just as quasi-property implicates only a subset of the rights usually associated with property, quasi-personhood implicates only a subset of the moral interests often associated with moral personhood. Drawing on a broad historical analysis of state, territory, and federal law, I show that U.S. law conceives of dead bodies as holders of dignity interests, which it protects in a variety of ways. The law, for example, protects dead bodies against denigration to the status of property, waste, or nonhuman animals and ensures that dead bodies be treated as individuals with names. The law also protects dead bodies against visual, physical, and sexual abuse. I analyze how these dignity protections operate across disparate areas of law, including criminal statutes, tort law, licensing regimes, and zoning ordinances. Using unclaimed bodies as a case study, I then argue that my account of dead bodies as quasi-persons casts a critical light on the mistreatment that some dead bodies—especially those of Black Americans, Native Americans, and the poor—regularly suffer. The account also illuminates the law’s implicit views of personhood, property, human nature, and mortality. And it points the way for future research on the law’s treatment of other arguably liminal entities, such as animals, fetuses, plants, and AI models.
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Anti-Transgender Constitutional Law

May 2024 | Katie Eyer | Article | 77 Vand. L. Rev. 1113
Over the course of the last three decades, gender identity anti-discrimination protections and other transgender-supportive government policies have increased, as government entities have sought to protect and support the transgender community. But constitutional litigation by opponents of transgender equality has also proliferated, seeking to limit or eliminate such trans-protective measures. Such litigation has attacked as unconstitutional everything from laws prohibiting anti-transgender employment discrimination to the efforts of individual public school teachers to support transgender teens.
This Article provides the first systematic account of the phenomenon of anti-transgender constitutional litigation. As described herein, such litigation is surprisingly novel: while trans-protective measures date back much further, anti-transgender constitutional litigation was virtually nonexistent prior to 2016. Moreover, as late as 2018, the few victories in such cases were almost always either temporary or predicated on arguments with only limited application. In contrast, the most recent wave of anti-transgender constitutional litigation has seen increasing success in invalidating or limiting transgender equality measures, based on increasingly broad and potentially impactful rationales.
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Choosing Sides: On the Manipulation of Civil Litigation

May 2024 | Yotam Kaplan & Ittai Paldor | Article | 77 Vand. L. Rev. 1211
Our litigation system is broken. Scholars have long warned that professional litigants, such as debt-collecting firms, insurance companies, and commercial landlords, enjoy immense and unfair advantages over private individuals. What has gone unnoticed is professional litigants’ ability to manipulate their litigatory position—that is, to choose whether they will litigate as plaintiffs or defendants. Extant literature assumes that the parties’ litigatory positions are determined by the substance of the dispute: the party seeking a remedy is the plaintiff, and the party objecting to the award of a remedy is the defendant. We show that, in reality, professional litigants have both the incentive and the ability to switch between positions at will, assuming whichever litigatory role best serves their interests under given circumstances. These litigants essentially choose which side of the “v.” they prefer to be on. This choice allows professional litigants to reshape litigatory interactions, secure easy victories against private individuals, and hinder the fair and equal adjudication of disputes.
Based on this observation, this Article makes three novel and important contributions. First, it reconceptualizes our understanding of the litigatory landscape. The Article challenges the existing understanding of the litigation system by deconstructing the traditional plaintiff-defendant dichotomy and highlighting the malleability of the litigatory setting. Second, it draws attention to the implications of professional litigants’ manipulation tactics. Finally, it proposes legal reforms designed to balance the scales and update the institutions of litigation to the current reality, in which most legal disputes occur between private individuals on one side and professional adversaries on the other.
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Protecting Protected Characteristics: Statutory Solutions for Employment Discrimination Post-Bostock

May 2024 | Chase Mays | Note | 77 Vand. L. Rev. 1303
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Significantly, these protected characteristics are undefined, and judicial interpretations of race, sex, and national origin have allowed employers to lawfully discriminate against proxies for these protected characteristics. This Note examines the use of race-based hairstyles, gendered-appearance standards, and citizenship as proxies for race, sex, and national origin, respectively, and how the availability of such proxies inhibits Title VII’s goal of creating equal employment opportunities. The Supreme Court’s dicta in Bostock v. Clayton County offer potential redress to some victims of proxy discrimination through a protected characteristic plus proxy framework, but its application is limited and authority still unclear. Legislative intervention is likely necessary to strike the proper balance between equalizing employment opportunities and preserving employer autonomy to make employment decisions. This Note proposes varying levels of statutory enumeration—broad enumeration, narrow enumeration, and no enumeration—for race, sex, and national origin, respectively, to balance the competing goals of creating equal employment opportunities on the basis of protected characteristics and maintaining employer autonomy.
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On the Defensive: Analyzing Insurers' Duty to Defend Pharmaceutical Companies for Contributing to the Opioid Epidemic

