Vol. 120

In the Nicomachean Ethics, Aristotle defined “equity” as the pro­cess that intervenes when law fails because of its generality. Equity is largely assumed to be the province of courts and framed primarily as the domain of judges: Should the court apply a general law when its appli­cation results in unforeseen or unfortunate consequences? But equity operates outside the courts also. Within legislatures and administrative agencies,...

Peeking under the tent of our nation’s largest and often most impactful cases reveals that judges often act like ringmasters: They dele­gate their authority to a wide array of magistrate judges, special masters, and settlement administrators. Some, like the American Bar Association, see this as a plus that promotes efficiency and cost savings. Critics, how­ever, contend that delegating judicial power, especially to private citizens, removes...

Incarcerated transgender individuals with gender dysphoria have increasingly turned to the courts to seek medical relief in the form of gen­der confirmation surgery (GCS). These claims generally allege that prison officials’ denials of GCS amount to deliberate indifference, which is forbidden under the cruel and unusual punishment provision of the Eighth Amendment. To date, the First, Fifth, and Ninth Circuits have been the primary federal appellate...

The Health Information Technology for Economic and Clinical Health Act (HITECH) successfully encouraged widespread adoption of electronic health records (EHR). Their suitability for “big data” analysis make EHR data immensely valuable for secondary research, which could help scientists develop new drugs, medical devices, and public-health knowledge. Thus far, EHR data have not been widely available to academic med­ical scientists in quantities...

Dating back to the Founding, theorists have touted the checking value of the press in exposing government corruption and abuse. Pretextual arrests targeting professional and citizen journalists raise significant First Amendment concerns. Even a brief, “catch-and-release” detainment may altogether prevent a newsgatherer from capturing images or disseminating timely news updates from an event. In this sense, arrests of newsgatherers pose similar...

Business corporations long ago rejected the idea of unaccountable directors running firms with only their consciences to keep them in check. Yet unaccountable boards are the norm in the nonprofit sector. This need not be the case. The laws of all fifty states and the District of Columbia provide a template for accountability in nonprofit govern­ance: member­ship statutes. These statutes define the roles and responsi­bilities of non­profit members,...

In Borrowing Equality, Professor Atkinson deftly demonstrates Congress’s nonsensical bifurcation of the twin concepts of “credit” and “debt,” whereby it celebrates and encourages the former and regulates and punishes the latter. She then shows that, in refusing to acknowledge the harmful consequences of indebtedness while legislating credit-based solu­tions to inequality, these credit policies in fact entrench the very hierar­chies...

During her twenty-five-year tenure on the Supreme Court, Justice Sandra Day O’Connor became one of the most admired figures in American public life. A recent biography by historian and journalist Evan Thomas chronicles her extraordinary personal qualities, remarkable professional journey, and constructive brand of patriotism. In this Book Review, a former O’Connor clerk describes a legacy in three parts: a lived example of how to thrive in...

In June 2015, the Supreme Court decided Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. and held that disparate impact claims are cognizable under the Fair Housing Act. Four years later, in August 2019, the Department of Housing and Urban Development published a proposed rule purporting to align the agency’s regulations with the Supreme Court’s interpretation of the Fair Housing Act in Inclusive...

A fundamental question for corporate bankruptcy law is why it exists in the first place. Why are there special rules that apply only in financial distress? The conventional law-and-economics answer—known as the Creditors’ Bargain Theory—identifies two core purposes of bankruptcy law: recreating a hypothetical ex ante bargain and respecting creditors’ nonbankruptcy entitlements.

This Article challenges...