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While reading the Holmes Devise volume on the White Court (1910-1921), I learned for the first time about the machinations behind Holland.

Chief Justice White was really fond of birds and utterly convinced that Congress had the power to protect them. (You can probably guess where this is heading.) When the Act of Congress protecting migratory birds was before the Court, the Justices were initially divided 3-3 (3 Justices were ill or absent).

The Chief Justice then asked the Supreme Court Librarian to conduct additional research on the subject, and the Librarian concluded that the Act was invalid. As far as I know, this is the only time that the Librarian was asked for or provided a legal conclusion to anyone on the Court.

Undaunted, the Chief Justice then came up with the idea that a treaty could be made with Canada to protect these birds. He talked with some Senators about this. There was one problem. The case challenging the Act would presumably be decided once the ill Justices returned and before the Treaty was ratified. So the Chief Justice delayed the second argument until the treaty was ratified. (World War I broke out, which gave him the excuse that he needed.) That case was then dismissed, and Missouri v. Holland came to the Court. The Act was upheld, in an opinion by Holmes, relying in large part on the treaty.

Alex Bickel wrote this account. I don’t love his scholarship, but he had a great line summing up this episode:

“Everyone who has power is likely at one time or another to find some cause that seems greater than the restraints he normally acknowledges, and it can turn out to be something like human neutrality in the war among the birds, the insects, and the trees.”

On last night’s The Pitt, Dr. Robby (Noah Wylie) pushes an unsure and hesitating resident to act quickly in an emergency situation by saying “Doctor the fuck up.”

I will now incorporate this into my daily work:

Unprepared or unconfident students: “Civ Pro the fuck up.” (Can be topic-specific: “Erie the fuck up”).

Colleagues with writers’ block:”Legal scholar the fuck up.”

Administrators slow with next year’s schedule: “Dean the fuck up.”

My current mental exercise project is to read all the volumes in the Holmes Devise. I’ve looked at parts of them before but never all of them. I’ll have more to say about the Holmes Devise in future posts.

One fun fact that I learned is that President Cleveland nominated William Hornblower to the Supreme Court. The Senate rejected his nomination. This was a shame, if for no other reason than we were deprived of ability to write lines like: “As Justice Hornblower said . . .”

I’m confused. If you read current judicial opinions, you will see that some refer to the “Department of Defense” and others refer to the “Department of War.” I don’t know what criteria these courts are using, because as far as I tell they do not explain their terminology choice.

You might think that an opinion that refers to the Department of War in a challenge to an action by that Department might be more likely to reject the challenge and vice versa. That’s an empirical question, of course, though I would note that the DC Circuit’s new opinion denying Anthropic a stay chose “Department of War.”

Thanks to the participants in our Book Symposium on Elizabeth Chamblee Burch’s The Pain Brokers: How Con Men, Call Centers, and Rogue Doctors Fuel America’s Lawsuit Factor.

Below are links to every contribution:

Myriam Gilles

Brooke Coleman

Anthony Sebok

Brad Wendel

Renee Knake Jefferson

Beth Burch

I also will link to JOTWELL reviews of Beth’s book from Anthony and Seth Endo later this month.

The final word in our Book Symposium on Beth Burch’s The Pain Brokers goes to, its author, Elizabeth Chamblee Burch (Georgia). I will put up a post later today collecting everything from the symposium.

I have been writing about multidistrict litigation since before I graduated from law school in 2004. When I reached midlife, I began to wonder about the point of my efforts—what, if anything, has changed? The answer: not much. Maybe not anything.

Most stakeholders in mass torts—plaintiffs’ attorneys, defense attorneys, and MDL judges—have a vested interest in the status quo. Lawyers on both sides are mostly repeat players who have grown rich from MDLs. Judges (with some notable exceptions) favor settlements and lack incentives to look too deeply under the procedural hood. These are the people I have been writing to for over two decades.

The thought that one more law review article might do the trick was laughable.

So I did what academics do and went back to school to get an MFA in narrative nonfiction from UGA’s Grady School of Journalism. Over the course of two years, I shed legalese and learned how to interview and write for story. I met with pelvic-mesh plaintiffs in forlorn long-term stay motels, former kingpins in upscale Italian restaurants, insiders in Las Vegas’s Mass Torts Made Perfect, and felons in Brooklyn’s federal courthouse. They recounted the kind of stories that do not appear in polite small talk or law reviews. Those true tales became The Pain Brokers.

