Author
The Inauthentic Claim
Jan. 30, 2011—This Article argues that third parties should be able to invest in lawsuits to a much greater degree than is currently permitted in most jurisdictions in the United States. The laws of assignment and maintenance limit the freedom of litigants to sell all or part of their lawsuits to strangers. I argue in the Article...
The Limited Diagnosticity of Criminal Trials
Jan. 30, 2011—A fundamental function of the criminal trial is to determine the facts correctly in order to distinguish between guilty and innocent defendants, and between strong and weak prosecutions. This Article seeks to answer a simple question: How good is the criminal trial at reaching accurate factual conclusions? The Article applies a body of experimental psychology...
The Pragmatic Incrementalism of Common Law Intellectual Property
Nov. 23, 2010—“Common law intellectual property” refers to a set of judge- made legal regimes that create exclusionary entitlements in different kinds of intangibles. Principally the creation of courts, many of these regimes are older than their statutory counterparts and continue to coexist with them. Surprisingly, intellectual property scholarship has paid scant attention to the nuanced lawmaking...
Punishment as Suffering
Nov. 23, 2010—When it comes to punishment, should we be subjectivists or objectivists? That is, should we define, measure, and justify punishment based on the subjective experiences of those who are punished or should we instead remain objective, focusing our attention on acts, culpability, and desert? In a recent series of high- profile articles, a group of...
Merging in the Shadow of the Law: The Case for Consistent Judicial Efficiency Analysis
Nov. 23, 2010—This Article examines current judicial interpretation of Section 7 of the Clayton Act through the lens of negotiation theory. The research exposes a gap between how courts state they are analyzing efficiency claims in Section 7 Clayton Act enforcement actions and what they are actually doing. During periods of lax antitrust enforcement, this pattern is...
Transforming the Allocation of Deal Risk Through Reverse Termination Fees
Oct. 28, 2010—Buyers and sellers in strategic acquisition transactions are fundamentally shifting the way they allocate deal risk through their use of reverse termination fees (“RTFs”). Once relatively obscure in strategic transactions, RTFs have emerged as one of the most significant provisions in agreements that govern multi-million and multi-billion dollar deals. Despite their recent surge in acquisition...
Erie and Federal Criminal Courts
Oct. 28, 2010—Today, low-level state and local criminal provisions figure critically in federal prosecutions, serving as the initial bases for police seizures that yield evidence leading to more serious federal charges (usually involving drugs or firearms). While police resort to such laws as pretexts to seize individuals has been the subject of extensive commentary, this Article provides...
The Puzzle of Brandeis, Privacy, and Speech
Oct. 28, 2010—Most courts and scholarship assume that privacy and free speech are always in conflict, even though each of these traditions can be traced back to writings by Louis D. Brandeis—his 1890 Harvard Law Review article The Right to Privacy and his 1927 concurrence in Whitney v. California. How can modern notions of privacy and speech...
Common Agency and the Public Corporation
Oct. 28, 2010—Under the standard agency theory applied to corporate governance, active monitoring of manager-agents by empowered shareholder-principals will reduce agency costs created by management shirking and expropriation of private benefits. But while shareholder power may result in reduced managerial expropriation, an analysis of how that power is often exercised in public corporation governance reveals that it...