Apr 16, 2025 Rebecca RoipheLegal Profession
Maya Steinitz,
Zombie Litigation: Claim Aggregation, Litigant Autonomy, and Funders’ Intermeddling, __
Cornell L. Rev. __ (forthcoming, 2025), available at
SSRN (Nov. 1, 2024).
There has been so much enthusiasm for litigation funding. Scholars have sung its praises: it will solve the access to justice problem; it is no different from insurance; if you find yourself balking at litigation funding it is probably because you secretly want big powerful corporations to get away with misconduct. I was always one of those shamed observers who had inchoate concerns about litigation funding but felt embarrassed to take the side of Goliath over David. In Zombie Litigation: Claim Aggregation, Litigant Autonomy, and Funder’s Intermeddling, Maya Steinitz has skillfully articulated these concerns and explained how the litigation funders themselves are often the Goliath, not the defendants whom they sue.
The profession has watched as litigation funding has changed the civil justice system, the market for legal services, and the attorney-client relationship. According to one recent study, there are about forty litigation funders worth about ten billion dollars in capital. By creating a market in claims that can be bundled and sold, more people and entities can bring lawsuits, law more closely resembles other commodities, the attorney-client relationship loses its centrality, and judges are increasingly marginalized. Some of these changes are good but others are more concerning. In this article, Steinitz argues that litigation funding and portfolio aggregation, which involves gathering a number of claims together into one funding vehicle, results in clients’ loss of autonomy over their cases. Litigation becomes another market commodity, like the bundled mortgages that contributed to the financial collapse in 2008, with lawyers as brokers and managers. This, Steinitz argues, is not in the interest of the public and inconsistent with core principles of the profession. Continue reading "Stopping the Zombie Apocalypse"
Apr 15, 2025 Nina VarsavaJurisprudence
Bill Watson, The Plain Meaning Fallacy, __ B.C. L. Rev. __ (forthcoming, 2026) available at SSRN. (Feb. 1, 2025).
In The Plain Meaning Fallacy, Bill Watson exposes a problem in what he considers the dominant form of originalism today—original public meaning (OPM) originalism. OPM originalism takes the content of constitutional law to be determined by the communicative meaning of the text at the time of ratification. The problem is that the justifications for OPM originalism as a theory of constitutional interpretation apply only when OPM is plain and OPM is plain relatively rarely.
Watson takes originalism seriously, engaging carefully and thoughtfully with originalist thinkers. He charitably explicates the appeal of OPM originalism while incisively showing that this appeal holds up only when OPM is plain and so supports a much narrower purview for the theory than its adherents want to claim for it. Continue reading "Originalism’s Plain Meaning Problem"
Apr 14, 2025 Christopher J. SprigmanIntellectual Property Law
In Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Supreme Court considered whether the licensing of one of Andy Warhol’s Prince Series works for the purpose of illustrating a magazine story about the musician Prince, was a fair use of the Lynn Goldsmith photograph on which the Warhol work was based. In that opinion, the Court made two important interventions into the law of fair use.
First, the Court held that “[t]he fair-use provision, and the first statutory factor in particular, requires an analysis of the specific use of a copyrighted work that is alleged to be an infringement.” “The same copying may be fair,” the Court said, “when used for one purpose but not another.” Accordingly, the Court focused on the challenged use—the license to Vanity Fair to illustrate a cover story about Prince’s life—and did not rule on whether the particular Warhol work licensed, Orange Prince, or any of the other Warhol Prince Series works, or any other conceivable use of Orange Prince, was or was not fair use. Continue reading "McFarlin on “Infringing Uses” After Warhol"
Apr 11, 2025 Katharine YoungInternational & Comparative Law
It is surely an understatement to observe that global constitutionalism and human rights are under considerable pressure. Central to many of the up-to-the-minute (post-January 2025) challenges, is the age-old question of the role of the apex or supranational court in rights protection. Research into how courts and tribunals react, and should react, to the ever-expanding list of human rights concerns that reach them, is vital, whether one’s concern is human rights inflation, juristocracy, rising authoritarianism, or all three. The default position of judicial restraint and its corollary, deference, often lacks nuance.
