Volume 77
How AI Destroys Institutions
Woodrow Hartzog & Jessica Silbey Volume 77, Issue 4, 727-770 Civic institutions—like the rule of law, higher education, and a free press—are the backbone of democratic life. They are the mechanisms through which complex societies encourage cooperation and...
Do We Really Have the Right to Breathe Clean Air?
Rebecca Bratspies Volume 77, Issue 4, 771-820 How come I can’t breathe at home and y’all get to breathe at home? The idea that some people may freely poison others is one of the most astonishing but least contested aspects of modern life. Setting environmental...
Global Tax Decluttering
Shu-Yi Oei & Diane M. Ring Volume 77, Issue 4, 821-878 Major global players—most prominently the Organisation for Economic Cooperation and Development (OECD) and European Union—have recently begun advocating that countries “declutter” their tax systems to tidy up,...
“The State v. The State:” Feuding Prosecutors and the Battle over Post-Conviction Concessions
Dana Bazelon Volume 77, Issue 4, 879-938 One of the persistent questions of criminal law is how prosecutorial authority is allocated among different sovereign entities: Courts and scholars have wrestled time and again with questions of how criminal enforcement power...
Transgender Rights Federalism: Protecting Gender-Affirming Care in State Courts
Julia Hunter Volume 77, Issue 4, 939-980 Just as it seems strange to lawyers in 1990 that in the early part of the twentieth century the federal Bill of Rights did not extend to protection of individuals against state government, future generations may look back and...
Capital Without Contribution
Saamia Aziz Volume 77, Issue 4, 981-1004 The United States offers immigration pathways based on economic contribution, yet this principle is applied inconsistently across employment-based (EB) visa preference categories. While the EB-1, EB-2, and EB-3 visas require...
From Relic to Relevance, The Resurgence of Tariffs
Reuven S. Avi-Yonah, Doron Narotzki, and Tamir Shanan Volume 77, Issue 3, 497-554 Modern legal scholarship has largely relegated tariffs to economic analysis, overlooking their legal and policy significance. This Article challenges that view by examining tariffs as a...
Automating Junk Science
Lisa Waters Volume 77, Issue 3, 555-612 In the late twentieth century, the boom of forensic disciplines in criminal prosecutions helped drive mass incarceration to an all-time high. Yet scientific and legal inquiry revealed a disturbing truth: Most forensic methods...
Disarming Data: An Empirical Take on the Loaded Debate About Felon-in-Possession of a Firearm
Jonathan Abel Volume 77, Issue 3, 613-658 This Article answers a crucial empirical question at the heart of the scholarly and judicial debates about the laws governing felon-in-possession of a firearm: How often do defendants charged with this offense have violent...
Limits of the Reasonable Inquiry: Artificial Intelligence and the Future of Rule 11
Celeste Greaves Volume 77, Issue 3, 659-688 Artificial intelligence (“AI”) burst onto the legal scene and will soon revolutionize practice altogether. Despite enduring technical issues, like hallucinations and implicit bias, AI’s capabilities and potential benefits...
The Pay-to-Train Paradigm: How Private Settlements Are Rewriting Generative AI Copyright Law
Kevin Afiesh Volume 77, Issue 3, 689-726 The legal landscape for generative artificial intelligence (AI) and copyright is now shaped more by private settlements that overwhelmingly favor copyright holders than by courts or legislators. As AI companies rely on...
The Comparator Argument in Trans-Healthcare Ban Cases
Craig Konnoth Volume 77, Issue 2, 289-322 As states have increasingly restricted gender affirming care for minors across the nation (reinforced by a recent Executive Order by President Trump), and though the Supreme Court ruled on one such state ban, a powerful...
Systemic Jurisdictional Ambiguity
Norman W. Spaulding Volume 77, Issue 2, 323-378 The purpose of jurisdictional rules is to provide reasonably clear signals about when a court does and does not have power over a case. Judging from the modern Supreme Court’s rules for determining jurisdiction, however,...
A Case Against Mass Deportation: The Japanese American Internment Camps and Recent Treatment of Korematsu
Isaac Bloch Volume 77, Issue 2, 379-428 The large-scale deportation of non-citizens has become a preeminent policy issue. Unfortunately, executive curtailment of immigrant communities’ liberty is not without historical parallels. During World War II, federal officials...
Caremark Claims Following Disasters: Why Plaintiffs Should Sue the Board When It Causes a Disaster
Eli Mizock Volume 77, Issue 2, 429-458 Fire disasters have become an inevitability for California residents. After a fire disaster, the public is primarily concerned with compensating the victims. However, securities fraud class actions brought by shareholders of the...
The Equal Protection Problem: The Right to Vote, Gerrymandering, and Lessons From Canada
Gabriel Renneisen Volume 77, Issue 2, 459-500 In the wake of Rucho v. Common Cause, partisan gerrymandering remains a nonjusticiable political question. This retreat from judicial oversight leaves a significant gap in the protection of democratic governance. The...
A Procedural Giant
Scott Dodson Volume 77, Special Issue, 1-4 When I first learned of my colleague and mentor Rick Marcus’s intention to retire, I immediately thought to spearhead this written symposium in his honor. I organized one for Geoff Hazard in 2019, and Rick struck me as...
That’s Rick
Edward H. Cooper Volume 77, Special Issue, 5-10 Rick Marcus retiring? Not possible. No way. Well, I might be persuaded that he will retire from the job with a paycheck. Retiring will leave him free to go full speed ahead, engaging in the full range of his abiding...