May 2024 | Madison Perry | Note | 77 Vand. L. Rev. 1349
Opioids have had a devastating impact on the United States. They have drained governmental agencies’ resources, decreased property values, and destroyed families and entire communities. A growing number of individuals, local governments, and states have filed lawsuits, aiming to hold pharmaceutical companies accountable for their negligent contributions to the epidemic. Such manufacturers, distributors, and retailers have called upon their insurers, asserting that their commercial general liability policies demand an insurer- backed and bankrolled defense. Courts are divided in their interpretation of the language contained within the at-issue policies. Some consider the claims made by certain states and local governments to stem from a “bodily injury,” as is necessary to trigger coverage. Others disagree.
Using a form provided by the Insurance Services Office, this Note construes the at-issue policies in conjunction with the underlying claims and evaluates the holdings reached by the Sixth and Seventh Circuits and the Supreme Courts of Delaware and Ohio. An analysis of the government’s claims reveals that they are too vague and attenuated to be covered, especially as they are the result of decades and decades of reckless pill-pushing. Ultimately, this Note concludes that the manufacturers, distributors, and retailers must be left to fend for themselves, given both the plain and unambiguous language of their policies and the ramifications of such a conclusion, socially and otherwise.
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Needful Rules and Regulations: Originalist Reflections on the Territorial Clause

May 2024 | Anthony M. Ciolli | Essay | 77 Vand. L. Rev. 13263
There are few areas where the current state of the law is as inconsistent, incoherent, and intellectually bankrupt as the law of U.S. territories. The seminal cases in the field are the infamous Insular Cases, where the Supreme Court of the United States held that the “half-civilized,” “savage,” “ignorant and lawless” “alien races” that inhabited the United States’ overseas territories were not entitled to the same constitutional rights and protections afforded to Americans residing in the mainland United States—holdings that were based on the white man’s burden and similar then-prevalent theories of white supremacy.
Despite being firmly entrenched within the constitutional anticanon and having “long been reviled” by all corners of the legal community, the Supreme Court has never expressly overruled the Insular Cases; rather, it has repeatedly implored that they “should not be further extended.” Yet notwithstanding this instruction, the lower federal courts continue—sometimes begrudgingly, but at other times enthusiastically—to apply them as binding precedent, typically because of the principle that only the Supreme Court may overrule its own precedents.
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Volume 77, Issue 3

Radical Administrative Law

April 2024 | Christopher S. Havasy
Article | 77 Vand. L. Rev. 647
The administrative state is under attack. Judges and scholars increasingly question why agencies should have such large powers to coerce citizens without adequate democratic accountability. Rather than refuting these critics, this Article accepts that in scrutinizing the massive powers that agencies hold over citizens, these critics have a point. However, their solution—to augment the powers of Congress or the President over agencies to instill indirect democratic accountability—is one step too quick. We should first examine whether direct democratic accountability of agencies by the citizenry is possible.
This Article excavates the nineteenth-century European intellectual history following the rise of the modern administrative state as inspiration to illuminate how agencies can improve their democratic credentials to justify their powers over the citizenry. While such thinkers might seem far afield of current public law discussions, this unlikely group of nineteenth-century legal and political theorists has already extensively theorized contemporary concerns about agencies coercing citizens without proper democratic accountability. These theorists, whom I call administrative “radicals,” presented a much bolder conception of the role of agencies in governance than contemporary critics. Instead of stripping agencies of their powers, the radicals proposed democratizing the administrative state so the citizens could instill direct democratic accountability over the agencies that coerced them. Importantly, the radicals influenced the first generation of American administrative law scholars, who looked to these radicals to figure out how to democratize the nascent American administrative state.
The radical tradition inspires us to transform the relationship between agencies and the citizenry and rethink how agencies fit within the separation of powers and administrative law. Instead of viewing agencies as stuck in the middle of a perpetual tug-of-war between Congress and the President, the radical tradition encourages us to focus on agencies themselves by shaping the relationships between agencies and the citizenry to instill direct democratic accountability. Under this radical separation of powers framework, the people serve as the common source of accountability for Congress, the President, and the administrative state. In doing so, embracing radical administrative law mitigates scholarly and judicial concerns that have inspired the revival of the nondelegation doctrine, elimination of removal protections, and the expansion of the major questions doctrine. The radical tradition also reinvigorates discussions of political equality in administrative law and suggests a reduced judicial role in policing the substance of agency decisions.
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Mass Tort Bankruptcy Goes Public