Cora Chan’s new book, Deference in Human Rights Adjudication, offers a tightly reasoned and extensive engagement with the premise of deference. Drawing on her home jurisdiction, Hong Kong, Cora Chan also engages cases and commentary from Canada, Ireland, Israel, New Zealand and the United Kingdom. With careful analysis of several lines of caselaw, more analytical than strictly comparative, she presents a grid of guidance notes on the various postures that courts have adopted, in dealing with deference and human rights. The findings are telling, not just for the jurisdictions in question, but for the international and regional human rights tribunals now faced with questions of their own appropriate role, and for other courts supervising the extensive bills of rights and expressly justiciable complaints that have come with the last wave of constitution making and amendment. Continue reading "High Stakes Deference"
Apr 10, 2025 Christina S. HoHealth Law
As shown by the renewed backlash against health insurers, this time unleashed by the United Healthcare CEO’s killing in Manhattan, there seems to be something about health. Those of us who work in health law likely chose this field because we’ve always known that, indeed, there is just something about health. But what exactly is it? What makes it so special, so intractable, so compelling, such a lightning rod? Elizabeth Barnes‘ new book, Health Problems, takes this question squarely on, and concludes that we might never solve the mystery, even if we must continue to probe.
The signature puzzles she picks out are 1) the relationship between health and well-being, 2) the relationship between health’s objective nature and its subjective aspect, and 3) the relationship between health and disability. These puzzles are central to our work. They loom over so much of our scholarship that I am constantly bracketing these questions or relying on rough and provisional stand-ins. My perverse skirting of these central matters so as not to get unproductively mired allows me to make at least some progress on other questions that demand urgent answers. I’ve always felt that perhaps in making progress on adjacent questions, we have a chance of shedding light on these enduring puzzles too. Elizabeth Barnes helps locate this approach: first by mapping the bracketed space through her clean no-nonsense chapters (a division of labor that frees us to tackle other tasks) but also by providing perhaps a rationalization for approaching these questions a bit sideways. Continue reading "The Trouble With Health"
Apr 9, 2025 Kaiponanea MatsumuraFamily Law
The concept of love is not well developed in the law governing adult intimate partnerships despite anodyne pronouncements such as the claim in Obergefell v. Hodges that marriage “embodies the highest ideals of love, fidelity, devotion, sacrifice, and family” (emphasis added). When courts have attempted to operationalize love, they have often done so in offensive or unsophisticated ways, suggesting, for example, that the spousal duty of support includes the obligation to perform nursing-type care “in loving and devoted ministrations,” or that nonmarital partners who admit to being “lovers” are necessarily engaging in an illicit, sexual transaction. In other words, when it is invoked, love—at least in partnered relationships—usually works against the more economically vulnerable partner, who is often a woman. Scholars have primarily pushed back by developing alternative justifications for their desired outcomes, like securing partners’ economic rights through implied partnership or advocating for more careful consideration of partners’ contributions to the relationship. Few have attempted to counteract these decisions by providing an alternative account of love that is more descriptively accurate, normatively justified, and produces improved legal outcomes, despite the widely held intuition that love matters.
