Issues

The American consumer bankruptcy system is a costly regime with profound societal implications. Between 2008 and 2023, consumers filed 13.8 million bankruptcy cases across the ninety-four federal bankruptcy districts in the United States, generating over $4 billion in court filing fees alone. When accounting for attorney fees, trustee expenses, creditor costs, and broader economic externalities—such as increased interest rates borne by other consumers—the total financial impact easily reaches tens of billions, if not hundreds of billions, of dollars.

Against that backdrop, this study uncovers a startling phenomenon: nearly 46% of the consumers who filed bankruptcy in 2023 were repeat filers, defined as individuals with at least one prior bankruptcy record since 1997. This percentage has followed an overall upward trend, increasing at an average annual rate of 52 basis points since 2016.

There are significant geographic disparities in the prevalence of repeat bankruptcy filings. The U.S. District Court for the Western District of Tennessee has the highest percentage of repeat filers, with 76% of all filings coming from individuals with prior bankruptcy records. In contrast, the Southern District of West Virginia has the lowest percentage, with “only” 36% of filings attributed to repeat filers. Historically, repeat filing has been most common in the South, but by 2023, many jurisdictions outside the region—such as districts in Pennsylvania and Utah—also began to exhibit elevated rates of repeat filings.

These findings challenge foundational assumptions in bankruptcy scholarship and raise urgent policy questions about the system’s efficacy in delivering a true “fresh start” to debtors. At a minimum, this Article calls to revise the estimated number of people benefiting from the bankruptcy system and reevaluate policies designed to address the prevalence of bankruptcy in American society.

As the first comprehensive national study of bankruptcy recidivism that covers both Chapter 7 and Chapter 13 bankruptcy, this Article leverages credit report data and court records to reveal novel insights about repeat filers. Contrary to the prevailing narrative that serial filings are driven by bad faith debtors exploiting Chapter 13, the study finds that the majority of repeat filers had previously received a discharge, with nearly half initially filing under Chapter 7. Furthermore, most repeat filings occur after a significant gap—typically exceeding seven years—suggesting that these debtors are not engaging in short-term strategic abuse of the system but are instead grappling with persistent financial instability.

This study also demonstrates that prior bankruptcy filings are a robust predictor of future filings, even after controlling for financial and demographic factors. This means that individuals with a bankruptcy history are disproportionately likely to file again when faced with financial distress compared to those without such a history. As repeat filers account for a growing proportion of all bankruptcy filings, their heightened sensitivity to financial shocks must be considered when evaluating policy changes.

By shifting the focus from short-term Chapter 13 abuse to the broader structural patterns of repeat bankruptcy, this Article offers a novel framework for understanding the long-term dynamics of consumer bankruptcy. These findings can have profound implications for bankruptcy law, financial regulation, and social safety net policies, urging a reevaluation of how the system addresses the enduring financial vulnerabilities of debtors.

This Article tackles a difficult legal and policy challenge— reducing the impact of criminal records on job applicants’ chances in a manner that does not spur more discrimination—by looking at how another area of law, tort liability, impacts employers’ decision-making. It uses theoretical and empirical methods to study the most common reason employers report being reluctant to hire workers with a criminal record: legal liability generated by the tort of negligent hiring. While the purpose of the tort is ostensibly to protect and make whole those harmed when an employee misbehaves in a foreseeable manner, I show that, in practice, the tort generates additional criminal behavior and worsens employment outcomes.

I first provide a survey of the current doctrine across the states and trace the origins of the tort through the common law. Using a difference-indifference strategy, I examine state legislation clarifying the negligent hiring standard and reducing the likelihood that an employer will be found liable. Using large survey and administrative data, I found that states that changed their negligent hiring law saw employment for people with criminal records increase by 3 to 5 percentage points (up 5% to 9%), and reincarceration for a new criminal offense fall by 2 percentage points (down 10%).

Throughout the Article, these findings are contextualized with related policies by considering the effects of legislation restricting the timing of inquiries into criminal histories (Ban-the-Box legislation) and the use of hiring credits (the Work Opportunity Tax Credit).

As a variety of the problem-solving court model, community courts have received significant scrutiny and debate. Do they help individuals by addressing the underlying needs that contribute to criminal behavior? Do they extend an unjust criminal legal system by making help conditional upon judicial involvement? This Article moves beyond such debates to ask how community court professionals and the communities who engage with them manage these and other tensions that are inherent to the model itself. As the second in a series of articles drawing on semi-structured interviews and focus groups with diverse stakeholders at the Red Hook Community Justice Center (RHCJC or Justice Center) in Brooklyn, NY, this Article articulates strategies that community court professionals utilize to navigate the opportunities and constraints of justice innovation.

