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Volume 62

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...

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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...

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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...

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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...

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Putting Power Back Into Separation of Powers Analysis: Why the SEC-PCAOB Structure is Constitutional

Nov. 2, 2009—PDF Download Link This article has two aims: to explain the historical context and reasons that led Congress to design the administrative structure at issue in Free Enterprise Fund, and to provide a realistic account of how that structure actually functions in practice. The article is, thus, a kind of “Brandeis brief” for this important...

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Bringing the Independent Agencies in from the Cold

Nov. 2, 2009—Invalidating the PCAOB would cause unnecessary disruption to the Federal Government. The supervisory powers of the SEC over the agency justify concluding that its members are inferior officers. The removal provision can be sustained by confirming that the President has constitutional powers of removal that are appropriate to the function involved. The President’s power to...

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