Table of Contents
Articles
Due Care in a Conservative Court
Hila Keren
Statutory bans on providing necessary treatments to trans minors are already in place in about half of the nation’s states. Although many courts have found such treatment bans unconstitutional, the Sixth Circuit affirmed bans enacted by Tennessee and Kentucky in L.W. v. Skrmetti. The decision rejected two separate constitutional challenges under the Equal Protection Clause and the Due Process Clause. However, when the challengers petitioned for the Supreme Court’s review, the Court only agreed to consider the argument—made by the Government as an intervening plaintiff—that the treatment bans discriminate on the basis of sex and transgender status in violation of the Equal Protection Clause. It took no action on the private plaintiffs’ petitions—minors, parents, and doctors—who argued that the treatment bans not only discriminate but also infringe on parental rights in violation of the Due Process Clause.
Interpreting Congress
Joshua Ulan Galperin
In Loper Bright v. Raimondo, the Supreme Court claimed for itself a vastly increased responsibility for statutory interpretation. Indeed, the Court claimed unique expertise. Thus, it is more important than ever to understand how the Court goes about interpreting statutes. This Article introduces the concept of congressional interpretation to aid in that endeavor.
Venue Diversion
Rosa Hayes
Venue is having a moment. Despite its frequent relegation to the third tier of threshold procedural issues that control a litigant’s ability to seek relief, ongoing litigation highlights venue’s importance to the availability and substance of relief. During its 2024–25 Term, the Supreme Court will resolve at least two distinct questions about venue, including three cases about the proper interpretation of the Clean Air Act’s venue-channeling provision and a fourth case dealing with the bifurcation of standing and venue requirements. In the federal courts of appeals, disputes about proper venue have predominated in administrative challenges to the NLRB’s power to enforce labor standards and to the CFPB’s authority to protect consumers from predatory lending. Meanwhile, the proliferation of nationwide injunctions has focused scholarly attention on venue reform as a potential solution for hyperpartisan forum shopping.
AI and Probabilistic Dispute Resolution
Zachary Henderson
This Article draws from advancements and fundamental principles in the fields of computer science, artificial intelligence, economics, and medicine to propose and predict a novel, contracts-based private mechanism enabling parties to voluntarily resolve a wide array of disputes. Parties would use a flexible AI platform with a known margin of error that they would accept at the outset, in exchange for a combination of reduced transaction costs, the chance to resolve a dispute that might otherwise be irremediable, and finality. This Article further and relatedly argues that, if successfully implemented, such a platform could precipitate a rapid shift in how a range of disputes are resolved and could change the use cases for class actions and mass arbitrations for the better.
Failure To Supervise as Municipal Custom
Nancy Leong & Allyson Harris
Recovering damages from municipalities has proven a vexing challenge for civil rights litigators. Scholars have demonstrated a range of doctrinal and practical challenges, chief among them the demands of the “policy or custom” standard imposed by the Supreme Court in Monell. In previous work, coauthor Leong has argued that the theory of municipal failure to supervise offers an underexplored and promising avenue for recovery. This Article offers an empirical examination of the claim that a municipality failed to supervise its employees as a means to establish policy or custom. It provides a novel and comprehensive survey of every failure-to-supervise case decided since 1980 in each of the twelve federal appellate circuits, exploring opportunities and challenges for litigants in each jurisdiction. In addition to providing an important resource for judges and litigators confronting the failure-to-supervise theory, it also highlights variation among (and occasionally within) jurisdictions and offers practical and concrete advice for successful litigation of such claims.