Three tensions structure the Article. First, stakeholders describe a human-centered system of care rooted in dignification that coexists uneasily alongside the power of legal coercion. Second, participants offer a double-edged account of the Justice Center’s relationship to the carceral state. While the Justice Center constrains carceral trajectories through tools like noncustodial pathways and rights literacy, it also remains bounded by and dependent upon elements like clients’ post-arrest entry and the identity of being “still a court.” Third, stakeholders articulate a complex understanding of success that recognizes the long-term outcome of desistance, but privileges shorter term goals around client harm reduction and engagement. These are inherent tensions that the professionals who work inside and the communities who engage with the Justice Center must navigate and manage daily. Using the concept of a “boundary organization,” this Article identifies distinct strategies of “boundary work”: brokering across legal and community systems, calibrating mandates while preserving choice, and promoting metrics that center engagement and processes. This framework moves beyond debates over justice reform to focus on the law in practice. The future of community court research lies in closely observing how people do the work and in tracing the conditions under which that work produces meaningful change for individuals, communities, and systems.

It is undeniable that the escalating price of biopharmaceuticals is a critical issue, as high prices limit patients’ access to life-saving medications and strain our healthcare system. Biologics, or large-molecule drugs, which are revolutionizing modern healthcare, are significantly contributing to the escalating cost of prescription drugs. While biologic drugs represent only 2% of all U.S. prescriptions, they comprise close to 50% of net drug spending.

Policymakers have proposed a series of interventions to decrease drug prices that target the patent practices of pharmaceutical firms. Yet due to differences in law, we have a robust source of patenting information for small-molecule drugs and a woefully incomplete source of patenting information for biologics. As a result, policymakers are attempting to solve a problem without understanding the patenting landscape of biologics, which comprises the most expensive segment of the prescription drug market.

To fill this gap, we build the first comprehensive patent database associated with all 515 Food and Drug Administration approved biologics, which comprises over 11,500 patents. We then utilize our novel database to examine the controversial patenting practices of pharmaceutical firms.  We find that both patent thicketing—building a dense web of patents for each drug—and patent evergreening—extending the exclusivity period of a drug by obtaining more patents—are significantly more prevalent with biologics than small-molecule drugs. We also find that patents are more effective at delaying biosimilar entry in the biologic market than generics in the small-molecule market. Finally, we utilize our novel database to evaluate various policy proposals aimed at decreasing patent thickets and provide much needed empirical evidence at how many biological patents these proposals would affect.

A principal justification for textualism is the constraint hypothesis. Conservative Justices and leading textualist scholars contend that—in stark contrast to reliance on legislative history—focus on the ordinary meaning of enacted text leaves little room for the Justices to be policy-oriented or ideological in their interpretations. This Article represents the first systematic study probing the validity of the constraint hypothesis, one that employs both quantitative and qualitative analysis.

The Article examines the Justices’ reliance on interpretive resources in over 660 statutory decisions in the field of labor and employment, decided by the Burger Court, the Rehnquist Court, and the Roberts Court—during the ascendancy of textualism from 1969 to 2024. Decisions involving the employment relationship (comprising roughly one-fourth of the Court’s statutory docket) make them an especially suitable vehicle for addressing whether increased reliance on the textualist resources of ordinary meaning, dictionaries, and language canons, and sharply diminished reliance on the intentionalist resources of legislative history and purpose, have exerted a constraining effect on ideological decision-making.

Using a series of empirical analyses, we find that the textualist approach has had virtually no constraining effect on the ideological predispositions of the Justices. Our findings are especially robust for majorities authored by conservative Justices in the Rehnquist and Roberts eras. By contrast, and somewhat ironically, there is evidence that conservative Justices in the Burger era were constrained ideologically when authoring majorities that relied on legislative history, not when they relied on ordinary meaning and other textualist resources.

The Article then explores in case-specific terms why textualism seems not to constrain ideological decision-making. We focus on Burger Court decisions in which majority and principal dissent relied on legislative history, and Roberts Court decisions where majority and principal dissent relied on the ordinary meaning of text. The Justices’ persistent disagreements in these two eras are precisely parallel: conflicting interpretations of identical words in text (or identical portions of legislative history) and conflicts over which pieces of text (or of legislative history) are correctly applicable. The disagreements illustrate how reliance on these two resources has been similarly malleable in application by the Justices.

The Supreme Court’s guidance function for lower court judges, practicing attorneys, and the public at large, is predicated in important respects on the asserted objectivity and ideological neutrality of textualism. By establishing that such objectivity and neutrality are not promoted by textualist methods in this large subset of the Court’s statutory decisions, and demonstrating the comparable malleability of ordinary meaning and legislative history in the Justices’ opinions, the Article raises serious questions about the privileged position of the textualist approach.