James Toomey’s fascinating article, Love, Liberalism, Substituted Judgment, reveals the benefits of careful thinking about how love can impact a particular area of the law, in this case, decision-making on behalf of incapacitated adults. Toomey considers a puzzle lying at the heart of the substituted judgment standard that the law has adopted for cases of incapacity. When individuals can no longer make decisions for themselves, the law directs the surrogate decision-makers to make the decision that the individuals “would have made for themselves if they could.” (P. 1290.) Yet those individuals may have experienced such a significant degree of irreversible decline or change that they can no longer connect their past to present selves, and are therefore not “themselves” in a meaningful sense. What, then, justifies the legal rule that gives decision-makers the ongoing authority to make decisions on these individuals’ behalf? Love, Toomey argues: “the kind of love between adult friends, family members, or romantic partners” involving “(at a minimum) an intimate knowledge of and deep concern for the personal identity of another.” (P. 1292.) Love is the invisible string that connects decision-makers to incapacitated individuals and ultimately ties those individuals to themselves. Continue reading "Operationalizing Acts of Love"
Apr 8, 2025 Aditi BagchiContracts
It is not every day that we are presented with a new theory of private law that invites us to see the project of private light in a new way.
In a move familiar to philosophers of contract and tort but perhaps surprising to American scholars of those subjects from other traditions and methods, Hanoch Dagan and Avihay Dorfman take “private law” as the operative unit of analysis. Like theories of corrective justice, they aim to identify foundational principles that apply across contract and tort. The language of “relationality” is also familiar from the corrective justice literature. However, Dagan and Dorfman offer us a new way to understand the moral demands that flow from ordinary relationships. Continue reading "A New Account of the Whole Picture of Private Law"
Apr 7, 2025 Elena LarrauriCriminal Law
It has become sort of a truism to say that prisoners have rights, that is, they are ‘citizens behind bars’ and no longer slaves of the state. Much less attention has been devoted to how they can protect these rights. Although prisoners have access to justice, litigating from inside prison is difficult. Incarceration impedes access to counsel and access to courts, and requires substantial time, economic means, and certain knowledge. In their paper The Dutch Complaint Procedure: A ‘Picture Perfect’ Procedure?, authors Tessa Van Der Rijst and Pauline Jacobs provide a brief and clear explanation of how ‘the picture-perfect procedure’ works in practice in Dutch prisons.
Calavita’s and Jeness (2015) seminal work Appealing to Justice exhorted us to look at mechanisms inside prisons that prisoners could use to present their grievances and defend their rights in the United States. A ‘Picture Perfect’ Procedure? takes up that challenge in the Dutch context. Although in Europe there is no need to exhaust the administrative procedure before going to the Courts, the internal system of lodging a complaint still matters. Van Der Rijst and Jacobs are among the European scholars who have turned their attention to these procedures. (See also Daems and Larrauri, 2024). Continue reading "Administering Justice in Prisons"
Apr 4, 2025 Linda S. MullenixCourts 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, (3) the right and remedy are interdependent, (4) the lawsuit is a self-contained episode, and (5) the process is party-initiated and party-controlled. The new public law model is sprawling and amorphous, subject to change over the course of the litigation, suffused and intermixed with negotiating and mediating processes at every point, with the judge as the dominant figure in organizing, guiding, administering, and implementing relief. Arthur Miller observed the same paradigm shift that year, noting that critics of the new procedural model characterized it as a Frankenstein’s monster. The label has stuck.
Professor Maya Steinitz introduces a new appellation into the lexicon of aggregate dispute resolution: “Zombie litigation.” Continue reading "From Frankenstein’s Monster to Zombie Litigation"
Apr 3, 2025 Anna GelpernCorporate Law
Jeremy C. Kress, “
Least-Cost” Resolution, 43
Yale J. on Reg. __ (forthcoming, 2026), available at
SSRN (Sep. 03, 2024).
Banks have magic powers: they can conjure money out of thin air, send it across the street or around the world instantly, make your startup dreams come true, and these days, even make you a cappuccino. They are also fragile and toxic: liable to fail suddenly and bring people, firms, other banks, and entire economies down with them. Generations of reformers have tried to make bank failure more orderly, less destructive, and less costly to the public. Judging by the crop of papers inspired by the crop of bank failures in 2023, they have failed again.
Why do we keep failing at bank failure? This article by Jeremy Kress suggests a piece of the puzzle: we mismeasure success. Continue reading "A Costly Cost Test"
