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The Legal Workshop 
Legal scholarship published in the print editions of the law reviews and law journals of the following law schools: University of Chicago, Stanford, New York University, Cornell, Duke, Georgetown, and Northwestern.
Post Frequency: 0.2/day Last Entry: November 20, 2009 at 04:01:48 Recent Entries: 59
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Internal Poison Pills: Managing the Governance Tension Between Majority and Minority Shareholders with a Novel Financial Instrument
Posted on November 20, 2009Large corporations harbor dark corners, and these shadows shelter a daunting collection of governance concerns. There are at least three internal governance problems. First, lazy or dishonest managers might use their control of a firm’s…
Happiness and Punishment
Posted on November 16, 2009New findings in hedonic psychology have implications for punishment theory. Specifically, these findings suggest that criminals adapt surprisingly well to fines and even to incarceration, but that incarceration negatively affects post-prison life in ways that…
Myth of Mess? International Choice of Law in Action
Posted on November 13, 2009Can choice of law productively contribute to global governance? A growing body of research by law and economics scholars suggests that the answer is yes. According to this research, well designed choice-of-law rules can both…
A Relational Approach to Schools? Regulation of Youth Online Speech
Posted on November 11, 2009In 2006, Aaron Wisniewski, a middle school student at Weedsport Middle School in upstate New York, logged onto his home computer after school hours and sent his friends instant messages featuring a buddy icon depicting…
Originalism Is Bunk
Posted on November 09, 2009“Originalism Is Bunk.” The title seems to promise a polemic. I hope, however, that most readers will find the Article shorter on polemic and longer on analysis than they might have anticipated. My ambition in…
Toward Constitutional Minority Recruitment and Retention Programs: A Narrowly Tailored Approach
Posted on November 06, 2009The Supreme Court’s 2003 affirmative action decisions, Gratz v. Bollinger1 and Grutter v. Bollinger,2 were widely heralded as victories for proponents of affirmative action. However, these opinions dealt with the use of race only in the highly…
Contract Design and the Structure of Contractual Intent
Posted on November 04, 2009Modern contract law is governed by a two-stage adjudicative regime?an inheritance of the centuries-old conflict between law and equity. Under this regime, formal contract terms are treated as prima facie provisions that courts can override…
The Structural Case for Vertical Maximalism
Posted on November 02, 2009Many prominent jurists and scholars?including those with outlooks as diverse as Chief Justice John Roberts and Cass Sunstein?have recently urged the Supreme Court to adopt a “minimalist” approach to opinion writing: issuing narrow, fact-bound opinions…
Reforming the State Secrets Privilege
Posted on October 30, 2009This Editorial summarizes a forthcoming Note that investigates the problems associated with the state secrets privilege, describes the inherent problems in currently proposed reforms, and suggests a new direction for effective reform of the doctrine.…
The Case for Limiting Federal Preemption of State Environmental Regulations
Posted on October 28, 2009States have exhibited leadership in environmental policy, addressing issues of national and global scope. But this leadership is threatened by federal ceiling preemption?federal laws that prevent states from adopting regulations that are stricter than federal…
Opinion Specialization: Alive and Well in the Federal Appellate Judiciary
Posted on October 26, 2009In accord with traditions celebrating the generalist judge, the federal judiciary has consistently resisted proposals for specialized courts. Outward support for specialization, if it exists at all, is confined to narrow exceptions such as bankruptcy…
Constraining Public Employee Speech: Government?s Control of Its Workers? Speech to Protect Its Own Expression
Posted on October 19, 2009Government increasingly claims the power to control its employees’ expression to protect its own speech, a trend that imperils the public’s interest in transparent government as well as the free speech rights of more than…
Ask, Don?t Tell: Ethical Issues Surrounding Undocumented Workers? Status in Employment Litigation
Posted on October 16, 2009The presence of an estimated 11.5 million undocumented immigrants in the United States, of which an estimated 7.2 million are working, has become a flashpoint in the emerging national debate about immigration. With undocumented immigrants…
Toward Procedural Optionality: Private Ordering of Public Adjudication
Posted on October 14, 2009Private resolution and public adjudication of disputes are seen as discrete, antipodal processes. The essence of private resolution is that the parties can arrange disputed rights and entitlements without judicial intervention. In public adjudication, the…
A Comment on Rosenberg?s New Edition of the Hollow Hope
Posted on October 12, 2009Gerald Rosenberg’s new edition of The Hollow Hope1 repeats his earlier book-length argument against the prospects of social reform through law.2 Complete with tables, charts, and updated statistics, the new edition replies to his critics and…
Identifying Intense Preferences