April 2024 | William Organek
Article | 77 Vand. L. Rev. 723
Large companies like 3M, Johnson & Johnson, Purdue Pharma, and others have increasingly, and controversially, turned from multidistrict litigation to bankruptcy to resolve their mass tort liability. While corporate attraction to bankruptcy’s unique features partially explains this evolution, this Article reveals an underexamined driver of this trend and its startling results: government intervention. Governments increasingly intervene in high-profile bankruptcies, forcing firms into insolvency and dictating the outcomes in their bankruptcy cases. Using several case studies, this Article demonstrates why bankruptcy law should subject such governmental actions to greater scrutiny and procedural protections. Governments often assume multiple incompatible roles in these cases, appearing simultaneously as representatives of injured citizens, creditors in their own right, and sovereigns with broader social duties and regulatory powers. These overlapping identities create conflicts of interest that bankruptcy law does not currently police, which can encourage governments to coercively privilege their monetary recoveries over the monetary and dignitary claims of their citizens. This Article argues that bankruptcy law should apply the aggregate litigation concepts of exit, voice, and loyalty to ensure that bankruptcy outcomes are not distorted by governmental intervention. Reciprocally, if mass tort liability does not migrate entirely to bankruptcy, the fiduciary duties and consensual restructuring support agreements of bankruptcy can improve other forms of mass tort resolution.
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The Missing “T” in ESG

April 2024—Danielle A. Chaim & Gideon Parchomovsky
Essay | 77 Vand. L. Rev. 789
Environmental, social, and governance (“ESG”) philosophy is the zeitgeist of our time. The rise of ESG investments came against the perceived failure of the government to adequately promote socially important goals. And so, corporations are now being praised and credited for stepping up where the government has fallen short. In this Essay, we contend that the standard narrative of ESG suffers from a major flaw. The reason for this discrepancy is taxes. The companies that are widely perceived as saviors of the ESG era are in fact the cause of some of the main deficiencies ESG seeks to redress. Astoundingly, public corporations—many of which have the highest ESG scores and are the largest recipients of ESG fund investments—are also the biggest tax avoiders. As this Essay shows, through the exploitation of legal loopholes and other grey areas, these companies increasingly deprive governments of the funding needed for the provision of public goods and the promotion of important societal policies, exacerbating administrative inefficiencies and deepening societal inequality—outcomes that are starkly at odds with ESG principles. To address this paradox, this Essay advocates incorporating tax-avoidance behavior into ESG ratings. It also argues that tax considerations should be accorded considerable weight not only by ESG rating agencies but also by institutional investors who shoulder part of the fault for the existing state of affairs. Implementation of this proposal would not only rectify incongruities within ESG investment but also provide the public with a more robust and accurate representation of a company’s genuine ESG standing.
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An Evolving Landscape: Name, Image, and Likeness Rights in High School Athletics

Jan. 26, 2024—Epstein, Grow, & Kisska-Schulze
Essay | 77 Vand. L. Rev. 845
Amateur sports have entered a changing landscape. The onset of Name, Image, and Likeness (“NIL”) opportunities at the college level has prompted over half of state high school athletic associations to likewise permit high school student-athletes to pursue similar financial opportunities. The purpose of this Essay is not to argue for or against the emergence of NIL opportunities at the high school level but instead to explore this newly evolving landscape, identify accompanying financial dangers, and propose a statutory framework that builds upon California’s Coogan’s Law—a measure providing financial safeguards to children working in the entertainment industry—to better protect minor student-athletes entering into endorsement contracts.
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“Free Speech for Me but Not for Airbnb”: Restricting Hate-Group Activity in Public Accommodations

April 2024—Sabrina Apple
Note | 77 Vand. L. Rev. 891
As digital services grow increasingly indispensable to modern life, courts grow inundated with novel claims of entitlement against these platforms. As narrow, formalistic interpretations of Title II permit industry leaders to sidestep equal access obligations, misinformed interpretations of First Amendment protections allow violent speech and conduct to parade uninhibited. Within the mistreatment of these two established doctrines lies a critical distinction: the former is in desperate need of modernization to fulfill its original intent, and the latter is in desperate need of restoration for the same ends. This climate creates conditions ripe for doctrinal upheaval.
This Note considers how the rising digital accommodation challenges traditional legal frameworks, particularly as hate groups exploit these new public squares. Analyzed through the lens of Airbnb—its role as a modern public accommodation, its prior experiences with invidious discrimination on its platform, and its confrontations with allegations of discrimination issued by patrons excluded for hate-group affiliation—this Note parses the tension between ensuring equal access and upholding free speech. In so doing, this Note offers a legal framework for analyzing when digital entities qualify as public accommodations under Title II, when accommodations may exclude patrons while upholding Title II values, and what defenses an accommodation may employ if a patron establishes a speech interest. Ultimately, this Note argues that the digital accommodation may legally exclude unprotected traits to meaningfully include those who are protected.
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Exasperated But Not Exhausted: Unlocking the Trap Set by the Exhaustion Doctrine on the FDA’s REMS Petitioners