At its heart, the book is about misplaced trust, systemic failings, and American greed. So much greed. It centers on a scheme to lure women with pelvic mesh to south Florida to have it removed at seedy chiropractors’ offices to jack up the value of their settlement and benefit the plaintiffs’ lawyers, doctors, and medical funders—but not the women. Had women used insurance and a real hospital, it would have cost them somewhere between $600 and $1,000. A spin through the removal mill ran $69,000 to $120,000.

Why might women do such a thing? A data breach in India gave callers their most intimate medical details, and they used that to convince mesh patients they had a ticking time bomb in them, had to fly to Florida immediately to have it removed (or they would die), and wouldn’t have to pay a dime. Some women even thought the calls were from the mesh manufacturers themselves.

The book is also about two unlikely allies: Barbara Binis, who grew up in blue-collar Buffalo as the oldest of five children in a strict Catholic home, is a seasoned Philadelphia defense attorney hired to do financial damage control for a mesh manufacturer. J.R. Baxter, a newly minted small-town Arkansas lawyer who shunned big law to join his dad’s solo practice, is trying to achieve justice for the three women at the center of the book—Jerri Plummer, Barb Shepard, and Sharon Gore—along with over 180 others.

There are lots of other colorful characters too, like a 6ft plus hulking figure with a flamingo pink goatee, a call center salesman in Versace with gold-rimmed, rose-colored aviator glasses, and a former Marine Corps company commander with arm-sleeve tattoos of the grim reaper and the angel of justice. They used their ill-gotten gains on fleets of luxury cars, ox-blood red alligator-skin boots, and platinum toe-rings for their mistresses.

So many failings enabled these shenanigans: medical device companies placed pelvic mesh on the market without testing it for that use beforehand. The FDA approved mesh through a loophole: the 510(k) submission process. And as the mesh began to unravel in women across the globe, lawyers, doctors, litigation/medical funders, call centers, and middlemen swarmed to milk every cent possible from injured women. Add to that the growing number of states that allow nonlawyers to form law firms with lawyers, and Hippocratic oaths, professional ethics, and morality be damned.

Backend enforcement gaps add to these failings: state and federal prosecutors have only so much time, criminal statutes of limitation can inhibit charges, and there is no federal anti-kickback statute that covers medical liens.

It’d be nice if we could chalk these failings up to a perfect storm that is unlikely to occur again, but that’s simply not the case. Just a few weeks ago, a telehealth company (GuardDog Telehealth) admitted to accessing patients’ medical records to sell them to mass tort plaintiffs’ lawyers.

As I speak about The Pain Brokers to audiences across the United States, I’m asked what we can do to fix it. If only I had a thirty second salve.

I have written extensively about the ways we might improve MDLs. Here are a few:

• Judges should consider conflicts of interest and adequate representation in selecting lead lawyers and then ask plaintiffs to evaluate leaders as their case winds down. They can also nudge lead lawyers by tying their common-benefit fees explicitly to the benefit that those attorneys confer on the plaintiffs as opposed to the sticker price of the settlement fund. And by regularly remanding cases that are not served by centralization as well as plaintiffs who do not want to settle, judges can dislodge the omnipotence lead lawyers exercise, encourage lawyers to take only those cases they’d be willing to litigate, and give plaintiff the freedom to have their day in court.
• Open courts to plaintiffs by allowing them to watch proceedings online.
• Lawyers or courts should setup online groups or forums where plaintiffs can exchange information with one another and communicate with lead lawyers without endangering attorney-client privilege.
• Increase jurisdictional redundancy and access to appellate courts to increase reviewability, test creative procedural mechanisms, and develop substantive law.
• Require lawyers to take their contingency fees out of the net fees (after costs) rather than the gross, to encourage fiscal responsibility.
• State bars and MDL judges should take plaintiffs’ complaints about their attorneys’ ethical failings seriously and sanction, discipline, and disbar individual lawyers as appropriate.

To be sure, none of these proposals touch many of the failings identified above, including the lack of universal healthcare and whether professions like law and medicine should be allowed to self-enforce.

