Volumes Category
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...