This Article supplements stagnating class action debates and the traditional law and economics account of class action law with behavioral psychology. It draws on a litany of behavioral tendencies, biases, and pathologies and considers their application to class action practice and Rule 23.
The Clean Air Act’s Blind Spot: Microclimates and Hotspot Pollution
The article argues that the ambient focus of the Clean Air Act, which requires the monitoring and regulation of large air districts, masks pollution hotspots with poor microclimate. States and the Environmental Protection Agency may be able to address microclimate pollution using existing statutory authority by electrifying the transportation fleet, which reduces not only hotspot pollution, but...
Leak-Driven Law
Over the past decade, a number of well-publicized data leaks have revealed the secret offshore holdings of high-net-worth individuals and multinational taxpayers, leading to a sea change in cross-border tax enforcement. This article examines the important benefits and risks of tax leaks and provides suggestions and cautions for leak-driven lawmaking.
Privatizing Cybersecurity
In an earlier work entitled Regulating Cybersecurity, Sales argued that cyber defense should be understood not just as a matter for law enforcement and the armed forces, but as a regulatory problem in need of regulatory solutions. This companion article proposes a series of market-based responses to complement those governmental responses.
The Rugged Individual’s Guide to the Fourth Amendment: How the Court’s Idealized Citizen Shapes, Influences, and Excludes the Exercise of Constitutional Rights
In defining Fourth Amendment rights, the Supreme Court has repeatedly turned to the archetype of an idealized citizen—the “rugged individual” who will unflinchingly stand up to government authority. This article examines the Court’s use of the archetype, demonstrating how instead of promoting dignity and autonomy, it created an unrealistic threshold for exercising one’s Fourth Amendment rights.
Antitrust and the NCAA: Sexual Equality in Collegiate Athletics as a Procompetitive Justification for NCAA Compensation Restrictions
The National Collegiate Athletic Association (NCAA) prohibits schools from providing financial aid to student-athletes beyond the costs of attending school and forbids student-athletes to receive compensation related to their athletic ability from third parties. This comment argues courts have failed to properly scrutinize this rule and it should be rejected because such compensation restrictions...
The Two-Foundings Thesis: The Puzzle of Constitutional Interpretation
This essay explores interpretive debates over constitutional powers and rights. It aims to explain how opposing viewpoints about power/rights and moral reading/originalism could both accurately reflect the theories on which the nation was founded. The essay proposes that the Constitution itself is a bifurcated text created by the existence of America’s two foundings establishing state governments...
A Successful Experiment: California’s Local Laboratories of Regulatory Innovation
This Article looks to local California jurisdictions’ experiences in regulating electronic smoking devices to examine the mechanisms by which state and local policies converge. It concludes that, over time, California jurisdictions tended to adopt broader and more effective regulations of such devices, and that the experiences of localities may have shaped policy at the state level as well.