Articles Category

“Sticky” Arbitration Clauses? The Use of Arbitration Clauses After Concepcion and Amex

Jun. 14, 2014—Sticky Arbitration Clauses? We present the results of the first empirical study of the extent to which businesses have switched to arbitration after AT&T Mobility LLC v. Concepcion. The Supreme Court’s decision in Concepcion led commentators to predict that every business soon would use an arbitration clause, coupled with a class arbitration waiver, in their...

Enjoining Abuse: The Case for Indefinite Domestic Violence Protection Orders

Jun. 14, 2014—Enjoining Abuse- The Case for Indefinite Domestic Violence Protection Orders While countless studies demonstrate the complex and dangerous nature of intimate partner abuse, most jurisdictions permit only the entry of yearlong domestic violence protection orders. Judges may assume that danger ceases once the order takes effect, but evidence of the recurrent nature of violence demonstrates...

In Defense of American Criminal Justice

Jun. 14, 2014—In Defense of American Criminal Justice

Prisoners and Habeas Privileges Under the Fourteenth Amendment

May. 16, 2014—Prisoners and Habeas Privileges Under the Fourteenth Amendment The U.S. Reports contain no answer to a million-dollar question: are state prisoners constitutionally entitled to a federal habeas forum? The Supreme Court has consistently ducked the basic constitutional issue, and academic work on the question idles on familiar themes. The strongest existing argument that state prisoners...

Enforcement Discretion and Executive Duty

May. 16, 2014—67 Vand. L. Rev. 671 – Price Recent Presidents have claimed wide-ranging authority to decline enforcement of federal laws. The Obama Administration, for example, has announced policies of abstaining from investigation and prosecution of certain federal marijuana crimes, postponing enforcement of key provisions of the Affordable Care Act, and suspending enforcement of removal statutes against...

The Case for a Market in Debt Governance

May. 16, 2014—67 Vand. L. Rev. 771 – Yadav Scholars have long lamented that the growth of modern finance has given way to a decline in debt governance. According to current theory, the expansive use of derivatives that enable lenders to trade away the default risk of their loans has made these lenders uninterested, even reckless, when...

The Obligation of Members of Congress to Consider Constitutionality While Deliberating and Voting: The Deficiencies of House Rule XII and a Proposed Rule for the Senate

May. 16, 2014—67 Vand. L. Rev. 837 – Feingold Most scholarly attention on constitutional interpretation is focused on the judicial branch and its role in our system of separation of powers. Nonetheless, constitutional interpretation should not take place solely in the courts. Rather, history suggests our Framers envisioned that members of Congress, as well as the President...

The Supercharged IPO

Mar. 24, 2014—1 – Fleischer&Staudt_67_Vand_L_Rev_307 A new innovation on the IPO landscape has emerged in the last two decades, allowing owner-founders to extract billions of dollars from newly public companies. These IPOs␣labeled supercharged IPOs␣have been the subject of widespread debate and controversy: lawyers, financial experts, journalists, and members of Congress have all weighed in on the topic....

Against Settlement of (Some) Patent Cases

Mar. 24, 2014—2 – La Belle_67_Vand_L_Rev_375 For decades now, there has been a pronounced trend in civil litigation away from adjudication and toward settlement. This settlement phenomenon has spawned a vast critical literature beginning with Owen Fiss’s seminal work, Against Settlement. Fiss opposes settlement because it achieves peace rather than justice, and because settlements often are coerced...

States, Agencies, and Legitimacy

Mar. 24, 2014—3 – Seifter_67_Vand_L_Rev_443 Scholarship on the administrative process has scarcely attended to the role that states play in federal regulation. This Article argues that it is time for that to change. An emerging, important new strand of federalism scholarship, known as “administrative federalism,” now seeks to safeguard state interests in the administrative process and argues...

Designing Administrative Law for Adaptive Management

Jan. 22, 2014—Designing Administrative Law for Adaptive Management Administrative law needs to adapt to adaptive management. Adaptive management is a structured decisionmaking method, the core of which is a multistep, iterative process for adjusting management measures to changing circumstances or new information about the effectiveness of prior measures or the system being managed. It has been identified...

The Right to Vote Under State Constitutions

Jan. 22, 2014—The Right to Vote Under State Constitutions This Article provides the first comprehensive look at state constitutional provisions explicitly granting the right to vote. We hear that the right to vote is “fundamental,” the “essence of a democratic society,” and “preservative of all rights.” But courts and scholars are still searching for a solution to...

Uncovering the Silent Victims of the American Medical Liability System

Jan. 22, 2014—Uncovering the Silent Victims of the American Medical Liability System A frequently overlooked problem with the current medical liability system is the vast number of medical errors that go uncompensated. Although studies indicate that 1% of hospital patients are victims of medical negligence, fewer than 2% of these injured patients file claims. In this Article,...

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