In Wal-Mart Stores, Inc. v. Dukes, the U.S. Supreme Court made clear that class certification requires evidentiary proof of prerequisites required by Rule 23 of the Federal Rules of Civil Procedure. Yet the Court has not clarified whether the evidence offered must be admissible. This Comment addresses the split of lower courts on the issue and argues that the Federal Rules of Evidence need not...
Making Innovation More Competitive: The Case of Fintech
Unlike in other digital arenas in which American companies are global leaders, the United States lags in consumer financial technology. The article argues that this effect can largely be attributed to the institutional design of federal regulators. Competition authority—including antitrust and the extension of business licenses—is spread across at least five agencies, none of which has the...
Standing, Litigable Interests, and Article III’s Case-or-Controversy Requirement
The U.S. Supreme Court has based requirements of standing and party adverseness on the “case-or-controversy” language of Article III and the history of judicial practice in England, but neither text nor history can bear the weight of justification. New research reveals that the term “case” extends more broadly to encompass what Roman and civilian jurists referred to as noncontentious jurisdiction...
How To Lose A Constitutional Democracy
Is the United States at risk of democratic backsliding? And would the Constitution prevent such decay? To many, the 2016 election campaign and the conduct of President Donald Trump may be the immediate catalyst for these questions. But structural changes to the socio-economic environment and geopolitical shifts are what make the question a truly pressing one. This article develops a taxonomy of...
The Excessive Fines Clause: Challenging the Modern Debtors’ Prison
In recent years, the use of economic sanctions—statutory fines, surcharges, administrative fees, and restitution—has exploded in courts across the country. Economic sanctions are imposed for violations as minor as jaywalking and as serious as homicide. Inability to pay the sanctions often leads to perpetual debt. This article posits that the Eighth Amendment’s Excessive Fines Clause may help...
The Production of Feeling and the Reproduction of Privilege: Expectation, Affect, and International Investment Law
In the last twenty years, the concept of legitimate expectations has come to play a very prominent role in international investment treaty-based arbitration. This article explores what insights investment law scholars can gain from authors in the fields of critical race theory and settler colonial studies, who have examined the use, and implications of the use, of the concept of expectations in...
By Force of Expectation: Colonization, Public Lands, and the Property Relation
This Essay argues that federal land policy as a form of colonial administration has been constitutive for the logic of expectation as property in the United States. Approaching the Bundy occupations as flashpoints that illuminate competing interpretations and claims to land within the history of westward colonization, the Essay demonstrates the ways in which expectation emerges from particular...
From Imperial to International Law: Protecting Foreign Expectations in the Early United States
This Essay argues that several principles associated with modern international investment law and dispute resolution arose in the wake of the American Revolution, as the revolutionaries and Britons sought to restructure trade relations, previously regulated by imperial law, under new treaties and the law of nations.