Daniel Wilf-Townsend, Deterring Unenforceable Terms, 111 Va. L. Rev. __ (forthcoming 2025), available at SSRN (June 6, 2024). Maureen Carroll Most of us (if not all) have entered a contract with one or more terms that a court would not enforce. From non-compete agreements in states that prohibit them, to leases that purport to limit the implied warranty of habitability, to waivers that disclaim liability for injuries resulting from the drafting party’s negligence, contracts containing clea...| Courts Law
Myriam Gilles, Arbitration Exceptionalism, available at SSRN. (Feb. 27, 2025). Pamela Bookman Privatization of traditionally public government functions is all the rage in the second Trump administration. The news is rife with suggestions of privatizing everything from delivering the mail to keeping airplanes aloft to tracking the weather. These developments seem consistent with the Supreme Court’s longtime trends of favoring privatization of their own bread and butter—public adjudication...| Courts Law
Lisa V. Martin, The Importance of Civil Pathways to Protection Orders, 113 Geo. L.J. 122 (2024). Allan Erbsen Civil Protection Orders (CPOs) empower targets of domestic violence to enlist the state as an ally. Streamlined procedures enable plaintiffs to avert abuse that public institutions might otherwise be unable to address. In contrast to criminal remedies, civil remedies focus on protecting victims rather than punishing abusers, rely on robed magistrates rather than armed officers, and re...| Courts Law
If we were on Family Feud and the question was “Name a constitutional obstacle to private enforcement of federal substantive law,” the #1 answer on the board would probably be Article III standing—most notably its requirement that any plaintiff suing in federal court must have suffered a concrete, particularized “injury in fact” as a result […]| Courts Law
Most of what lawyers learn about the “Interbellum Constitution”–i.e., constitutional law between the end of the War of 1812 and the beginning of the Civil War—comes from the handful of major Supreme Court decisions of that era that law schools still teach as part of the required first-year curriculum. McCulloch v. Maryland for the supremacy […]| Courts Law
In 1976, a decade after the complete overhaul of Rule 26 class action procedure, Abram Chayes observed that the amended rule had accomplished a significant paradigm shift from “traditional” litigation to a new model of public law adjudication. Chayes described five characteristics of traditional litigation: (1) the lawsuit is bipolar, (2) the litigation is retrospective, […]| Courts Law
I feel like I am late to the party. Years ago, in 2017, Tonja Jacobi and Dylan Schweers wrote an influential article showing female Supreme Court Justices were disproportionately interrupted by male Justices and advocates. Fortunately, because Professor Jacobi sent me an old school hard copy of her newest article, I am now aware of […]| Courts Law
Kathryne M. Young, Getting Help, 2024 Wisc. L. Rev. 1149. Robin J. Effron The access-to-justice movement—comprised of lawyers, activists, and scholars—has traditionally focused on ensuring people have access to legal resources, tribunals, and lawyers to pursue remedies or mount defenses. As Kathryne Young says in Getting Help, the conventional approach asks: “How do we, as lawyers, serve those seeking help? How do we provide more legal services to lawyerless parties?” But this framewo...| Courts Law
Personal jurisdiction sits in a state of flux. A decade-and-a-half of renewed Supreme Court engagement—with another case on the way this Term—has changed some things, failed to clarify longstanding uncertainty, and sowed new confusion. The originalist turn has reached personal jurisdiction, with arguments for returning to our jurisdictional origins. Paul Schiff Berman predicts The Future […]| Courts Law
Since 2005 and passage of the Class Action Fairness Act, scholars have bemoaned the ongoing attack on class action procedures. Much of this work has focused on judicial reinterpretations of Federal Rule of Civil Procedure 23. Plaintiffs face new prerequisites to aggregating their claims such as: (1) stricter pleading standards; (2) the judicially created “ascertainability […]| Courts Law