I have many thoughts, but few easy answers, which makes me exceedingly grateful to have all-star academics like Brooke Coleman, Myriam Gilles, Renee Knake Jefferson, Tony Sebok, and Brad Wendel weigh in. I hope this is the start of critically important discussions that lead to actual reforms to improve every aspect of these widespread failures without impeding Americans’ access not just to the courts, but to actual justice.

Steven Lubet has a new essay on  Slate about the connection between birthright citizenship and John Brown. Here is the beginning:

Within the first moments of his argument before the Supreme Court, U.S. Solicitor General John Sauer asserted that birthright citizenship extends only to children whose parents owe “direct and immediate allegiance” to the United States, a phrase that is not found in the relevant passage of the 14^th Amendment.

As it happens, however, there is a direct precedent under U.S. law, well known to the drafters of the 14^th Amendment, explaining that the demands of allegiance attach even to temporary or unlawful entrants.

On the night of Oct. 16, 1859, John Brown led a small army of 22 men from Maryland into Virginia, where he intended to free the slaves. 

Brown himself was captured alive and indicted for the capital crimes of murder, insurrection, and treason against the Commonwealth of Virginia. 

Brown’s attorneys repeatedly moved to dismiss the treason count, noting that conviction required a “breach of allegiance, and can be committed by him only who owes allegiance either perpetual or temporary.”

The prosecution responded that Brown’s very presence in Virginia imposed an obligation of temporary allegiance.

Judge Richard Parker agreed with the prosecutors.

By the time the 14^th Amendment was drafted, in 1866, every member of Congress would have been acutely aware of Brown’s trial, which had been held only seven years earlier. If they considered the history and tradition of allegiance, as the Trump administration maintains, Brown’s execution for treason, based on his imputed allegiance to Virginia, which evidently attached the moment he crossed the state line, would have come immediately to mind.

The question of whether a President can withdraw the United States from the NATO Treaty contrary to an Act of Congress saying that he cannot without a two-thirds vote from the Senate is fascinating but probably not justiciable.

Who would have standing to challenge the abrogation of a mutual defense treaty? No private rights are impaired. The foreign sovereigns cannot bring an action in the domestic courts of the treaty-breaking sovereign and expect a remedy. Even if they could, what would the remedy be?

As a political question, though, the Act of Congress would give a future President a strong ground to say that the prior President’s abrogation was unlawful. In this sense, treaty abrogations (at least in this context) can be viewed as a non-justiciable executive order that cannot bind successors.

I’m not an expert on treaty practice. Has any treaty even been repealed by a two-thirds vote of the Senate? We did enter into new treaties that repealed or superseded old ones (with Native American Tribes, for instance), but there are no outright repeals that come to mind.

Judge Richard Leon is now known for opinions that use a lot of exclamation points. You may think that this is only a modern turn driven by social media. But you would be wrong! There is precedent for this in the Supreme Court.

It appears (pending further research) that Justice McReynolds invented the judicial exclamation point. Here are parts of his Nebbia dissent in 1934:

“Demand at low prices being wholly insufficient, tlie proposed plan is to raise and fix higher minimum prices at stores and thereby aid -the producer whose output and prices remain unrestrained!”

“You cannot procure a quart of milk from the grocer although he is anxious to accept what you can pay and the demands of your household are urgent!”

“The fanciful scheme is to protect the farmer against undue exactions by prescribing the price at which milk disposed of by him at will may be resold!”

UPDATE: I was wrong! John Marshall used an exclamation point in Marbury!

Some questions.

• What is the hypothetical viewpoint-neutral-but-content-based regulation of talk therapy that she has in mind?

• Could a client injured by conversion talk-therapy win a med mal case under the majority opinion or under Kagan’s approach? So this case becomes about a state’s specific restriction on some therapist speech, while leaving room for liability under content-neutral med mal laws?

• My trans-but-free-speech-maximalist son was livid about this, especially Kagan and Sotomayor. The ordinary defense of the Court’s insistence on viewpoint neutrality–this means Texas or Florida attempts to ban gender-affirming talk therapy also fail–did not mollify him. Not because the Court’s conservatives will reverse course when the political valence goes the other way, although that is possible (and certain with at least two of them). But because the harm of allowing conversion therapy outweighs the harm of losing gender-affirming therapy (which happens more in the shadows in any event). Not sure if this is empirically true; it instinctually makes some sense.