April 2024 | Michael Krupka
Note | 77 Vand. L. Rev. 937
When health is at stake, bureaucratic delays can be disastrous. This is especially true in the field of pharmaceutical regulation. Fortunately, concerned parties—ranging from research institutions and universities to doctors and pharmaceutical companies—can file citizen petitions to urge the Food and Drug Administration (“FDA”) to regulate potentially risky drugs through Risk Evaluation and Mitigation Strategies (“REMS”) programs. But despite submitting comprehensive citizen petitions calling for changes to REMS determinations, petitioners regularly await the FDA’s response for years. When these petitioners, still awaiting an FDA determination, have sought recourse in the courts, the agency has argued that these petitioners have not yet exhausted the FDA’s mandatory administrative remedy. In accepting this argument, courts across the country have misapplied the exhaustion doctrine in FDA cases, depriving potential petitioners of judicial review and leaving the FDA’s original REMS decisions without any oversight. All the while, societal costs of unaccountable drug decisions continue to climb.
This Note examines the dilemma of REMS petitioners, the “exhaustion trap,” wherein petitioners cannot seek legal remedy until the FDA allows them to exhaust their administrative remedy. Through original empirical analysis, this Note finds the FDA responds to fewer than one-third of REMS petitions before its own 180-day deadline, with petitioners languishing for an average of 937.6 days (2.56 years) before the FDA lets them exhaust this administrative remedy. So, petitioners frequently remain trapped and exasperated, while their remedies—by no fault of their own—remain unexhausted.
This exhaustion trap is superable, however, and this Note proposes three potential escape routes. First, the plain language of the APA’s statutory provision codifying the exhaustion doctrine—5 U.S.C. § 704, as interpreted by the Supreme Court in the landmark case Darby v. Cisneros—prohibits the exhaustion trap. Second, this Note proposes an amendment to the Food, Drug, and Cosmetic Act that would waive the FDA’s exhaustion requirement when the FDA disregards its own deadline of 180 days. Finally, this Note suggest that courts should waive the FDA’s exhaustion requirement more readily in these cases. Given the stakes for public health, the American people deserve remedies that are actually exhaustible.
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Volume 77, Issue 2

Barring Judicial Review

March 2024 | Laura E. Dolbow
Article | 77 Vand. L. Rev. 307
Whether judicial review is available is one of the most hotly contested issues in administrative law. Recently, laws that prohibit judicial review have sparked debate in the Medicare, immigration, and patent contexts. These debates are continuing in challenges to the recently created Medicare price negotiation program. Yet despite debates about the removal of judicial review, little is known about how often, and in what contexts, Congress has expressly precluded review. This Article provides new insights about express preclusion by conducting an empirical study of the U.S. Code. It creates an original dataset of laws that expressly preclude judicial review of agency action, which this Article refers to as “judicial review bars.” The findings reveal that express preclusion is a phenomenon: at least 190 statutory provisions expressly bar judicial review of agency actions. This Article then creates a taxonomy of actions barred from review. Most review bars target internal management decisions, such as decisions about how to allocate resources, set priorities, and manage personnel.
Because judicial review has traditionally been considered a core tool for overseeing agencies, this Article next investigates alternative oversight tools for actions barred from judicial review. When judicial review is barred, other structures often exist for political oversight, internal supervision, and public participation. Strikingly, review bar statutes often expressly create structures to facilitate such oversight. Alternative oversight structures include requirements to send reports to Congress, establish internal procedures, consult with stakeholders, and publish decisions. Furthermore, many review bars involve government spending programs, which are subject to appropriations oversight. Like judicial review, alternative oversight tools play an important role in promoting democratic values of deliberation, inclusiveness, and public accountability in the administrative state. A recent example at the Patent Office illustrates how the combination of review bars and alternative oversight tools can balance efficient implementation of programs with the need to protect individual interests and democratic values. Given the significance of alternative oversight tools in monitoring agencies, this Article argues that courts should consider the availability of alternative oversight tools when construing review bars, and policymakers should do the same when designing regulatory programs.
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The Labor Gerrymander

