Writings

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Rethinking the Lawyers’ Monopoly: Legal Services Regulation and Access to Justice (edited volume, with Nora Freeman Engstrom) (forthcoming Cambridge University Press 2024)

Rethinking “Our Bar Federalism,” in Rethinking the Lawyers’ Monopoly: Legal Services Regulation and Access to Justice (David Freeman Engstrom & Nora Freeman Engstrom, eds.) (forthcoming Cambridge University Press 2024) (with Dan Rodriguez)

AI, Courts, and Access to Justice, in Digital Courts: Integrating Human and Artificial Intelligence (Fernando Esteban de la Rosa, Nuria Marchal Escalona, & Pablo Cortes, eds., Oxford University Pres) (forthcoming 2024) (with Ayelet Sela)

Legal Services Regulation and the Puzzle of Anemic Legal Tech, in Rethinking the Lawyers’ Monopoly: Legal Services Regulation and Access to Justice (David Freeman Engstrom & Nora Freeman Engstrom, eds.) (forthcoming Cambridge University Press 2024) (with Jess Lu)

The Making of the A2J Crisis, 75 Stan. L. Rev. Online __ (forthcoming 2024) (with Nora Freeman Engstrom) (symposium introduction)

Legal Tech and the Future of Civil Justice (editor) (Cambridge University Press 2023) [www]

Legal Tech and the Litigation Playing Field, in Legal Tech and the Future of Civil Justice (D. Engstrom, ed., 2023) (with Nora Freeman Engstrom) [www]

The New Judicial Governance: Courts, Data, and the Future of Civil Justice, 72 DePaul L. Rev. 171 (Clifford Symposium) (2023) (with RJ Vogt) [www] [ssrn]

Legal Innovation After Reform: Evidence from Regulatory Change, Report of the Deborah L. Rhode Center on the Legal Profession (2022) (with Graham Ambrose, Lucy Ricca, and Maddie Walsh) [www]

Digital Civil Procedure, 169 U. Pa. L. Rev. 2243 (2021) [www] [ssrn]

Legal Tech, Civil Procedure, and the Future of Adversarialism, 169 U. Pa. L. Rev. 1001 (2021) (with Jonah Gelbach) [www] [ssrn]

Post-COVID Courts, 68 UCLA L. Rev. Disc. 246 (2020) [www] [ssrn]

The Automated State

AI and Administrative Law, in Oxford Handbook of Algorithmic Governance and the Law (Ifeoma Ajunwa & Jeremias Adams-Prassl, eds., Oxford University Press) (forthcoming 2024) (with Rebecca Williams)

The Automated State: A Realist View, 56 Geo. Wash. L. Rev. __ (forthcoming 2024) (symposium)

Regulating Government AI and the Challenge of Sociotechnical Design, 19 Ann. Rev. L. & Soc. Sci. 277 (2023) [www] [ssrn]

Artificially Intelligent Government: A Review and Agenda, in Research Handbook on Big Data Law (Roland Vogl, ed., Edward Elgar Press, 2021) (with Daniel Ho) [www] [ssrn]

Algorithmic Accountability in the Administrative State, 37 Yale J. on Reg. 800 (2020) (with Daniel Ho) [www] [ssrn]

Government by Algorithm: Artificial Intelligence in Federal Administrative Agencies (report to the Administrative Conference of the United States) (with Mariano-Florentino Cuéllar, Daniel Ho, and Catherine Sharkey) (2020) [www] [ssrn]

Litigation & Procedure

Shedding Light on Secret Settlements: An Empirical Study of California’s STAND Act, 92 U. Chic. L. Rev. __ (forthcoming 2024) (with Nora Freeman Engstrom, Jonah Gelbach, Austin Peters, and Garrett Wen)

Secrecy by Stipulation, 74 Duke L.J. __ (forthcoming 2024) (with Nora Freeman Engstrom, Jonah
Gelbach, Austin Peters, and Aaron Schaffer-Neitz)

The Attorney-Client Relationship in Multidistrict Litigation, Report of the Deborah L. Rhode Center on the Legal Profession (May 2023) (with Nora Freeman Engstrom and Todd Venook) [www] [ssrn]

Digital Civil Procedure, 169 U. Pa. L. Rev. 2243 (2021) [www] [ssrn]

Legal Tech, Civil Procedure, and the Future of Adversarialism, 169 U. Pa. L. Rev. 1001 (2021) (with Jonah Gelbach) [www] [ssrn]

“Not Merely There To Help the Men”: Equal Pay Laws, Collective Rights, and the Making of the Modern Class Action, 70 Stan. L. Rev. 1 (2018) [www] [ssrn]

