While the standing doctrine is one of the most widely theorized and criticized doctrines in U.S. law, its origins remain controversial. One revisionist view argues that New Deal progressive Justices purposely invented the standing doctrine to insulate administrative agencies from judicial review. Yet existing support for this “insulation thesis” is weak. Our Article provides the first systematic empirical evidence of the historical evolution of standing. We synthesize the theory and claims underlying the insulation thesis and compile a new database of every standing issue decided, along with all contested merits votes, by the Supreme Court from 1921-2006. To overcome conventional problems of haphazard case selection, we amass, read, and classify over 1500 cases cited in historical treatments of the doctrine, assembling a database of all standing issues contested. With modern statistical methods and this new dataset—comprised of 47,570 votes for 5497 unique issues and 229 standing issues—we find compelling evidence for one version of the insulation thesis. Before 1940, progressive Justices disproportionately deny standing to plaintiffs in cases that largely involve challenges to administrative agencies. After 1940, the political valence of the standing doctrine reverses: progressives uniformly favor standing. Justices Douglas and Black, in particular, track this evolution (and valence reversal) of the standing doctrine. While the evidence for liberal insulation is strong, the historical period of unanimously decided standing cases prior to the period of insulation does not support liberal invention per se. Our results challenge legal inquiries of what claims are traditionally amenable to judicial resolution and highlight the unintended consequences of judicial innovation.

In line with accepted theories of environmental law, many prominent environmental law scholars have dismissed the climate change plans of U.S. cities and other local governments, presuming that these efforts will have no more than a trivial effect on greenhouse gas emissions. Drawing upon economic theories, others find local “piecemeal” efforts not only ineffective, but also potentially harmful to the prospects for a successful national emissions reduction program. In contrast, this Article argues that local governments have core regulatory powers in domains that will prove critical to a comprehensive response to climate change. Following a trend in scholarship that moves away from rigid prescriptions for either centralized or decentralized environmental regulation, this Article envisions local governments as important players in a multilevel governmental effort that regulates greenhouse gas emissions from the bottom up and the top down.

Bankruptcy judges enjoy neither of the twin structural protections provided by Article III of the Constitution: life tenure and compensation that cannot be diminished. Yet, they exercise broad adjudicatory powers. This Article questions whether the conventional justifications for non-Article III tribunals should apply to the bankruptcy courts and offers alternative rationales for the current system of bankruptcy courts that are absent from the literature.

The first conventional justification for non-Article III tribunals—a balancing test crafted by the Supreme Court—holds that they may handle specialized matters whose substance is narrow and technical, with limited prospects for generating the political heat from which Article III is supposed to insulate the federal judiciary. But bankruptcy adjudication is not narrow and technical. Bankruptcy courts routinely decide matters covering a range of subjects as broad as the civil docket of the Article III district courts, often with the potential to spark considerable political interest. Bankruptcy cases may involve a specialized process, but their substance is not specialized.

The second conventional justification assumes that appellate review by Article III courts will be sufficient to check the power of a non-Article III tribunal. Bankruptcy cases, however, generate relatively few appeals, and those cases that do make it out of the bankruptcy courts to Article III courts face a variety of constraints as vehicles to control bankruptcy judges. Bankruptcy judges remain largely autonomous from the Article III courts that supposedly superintend them.

In spite of the inadequacy of these standard justifications, this Article makes a tentative case for non-Article III adjudication in bankruptcy. First, the autonomy of bankruptcy judges comes in part from the appointment process to the bankruptcy bench and their lack of promotion to the Article III courts. That autonomy gives them, paradoxically, a layer of insulation from outside political pressure that is the core value of Article III. Second, the process for appointing bankruptcy judges has created a bench that remains oriented toward an audience—the bankruptcy bar—that holds in highest esteem professionalism,creativity, and nonideological adjudication, which are also key values associated with Article III.

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court held that the Federal Constitution provides a cause of action in damages for violations of the Fourth Amendment by individual federal officers. The so-called “Bivens” cause of action—initially extended to other constitutional provisions and then sharply curtailed over the past two decades—has been a subject of controversy among academics and judges since its creation. The most common criticism of Bivens—one that has been repeated in different venues for thirty years—is that the Court’s individual liability model, in which the offending officer is personally liable in damages, should be abandoned in favor of a governmental liability model akin to respondeat superior liability.

