The Rational Class: Richard Posner and Efficiency as Due Process
Elizabeth J. Cabraser · October 2014 82 GEO. WASH. L. REV. ARGUENDO 82 (2014) This Essay surveys the recent class certification decisions authored by Judge Posner, reaching the following conclusions: (1) Judge Posner has postulated a practical test for predominance and defined precisely the purpose and policy of the class action in factual terms, and (2) he... Read More
Remediation and Deterrence: The Real Requirements of the Vindication Doctrine
Jonathan W. Cuneo, Joel Davidow, and Victoria Romanenko · October 2014 82 GEO. WASH. L. REV. ARGUENDO 59 (2014) The vindication of statutory rights doctrine, first set forth by the Supreme Court almost three decades ago, has been applied by many courts in deciding whether to invalidate class action waivers located in arbitration clauses. Recently,... Read More
Three Myths About Wal-Mart Stores, Inc. v. Dukes
Theodore J. Boutrous, Jr. and Bradley J. Hamburger · October 2014 82 GEO. WASH. L. REV. ARGUENDO 45 (2014) The Supreme Court’s landmark decision in Wal-Mart Stores, Inc. v. Dukes raised the bar for plaintiffs seeking class certification and will have a significant impact on all class actions for decades to come. Some lower courts,... Read More
Applying Lessons from the Golden Age of Piracy: How to Use Specialized U.S. Tribunals to Prosecute Pirates in the Modern Era
Gregory Morrison · August 2014 82 GEO. WASH. L. REV. 1304 (2014) Maritime piracy, far from being a quaint historical relic of the eighteenth century, is alive and well in the modern world. Because of the considerable effects of piracy on international trade and security, the fight against piracy extends into the courtroom, but actual prosecutions... Read More
The Transformation of Blight: Fixing the CERCLA Lessee Problem to Develop Renewable Energy
Carolyn Miller · August 2014 82 GEO. WASH. L. REV. 1267 (2014) In recent years, the Environmental Protection Agency (“EPA”) has recognized a unique opportunity to solve two of the nation’s environmental problems—the need for clean, renewable energy and the need to remediate contaminated sites—with one solution: the development of renewable energy on contaminated sites. Although... Read More
Proposing a Self-Help Privilege for Victims of Cyber Attacks
Shane Huang · August 2014 82 GEO. WASH. L. REV. 1229 (2014) As the Internet occupies increasingly important functions in modern society, cyber attacks pose an increasingly serious threat to private companies and ordinary citizens. Sophisticated hackers threaten the nation’s military and foreign policy interests and can destabilize the nation’s financial, telecommunications, and energy sectors. In... Read More
A Delayed Blitz on the NFL’s Blackout Policy: A New Approach to Eliminating Blackouts in Publicly Funded NFL Stadiums
James Gross · August 2014 82 GEO. WASH. L. REV. 1194 (2014) As cities continue to rely on the use of tax-exempt municipal bonds to build bigger, better, and more expensive professional sports stadiums to accommodate their local National Football League (“NFL”) teams, taxpayers are ultimately the ones who foot the bill. At the same time,... Read More
Customary International Law and Statutory Interpretation: An Empirical Analysis of Federal Court Decisions
Bart M.J. Szewczyk · August 2014 82 GEO. WASH. L. REV. 1118 (2014) This Article provides the first comprehensive empirical analysis of the use of customary international law by federal courts in statutory interpretation—a particularly important issue given the growth of subject-matter areas covered by international custom and the increased likelihood of its potential overlap... Read More
The Commerce Power and Congressional Mandates
Dan T. Coenen · August 2014 82 GEO. WASH. L. REV. 1052 (2014) In National Federation of Independent Business v. Sebelius, a five-Justice majority concluded that the commerce power did not support enactment of the so-called “individual mandate,” which imposes a penalty on many persons who fail to buy health insurance. That ruling is sure to... Read More
Digital Market Manipulation
Ryan Calo · August 2014 82 GEO. WASH. L. REV. 995 (2014) In 1999, Jon Hanson and Douglas Kysar coined the term “market manipulation” to describe how companies exploit the cognitive limitations of consumers. For example, everything costs $9.99 because consumers see the price as closer to $9 than $10. Although widely cited by academics,... Read More