Jacobins at Justice: The (Failed) Class Action Revolution of 1978 and the Puzzle of American Procedural Political Economy, 165 U. Pa. L. Rev. 1531 (2017) [www] [ssrn]

American Pipe Tolling, Statutes of Repose, and Protective Filings: An Empirical Study, 69 Stan. L. Rev. Online 92 (2017) (with Jonah Gelbach) [www] [ssrn]

The Twiqbal Puzzle and Empirical Study of Civil Procedure, 65 Stan. L. Rev. 1203 (2013) [www] [ssrn]

Administrative Law

Disparate Limbo: How Administrative Law Erased Antidiscrimination, 131 Yale L.J. 370 (2021) (with Cristina Ceballos and Daniel Ho) [www] [ssrn]

Corralling Capture, 36 Harv. J. L. & Pub. Pol’y 31 (2013) [www] [ssrn]

Algorithmic Accountability in the Administrative State, 37 Yale J. on Reg. 800 (2020) (with Daniel Ho) [www] [ssrn]

Drawing Lines Between Chevron and Pennhurst: A Functional Analysis of the Spending Power, Federalism, and the Administrative State, 82 Tex. L. Rev. 1197 (2004) [www]

Regulatory Design: Public & Private Enforcement

Rationalizing Rights: Political Control of Litigation, in The Rights Revolution Revisited: Institutional Perspectives on the Private Enforcement of Civil Rights in the U.S. (Lynda G. Dodd ed., Cambridge University Press, 2018) [www]

Bounty Regimes, in Research Handbook on Corporate Criminal Enforcement and Financial Misdealing (Jennifer Arlen ed., Edward Elgar Press, 2018) [www] [ssrn]

Private Enforcement’s Pathways: Lessons from Qui Tam Litigation, 114 Colum. L. Rev. 1913 (2014) [www] [ssrn]

Whither Whistleblowing? Bounty Regimes, Regulatory Context, and the Challenge of Optimal Design, 15 Theoretical Inquiries L. 605 (2014) [www] [ssrn]

Agencies as Litigation Gatekeepers, 123 Yale L.J. 616 (2013) [www] [ssrn]

Public Regulation of Private Enforcement: Empirical Analysis of DOJ Oversight of Qui Tam Litigation Under the False Claims Act, 107 Nw. U. L. Rev. 1689 (2013) [www] [ssrn]

Harnessing the Private Attorney General: Evidence from Qui Tam Litigation, 112 Colum. L. Rev. 1244 (2012) [www] [ssrn]

Civil Rights & Anti-Discrimination Law

Disparate Limbo: How Administrative Law Erased Antidiscrimination, 131 Yale L.J. 370 (2021) (with Cristina Ceballos and Daniel Ho) [www] [ssrn]

Rights, Redistribution, and the Rise of the “Litigation State”: The Case of Disability Discrimination Laws, 46(3) Law & Soc. Inquiry 788 (2021) (with David Hausman) [www] [ssrn]

“Not Merely There To Help the Men”: Equal Pay Laws, Collective Rights, and the Making of the Modern Class Action, 70 Stan. L. Rev. 1 (2018) [www] [ssrn]

The Civil Rights Act at Fifty: Past, Present, Future, 66 Stan. L. Rev. 1195 (2014) [www] [ssrn]

The Lost Origins of American Fair Employment Law: Regulatory Choice and the Making of Modern Civil Rights, 1943-72, 63 Stan. L. Rev. 1071 (2011) [www] [ssrn]

The Taft Proposal of 1946 and the (Non-)Making of American Fair Employment Law, 9 Green Bag 2d 181 (2006) [www]

Civil Rights Paradox? Lawyers and Educational Equity, 10 J. L. & Pol’y 387 (2002) [www]

Op-Eds, Essays, Other

Don’t Scapegoat Robots to Protect the Lawyer Monopoly on Services, Bloomberg (May 18, 2023) (with Nora Freeman Engstrom) [www]

Why Do Blue States Keep Prioritizing Lawyers Over Low-Income Americans?, Slate (October 17, 2022) (with Nora Freeman Engstrom) [www]

Legislators Shouldn’t Shut Down Ways to Help Californians Get Legal Help, CalMatters (August 3, 2022) [www]

TAR Wars: E-Discovery and the Future of Legal Tech, The Advocate (2021) (with Nora Freeman Engstrom)

Oboe Judging, U. Chic. L. Rev. Online (2020) [www]

Courts Must Adapt to the Coronavirus Crush, Bloomberg (July 15, 2020) (with Chief Justice Bridget McCormack, Michigan Supreme Court) [www]