Commentators base their criticism of the individual liability model on two empirical assumptions: (1) Bivens suits are almost never successful; and (2) the defense of qualified immunity, available only to individuals, is a nearly insuperable barrier to plaintiffs’ prevailing in Bivens claims. On this account, a move to the governmental liability model will ensure adequate compensation and deterrence while removing a substantial barrier to plaintiffs’ success. These empirical claims about the general failure of Bivens suits and the explanation for that failure have never been tested. This Article corrects that oversight by offering the results of the first detailed empirical study of the determinants and outcomes of Bivens litigation. Based on data collected from cases filed in five district courts from 2001-2003, this Article concludes that the truths that scholars and judges have taken as a given are unsupported. Bivens claims succeed at a much higher rate than previously thought, especially compared to other civil rights litigation, and the defense of qualified immunity rarely plays a role in the outcome of Bivens litigation. These data call into question the given wisdom about the characteristics of Bivens litigation, and undermine the policy proposals that have occupied the field of Bivens scholarship.

Imagine the following scenario: A police officer is investigating a majordrug trafficking ring. She obtains a wiretap on the cell phone of the suspected kingpin of the organization. The wiretap enables her to overhear conversations between the top target of the wiretap and several other people in the drug ring. Before the wiretap produces sufficient evidence to support arrest and prosecution of the kingpin, it yields evidence of various crimes involving lower-level drug runners.

Traditionally, this officer would face a dilemma. On the one hand, she could arrest the low-level targets based on the evidence she had already obtained, but in the course of prosecuting them she would be forced to reveal the existence of the wiretap to these low-level targets, who would likely inform the kingpin, which would likely prevent her from obtaining any additional evidence against her top target. Alternatively, she could sit idly by while known criminal activity occurred, perhaps at immediate risk to the safety of the community, in order to keep the wiretap secret and continue building her case against the kingpin.

The “hand off” is a law enforcement technique that seeks to resolve this dilemma by enabling what I will call “midstream prosecutions.” A hand off occurs when information from an initial investigation such as a wiretap is “handed off” from one police unit to another. The receiving unit conducts a subsequent and so-called independent investigation, and the subsequent investigation becomes the basis of a criminal prosecution during which the initial investigation is never revealed to the defendant or to the court. The hand off therefore allows police to conduct midstream prosecutions during ongoing covert investigations without “blowing their cover.”

In the aftermath of the Supreme Court’s 2007 opinion in Bell Atlantic v. Twombly, judges and civil procedure scholars throughout the country divided on the opinion’s significance. In just twenty-four pages, Twombly uprooted the Conley v. Gibson standard for evaluating motions to dismiss a lawsuit under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Under Conley, a court could dismiss a complaint only if it “appear[ed] beyond doubt that the plaintiff c[ould] prove no set of facts in support of his claim which would entitle him to relief.” That standard had governed motions to dismiss for fifty years, and embodied the liberal notice-pleading regime envisioned by the framers of the Federal Rules of Civil Procedure.3 But no more. Faced with a suit alleging that almost every major telephone company had engaged in anticompetitive conduct amounting to an antitrust conspiracy, the Court introduced a new system of “plausibility” pleading designed to curb discovery abuse and weed out frivolous lawsuits. Now, plaintiffs had to include in their complaints “enough factual matter” to “nudge[] their claims across the line from conceivable to plausible . . . .”

In responding to the opinion, some judges agreed with Justice Stevens’s view in dissent that Twombly “rewr[o]te the Nation’s civil procedure textbooks and call[ed] into doubt the pleading rules of most of its States,” whereas others viewed Twombly fundamentally as an antitrust case and assumed that the case’s effects would begin and end there. At the same time, scholars fractured over the opinion’s normative desirability; some viewed the opinion as a necessary bulwark against abusive practices by plaintiffs’ attorneys, whereas others saw it as going too far in assisting defendants. Almost immediately, Twombly became one of the most frequently cited cases in pleadings, even as judges split on how to apply its many strands.11 In the midst of all this confusion, perhaps only one thing was settled: Twombly’s reach was still unclear.