March 2024 | Joel Heller
Article | 77 Vand. L. Rev. 51
The foundational metaphor of federal labor law is “industrial democracy.” But like any good metaphor, it is subject to overuse. The National Labor Relations Act (NLRA) grants employees the right to have a say in the decisions that govern their working lives through union representation and collective bargaining. Parties and policymakers often invoke the language of American political democracy when describing and debating that right. Democracy is not a unitary concept, however, and not all norms and concepts from the political sphere can or should translate into the labor sphere.
This Article interrogates the political-model analogy through the lens of one particular political concept that has found its way into labor-law discourse: the gerrymander. From the earliest days of the NLRA to today’s organizing campaign at Starbucks, employers have accused unions of “gerrymandering” the workplace by seeking to represent groups of employees—in labor-law terms, a bargaining unit—who are likely to choose union representation. The gerrymander analogy has not before faced critical evaluation, and it breaks down upon closer inspection. Legislative redistricting and bargaining-unit determinations are distinct exercises with different stakes. Unit determinations treat self-interest as a feature rather than a bug, are not part of a broader political process, and are unlikely to produce harms like entrenchment and excessive partisanship associated with gerrymanders in the political context.
By calling attention to this conceptual mismatch, the Article also identifies how overreliance on the political model is detrimental to the promise of industrial democracy. Delegitimizing union organizing as gerrymandering may lead to fewer votes for unionization. This means less worker voice, which both perpetuates the workplace as an essentially autocratic environment and robs society more broadly of the democracy-enhancing spillover effects of unionization. The irony of the analogy is that it uses the pro-democracy concept of fighting gerrymandering to achieve anti-democratic ends. Importing the gerrymander concept into labor law thus harms democracy, in both its industrial and political manifestations.
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Too Stubborn to Care for: The Impacts of Discrimination on Patient Noncompliance

March 2024—Alice Abrokwa
Article | 77 Vand. L. Rev. 109
The role of implicit racial biases in police interactions with people of color has garnered increased public attention and scholarly examination over time, but implicit racial bias in the healthcare context can be as deadly, particularly when it intersects with ableism and sexism. Researchers have found that medical providers are more likely to consider Black patients “noncompliant,” meaning the patient has not adhered to recommended treatment, even without evidence Black patients are less compliant than other patients. Being labeled noncompliant can have grave health consequences; providers are less likely to treat pain aggressively when they consider a patient noncompliant and, subject to certain legal and professional constraints, can deny care altogether.
Existing legal scholarship has identified thoughtful proposals to limit providers’ ability to reject noncompliant patients; this Article expands upon that work by focusing attention on why Black patients are perceived as less compliant in the first place. This Article further examines the ways in which, among other barriers to compliance, systemic forms of discrimination can lead some patients to actually become noncompliant. To address the impacts of discrimination on patient noncompliance, the Article first builds from a concept in disability civil rights law concerning reasonable modifications. The Article calls for providers and the healthcare system to shift from expecting absolute compliance to providing both individualized modifications and those modifications that have collective benefit. The Article further calls upon providers to redesign their approach to patient care in ways that mitigate provider biases and structurally make it easier for patients to follow a treatment plan they agree with. In legal matters in which a patient’s reported noncompliance is relevant, the Article calls for legal decisionmakers and policymakers to account for how stereotyping and systemic discrimination can affect both providers’ perceptions of and patients’ actual reasons for noncompliance.
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The Minimalist Alternative to Abolitionism: Focusing on the Non-Dangerous Many

March 2024—Christopher Slobogin
Essay | 77 Vand. L. Rev. 531
In "The Dangerous Few: Taking Seriously Prison Abolition and Its Skeptics," published in the Harvard Law Review, Thomas Frampton proffers four reasons why those who want to abolish prisons should not budge from their position even for offenders who are considered dangerous. This Essay demonstrates why a criminal law minimalist approach to prisons and police is preferable to abolition, not just when dealing with the dangerous few but also as a means of protecting the non-dangerous many. A minimalist regime can radically reduce reliance on both prisons and police, without the loss in crime prevention capacity and legitimacy that is likely to come with abolition.
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Res Judicata and Multiple Disability Applications: Fulfilling the Praiseworthy Intentions of the Fourth and Sixth Circuits