Scott Dodson (UC-San Francisco) shared the following with me. Note that I think AI (as everyone is attempting to use it) is categorically evil. But Scott is a friend, so I will offer him a forum to share his handiwork:

In yesterday’s oral argument of Jules, Justice Alito asked, I assume jokingly, “Well, just out of curiosity, do you think we should ask Claude to decide this case?”:

Well, I did just that. Here’s the prompt I gave to Claude, and here’s the result. If you think it might be of interest to Prawfs readers, feel free to post about it.

Prompt:

Write an opinion for the Court by Justice Kagan, in the style of Justice Kagan, resolving the case of Jules v. Andre Balazs Properties. Use the following sources: Lower-court opinion: https://www.scotusblog.com/wp-content/uploads/2025/10/USSC-Petition-for-Writ-of-Certiorari_Jules_v_Andre-Balazs-Properties.pdf#page=39 Oral argument: https://www.supremecourt.gov/oral_arguments/audio/2025/25-83   Petitioner’s brief: https://www.supremecourt.gov/DocketPDF/25/25-83/391951/20260116122533610_25-83%20Brief%20for%20Petitioner.pdf   Respondent’s brief: https://www.supremecourt.gov/DocketPDF/25/25-83/396498/20260217162302726_25-83%20bs.pdf

Here is the opinion Claude produced.

Essay # 5 in our Book Symposium on Beth Burch’s The Pain Brokers, by Renee Knake Jefferson (Houston).

If you’ve been following the essays in this symposium on Elizabeth Chamblee Burch’s compelling new book, The Pain Brokers: How Con Men, Call Centers, and Rogue Doctors Fuel America’s Lawsuit Factory, by now you should be convinced it is a must-read.

Burch, a University of Georgia law professor and nationally recognized expert on mass tort litigation, spent two years conducting more than 150 interviews in motels, law offices, and roadside diners across the country (p. xi). The result is a work of narrative nonfiction that reads more like a crime thriller than a legal treatise.

It is worth taking a moment to appreciate how this book came to be. It is a product of Burch’s decision, as a tenured law professor, to enroll in the MFA Program in nonfiction at the University of Georgia’s Grady School of Journalism. Her commitment, in her words, “to turn the injustices of mass tort litigation into a story for general readers” (p. 291) is impressive. We might benefit from more academics investing time and energy into making their work accessible to readers beyond the so-called ivory tower. Burch is a gifted writer. Her book will keep you up late and haunt you long after you read the last page. I can already see it being made into a miniseries (think Jonathan Harr’s A Civil Action meets Apple TV’s Palm Royale set in 2015 instead of 1969—much of the action happens in Florida).

Burch exposes how the legal system facilitated a profitable market fueled by the pain of women injured with defective transvaginal mesh. What makes Burch’s analysis especially disturbing is the vivid portrayal of women who face life-threatening medical conditions with increasingly less ability to make informed, safe choices for their reproductive health. It is yet another example of how the legal system in many jurisdictions denies women full bodily autonomy.

Along the way we meet Sharon Gore, Jerri Plummer, and Barbara Shepard, three women who were each victimized twice: first by the unnecessary removal of their pelvic mesh and again by the legal system which should have compensated them, but instead rewarded those who took advantage of their suffering. These women, many poor and in chronic pain, were recruited through predatory telemarketing, transported to a fly-by-night pseudo-surgical center set up in a Florida office park, subjected to unnecessary or botched procedures, unwittingly saddled with high-interest loans when their insurance would have covered treatment, and then funneled into mass tort cases where the primary beneficiaries were not the victims but the lawyers and middlemen who had assembled the “inventory” of women in the first place (p. 49).

The scheme involved a network of con men, rogue doctors, and call-center operators who exploited tens of thousands of women. At the heart of the enterprise was what Burch labels a “LINO”—a law firm in name only (p. 8). According to Burch, Alpha Law, LLC “took no depositions, tried no trials, and sued nobody” (p. 8). Instead, the Florida-based entity was a “marketing firm that funneled clients to real lawyers in a manner that was illegal in Florida and everywhere else except Washington, DC” (p. 8). The “DC loophole,” as Burch calls it, is actually a rule of professional conduct. Most jurisdictions follow ABA Model Rule 5.4, which prohibits individuals without law licenses from owning or investing in law firms. DC has an exception in its version of 5.4 exploited by Alpha Law. (Notably, Arizona completely eliminated its Rule 5.4 in 2021, with recent mixed reviews both documenting positive innovations in the delivery of legal services and harms to consumers. No other state has followed Arizona’s lead.)

