Differential Etiology: Inferring Specific Causation in the Law from Group Data in Science

In every toxic-tort case, the plaintiff must prove that the defendant exposed the plaintiff to something that caused an injury. The causal proof is in two parts: proof of general causation and proof of specific causation. General causation addresses the question of whether the exposure can cause injury in anyone. In the area of toxic torts, the evidence available to answer this question comes in the form of group-based studies in the fields of toxicology, epidemiology, and genetics—studies that…

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Enslaved Agents: Business Transactions Negotiated by Slaves in the Antebellum South

This Article explores the law of agency as applied to enslaved workers in the Antebellum South between 1798 and 1863. In particular, I examine legal disputes involving the delegation of agency power to enslaved workers. Southern courts generally accepted that an enslaved worker could serve as business agent for his or her slaveholder, which often meant binding a third party to a transaction negotiated or performed by an enslaved person.

These cases provide a window into business practices in…

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The (Potential) Legal History of Indian Gaming

Indian gaming—casinos owned, operated, and regulated by Indian tribes—has been a transformative force for many Indigenous nations over the past few decades. The conventional narrative is that Indian gaming began when the Seminole Tribe of Florida opened a bingo hall in 1979, other tribes began operating bingo, litigation ensued across the continent, and the U.S. Supreme Court recognized tribes’ rights to operate casinos on their reservations in 1987, in California v. Cabazon Band of Mission Ind…

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Why Do (Some) Originalists Hate America?

Imagine a regime whose fundamental law is only to be found in ancient archives. Their mysterious contents take years to unearth, layer by layer. With new discoveries, bodies of established law are unexpectedly invalidated and discarded. Others, previously rejected, spring back to life as scholars revise earlier conclusions. The operations of government are in constant confusion. This state of affairs is likely to persist indefinitely.

That doesn’t sound attractive, does it? But that is where…

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Sunlight Is the Best Disinfectant—Or Is It? Anonymity as a Means to Enhance Impartiality

Whenever someone is entrusted with advancing other people’s interests, enhancing the public good, or resolving conflicts between other people, there is a concern that instead of doing these things, he or she may advance his or her own interests. According to common wisdom, transparency and accountability are the best, if not perfect, cure to this problem. As Louis Brandeis famously claimed in his essay What Publicity Can Do, “sunlight is said to be the best disinfectant.” In that spirit, transp…

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How to Protect the San Pedro Riparian National Conservation Area? Time to Assert a Claim in Federal Court

The San Pedro River is one of the last free flowing rivers in the West and an important habitat for many species. Congress recognized the ecological importance of the San Pedro River and expressly reserved water to protect, conserve, and enhance the riparian area—the San Pedro Riparian National Conservation Area (“SPRNCA”). The exact amount of water that Congress reserved is unquantified pending determination in Arizona’s Gila River General Stream Adjudication, a comprehensive adjudication, ini…

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Avoiding No-Poach Liability: Making Reasonable Choices to Qualify for the Rule of Reason

No-poach agreements have been a focus of the antitrust enforcement agencies since 2016 when the Human Resource (“HR”) Guidance was released by the Department of Justice and Federal Trade Commission. The HR Guidance raised the stakes for businesses engaged in no-poach agreements by declaring that naked no-poach agreements would thereafter be prosecuted criminally. This new priority seemed to be primarily just talk because no criminal prosecutions were filed in the first four years following the …

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