Volume 2024, No. 1

PDF link Table of Contents


PDF link Standing Between Private Parties

Thomas P. Schmidt

Standing is generally framed as a doctrine about plaintiffs. The basic question, the Supreme Court has said, is “whether the plaintiff is the proper party” to invoke the federal judicial power. Asking that question tends to obscure a natural corollary: Against whom? This Article attends to the other side of the “v.” It argues that suits against private parties should be treated differently from suits against government officials for standing purposes because these two types of suits raise different structural concerns. Notwithstanding its focus on plaintiffs, the Supreme Court has said repeatedly that standing is “built” on the “single basic idea” of “the separation of powers.” When a government official is sued, a particular structural problem arises: If a court entertains the suit, it will be put in the position of supervising another branch of the government. And without some sort of injury requirement, the political branches might be subjected to continuous judicial oversight. As a historical matter, Article III standing doctrine developed primarily in this context.

But the structural concern prompted by that context is absent when one private party sues another private party. There is no prospect that such a suit will yield a remedy against a government official. The suit may, of course, raise other constitutional problems, but those other problems should not be shoehorned into standing—an avowedly transsubstantive jurisdictional doctrine that derives from Article III.

PDF link Cake-and-Eat-It-Too Clauses

Tanya J. Monestier

Imagine this: You have signed on the dotted line to purchase a home for $500,000. You have put down an earnest money deposit of $25,000. Right before closing, you find out that your bank will not provide the financing you thought you had secured. You can no longer afford to purchase your dream home. You are coming to grips with the reality that you are going to lose $25,000, which comprises the bulk of your life savings. Then you hear from the seller, telling you that they are going to come after you for $100,000 in “actual damages”—the amount the house depreciated between the time you signed the purchase and sale agreement and the time you breached the contract. How is this possible? It is bad enough that you are going to lose $25,000. How can you be on the hook for even more? It is because of a little- known clause in your purchase and sale agreement that provides the seller with the option of retaining the deposit as liquidated damages or suing for actual damages instead. These clauses have a variety of names: election clauses, election of remedies clauses, optional liquidated damages clauses, or cake-and-eat-it-too clauses.

A surprising number of courts are prepared to give effect to these clauses, reasoning that they represent the parties’ intent, and that freedom of contract demands that they be enforced. This Article argues that courts are getting it wrong: liquidated damages clauses cannot be reconciled with election clauses. No amount of freedom of contract logic can get around the fact that the two clauses are legally incompatible.

PDF link Preserving Sacred Sites and Property Law

Troy A. Rule

Should courts have the power to order the federal government to give land rights to particular groups based solely on their religious beliefs? Calls for legal rules requiring such effectual transfers have grown in recent years as Americans have started to confront the country’s history of mistreatment of Native nations and other disadvantaged groups. Most recently, Indigenous claimants in a pending Ninth Circuit case want the court to interpret the Religious Freedom Restoration Act of 1993 to entitle them to a remedy resembling a perpetual easement on certain federal land. This would prohibit development on the land to protect a sacred site.

At first glance, a law requiring the federal government to give the equivalent of an easement in public land to a singled-out religious party might seem like an appealing way to further important reparative justice or religious freedom goals. However, legal rules requiring such uncompensated property transfers on the basis of religion would also contravene bedrock principles of constitutional and property law and threaten crucial climate change mitigation efforts. This Article is the first to rigorously examine the broader consequences of embracing rules that would compel governments to effectively forfeit public land rights to advance vital reparative justice or religious liberty objectives. It then outlines an alternative approach to preserving Indigenous sacred sites that would respect federal land rights and give Native nations a much stronger voice in site protection decisions.

PDF link Rethinking Federal Inducement of Pretext Stops

Farhang Heydari

Few topics in policing have received more attention than pretextual traffic stops—traffic stops made for crime-fighting purposes. Community leaders, legislators, police executives, and even presidents have recognized that the overuse of pretext stops has deleterious effects, including racially disparate enforcement, needless death, and degraded public trust in law enforcement. The result is a growing movement at the state and local level to roll back the widespread use of this tactic.

As promising as these developments are, most discussions of pretext stops largely omit a key player that drives the problem: the federal government. Presidents from Bush to Biden have decried discriminatory pretext stops and federal investigations have pushed localities to limit their use of the tactic. Yet, behind the scenes, the federal government has long trained and incentivized police to use pretext stops widely.

PDF link Property as National Security

Matthew S. Erie

Two historically disparate fields of law—property and national security—are colliding through the hyper-activity of state governments. Against the backdrop of the U.S.-China trade/tech war, state governors and legislatures are competing with each other in introducing bills to sever all ties with China, stunt the growth of Sinocentric supply chains, and neutralize China’s soft power in the world. While the state bills operate in parallel to federal legislation and regulation, in many instances, states’ activities go much further than federal efforts. States are laboratories of China-delinking. The China-related bills passed to date address a wide range of subjects: from TikTok and semiconductors, to educational exchange and Confucius Institutes, to human rights and forced labor in Xinjiang. National security is often the justification for these laws. While the state statutes have strong symbolic aspects, they are already affecting property relationships, and raise a host of constitutional and foreign affairs questions. These issues have galvanized litigation that is currently working its way through the federal court system. The infusion of national security into property law has potentially far-reaching consequences not only for Chinese citizens residing in the U.S. and for U.S.-China relations, but also for the future development of American property law.

Based on a bespoke data set of 152 state bills and laws, this Article is the first attempt to make sense of these bills and laws by diagnosing their common features and analyzing their constitutional implications regarding equal protection and federal preemption. Specifically, this Article focuses on those state legislative sources regulating property broadly conceived— including land, corporate interests, and data—arguing that while there are national security threats posed by Chinese actors in the United States, the state statutes often go too far, violate the Constitution, and show U.S. property law trending towards illiberalism. States have become sites for the integration of national security into property law because of traditional state rights to regulate real property. Yet the state statutes affect immigration and other foreign affairs matters with China, thus opening the door to federal preemption. The state laws have been met with lawsuits, one of which, Shen v. Simpson, is on appeal in the Eleventh Circuit and a focus of this Article.

PDF link More Rights, More Responsibilities: A Post-Bruen Proposal for Concealed Carry Compromise

Tyler S. Smotherman

“Guns don’t kill people. People kill people.” If true, this gun rights refrain cuts both ways. If the person—rather than the gun—is the causal variable behind violent crime, accidental gun deaths, and mass shootings, it follows that not all people should be permitted to carry firearms. In other words, if the problem is not too many guns but simply guns in the wrong hands, laws regulating the public carry of arms should limit arms to the thoroughly trained, vetted, and law abiding. To this end, loaded, concealed handguns should not be carried by the criminally inclined, the incompetent, or the irresponsible. Unfortunately, recent judicial and legislative developments are producing just that result.

The Supreme Court recently held—in New York State Rifle & Pistol Association v. Bruen—that the Second Amendment protects the right to carry a handgun for self-defense outside the home. The Court also held that states can only prohibit firearms in a few narrowly construed “sensitive places.” Simultaneously, states are enacting “constitutional carry” at an astounding rate—allowing ordinary adults to carry concealed handguns without any training, background check, or permit. The combined effect of Bruen and the constitutional carry wave is more guns in more places carried by more untrained and unvetted hands. This Article—the first of its kind in the academic literature—offers a statutory solution to both these challenges.

PDF link Supplement to Volume 2024: News of the School

PDF link Call for Solidarity: The Wisconsin Law Review Joins Coalition of Law Journals in Call for Compensation