Articles Category
Normalizing Erie
Oct. 17, 2016—Normalizing Erie ABSTRACT This Article argues that the Erie doctrine should be normalized by bringing it into line with ordinary doctrines of federalism. Under ordinary federalism doctrines—such as the dormant commerce clause, implied preemption, federal preclusion law, and certain special “enclaves” of federal common law—courts will displace state law to protect federal interests even when neither...
Agencies’ Obligation to Interpret the Statute
Oct. 17, 2016—Agencies’ Obligation to Interpret the Statute ABSTRACT Conventionally, when a statute delegates authority to an agency, courts defer to agency interpretations of that statute. Most agencies and scholars view such deference as a grant of permission to the agency to adopt any reasonable interpretation. That is wrong, jurisprudentially and ethically. An agency that commands deference...
The Failed Superiority Experiment
Oct. 17, 2016—The Failed Superiority Experiment ABSTRACT Federal law requires a class action be “superior to alternative methods for fairly and efficiently adjudicating the controversy.” This superiority requirement has gone unstudied, despite existing for half a century. This Article undertakes a comprehensive review of the superiority case law. It reveals a jurisprudence riddled with inconsistency as courts...
Supreme Court Repeaters
Oct. 17, 2016—Supreme Court Repeaters ABSTRACT A case that receives cert once is special. A case that receives cert twice is truly exceptional. This Article is the first to examine the phenomenon of “Supreme Court Repeaters.” Although Repeaters may seem like mere curiosities, they are actually a valuable part of the Supreme Court’s docket. Our analysis reveals...
Introduction: Is the Supreme Court Failing at Its Job, or Are We Failing at Ours?
May. 25, 2016—Introduction: Is the Supreme Court Failing at Its Job, or Are We Failing at Ours? AUTHOR Herman O. Loewenstein Professor of Law, Vanderbilt University.
Thinking About the Supreme Court’s Successes and Failures
May. 25, 2016—Thinking About the Supreme Court’s Successes and Failures AUTHOR Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law.
Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, and the Consequences of Returning the Constitution to Elected Government
May. 25, 2016—Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, and the Consequences of Returning the Constitution to Elected Government AUTHOR Sandra Day O’Connor Professor of Law and Professor of Government, College of William & Mary. This paper is an outgrowth both of conversations with Caitlin Borgmann and of remarks I made at the June 2015 Privacy Discussion...
A Tribute to Justice Scalia: Why Bad Cases Make Bad Methodology
May. 25, 2016—A Tribute to Justice Scalia: Why Bad Cases Make Bad Methodology AUTHOR Professor of Law, Vanderbilt University Law School. J.D., 2000, Harvard Law School.
Letter To Supreme Court (Erwin Chemerinsky is Mad. Why You Should Care.)
May. 25, 2016—Letter To Supreme Court (Erwin Chemerinsky is Mad. Why You Should Care.) AUTHOR Jacob D. Fuchsberg Professor of Law at New York University School of Law. Thanks to Randy Barnett, Josh Blackman, Orin Kerr, Rick Pildes, and Maria Ponomarenko for comments on a prior draft. Special thanks to Erwin Chemerinsky, a friend throughout my professional...
Three Supreme Court “Failures” and a Story of Supreme Court Success
May. 25, 2016—Three Supreme Court “Failures” and a Story of Supreme Court Success AUTHOR Professor of Law and Associate Dean of Faculty Development, University of Richmond School of Law. Thanks to the faculty of Vanderbilt Law School, particularly Suzanna Sherry, for the insightful comments and questions I received while workshopping this piece there. Special thanks to Eric...
The Broken-Hearted Lover: Erwin Chemerinsky’s Romantic Longings for a Mythical Court
May. 25, 2016—The Broken-Hearted Lover: Erwin Chemerinsky’s Romantic Longings for a Mythical Court AUTHOR Associate Professor of Political Science and Lecturer in Law, University of Chicago.
The Supreme Court in Context: Conceptual, Pragmatic, and Institutional
May. 25, 2016—The Supreme Court in Context: Conceptual, Pragmatic, and Institutional AUTHOR University Professor of Law and Political Science, Vanderbilt University.
The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches
Apr. 19, 2016—The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches ABSTRACT Last year, in Riley v. California, the Supreme Court required police to procure a warrant before searching a cell phone. Unfortunately, the Court’s assumption that requiring search warrants would be “simple” and very protective of privacy was overly optimistic. This article reviews...
Constitutionalizing Corporate Law
Apr. 19, 2016—Constitutionalizing Corporate Law ABSTRACT The Supreme Court has recently decided some of the most important and controversial cases involving the federal rights of corporations in over two hundred years of jurisprudence. In rulings ranging from corporate political spending to religious liberty rights, the Court has dramatically expanded the zone in which corporations can act free...
Intrafirm Monitoring of Executive Compensation
Apr. 19, 2016—Intrafirm Monitoring of Executive Compensation ABSTRACT This Article argues that employees should serve as intrafirm monitors of executive performance and pay. Employees and shareholders, labor and capital, can monitor executive performance and pay at different levels. Diffuse, diversified, and short durational shareholders currently monitor performance and pay through the market mechanism of public disclosures and...
Redundant Public-Private Enforcement
Mar. 21, 2016—Redundant Public-Private Enforcement ABSTRACT Redundancy is a four-letter word. According to courts and scholars, redundant litigation is costly, unfair, and confounding. Modern civil procedure has a (nearly) maximalist preference for centralization, and various rules seek to limit duplicative suits within and across court systems. This seemingly dominant view stands in marked contrast to the reality...