Posted on October 07, 2009Our preferences vary in intensity. Some are relatively strong, while others are comparatively weak. Information regarding the strength?rather than just the content?of preferences is often essential, for both efficiency and fairness reasons. The goal of…
Legislative Supremacy in the United States?: Rethinking the ?Enrolled Bill? Doctrine
Posted on October 05, 2009The “enrolled bill” doctrine (EBD) requires courts to accept the signatures of the Speaker of the House and President of the Senate on an “enrolled bill” as unimpeachable evidence that the bill has been constitutionally…
Heller?s Problematic Second Amendment Categoricalism
Posted on October 02, 2009Until very recently, Second Amendment scholarship has focused almost exclusively on the question of whether the amendment protects an “individual” right to bear arms unrelated to any militia service. In District of Columbia v. Heller,1 the…
Does Media Consolidation Stifle Viewpoints?: How the Supreme Court Can Provide an Answer
Posted on September 30, 2009When Rupert Murdoch launched his failed bid for Newsday last year at a price of $580 million consumer groups were up in arms. Common Cause assailed the proposed acquisition as “a step back that will…
Modernization and Lawlessness: A Reply to Professor Mitchell
Posted on September 28, 2009Professor Mitchell’s characteristically thoughtful and incisive comment makes many important points.1 He is right in saying that Atkins v Virginia2 and Thompson v Oklahoma3 fit the modernization model better than Roper v Simmons4 or Kennedy v Louisiana.
National Juries for National Cases: Preserving Citizen Participation in Large-Scale Litigation
Posted on September 21, 2009Procedural evolution in complex cases seems to have left the civil jury behind. The trend toward centralizing cases pending on the same topic in one court results in cases of national scope being tried by…
Through the Looking Glass: A Response to Professor Dan Markel?s Retributive Damages
Posted on July 10, 2009This Editorial is a response to Dan Markel’s Legal Workshop Editorial: Retributive Damages as Intermediate Public Sanctions: A Synopsis. In Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction,1 Professor Dan Markel “reimagine[s]” the law and…
Iterative Federalism and Climate Change
Posted on July 06, 2009With the election of Barak Obama as President, national and global attention on climate change will turn to the federal government. Though the looming economic crisis may slow a federal response, President Obama has made…
Land Virtues
Posted on July 01, 2009My article, Land Virtues,1 has two goals. First, it explores the descriptive and normative limitations of certain “law and economics” discussions of the ownership and use of land. Law and economics provides, among other things, “a…
Risk Governance and Deliberative Democracy in Health Care
Posted on June 29, 2009A risk governance paradigm provides the best theoretical framework for understanding both the health care system and health law. By “risk governance,” I mean a set of practices organized around principles of risk allocation, management,…
Detention of Terrorists and the Acceleration of the Convergence Trend
Posted on June 26, 2009Last year, Jack Goldsmith and I argued in the pages of the Stanford Law Review that the traditional models of criminal and military detention have converged toward one another in connection with the problem of…
Protect Us, Lord, from Title VII: A Response to Gelbach, Klick, and Wexler
Posted on June 22, 2009In their recent article, Passive Discrimination,1 Jonah Gelbach, Jonathan Klick, and Lesley Wexler (hereafter “GKW”) offer yet another way to pile additional liabilities on hapless employers for race or sex discrimination under Title VII of the…
Passive Discrimination
Posted on June 22, 2009In this Article, we present a distinct mechanism of employer discrimination largely ignored by scholars and regulators alike. What we term “passive discrimination” involves an employer’s use of wage and benefits packages that exploit observed,…
Pitfalls of Empirical Studies That Attempt to Understand the Factors Affecting Appellate Decisionmaking
Posted on June 18, 2009I recently read a paper in which a prominent legal scholar argued that empirical evidence conclusively demonstrates that decisionmaking in the federal courts of appeals is highly politicized. No body of empirical evidence supports this…
HIV/AIDS and the Law of Unintended Consequences
Posted on June 17, 2009The proposition that mankind’s interaction with its environment can have unintended consequences would surprise few Americans. For decades, ever since Rachel Carson published Silent Spring,1 the environmental movement has prepared us to understand that the choices…
Automating Contract Law: How Advances in Knowledge-Management Technology Can Help Transform the Empirical Study of Contract Law
Posted on June 15, 2009Early one morning in January 1956, Herbert Simon announced to his graduate class at Carnegie Mellon that “[o]ver Christmas, Al Newell and I invented a thinking machine.”1 His claim was a bit premature, but Simon…
Ownership and Obligations
Posted on June 08, 2009Much recent property theory, both in the United States and elsewhere, is devoted to a search for the essential core of ownership. So, Tom Merrill and James Penner have argued that the right to exclude…
Judicial Independence in Excess: Reviving the Judicial Duty of the Supreme Court
