Articles Category
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...
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...
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...
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...
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...
Subverting Shareholder Rights: Lessons from News Corp.’s Migration to Delaware
Feb. 3, 2010—This Article critically analyzes News Corp.’s reincorporation in Delaware against the backdrop of two major contemporary corporate governance debates relating to shareholder empowerment and convergence theory. Legal scholars opposing greater shareholder power often argue that the lack of shareholder participatory rights under U.S. law provides evidence that such rights are neither desired nor valued by...
Evaluating Norms: An Empirical Analysis of the Relationship between Norm-Content, Operator, and Charitable Behavior
Feb. 3, 2010—There are several kinds of norms, and this variety can lead to spirited debate about the best norm to employ for the regulation of a particular activity. Should the norm be mandatory or aspirational? A rule or a standard? One important area in which norm-choice has come to the fore is the American Bar Association’s...
The Quasi-Class Action Method of Managing Multi-District Litigation: Problems and a Proposal
Feb. 3, 2010—This Article uses three recent multi-district litigations ("MDLs") that produced massive settlements-Guidant ($240 million), Vioxx ($4.85 billion), and Zyprexa($700 million)-to study the emerging quasi-class action approach to MDL management. This approach has four components: (1) judicial selection of lead attorneys, (2) judicial control of lead attorneys’ compensation, (3) forced fee transfers from non-lead lawyers to...
Cooperative Interbranch Federalism: Certification of State-Law Questions by Federal Agencies
Feb. 3, 2010—When an unresolved state-law question arises in federal court, the court may certify it to the relevant state court. The practice of certification from one court to another has been widely adopted and has been touted as “help[ing] build a cooperative judicial federalism.” This Article proposes that states promote cooperative interbranch federalism by allowing federal...
The End of Objector Blackmail?
Nov. 30, 2009—Courts and commentators have long been concerned with holdout problems in the law. This Article focuses on a holdout problem in class action litigation known as objector “blackmail.” Objector blackmail occurs when individual class members delay the final resolution of class action settlements by filing meritless appeals in the hope of inducing class counsel to...
Does Copyright Law Promote Creativity? An Empirical Analysis of Copyright’s Bounty
Nov. 30, 2009—Modern copyright law is based upon a theory: increase copyright protection and you increase the number of creative works available to society. This theory has been the driving force behind an economic vision that has expanded, beyond all recognition, the original law created by the Statute of Anne. And with this expansion, we are told...
The Liberal Tradition of the Supreme Court Clerkship: Its Rise, Fall, and Reincarnation?
Nov. 30, 2009—This Article presents the first comprehensive empirical study of the post-clerkship employment of law clerks at the Supreme Court from 1882 to the present, and it uses that data to flesh out a historical and institutional interpretation of the clerkship and the recent political polarization of the Court more generally. The liberal tradition of the...
Jumping the Pond: Transnational Law and the Future of Chemical Regulation
Nov. 30, 2009—Just as domestic pollution can cause transnational externalities, domestic environmental regulation can create transnational ripple effects in other jurisdictions. In this Article, I show how chemical regulation—long a weak link in the network of U.S. environmental laws—is about to be reshaped and reformed through the extraterritorial ripple effects of new European Union legislation. Contributing to...
The Hidden Dimension of Nineteenth-Century Immigration Law
Oct. 27, 2009—This Article challenges the conventional wisdom that the law had little to say about immigration before 1875. Instead, it offers a reframing of immigration law history as including what scholars have previously thought of as “settlement history”: the immigration of whites to the western territories. The Article focuses on a particular group of immigrants—the so-called...
On the Limits of Supremacy: Medical Marijuana and the States’ Overlooked Power to Legalize Federal Crime
Oct. 27, 2009—Using the conflict over medical marijuana as a timely case study, this Article explores the overlooked and underappreciated power of states to legalize conduct Congress bans. Though Congress has banned marijuana outright, and though that ban has survived constitutional scrutiny, state laws legalizing medical use of marijuana not only survive careful preemption analysis, they constitute...
Star Creation: The Incubation of Mutual Funds
Oct. 27, 2009—Mutual fund incubation is a process by which new funds are initially operated out of public view. The high-performing funds are then marketed to investors, and the low-performing funds are quietly terminated. This selection process is not revealed to investors, thus creating the illusion that the successful funds’ returns were the result of skill rather...