This Article identifies a distinctive legal strategy for using the Religious Freedom Restoration Act (“RFRA”) to obtain an exemption for for-profit businesses to Title VII liability for their religiously motivated discrimination against gay and transgender employees and job applicants. The litigation strategy involves a declaratory judgment class action against the Equal Employment Opportunity Commission under RFRA. We primarily show how this strategy tries to exploit a key ambiguity in the compelling interest inquiry in RFRA and pre-1990 Free Exercise Clause doctrine, i.e., how to specify the size of the set of persons other than the RFRA claimant who would likely qualify for the exemption that the RFRA claimant wants if the RFRA claimant prevails—what we call the “putative RFRA exempted set.” We also show how well this litigation strategy may extend to exempt religiously motivated employers from liability under state employment discrimination law. In so doing, this Article contributes to the ongoing debate about the scope of exemptions for religiously motivated businesses.

In 2022, the Supreme Court of the United States held states may seize injured Medicaid recipients’ tort recoveries beyond the portion of those recoveries allocated for past medical expenses actually covered by Medicaid. However, the Court’s decision went beyond that distinction by validating the practice of states using one-size-fits-all “statutory recovery formulas” to seize the tort recoveries of injured Medicaid recipients. Although the Court painted the dispute as one of bland statutory interpretation, the holding enshrines the subordinated social and legal position of recipients of poor people’s programs in the United States.

Although others have examined Medicaid, and other poor people’s programs, as sites of surveillance and political and civic learning among the poor, this Article discusses the extractive dynamics of the program with a specific focus on statutory recovery formulas. Drawing on theories of extraction, as well as rhetoric and common law equitable doctrines, this Article describes two key extractive aspects of Medicaid law and, specifically, states’ statutory third-party liability recovery formulas—the branding of Medicaid recipients as perpetual debtors and the use of compelled litigation to extract time, money, and dignity from welfare recipients. Using Gallardo ex rel. Vassallo v. Marstiller and related cases, statutes, and common law doctrines in both the federal and state contexts, this Article maps the oppressive political rhetoric of welfare demonization onto the staid language of the courts. It demonstrates the ways in which Medicaid recipients are made to accept extraction of time and money as recompense for a social program that has become—unlike other social welfare programs—officially and legally reconceptualized as a loan that must be paid back.

Venture capital (“VC”) is repeatedly described as one of the “crown jewels” of the U.S. economy for its role in financing startups and innovation. However, recent corporate scandals, including fraud, have exposed a darker side of the VC industry and the startups in which venture capitalists (“VCs”) invest. For example, Theranos received $686 million in VC funding yet proved to be nothing more than a “house of cards” once it came to light that Theranos falsified blood test results. When Theranos founder Elizabeth Holmes was convicted of fraud, many VCs tried to distance themselves, saying Theranos was an exception and that most of Theranos’s financing did not come from VC. Nevertheless, in the wake of Theranos, fraud and mismanagement of VC-backed companies has continued.