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Articles

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...

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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...

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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...

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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...

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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...

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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...

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Taking Great Cases: Lessons from the Rosenberg Case

May. 31, 2010—The most watched case of the 1952 Supreme Court Term was not Brown v. Board of Education, but the case of convicted atomic spies Julius and Ethel Rosenberg. Brown and Rosenberg demonstrate the Court’s different approaches toward taking “great cases.” The Brown Court is often criticized for having done too much; the Rosenberg Court is...

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Arbitration Clauses in CEO Employment Contracts: An Empirical and Theoretical Analysis

May. 31, 2010—A bill currently pending in Congress would render unenforceable mandatory arbitration clauses in all employment contracts. Some perceive these provisions as employer efforts to deprive employees of important legal rights. Company CEOs are firm employees, and, unlike most other firm employees, they can actually negotiate their employment contracts, very often with attorney assistance. Moreover, many...

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Breach Is For Suckers

May. 31, 2010—This Article presents results from three experiments offering evidence that parties see breach of contract as a form of exploitation that makes disappointed promisees into “suckers.” In psychology, being a sucker turns on a three-part definition: betrayal, inequity, and intention. We used web-based questionnaires to test the effect of each of the three factors separately....

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The Future of Agency Independence

Apr. 30, 2010—Independent agencies have long been viewed as different from executive-branch agencies because the President lacks authority to fire their leaders for political reasons, such as failure to follow administration policy. In this Article, we identify mechanisms that make independent agencies increasingly responsive to presidential preferences. We find these mechanisms in a context where independent agencies...

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Optimizing Private Antitrust Enforcement

Apr. 30, 2010—Private litigation is the predominant means of antitrust enforcement in the United States. Other jurisdictions around the world are increasingly implementing private enforcement models. Private enforcement is usually justified on either compensation or deterrence grounds. While the choice between these two goals matters, private litigation is not very effective at advancing either one. Compensation fails...

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Facilitating Wage Theft: How Courts Use Procedural Rules to Undermine Substantive Rights of Low-Wage Workers

Apr. 30, 2010—In race and sex discrimination class actions, if a defendant employer makes a Rule 68 offer of judgment to the named plaintiffs, courts routinely refuse to dismiss the class claims. In stark contrast, in collective actions for failure to pay lawful wages, if a defendant employer makes a Rule 68 offer of judgment, courts will...

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Assisted Suicide, Morality, and Law: Why Prohibiting Assisted Suicide Violates the Establishment Clause

Apr. 30, 2010—This Article argues that general prohibitions against assisted suicide violate the Establishment Clause because they support a particular and religiously based moral position. Many laws overlap with religious proscriptions, of course. The conclusion that laws against assisted suicide are unconstitutional because of their religious origin is based on the specific historical context of these laws...

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Statewide Capital Punishment: The Case for Eliminating Counties’ Role in the Death Penalty

Mar. 27, 2010—In almost every state that authorizes capital punishment, local county prosecutors are responsible for handling capital trials and for deciding when to seek the death penalty. This approach has proven to be arbitrary and inefficient. Because death penalty cases are extremely expensive and complicated, counties with large budgets and experienced prosecutors are able to seek...

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The Consequences of Congress’s Choice of Delegate: Judicial and Agency Interpretations of Title VII

Mar. 27, 2010—Although Congress delegates lawmaking authority to both courts and agencies, we know remarkably little about the determinants—and even less about the consequences—of the choice between judicial and administrative process. The few scholars who have sought to understand the choice of delegate have used formal modeling to illuminate various aspects of the decision from the perspective...

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Preempting Discrimination: Lessons from the Genetic Information Nondiscrimination Act

Mar. 27, 2010—The Genetic Information Nondiscrimination Act (“GINA”), enacted in May 2008, protects individuals against discrimination by insurance companies and employers on the basis of genetic information. GINA is not only the first civil rights law of the new millennium, but it is also the first preemptive antidiscrimination statute in American history. Traditionally, Congress has passed retrospective...

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