Articles Category
Regulatory Exit
Oct. 14, 2015—Regulatory Exit ABSTRACT Exit is a ubiquitous feature of life, whether breaking up in a marriage, dropping a college course, or pulling out of a venture capital investment. In fact, our exit options often determine whether and how we enter in the first place. While legal scholarship is replete with studies of exit strategies for...
The Supreme Court and the New Equity
May. 15, 2015—The Supreme Court and the New Equity ABSTRACT The line between law and equity has largely faded away. Even in remedies, where the line persists, the conventional scholarly wisdom favors erasing it. Yet something surprising has happened. In a series of cases over the last decade and a half, the U.S. Supreme Court has acted...
Misdemeanor Decriminalization
May. 15, 2015—Misdemeanor Decriminalization ABSTRACT As the United States reconsiders its stance on mass incarceration, misdemeanor decriminalization has emerged as an increasingly popular reform. Seen as a potential cure for crowded jails and an overburdened defense bar, many states are eliminating jailtime for minor offenses such as marijuana possession and driving violations, replacing those crimes with so-called...
Pricing Lives for Corporate Risk Decisions
May. 15, 2015—Pricing Lives for Corporate Risk Decisions ABSTRACT The 2014 GM ignition-switch recall highlighted the inadequacies of the company’s safety culture and the shortcomings of regulatory sanctions. The company’s inattention to systematic thinking about product safety can be traced to the hostile treatment of corporate risk analyses by the courts. This Article proposes that companies should...
Federalizing Education by Waiver?
May. 2, 2015—Federalizing Education by Waiver? ABSTRACT In the fall of 2011, the U.S. Secretary of Education told states he would use his statutory power to waive violations of the No Child Left Behind Act (“NCLB”), but only on the condition that they adopt his new education policies— policies that had already failed to move forward in...
Human Equity? Regulating the New Income Share Agreements
May. 2, 2015—Human Equity? Regulating the New Income Share Agreements ABSTRACT A controversial new financing phenomenon has recently emerged. New “income share agreements” (“ISAs”) enable an individual to raise funds by pledging a percentage of her future earnings to investors for a certain number of years. These contracts, which have been offered by entities such as Fantex,...
The Realities of Electoral Reform
May. 2, 2015—The Realities of Electoral Reform ABSTRACT What good are theories if they cannot be tested? Election law has wrestled with this question over the last generation. Two new theories have emerged during this period that reject conventional rights-and-interests balancing. In its place, the responsiveness theory asserts that legislators’ positions should be sensitive to changes in...
The Litigation Budget
May. 2, 2015—The Litigation Budget ABSTRACT Because of fears that litigation is too costly, reduction of litigation expenses has been the touchstone of procedural reform for the past thirty years. In certain circumstances, however, the parties have incentives—both rational and irrational—to spend more on a lawsuit than the social benefits that the case provides. Present and proposed...
The Sins of Innocence in Standing Doctrine
Mar. 19, 2015—The Sins of Innocence in Standing Doctrine ABSTRACT Should reverse discrimination plaintiffs always be able to challenge race-conscious selection policies in court? Conventional standing doctrine requires plaintiffs to show that the contested policy or practice has caused a concrete, personal harm. Yet in affirmative action cases, courts seem to have quietly dispensed with this required...
The Geography of Bankruptcy
Mar. 19, 2015—The Geography of Bankruptcy ABSTRACT Companies routinely file bankruptcy cases in venues that have no meaningful connection to the company, its operations, or its stakeholders. This practice (1) divorces bankruptcy and venue from their ties to location; (2) disrupts the fundamental balance underlying the Bankruptcy Code by shifting the focus exclusively to the needs of...
Voting Squared: Quadratic Voting in Democratic Politics
Mar. 19, 2015—Voting Squared: Quadratic Voting in Democratic Politics ABSTRACT Conventional democratic institutions aggregate preferences poorly. The norm of one-person–one-vote with majority rule treats people fairly by giving everyone an equal chance to influence outcomes but fails to give proportional weight to people whose interests in a social outcome are stronger than those of other people. This...
A Tale of Two Jurisdictions
Mar. 19, 2015—A Tale of Two Jurisdictions ABSTRACT The Supreme Court has recently clarified one corner of personal jurisdiction—a court’s power to hale a defendant into court—and pointed the way toward a coherent theory of the rest of the doctrine. For nearly seventy years, the Court has embraced two theories of when jurisdiction over a defendant is...
An Empirical Analysis of Noncompetition Clauses and Other Restrictive Postemployment Covenants
Jan. 26, 2015—An Empirical Analysis of Noncompetition Clauses and Other Restrictive Postemployment Covenants ABSTRACT Employment contracts for most employees are not publicly available, leaving researchers to speculate about whether they contain postemployment restrictions on employee mobility, and if so, what those provisions look like. Using a large sample of publicly available CEO employment contracts, we are able...
Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law?
Jan. 26, 2015—Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law? ABSTRACT The conventional wisdom is that state courts need not follow lower federal court precedent when interpreting federal law. Upon closer inspection, however, the question of how state courts should treat lower federal court precedent is not so clear....
Original Meaning and the Precedent Fallback
Jan. 26, 2015—Original Meaning and the Precedent Fallback ABSTRACT There is longstanding tension between originalism and judicial precedent. With its resolute focus on deciphering the enacted Constitution, the originalist methodology raises questions about whether judges can legitimately defer to their own pronouncements. Numerous scholars have responded by debating whether and when the Constitution’s original meaning should yield...
Statutory Interpretations and the Therapy of the Obvious
Jan. 26, 2015—Statutory Interpretations and the Theory of the Obvious AUTHOR University Professor of Law and Political Science, Vanderbilt University Law School.