March 2024—Amber Mae Otto
Note | 77 Vand. L. Rev. 561
In the United States, the application process to receive disability benefits through the Social Security Administration is often a tedious, multistep procedure. The process becomes even more complex if a claimant has filed multiple disability applications covering different time periods. In that circumstance, the question arises as to whether an administrative law judge hearing a claimant’s second application must make the same findings as the administrative law judge who heard the first application. In other words, how should res judicata function in the administrative law context when a claimant has filed for disability multiple times? Currently, circuits differ on this question. This Note proposes a solution aimed at providing uniformity and ensuring disabled people receive the benefits they need. It proposes that res judicata should not bind findings that would harm a claimant on a future application, while res judicata should bind findings that would aid a claimant on a future application unless new clear-and-convincing evidence indicates the claimant’s condition has improved. The Note then details how such a proposal is within the Social Security Administration’s authority and is consistent with Supreme Court jurisprudence on the matter.
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Efficiency at the Price of Accuracy: The Case for Assigning MDLs to Multiple Districts and Circuits

March 2024 | Isaak Elkind
Note | 77 Vand. L. Rev. 599
28 U.S.C. § 1407 allows for the centralization of unique cases into a single forum for pretrial purposes. The product is multidistrict litigation, known colloquially as the “MDL.” While initially conceived as a means of increasing efficiency for only particularly massive, complex litigation, MDLs have become pervasive. Today, over fifteen percent of all civil litigation—and fifty percent of all federal civil litigation—is consolidated into MDLs. Yet, MDLs are commonly overconsolidated, such that only one judge presides over hundreds, thousands, or even hundreds of thousands of individual cases at a time. Fewer than three percent of such cases return to their original forum for trial, meaning that a handful of judges wield considerable influence over a vast portion of this nation’s civil litigation.
This Note illustrates how the current MDL scheme suffers from two accuracy problems due to concentrated decision making. First, overburdened MDL judges are regularly tasked with making legally dubious decisions, often lacking concrete authority or procedural guidance. This is especially apparent with regard to choice of law: MDL judges, tasked with applying conflicting state and federal law, face an enormous interpretive burden. Such a burden drains the limited judicial resources of an MDL court and often results in judges neglecting to address nuances in conflicting law. Second, there is the problem of inaccurate outcomes, caused by subjecting hundreds or thousands of unique cases to a single, uniform decision. Statistically, the risk of an extreme decisional distribution is so high that risk-averse parties are induced to settle where they otherwise would not.
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Volume 77, Issue 1

The Harms of Heien: Pulling Back the Curtain on the Court’s Search and Seizure Doctrine

Jan. 26, 2024 | Wayne A. Logan
Article | 77 Vand. L. Rev. 1
In Heien v. North Carolina, the Supreme Court held that individuals can be seized on the basis of reasonable police mistakes of law. In an opinion authored by Chief Justice Roberts, the eight-Justice majority held that the Fourth Amendment’s prohibition of “unreasonable” seizures does not bar legally mistaken seizures because “[t]o be reasonable is not to be perfect.” Concurring, Justice Kagan, joined by Justice Ginsburg, emphasized that judicial condonation of police mistakes of law should be “exceedingly rare.” In a solo dissent, Justice Sotomayor fairly “wonder[ed] why an innocent citizen should be made to shoulder the burden of being seized whenever the law may be susceptible to an interpretive question.”
This Article provides the first empirical study of state and lower federal court cases applying Heien (from the day it was decided in mid-December 2014 through mid-June 2023). Of the over 270 cases examined, a large majority (over two-thirds) deemed unlawful police seizures reasonable, belying Justice Kagan’s expectation that such cases would be “exceedingly rare.” Moreover, the study makes clear that Heien is being applied well beyond the context in which it arose—an auto stop for a suspected equipment violation. Courts regularly rely on Heien to justify unlawful stops for a broad array of other, often more serious offenses and to justify unlawful arrests of individuals, far more significant intrusions on physical liberty that allow officers to conduct searches. Courts also forgive police mistakes of law regarding Fourth Amendment doctrine, such as the contours of consent and the permissibility of warrantless blood draws. Finally, the study demonstrates that courts lack any consistent analytic rubric for assessing whether a police mistake of law is reasonable, including the critically important foundational question of who (judges, laypersons, or police) should serve as the benchmark “audience” when assessing whether a mistake of law is reasonable.
In addition to exploring the study’s results, the Article uses Heien to assess the adverse real-world consequences of what would appear an uncontroversial decision by a near-unanimous Court. Heien not only augmented the already troublingly expansive police discretionary authority to seize individuals without warrants; it also significantly undermined the rule of law and undercut separation of powers. By condoning police mistakes of law, the Court at once weaponized statutory ambiguity for use against citizens and encouraged rational ignorance among police, lessening their incentive to learn the scope of the laws they enforce.
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The Impact of Banning Confidential Settlements on Discrimination Dispute Resolution