I want to situate The Pain Brokers in the context of other market failures in the legal system. In my own book Law Democratized: A Blueprint for Solving the Justice Crisis, I argue that the American legal profession faces a profound access-to-justice crisis. Every year, millions of individuals confront serious legal problems—eviction, debt collection, family disputes, consumer fraud, medical issues, and more—without meaningful access to legal representation. Civil courts across the country routinely see litigants navigating complicated legal procedures on their own. Many never even recognize their problems as something that could be resolved through the legal system.

The void in legal help is not merely the product of information asymmetries and limited financial resources; it is also the result of institutional design. Burch’s book paints a dramatic portrait of what can rush in to fill this void and the picture is not pretty. Where Law Democratized diagnoses a civil justice system plagued by scarcity, The Pain Brokers shows how predators exploit that desperation.

The parallels to Law Democratized are instructive and troubling. My book documents how 87 percent of American households facing civil legal problems never even seek legal help, a statistic that reflects not indifference but a market that does not reach ordinary people (p. xii). The women Burch profiles did not suffer from a lack of legal contact. They were inundated with it. Call centers found them, lawyers signed them up via electronic sleight-of-hand, and surgeons cashed in before the legal machinery had even begun to grind. What Burch reveals is that when the formal legal services market fails ordinary people, an informal and predatory one may fill the gap.

As I learned more about the market for pain facilitated by the “LINO” Alpha Law, it caused me to rethink my own recommendations in Law Democratized for reform of Model Rule 5.4 to allow individuals without law licenses to participate in law firm ownership (p. 145-46). While I still favor reforms to expand who may be authorized to provide legal help and how they may do so, The Pain Brokers is a cautionary tale that must guide any such reform efforts.

Burch is particularly incisive on the structural features of multidistrict litigation, or MDL, that enable this predation. In MDL proceedings, thousands of individual cases are consolidated before a single federal judge (p. 1). A small group of insider plaintiffs’ attorneys—chosen through a “good-ol’-boy network,” as Burch describes it—controls the litigation, sets the settlement terms, and collects the fees (p. 4). Traditional legal markets tend to serve those with full information who can afford to pay; in The Pain Brokers, Burch shows how MDL structures similarly concentrate profit and information at the top of the plaintiffs’ bar, even in litigation nominally waged on behalf of the powerless.

For scholars of legal ethics, the market harms Burch describes raise questions that extend well beyond MDL litigation. The legal profession has long framed professional responsibility primarily in terms of rules governing individual lawyers and their duties to clients. Yet the pelvic mesh litigation marketplace illustrates how profoundly lawyers shape institutions as well as individual cases. Through litigation strategies, case aggregation, and relationships with intermediaries, lawyers helped construct the very systems through which legal claims are identified and resolved.

Lawyers sit at the center of this system. They are the actors who transform personal injury into legal claims, who aggregate those claims into large-scale litigation campaigns, and who ultimately negotiate the settlements that distribute billions of dollars in compensation. Yet Burch’s account reveals how modern mass-tort practice resembles a supply chain. Potential plaintiffs may be identified through digital advertising, routed through lead-generation companies, and matched with law firms assembling vast portfolios of cases for multidistrict litigation. In such a system, the lawyer-client relationship—long understood as the ethical core of legal practice—can become attenuated as claims move through layers of intermediaries before reaching the courtroom. The “inventory” of clients may never meet their lawyer at all. Seen from that perspective, Burch’s narrative is not simply a study of mass-tort practice. It is an invitation to reconsider how professional responsibility should be understood in an era when legal markets operate on a national and increasingly digital scale.

The Pain Brokers is a rigorous indictment of a legal system that allowed financial incentives to crowd out human dignity. At times the book’s narrative momentum runs ahead of its policy analysis. Burch is a formidable legal scholar but the book’s general-audience framing keeps structural reform largely in the background or relegated to footnotes (for example p. 290). Readers learn in vivid detail what went wrong; the “Band-Aids” chapter (pp. 243-248) gestures toward solutions, but Burch leaves her audience desperate for justice. I hope The Pain Brokers inspires more to read about her scholarly proposals for reform. And I’d love to read the sequel.