Posted on June 05, 2009In 2006, Justices Sandra Day O’Connor and Stephen Breyer initiated a campaign to elevate public concern for the independence of our judiciary. They were of course correct that judicial independence is indispensable to public trust…
Kurt Lash?s Majoritarian Difficulty
Posted on June 01, 2009The Ninth Amendment reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” When I first encountered these words as a student in…
A Response to James McDonald?s ?Milberg?s Monopoly? in Duke Law Journal Vol. 58
Posted on May 29, 2009This is a response to James McDonald’s student Note, Milberg’s Monopoly: Restoring Honesty and Competition to the Plaintiffs’ Bar in Volume 58 of the Duke Law Journal. Click here for the Note. Although the Duke Law Journal’s…
Mandatory Reassignment under the ADA: The Circuit Split and Need for a Socio-Political Understanding of Disability
Posted on May 28, 2009Congress designed the Americans with Disabilities Act of 1990 (ADA) to ensure that the disabled have equal access to employment opportunities, government services, and other public accommodations. While most antidiscrimination statutes simply ban decisions based…
Litigation Discovery Cannot Be Optimal But Could Be Better: The Economics of Improving Discovery Timing in a Digital Age
Posted on May 25, 2009Cost-benefit ?proportionality? limits on discovery have long been prescribed by a wide range of commentators. The judiciary codified a proportionality requirement in Federal Rule of Civil Procedure 26(b)(2)(C) and later in e-discovery rules based on…
Ending the Endogeneity of Earmark Rules
Posted on May 22, 2009For centuries, livestock owners have marked their animals by clipping their ears. Paradoxically, the term we give to special interest provisions?”earmarks”?conflicts with its origins in this agrarian practice. Far from revealing ownership, earmarks actually conceal…
Heterosexuality and Title VII
Posted on May 18, 2009Dawn Dawson was an outsider among outsiders.1 A self-described gender-nonconforming lesbian woman, Dawson worked as a hair assistant and stylist trainee at Bumble & Bumble, a high-end salon in New York City. Her coworkers at the…
Telling Law Students What?s Ahead
Posted on May 15, 2009Group-ride bicyclists start their mornings with a “route rap.” Before an extended ride begins, participants gather round, standing next to their bikes, and listen to their leader describe the itinerary ahead. They might each hold…
Retributive Damages as Intermediate Public Sanctions: A Synopsis
Posted on May 13, 2009Punitive damages’ complex and rapidly evolving nature has unsurprisingly attracted the attention of scholars from a variety of disciplines. But what are punitive damages for? In terms of normative answers, a number of scholars, such…
Substance or Illusion? The Dangers of Imposing a Standing Threshold
Posted on May 11, 2009The article from which this essay is derived criticizes the D.C. Circuit?s evaluation of petitioners? standing in so-called ?increased-risk? cases?cases in which individuals or interest groups allege that an agency action places them at increased…
The Offshoring of American Government
Posted on May 08, 2009In 2004, callers to the California state welfare hotline had a curious choice to make: press ?one? for English and speak with a worker in India, or press ?two? for Spanish and speak with a…
Refugee Roulette: The U.S. Asylum System, Pervaded by Chance, Demands Reform
Posted on May 06, 2009Arbitrary government action is antithetical to the rule of law. It is most abhorrent when it can result in imprisonment, torture, or death, as can occur when a refugee’s petition for asylum is denied. In…
Modernization, Moderation, and Political Minorities: A Response to David A. Strauss
Posted on May 04, 2009The Supreme Court is frequently accused of declaring laws unconstitutional based on little more than the justices’ ideological preferences. This is an especially common criticism of the Court’s capital-punishment, equal-protection, and substantive-due-process jurisprudence, where the…
The Modernizing Mission of Judicial Review
Posted on May 04, 2009Constitutional interpretation looks to the past: to an old text, to old precedents, to the views of the founding generations, to tradition. That is the conventional wisdom, at least. Judicial review, as it’s usually conceived,…
Listening to History? Parents Involved, Brown, and the Colorblind Constitution
Posted on May 01, 2009“[W]hen it comes to using race to assign children to schools,” Chief Justice Roberts pronounced in Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007), “history will be heard.”1 History indeed earned…
On eBay and Big Boy Letters
Posted on April 30, 2009Each day, hundreds of eBay members log on to the auction website and, with limited information and much risk, bid on items being sold “as is.” When consumers purchase an item “as is,” they agree…
Three Pictures of Contract: Duty, Power, and Compound Rule
Posted on April 27, 2009H.L.A. Hart, following others before him, draws our attention to the difference between duty-imposing and power-conferring rules. Duty-imposing rules require persons “to do or abstain from certain actions, whether they wish to or not.”1 The…
Choosing Interpretive Methods: A Positive Theory of Judges and Everyone Else
Posted on April 21, 2009Textualism is a “conservative” method of statutory interpretation, according to the conventional wisdom.1 William Eskridge calls it “antigovernmental”;2 Andrei Marmor calls it “neo-conservative” and antiregulatory...
