Articles
Thinking About the Supreme Court’s Successes and Failures
May. 25, 2016—Thinking About the Supreme Court’s Successes and Failures AUTHOR Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law.
Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, and the Consequences of Returning the Constitution to Elected Government
May. 25, 2016—Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, and the Consequences of Returning the Constitution to Elected Government AUTHOR Sandra Day O’Connor Professor of Law and Professor of Government, College of William & Mary. This paper is an outgrowth both of conversations with Caitlin Borgmann and of remarks I made at the June 2015 Privacy Discussion...
A Tribute to Justice Scalia: Why Bad Cases Make Bad Methodology
May. 25, 2016—A Tribute to Justice Scalia: Why Bad Cases Make Bad Methodology AUTHOR Professor of Law, Vanderbilt University Law School. J.D., 2000, Harvard Law School.
Letter To Supreme Court (Erwin Chemerinsky is Mad. Why You Should Care.)
May. 25, 2016—Letter To Supreme Court (Erwin Chemerinsky is Mad. Why You Should Care.) AUTHOR Jacob D. Fuchsberg Professor of Law at New York University School of Law. Thanks to Randy Barnett, Josh Blackman, Orin Kerr, Rick Pildes, and Maria Ponomarenko for comments on a prior draft. Special thanks to Erwin Chemerinsky, a friend throughout my professional...
Three Supreme Court “Failures” and a Story of Supreme Court Success
May. 25, 2016—Three Supreme Court “Failures” and a Story of Supreme Court Success AUTHOR Professor of Law and Associate Dean of Faculty Development, University of Richmond School of Law. Thanks to the faculty of Vanderbilt Law School, particularly Suzanna Sherry, for the insightful comments and questions I received while workshopping this piece there. Special thanks to Eric...
The Broken-Hearted Lover: Erwin Chemerinsky’s Romantic Longings for a Mythical Court
May. 25, 2016—The Broken-Hearted Lover: Erwin Chemerinsky’s Romantic Longings for a Mythical Court AUTHOR Associate Professor of Political Science and Lecturer in Law, University of Chicago.
The Supreme Court in Context: Conceptual, Pragmatic, and Institutional
May. 25, 2016—The Supreme Court in Context: Conceptual, Pragmatic, and Institutional AUTHOR University Professor of Law and Political Science, Vanderbilt University.
The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches
Apr. 19, 2016—The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches ABSTRACT Last year, in Riley v. California, the Supreme Court required police to procure a warrant before searching a cell phone. Unfortunately, the Court’s assumption that requiring search warrants would be “simple” and very protective of privacy was overly optimistic. This article reviews...
Constitutionalizing Corporate Law
Apr. 19, 2016—Constitutionalizing Corporate Law ABSTRACT The Supreme Court has recently decided some of the most important and controversial cases involving the federal rights of corporations in over two hundred years of jurisprudence. In rulings ranging from corporate political spending to religious liberty rights, the Court has dramatically expanded the zone in which corporations can act free...
Intrafirm Monitoring of Executive Compensation
Apr. 19, 2016—Intrafirm Monitoring of Executive Compensation ABSTRACT This Article argues that employees should serve as intrafirm monitors of executive performance and pay. Employees and shareholders, labor and capital, can monitor executive performance and pay at different levels. Diffuse, diversified, and short durational shareholders currently monitor performance and pay through the market mechanism of public disclosures and...
Redundant Public-Private Enforcement
Mar. 21, 2016—Redundant Public-Private Enforcement ABSTRACT Redundancy is a four-letter word. According to courts and scholars, redundant litigation is costly, unfair, and confounding. Modern civil procedure has a (nearly) maximalist preference for centralization, and various rules seek to limit duplicative suits within and across court systems. This seemingly dominant view stands in marked contrast to the reality...
The Rise and Fall of Plausibility Pleading?
Mar. 21, 2016—Rise and Fall of Plausability Pleading? ABSTRACT The Supreme Court’s 2007 decision in Bell Atlantic Corp. v. Twombly and its 2009 decision in Ashcroft v. Iqbal unleashed a torrent of scholarly reaction. Commentators charged these decisions with adopting a new pleading regime, “plausibility pleading,” that upended the notice-pleading approach that had long prevailed in federal...
Regulation of Emerging Risks
Mar. 21, 2016—Regulation of Emerging Risks ABSTRACT Why has the EPA not regulated fracking? Why has the FDA not regulated e-cigarettes? Why has NHTSA not regulated autonomous vehicles? This Article argues that administrative agencies predictably fail to regulate emerging risks when the political environment for regulation is favorable. The cause is a combination of administrative law and interest group politics. Agencies must...
The Management of Staff by Federal Court of Appeals Judges
Mar. 21, 2016—The Management of Staff by Federal Court of Appeals Judges ABSTRACT Federal court of appeals judges have staffs consisting usually of a secretary and four law clerks; some judges have externs as well (law students working part time without pay). These staffs are essential, given judicial workloads and judges’ limitations. Yet not much is known about how the...
The Commensurability Myth in Antitrust
Jan. 15, 2016—The Commensurability Myth in Antitrust ABSTRACT Modern antitrust law pursues a seemingly unitary goal: competition. In fact, competition—whether defined as a process or as a set of outcomes associated with competitive markets—is multifaceted. What are offered in antitrust cases as procompetitive and anticompetitive effects are typically qualitatively different, and trading them off is as much...
Incarceration Incentives in the Decarceration Era
Jan. 15, 2016—Incarceration Incentives in the Decarceration Era ABSTRACT After forty years of skyrocketing incarceration rates, there are signs that a new “decarceration era” may be dawning; the prison population has leveled off and even slightly declined. Yet, while each branch of government has taken steps to reduce the prison population, the preceding decades of mass incarceration...