Articles Category
Governing the Anticommons in Aggregate Litigation
May. 23, 2013—This Article argues that there is an “anticommons” problem in aggregate litigation. An anticommons occurs when the consent of too many owners is needed to use a resource at its most efficient scale. When many plaintiffs have similar claims against a common defendant, those claims are often worth more if they can be bundled up...
Foreign Affairs Federalism: A Revisionist Approach
Apr. 29, 2013—This Article analyzes how federal courts should resolve disputes implicating both federalism and foreign affairs concerns when no textual source of law provides dispositive direction. This challenge, which arises in what Justice Jackson once called the “zone of twilight,” occurs with surprising frequency. Most recently, it can be discerned in Justices Kennedy’s and Scalia’s dueling...
Resolving the ALJ Quandary
Apr. 29, 2013—Three competing constitutional and practical concerns surround federal administrative law judges (“ALJs”), who preside over all formal adjudications within the executive branch. First, if ALJs are “inferior Officers” (not mere employees), as five current Supreme Court Justices have suggested, the current method of selecting many ALJs likely violates the Appointments Clause. Second, a recent U.S....
Property: A Bundle of Sticks or a Tree?
Apr. 29, 2013—In the United States, property debates revolve around two conceptual models of property: the ownership model, originally developed in Europe and now revisited by information theorists and classical-liberal theorists of property, and the bundle of rights model, developed in the United States by Hohfeld and the realists. This Article retrieves an alternative concept of property,...
Cultivating a Green Political Landscape: Lessons for Climate Change Policy from the Defeat of California’s Proposition 23
Mar. 28, 2013—Around the same time as federal climate change legislation died in the U.S. Senate, California voters overwhelmingly rejected a ballot initiative to repeal the state’s climate change regulatory system. The opposition to Proposition 23 was so successful in part because no major business interests within the state were willing to support the Proposition. That support...
Unpacking the Force of Law
Mar. 28, 2013—In 2011, in Mayo Foundation for Medical Education and Research v. United States, the Supreme Court held that general authority Treasury regulations adopted using notice-and-comment rulemaking carry the force of law and thus are eligible for Chevron deference. In the wake of Mayo, courts and scholars are now struggling with its implications for whether temporary...
The Nature and Purpose of Evidence Theory
Mar. 28, 2013—The past few decades have seen an explosion in theoretical and empirical scholarship exploring the law of evidence. From a variety of disciplines and distinct methodological perspectives, this work has illuminated important issues regarding types of evidence, legal rules and doctrine, the reasoning processes of judges and juries, the structure of proof, and the normative...
The Reciprocity of Search
Jan. 28, 2013—The discussion of search in patent law always frames the problem in terms of producers looking for patentees. But search is reciprocal. In designing a patent system, we can have producers look for patentees, or patentees look for producers. Either will result in the ex ante negotiation that is the goal of a property system....
Does Agency Funding Affect Decisionmaking?: An Empirical Assessment of the PTO’s Granting Patterns
Jan. 28, 2013—Appendix This Article undertakes the first attempt to causally investigate the influence of funding on the United States Patent and Trademark Office’s (“PTO”) decisionmaking. More specifically, this Article studies the influence of the PTO’s budgetary structure on the most important decision made by the Agency: whether or not to grant a patent. It begins by...
Judicial Review for Enemy Fighters: The Court’s Fateful Turn in Ex parte Quirin, the Nazi Saboteur Case
Jan. 28, 2013—The last decade has seen intense disputes about whether alleged terrorists captured during the nontraditional post-9/11 conflict with al Qaeda and affiliated groups may use habeas corpus to challenge their military detention or military trials. It is time to take a step back from 9/11 and begin to evaluate the enemy combatant legal regime on...
Products Liability and Economic Activity: An Empirical Analysis of Tort Reform’s Impact on Businesses, Employment, and Production
Jan. 28, 2013—For decades, advocates of tort reform have argued that expansive products liability stifles economic activity by imposing excessive and unpredictable liability costs on businesses. Although politicians aspiring to create jobs, attract businesses, and improve the economy have relied on this argument to enact hundreds of reforms, it has largely gone empirically untested. No longer. Using...