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Volume 70, Issue 1


Article

Not Merely There to Help the Men

Equal Pay Laws, Collective Rights, and the Making of the Modern Class Action
by  David Freeman Engstrom

Why, in a nation thought pervasively committed to “adversarial legalism,” did mass litigation and, in particular, the class action lawsuit not emerge as significant regulatory tools until at least the 1970s? Standard answers point to New Deal faith in bureaucracy or to an Advisory Committee that was not moved to amend Rule 23 of the…

Article

Surveillance Intermediaries

by  Alan Z. Rozenshtein

Apple’s high-profile 2016 fight with the FBI, in which the company challenged a court order commanding it to help unlock the iPhone of one of the San Bernardino terrorists, exemplifies how central the question of regulating government surveillance has become in U.S. politics and law. But scholarly attempts to answer this question have suffered from…

Article

The Common Law of Liable Party CERCLA Claims

by  Justin R. Pidot & Dale Ratliff

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980 transformed environmental law by imposing joint and several strict liability on those who contaminate the environment, referred to as potentially responsible parties (PRPs). Under the auspices of CERCLA, the U.S. Environmental Protection Agency (EPA) has overseen cleanup at thousands of sites, protecting public health…

Note

Daniel in the Lion’s Den

A Structural Reconsideration of Religious Exemptions from Nondiscrimination Laws Since Obergefell
by  Adam K. Hersh

As the LGBT rights movement has begun to achieve tangible successes at the national level—in particular, marriage equality and workplace protections—legislatures and courts alike have grappled with how to address those who claim their religious beliefs require them to discriminate. Since Obergefell v. Hodges, this process has gone into overdrive: Both legislative and judicial accommodations…

Note

Taking Abortion Rights Seriously

Toward a Holistic Undue Burden Jurisprudence
by  Kate L. Fetrow

Women’s right to access abortion remains one of the most hotly contested legal issues in the United States. The current constitutional test states that an abortion regulation is unconstitutional under the Fourteenth Amendment if it imposes an “undue burden” on the right to an abortion. But determining whether a burden is undue confounds legislatures and…

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Recent Online Essays

Itemized Deductions in a High Standard Deduction World

New tax legislation enacted in December 2017 exacerbates the extent to which various itemized deductions, such as the charitable contribution deduction and the home mortgage interest deduction, disproportionately benefit high income individuals. This essay develops this critique and concludes by suggesting paths for reform that should be considered by a future Congress.

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Is the Federal Judiciary Independent of Congress?

Can Congress command a federal court to rule in favor of a particular party in a pending case? The answer to this seemingly simple question is unsettled. The Constitution permits Congress to enact rules of law that courts must follow; and it permits the courts to decide cases pending before them. Constitutional conflict arises when…

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The Costs of Aggregating Administrative Claims

Introduction Aggregation has emerged in the past few years as a critical tool by which agencies can quickly resolve groups of claims that would otherwise languish for years in bureaucratic limbo. The idea is simple: Consolidating many similar claims in a single proceeding would help agencies process claims more quickly, efficiently, and fairly. But aggregation…

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The Faulty Frequency Hypothesis

Difficulties in Operationalizing Ordinary Meaning Through Corpus Linguistics

Introduction Promising to inject empirical rigor into the enterprise of statutory interpretation, corpus linguistics has, over the past couple years, taken the legal academy by storm. A product of linguistics departments, corpus linguistics is an empirical approach to the study of language through the use of large, electronic, and searchable databases of text called corpora.…

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Blockchain’s Big Hurdle

Blockchain technology can maintain accurate chains of title to securities and other legal instruments in a reliable electronic form. As private industries begin to recognize the cost-saving and risk-reducing potential of this technology, state legislatures are responding. Arizona’s H.B. 2417 is a prototypical state solution. In essence, the law requires parties to treat blockchain-secured records,…

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SLR in the News

Justice Thomas cites forthcoming article Who Are ‘Officers of the United States’? in his concurring opinion in NLRB v. SW General, Inc.

Justice Breyer cites Owners, Auctions, and Absolute Priority in Bankruptcy Reorganizations in the majority opinion in Czyzewski v. Jevic Holding Corp.

The New York Times mentions Dan M. Kahan, David A. Hoffman, Donald Braman, Danieli Evans, and Jeffrey J. Rachlinski’s article “They Saw a Protest”: Cognitive Illiberalism and the Speech-Conduct Distinction.

Justice Scalia cites Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs in his concurring opinion in Glossip v. Gross.

Featured Topic in the Law

Deference to Agency Interpretations

With upcoming Supreme Court cases, recent bills, and the new Supreme Court nomination, judicial deference to agency interpretations has come under scrutiny. Here are a few pieces from the Stanford Law Review archives on the issue.

Constitutional Administration

Refugee Roulette

Refugee Roulette in an Administrative Law Context

Inside Agency Statutory Interpretation