Fiduciary Duties for Activist Shareholders
Posted on April 10, 2009Power in public corporations is dispersed among three key groups: shareholders; the board of directors; and the company’s executive officers, including its Chief Executive Officer (CEO). Each group has rights and privileges. Each also has…
Systemic Risk: Revisiting Theory from the Perspective of the ?Subprime? Financial Crisis
Posted on March 19, 2009My article argues that although banks and other financial institutions (collectively, “institutions”) are important sources of capital, and although a chain of bank failures remains an important symbol of systemic risk, the ongoing trend towards…
Not So Private Takings: A Response to Abraham Bell?s Private Takings
Posted on March 19, 2009Abraham Bell’s instructive article begins with his conscious decision to distance himself from the “popular firestorm” that greeted the Supreme Court’s 2005 decision in Kelo v New London.1 In so doing, however, he reveals a tin…
Private Takings
Posted on March 19, 2009The popular firestorm surrounding the Supreme Court’s recent ruling in Kelo v City of New London1 focused on public incomprehension that the government may simply take property from one private property owner and transfer it to…
Globalizing Commercial Litigation
Posted on March 19, 2009The world’s nations vary widely in the quality of their judicial systems. In some jurisdictions, the courts resolve commercial disputes quickly, fairly, and economically. In others, they’re slow, inefficient, incompetent, biased, or corrupt...
The Unconscionability Game: Strategic Judging and the Evolution of Federal Arbitration Law
Posted on March 18, 2009In a fairly short period of time, arbitration agreements have migrated beyond their traditional domains, such as commercial transactions between sophisticated business entities, and have come to pervade the contemporary economy. A typical consumer might…
The Case for a Constitutional Easement Approach to Permanent Monuments in Traditional Public Forums
Posted on March 17, 2009Imagine that you are mayor of a small town that has a picturesque public park, where your residents come to escape the hustle and bustle of everyday life. To make the space inviting, you have…
Habeas Corpus and State Sentencing Reform: A Story of Unintended Consequences
Posted on March 17, 2009This Article tells the story of how shifts in state sentencing policy collided with shifts in federal habeas policy to produce a tangled and costly doctrinal wreck. It also proposes a simple solution to the…
Privatization and the Law and Economics of Political Advocacy
Posted on March 17, 2009Over ninety years ago, opponents of World War I alleged that “munitions manufacturers frighten the popular mind with the fear of imaginary external enemies and inflame it with murderous patriotism.”1 According to a view attributed to…
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Did I harass someone?
Oh, yes. This can be taken in as so many things, especially since you had testif...
How to evict a roommate?
First, in most jurisdictions "self-help" is not a remedy available to any party ...
I have worked for this employer for only three weeks. The employer makes up his own rules as to what he chooses to report for the purpose of property taxes. He tells me to "let them come after us". He defines Entertain
He arrogantly insists, "let them come after us." Well, if you are invo...
How do you recover money from a stop payment placed on a personal check given to you?
you can always take them to small claims court and sure them for 3 times the amo...
The company I worked for forced me to quit instead of dealing with someone harassing me, what can I do?
Look up CONSTRUCTIVE DISCHARGE...................this looks like what happened t...
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