Jan. 26, 2024 | Blair Druhan Bullock & Joni Hersch
Article | 77 Vand. L. Rev. 51
The #MeToo movement exposed how workplace harassment plagues employment in the United States. Several states responded by passing legislation aimed at curbing harassment and employment discrimination in the workplace. One of the most common legislative efforts was to ban confidentiality provisions in certain settlement agreements. These bans, in part, attempted to stop “secret settlements” by shining light on workplace discrimination and exposing serial harassers as a means to motivate firms to actively deter workplace discrimination.
But do bans on confidentiality agreements deter the bad act? For these laws to have a deterrent effect, claims must be revealed in a public forum. The onus is therefore on victims to go public, and understandably, many victims are wary of doing so. After all, even from a pro-victim perspective, if employers cannot require confidentiality in settlement, claimants could be made worse off through a lower likelihood of settlement and a lower ultimate payout. In this situation, unless victims’ allegations are made public, bans on secret settlements may not deter discrimination.
At the time states enacted confidentiality bans, there was no empirical evidence supporting these bans’ deterrent effects. This Article offers the first empirical assessment of laws barring confidentiality provisions in employment discrimination settlements. Using data on large samples of employment disputes, we leverage the variation in state legislation to empirically test the effects of these bans on filing and disposition of discrimination claims in arbitration and courts. Our results suggest an increase in the filing of claims in federal court, which is encouraging evidence of the overall deterrence value of the laws. However, the results also show a small decrease in settlement in federal court and arbitration, which may weaken the deterrence value of confidentiality bans unless plaintiffs are more likely to prevail. To achieve a higher deterrent effect, legislatures should couple these bans with additional measures, such as increasing the likelihood that a victim prevails in court and increasing the amount of damages that a victim can be awarded.
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Access to Justice for Black Inventors

Jan. 26, 2024—Jordana R. Goodman & Khamal Patterson
Article | 77 Vand. L. Rev. 109
To receive a patent, an inventor must meet certain inventive and procedural standards. Their invention must be novel, nonobvious, and written in such a way that any person skilled in the inventive subject can make and use the invention without undue experimentation. This process is far from objective.
An inventor is not always communicating within their own social circle. An inventor is required to communicate their invention so that a patent examiner believes a person having ordinary skill in the art (“PHOSITA”) would recognize the invention as nonobvious. Moreover, a fictitious skilled person must be able to make and use the described invention without undue experimentation, and a patent examiner will judge whether the patent application’s written description has met this standard. Many inventors choose to navigate this difficult communication path with the help of a patent practitioner; this can either help to ease or exacerbate communication obstacles between examiners and inventors. As shown in this Article, the largely homogenous patent gatekeepers—practitioners and examiners—erect communication barriers to entry for inventors from underrepresented minority groups.
Inventors must ensure the majority-group-based practitioners and examiners recognize valuable distinctions of the invention over current technology and understand how to use the new invention without undue experimentation. When the patent practitioner and examiner communities do not share the same primary cultural experience as an inventor or an invention’s expected users, this hurdle compounds. Some inventors are disproportionately burdened when describing their invention; some must supplement the practitioners’ and examiners’ lack of systemic cultural capital more than others.
Through a case study of Black hair-care patents, this Article adds to the literature by highlighting hermeneutical injustices for Black inventors through a cultural-capital lens. This Article is the first in a series of papers showing how the majority-culture bias in patent law and the lack of resources to bridge minority- and majority-group-derived cultural-capital gaps disparately affect those inventing in minority-group cultural spaces. The cultural gap between minority-group inventors and patent practitioners, nearly all of whom are majority group, leads to inadequate and unequal representation and decision making. This Article calls upon the United States Patent and Trademark Office (“USPTO”), patent attorneys, and academics to create a more equitable patent system by altering patent practice, legal education, and ethics rules.
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Eavesdropping: The Forgotten Public Nuisance in the Age of Alexa