AI’s Promise and Peril for the U.S. Government, Stanford Human-Centered Artificial Intelligence (Summer 2020) (with Daniel Ho, Catherine Sharkey, and Mariano-Florentino Cuéllar) [www]

What To Do About Artificially Intelligent Government, The Hill (February 25, 2020) (with Daniel Ho, Catherine Sharkey, and Mariano-Florentino Cuéllar) [www]

What if California Had a Foreign Policy? The New Frontier of States’ Rights, 40 Wash. Q. 27 (2018) (with Jeremy Weinstein) [www] [ssrn]

Let Wronged Workers Join Together for Justice, New York Times (October 2, 2017) [www]

Fact Versus Fiction in the Litigation Wars, National Law Journal (April 18, 2016) [www]

Civil Rights Rollback: The Significance of Walmart v. Dukes, Boston Review (June 23, 2011) [www]

Why Health Care Ruling Not a Game-Ender, CNN Opinion (February 2, 2011) [www]

Selected Litigation & Amicus Briefs

Brief of Amici Curiae Law Professors in Support of Plaintiffs-Appellees and Affirmance, Upsolve, Inc. and Rev. John Udo-Ukon v. Letitia James, United State Court of Appeals for the Second Circuit, Case No. 22-1345 (filed January 11, 2023)

Brief of Amici Curiae Law Professors in Support of Respondents, Sarah Gregory and New Prime, Inc. v. Jaswinder Chohan, Individually and as Next Friend and Natural Mother of GKD, HSD, and AD., Minors, and as Representative of the Estate of Bhupinder Singh Deol, Darshan Singh Deol, and Jagtar Kaur Deol, Supreme Court of Texas, No. 21-0017 (filed November 4, 2022) (with Nora Freeman Engstrom, David Hyman, and Charles Silver)

Sur-Reply in Opposition to Motion for Preliminary Approval of Proposed Class Settlement, In re: Roundup Products Liability Litigation, Case No. 3:19-cv-02224 (N.D. Cal. filed May 3, 2021) (Counsel of Record)

Opposition to Motion for Preliminary Approval of Proposed Class Settlement, In re: Roundup Products Liability Litigation, Case No. 3:19-cv-02224 (N.D. Cal. filed March 4, 2021) (Counsel of Record)

Brief of Amici Curiae Legal Historians in Support of Respondent, Americans for Prosperity Foundation v. Rodriquez and Thomas More Law Center v. Rodriquez, U.S. Supreme Court, Nos. 19-251 & 19-255 (filed March 31, 2021) (Lead Amicus Curiae)

Brief of Amici Curiae Administrative Law Professors in Support of Plaintiffs’ Motion for Summary Judgment, County of San Francisco v. Trump, Case No. 3:17-cv-00574-WHO (N.D. Cal. filed October 4, 2017) (with Anne Joseph O’Connell, Daniel Farber, Peter M. Shane, and Peter L. Strauss)

Brief for Civil Procedure and Securities Law Professors as Amici Curiae in Support of Petitioner, California Public Employees’ Retirement System v. ANZ Securities, Inc., et al., U.S. Supreme Court, No. 16-373 (Lead Amicus Curiae and Counsel of Record) (filed March 6, 2017)

Brief for Civil Procedure and Securities Law Professors as Amici Curiae in Support of Petition for a Writ of Certiorari, DeKalb County Pension Fund v. Transocean Ltd., Robert L. Long, Jon A. Marshall, and Transocean Inc., U.S. Supreme Court, No. 16-206 (Lead Amicus Curiae and Counsel of Record) (filed September 14, 2016)

Brief of Professor David Freeman Engstrom as Amicus Curiae in Support of Respondents, Universal Health Services v. United States ex rel. Escobar et al., U.S. Supreme Court, No. 15-7 (Lead Amicus Curiae and Counsel of Record) (filed March 3, 2016)

Brief for Civil Procedure and Securities Law Professors as Amici Curiae in Support of Petitioner, Public Employees’ Ret. Sys. of Mississippi v. IndyMac MBS, Inc., et al., U.S. Supreme Court, No. 13-640 (Lead Amicus Curiae and Counsel of Record) (filed May 28, 2014)

Brief for Civil Procedure and Securities Law Professors as Amici Curiae in Support of Petition for a Writ of Certiorari, Public Employees’ Ret. Sys. of Mississippi v. IndyMac MBS, Inc., et al., U.S. Supreme Court, No. 13-640 (Lead Amicus Curiae and Counsel of Record) (filed December 26, 2013; certiorari granted March 10, 2014)