The Promise and Perils of Private Enforcement

A new crop of private enforcement suits is sprouting up across the country. These laws permit people to bring enforcement actions against those who aid or induce abortions, against schools that permit transgender students to use bathrooms consistent with their gender identities, and against schools that permit transgender students to play on sports teams consistent with their gender identities. Similar laws permit people to bring enforcement actions against schools that teach critical race theory and against those who sell restricted firearms. State legislatures are considering a host of laws modeled on these examples, along with other novel regimes. These are new adaptations of private enforcement regimes—laws that task members of the public with enforcing regulatory statutes in court. Private enforcement has a somewhat long lineage in U.S. law, dating back to at least the nineteenth century. Since then, in contexts as diverse as employment discrimination, housing discrimination, antitrust, securities, and other contexts, the U.S. legal system has endowed members of the public with the power to enforce regulatory law in court. While these traditional forms of private enforcement have been relatively stable and survived legal challenges, the new adaptations cropping up have prompted challenges in court and intense debate. Among other things, scholars argue that they amount to a form of legal vigilantism, suppress existing legal rights, and pose due process concerns in their design. Yet, to fully distinguish between private enforcement’s traditional forms and these new variations, we need a richer account of the meaning and role of private enforcement in democracy. This Article provides such an account, analyzing and distinguishing private enforcement regimes through the lens of a participatory democracy theory of regulatory governance. Drawing on debates and thinking at the dawn of the modern regulatory state, this Article argues that private enforcement is democratically valuable when it (1) evens out structural power disparities that can undermine democracy, (2) enables members of the public to bring the expertise of experience to dynamic regulatory environments, and (3) facilitates democratic deliberation. This Article argues that traditional private enforcement suits generally contribute to democratic governance under each rationale. In contrast, the new private enforcement suits perform less well, and indeed, often undermine the rationales for popular participation in regulatory governance. This Article thus articulates a richer theory of popular participation in regulatory governance that shows the promise of private enforcement generally and the perils of recent adaptations

Utah Power and Light Company v. CP National Corporation : Brief of Appellee

On Appeal from the United States District Court For the District of Utah, Central Divisioa HONORABLE DAVID K. WINDER, JUDG

Debunking the Standardized Nature of Insurance Policies

This article discredits the conventional view of insurance policies as standardized contracts that do not vary across insurance companies and policyholders. Contrary to this view, there are wide variations in policy language in both the admitted and non-admitted insurance markets. These deviations reduce the perceived benefit of insurance policies as standardized contracts intended to promote predictability and lower transaction costs for policyholders by focusing only on the most salient terms. Nowhere is this deviation more apparent than with Commercial General Liability (CGL) policies defendants are turning to in the current opioid litigation. The opioid epidemic has been plaguing the United States for the last several years and, in its wake, many state and local government entities have sued those involved in the manufacture, sale, distribution, and prescription of opioid products. Naturally these defendants have looked to their insurance policies for defense expenses and coverage, given the exorbitant potential liability they face. Depending on the specific allegations and complaints, different insurance policies can apply. The CGL policy is the primary policy that defendants have turned to. The principal coverage disputes between policyholders and insurance companies are whether the complaint alleges “bodily injury,” “property damage,” or “occurrence.” These terms are defined in an insurance policy and many CGL policies utilize standardized language and definitions. Despite the uniformity in language, courts decisions in multiple jurisdictions have been incredibly inconsistent in whether the CGL policy should respond and if insurers have a duty to defend in these opioid lawsuits. As a result, policyholders lose the benefit of predictability and lower transaction costs that legal scholarship has historically assigned to insurance policies as standardized contracts

Remanding Multidistrict Litigation

The article focuses on the procedural, substantive, and communal benefits of remanding multidistrict litigation (MDL). Topics discussed include efforts of plaintiff\u27s lawyer in increasing their fees by implementing various fee provisions in settlement, the views of Judge John G. Heyburn on remand of MDL, and the importance of remanding MDL cases in dispute resolution

Optimal reference sequence selection for genome assembly using minimum description length principle

Reference assisted assembly requires the use of a reference sequence, as a model, to assist in the assembly of the novel genome. The standard method for identifying the best reference sequence for the assembly of a novel genome aims at counting the number of reads that align to the reference sequence, and then choosing the reference sequence which has the highest number of reads aligning to it. This article explores the use of minimum description length (MDL) principle and its two variants, the two-part MDL and Sophisticated MDL, in identifying the optimal reference sequence for genome assembly. The article compares the MDL based proposed scheme with the standard method coming to the conclusion that “counting the number of reads of the novel genome present in the reference sequence” is not a sufficient condition. Therefore, the proposed MDL scheme includes within itself the standard method of “counting the number of reads that align to the reference sequence” and also moves forward towards looking at the model, the reference sequence, as well, in identifying the optimal reference sequence. The proposed MDL based scheme not only becomes the sufficient criterion for identifying the optimal reference sequence for genome assembly but also improves the reference sequence so that it becomes more suitable for the assembly of the novel genome

Plaintiff Personal Jurisdiction and Venue Transfer

Personal jurisdiction usually focuses on the rights of the defendant. This is because a plaintiff implicitly consents to personal jurisdiction in the court where the plaintiff chooses to file. But what if the defendant seeks to transfer venue to a court in a state in which the plaintiff has no contacts and never consented to personal jurisdiction? Lower courts operate on the assumption that in both ordinary venue-transfer cases under 28 U.S.C. § 1404(a) and multidistrict-litigation cases under § 1407(a), personal-jurisdiction concerns for plaintiffs simply do not apply. I contest that assumption. Neither statute expands the statutory authorization of federal-court personal jurisdiction. And theories based on implied consent stretch that notion too far. Personal jurisdiction legitimately can treat plaintiffs and defendants differently, but those differences call for nuance and fact dependency, not a blanket exemption for plaintiffs from personal-jurisdiction protections. This Essay reestablishes plaintiff-side personal jurisdiction by articulating and justifying the standard for protecting the due process rights of plaintiffs subject to interstate venue transfer without their express consent