Jan. 26, 2024—Julia Keller
Article | 77 Vand. L. Rev. 169
Always-listening devices have sparked new concerns about privacy while evading regulation, but a potential solution has existed for hundreds of years: public nuisance.
Public nuisance has been stretched to serve as a basis of liability for some of the most prominent cases of modern mass-tort litigation, such as suits against opioid and tobacco manufacturers for creating products that endanger public health. While targeting conduct that arguably interferes with a right common to the public, this use of public nuisance extends far beyond the original understanding of the doctrine. Public nuisance has not been applied, however, to another prominent contemporary issue: privacy violations by always- listening devices. Plaintiffs have sued Google, Amazon, and Apple for their smart devices that listen and record snippets of conversations. But not one of these cases cites public-nuisance law as a basis for liability, even though the underlying wrong—eavesdropping—was one of the categories of conduct that fell within the earliest definitions of public nuisance.
This Article explores the history of eavesdropping as a public nuisance at common law and throughout U.S. history. It explains the public nature of the wrong underlying eavesdropping and why actions that invade individuals’ privacy should be understood as wrongs against the public at large. It then applies public-nuisance law to always-listening devices, arguing that public nuisance could serve as a basis for addressing privacy issues arising from modern technology or as a common-law analogue to make intangible privacy harms justiciable in federal court.
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The Financialization of Frequent Flyer Miles: Calling for Consumer Protection

Jan. 26, 2024—Ari Goldfine
Note | 77 Vand. L. Rev. 233
Airlines’ frequent flyer programs operate more like a monetary system, with points as a form of currency, than a typical discount or rewards plan. In fact, airlines’ power over points is even more extensive than that of a central bank over currency—beyond simply determining how many points are in circulation, airlines also control the value of points at redemption, how many points consumers can accumulate, and when points expire. This financialized form of frequent flyer programs has proven to be lucrative. For the Big Four airlines, frequent flyer programs are worth markedly more than the business of providing air travel itself. Much of this profit stems from selling points to third parties, like banks, which use the promise of points to incentivize consumers’ credit card spending.
The very structure of frequent flyer programs presents a problem for consumer protection. The value of these programs relies on consumers’ belief in the value of points. At the same time, the value of these programs also depends on preventing consumers from efficiently redeeming their outstanding points, which would present an unsustainable cost for the airlines. In other words, the value of these programs stems from ensuring consumers believe that points are highly valuable, while limiting the points’ actual value. This market structure relies on keeping consumers in the dark.
Because the structure of frequent flyer programs depends on consumer deception, regulatory action is necessary. To that end, this Note analyzes the sometimes-overlapping regulatory mandates of the Federal Trade Commission, Department of Transportation, and Consumer Financial Protection Bureau. It then proposes that the agencies act to provide much-needed transparency in the market for frequent flyer points. These proposals aim to prevent the airline industry from subsidizing the provision of air travel with profit driven by consumer mistake and misrepresentation.
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Avoiding a “Nine-Headed Hydra”: Intervention as a Matter of Right by Legislators in Federal Lawsuits After Berger

Jan. 26, 2024 | Taylor Lawing
Note | 77 Vand. L. Rev. 275
Heightened political polarization across the United States has resulted in the increased use of Rule 24(a) intervention as a matter of right by elected legislators in federal litigation concerning state law. Because states differ in their approaches to intervention, with only some states expressly granting intervention in state matters, lower federal courts have been tasked with evaluating motions to intervene by reconciling Rule 24(a)’s requirements with state statutes, which poses challenging questions concerning Rule 24. This Note aims to provide lower courts with a reimagined standard for evaluating motions to intervene from state legislators that considers the administrative, political, and legislative consequences that occur without such a standard. Under this standard, lower courts first determine whether Rule 24(a) trumps state law before utilizing a shareholder test to evaluate whether the existing party adequately represents the interest of the potential legislator intervenor. This standard ultimately seeks to prevent the overburdening of the courts and to protect their independence.
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Print Archive

Volume 78, Issue 2

In Government We Trust: Judicial Deference to Government Evidence in Removal Proceedings

Shareholder Litigation in Delaware: An Empirical Investigation

Destroy, Rebuild, Repeat: How to Break the Climate Disaster Cycle

Reasonable AI: A Negligence Standard

Retaliation and Confrontation of the State

Brain-Dead Surrogacy and Testamentary Disposition: Legal Rights over One’s Body for Reproductive Purposes

Volume 78, Issue 1

Volume 77, Issue 6

Volume 77, Issue 5

Volume 77, Issue 4

Volume 77, Issue 3

Volume 77, Issue 2

Volume 77, Issue 1

Previous Issues

November 2023

Volume 76, Issue 6

October 2023

Volume 76, Issue 5

May 2023

Volume 76, Issue 4

April 2023

Volume 76, Issue 3

March 2023

Volume 76, Issue 2

January 2023

Volume 76, Issue 1