Critics of the Supreme Court sometimes accuse the Justices of disrespecting or being unfaithful to precedent—of undermining certain precedents while leaving them formally in place. Yet it remains unclear what exactly these criticisms mean or why they point to anything objectionable. This Article proposes that critics are often drawing attention to a particular practice: obstructing precedent. A better grasp of what obstructing precedent is and when it is legitimate is important to understanding the Roberts Court’s treatment of precedent in a range of cases.

A court obstructs precedent when it refuses to cooperate with its prior self in building a coherent body of law. The court reaches a holding in the instant case that cannot be justified by the same rationale—the same weighting of values or purposes—that justified its holding in the precedent case. As a result, the same institution seems over time to speak not with one voice but with multiple discordant voices that reflect no unified political vision. Over the last few years, the Roberts Court has repeatedly obstructed precedent in this sense in cases spanning diverse areas of the law.

Those who criticize the Justices for disrespecting or being unfaithful to precedent usually imply that the Justices have thereby acted illegitimately. But that conclusion is too quick. There is nothing inherently illegitimate about obstructing precedent, either legally or politically; obstructing precedent can be a salutary means of gradual change. At the same time, the Court’s especially aggressive pattern of obstructing precedent in recent years is cause for concern, given how that pattern undermines the impersonality of the Justices’ reasoning and risks further eroding public trust in the Court.

Class actions play an important role in civil litigation, but they suffer from a serious problem. No matter how many plaintiffs are in the class, the individual claims are often miniscule, which can make distributing the inevitable settlement futile. Very few people make a claim, and it often costs more to mail the check than the check is worth. To solve this problem, Steven Shepherd proposed importing the cy pres doctrine (a trusts and estates device that allows courts to rewrite an unenforceable trust) into the class actions context. Shepherd’s framework instructs courts to devise the next best alternative for distributing the funds from a class action settlement. Oftentimes, this will involve donating the money to a charity whose work aligns with the policy goals of the statute creating the cause of action.

Courts across the country have adopted this framework with open arms, and the doctrine has developed a mind of its own. Courts are now bending over backwards to approve these cy pres settlements, often overlooking clear legal errors, glaring public policy concerns, and flagrant ethical violations to justify them. But there is a more fundamental problem: cy pres is unconstitutional. Rule number one of federal jurisdiction is that plaintiffs must satisfy the “irreducible constitutional minimum” of Article III standing to sue. Plaintiffs lack standing when the requested remedy would not redress the harm, and cy pres settlements do not redress the harm the class has suffered.

This Note argues courts should replace cy pres with an escheatment scheme that ensures class actions redress the plaintiffs’ harms. Escheatment serves the twin goals of both ensuring the class members receive their money (thereby satisfying the redressability requirement) while also preventing the egregious misconduct many attorneys engage in while negotiating these settlements.

This Article challenges the common view that more stringent regulation of the digital economy inevitably compromises innovation and undermines technological progress. This view, vigorously advocated by the tech industry, has shaped the public discourse in the United States, where the country’s thriving tech economy is often associated with a staunch commitment to free markets. U.S. lawmakers have also traditionally embraced this perspective, which explains their hesitancy to regulate the tech industry to date. The European Union has chosen another path, regulating the digital economy with stringent data privacy, antitrust, content moderation, and other digital regulations designed to shape the evolution of the tech economy toward European values around digital rights and fairness. According to the EU’s critics, this far-reaching tech regulation has come at the cost of innovation, explaining the EU’s inability to nurture tech companies and compete with the United States and China in the tech race. However, this Article argues that the association between digital regulation and technological progress is considerably more complex than what the public conversation, U.S. lawmakers, tech companies, and several scholars have suggested to date. For this reason, the existing technological gap between the United States and the EU should not be attributed to the laxity of American laws and the stringency of European digital regulation. Instead, this Article shows there are more foundational features of the American legal and technological ecosystem that have paved the way for U.S. tech companies’ rise to global prominence—features that the EU has not been able to replicate to date. By severing tech regulation from its allegedly adverse effect on innovation, this Article seeks to advance a more productive scholarly conversation on the costs and benefits of digital regulation. It also directs governments deliberating tech policy away from a false choice between regulation and innovation while drawing their attention to a broader set of legal and institutional reforms that are necessary for tech companies to innovate and for digital economies and societies to thrive.