Celebrating the Neutral and Gradual: An Ode to Professor Richard Marcus
Judge Lee H. Rosenthal Volume 77, Special Issue, 11-16 I love proceduralists. I wasn’t sure why I found them such interesting and admirable people until I asked Professor Richard Marcus why he had chosen civil procedure as his life’s work. His answer was quick and...
A Set of One
David L. Faigman Volume 77, Special Issue, 17-21 In every respect, Emeritus Distinguished Professor of Law and Horace O. Coil Chair in Litigation, Richard Marcus—“Rick” to everyone who knows him—is the quintessential academic. Indeed, if one were writing a movie that...
Richard Marcus, Master of Rules
Elizabeth J. Cabraser Volume 77, Special Issue, 21-25 Many lawyers are forever indebted to Rick Marcus as a consummate professor of civil procedure, who merges the theoretical with the practical. Professor Marcus enables the students he teaches to not only think like...
Three (Unfashionable) Words About Rick Marcus
Steve Gensler Volume 77, Special Issue, 25-30 Rick Marcus rules! (Bad pun intended.) No, those aren’t my three words about Rick Marcus. Nor am I going to write that Rick is prolific, or brilliant, or gracious, or generous of spirit, or any of the other words one could...
A Reporter for All Seasons
Judge Robert M. Dow, Jr. Volume 77, Special Issue, 31-34 My introduction to Professor Richard Marcus took place on my first day of law school. It was, as we now would say, a virtual encounter. Rick was present in the form of a not inexpensive textbook: Marcus, Redish,...
Rick Marcus
Andrew Bradt Volume 77, Special Issue, 35-39 There is only one Rick Marcus. Of course, when one considers the sum of his contributions to American law—as a teacher, scholar, mentor, and public servant—it’s remarkable that there is only one Rick Marcus. I have had the...
Richard Marcus: An Encomium
Deborah R. Hensler Volume 77, Special Issue, 39-41 As long as I have researched, written, and taught complex civil litigation, Rick Marcus has been my go-to person to find out what new civil procedure rules are in the making, why, and in response to whose pleas. I am...
Beyond Exceptionalism: The Illusory Ideal of Access to Justice
Alan Uzelac Volume 77, Special Issue, 41-46 Intervening in a lively discussion at the XIX Public and Private Justice (PPJ) Course and Conference, Richard Marcus, with his proverbial vigor, suddenly exclaimed: “But there has never been access to justice!” Rick’s...
Discovering Rick Marcus
Diego Zambrano Volume 77, Special Issue, 47-53 No one knows more about discovery than Rick Marcus. Over the course of his career, Rick has authored the defining scholarship on our American procedural institution, from his early work on reforms to contain discovery...
Professor Richard Marcus: The Scariest, Funniest, Most Fashionable Civ Pro Icon
Simona Agnolucci Volume 77, Special Issue, 53-55 In the Fall of 2003, I walked into Professor Marcus’s Civil Procedure class with a pit in my stomach. I had not gotten the email about the summer reading homework, The Buffalo Creek Disaster, and barely knew what...
Civil Litigation in the Nineteenth Century Landraad of the Former Dutch East-Indies (Indonesia): Simplification Aimed at Access to Justice?
Cornelis Hendrik van Rhee Volume 77, Special Issue, 55-67 Our friend and colleague, Professor Richard Marcus, has a broad interest in comparative civil procedure, including the history of procedure. Therefore, I thought it appropriate to invite him for a short journey...
The Autonomy Default Paradigm in Contract Law
Hanoch Dagan & Michael Heller Volume 77, Issue 1, 1-37 You can scribble an agreement on a napkin or hire lawyers to negotiate a hundred-page contract. Either way, most of your contractual obligations will not be in your document. They will be in the background...
Beyond Loper Bright: Iterative Construction at the National Labor Relations Board
Fred B. Jacob & Anne Marie Lofaso Volume 77, Issue 1, 38-84 “[The agency’s actions] express an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions—impressions which may lie beneath consciousness without losing their...
Brewing Solidarity: Rights Consciousness and Class Consciousness in Coffeeshop Organizing
Brishen Rogers Volume 77, Issue 1, 85-133 Almost ten thousand baristas have unionized since 2022 in cafes across the country. Their effort breaks with recent history in several respects. For example, baristas have used a novel “worker-to-worker organizing” model in...
An Age of Statutes or an Age of Executive Orders? Conflicting Judicial and Presidential Visions of Policymaking
Daniel A. Farber Volume 77, Issue 1, 134-165 Two decades ago, then-Professor Elena Kagan hailed the era of presidential administration in which Presidents would launch major policy initiatives within the executive branch and end run congressional gridlocks. Since...
Religious Freedom & the Fertilized Egg
Rabea Benhalim Volume 77, Issue 1, 166-222 Anti-abortion activism and litigation have challenged established caselaw on the legality of in vitro fertilization (IVF) and the legal treatment of IVF fertilized eggs. These challenges rely on conservative Christian...
The Forever Fight Against Forever Chemicals: Analyzing Loopholes in California’s PFAS Ban for Consumer Products
Jake B. Goldman Volume 77, Issue 1, 223-244 Per- and polyfluoroalkyl substances (PFAS) are a class of synthetic chemicals used for their unique qualities in manufacturing across numerous industries. PFAS, also known as “forever chemicals,” persist in the environment...
DEI: Definitely Earned It–A Review of Contemporary DEI Initiatives Against Emerging Legal Frameworks
Joseph Cremona Volume 77, Issue 1, 245-288 Since 2024, Diversity, Equity, and Inclusion (DEI) programs have ignited a volatile political debate. Fierce opposition continues to attack their very existence. On one hand, proponents of DEI programs argue that such...