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Academic

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.
By Law Students

Post Frequency: 6.5/day

Last Entry: April 21, 2017 at 06:21:46

Progress in the Spirit of Rule 1: Introduction to the Duke Law Journal?s 2010 Civil Litigation Conference Issue

Posted on January 01, 2011
On May 10 and 11, 2010, scholars, practitioners, and judges met at Duke University School of Law for the 2010 Civil Litigation Review Conference (Duke Conference). The Duke Conference was sponsored by the Advisory Committee on Civil Rules at the request of the Standing Committee on Rules of Practice and… Read More »

Contingent Constitutionalism: State and Local Criminal Laws and the Applicability of Federal Constitutional Rights

Posted on December 31, 2010
Despite their many differences, Americans have long been bound by a shared sense of constitutional commonality. As John Jay observed in The Federalist Papers, ?we have uniformly been one people; each individual citizen everywhere enjoying the same national rights, privileges, and protection...

Prosecuting Immigration

Posted on December 27, 2010
The criminal prosecution of immigration?principally for illegal entry and reentry, alien smuggling, and document fraud?has reached an all-time high. Not since Prohibition has a single category of crime been prosecuted in such record numbers by the federal government...

Adapting Integer Programming Techniques to Circuit Restructuring

Posted on December 22, 2010
For as long as the United States Courts of Appeals have been part of the federal judicial system, commentators, judges, and policymakers have disagreed over their geographic boundaries. These disagreements are closely intertwined with discussions about the courts? core characteristics, such as how many states they encompass, the workload of… Read More »

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Adapting Integer Programming Techniques to Circuit Restructuring

Posted on December 21, 2010
For as long as the United States Courts of Appeals have been part of the federal judicial system, commentators, judges, and policymakers have disagreed over their geographic boundaries. These disagreements are closely intertwined with discussions about the courts? core characteristics, such as how many states they encompass, the workload of… Read More »

Showdown in the Rose Garden: Congressional Contempt, Executive Privilege, and the Role of the Courts

Posted on December 20, 2010
In early 2007, the U.S. House Committee on the Judiciary launched an investigation into the 2006 dismissal of seven U.S. Attorneys from the Department of Justice. The Committee issued subpoenas to White House Chief of Staff Josh Bolten and former White House Counsel Harriet Miers, ordering both to produce documents… Read More »

A Psychology of Intellectual Property

Posted on December 17, 2010
The U.S. Constitution grants Congress the power to promulgate laws ?[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.? Within the same clause and with the identical purpose of promoting innovation, Congress… Read More »

A Modest Normative Case for Feasible Regulation

Posted on December 14, 2010
In spite of Jonathan Masur and Eric Posner?s promise to unmask the normative commitments underlying feasibility analysis, their new article, Against Feasibility Analysis, fails to confront key normative arguments about the tendency of widely distributed regulatory costs to render trivial the individual impact on consumers of even high aggregate costs or… Read More »

Improving the Protection of Species Endangered in the United States by Revising the Distinct Population Segment Policy

Posted on December 06, 2010
Introduction This editorial summarizes my forthcoming Note, 85 N.Y.U. L. REV. 358 (2010), wherein I argue that the Distinct Population Segment (DPS) Policy should be revised to allow the listing of species that are endangered solely within the United States...

Reconsidering Murdock: State-Law Reversals as Constitutional Avoidance

Posted on December 03, 2010
State supreme courts occasionally issue questionable interpretations of their states? statutes, constitutional provisions, or other laws. Sometimes this reflects home-town favoritism or bias against out-of-state parties. On other occasions, state-court judges use their interpretive power over state law to combat political movements that they oppose...

Habeas and (Non-)Delegation

Posted on December 03, 2010
At its core, the Constitution?s Suspension Clause protects against arbitrary executive imprisonment. For this reason, the Supreme Court has consistently interpreted the Clause to require that Congress make available some means of contesting executive detention before a neutral magistrate...

Jones v. Harris Associates L.P. and the Limits of Public Choice Textualism

Posted on December 01, 2010
The pronouncement ?A book is the words that comprise it? risks seeming an insipid axiom. Nevertheless, we are all inclined to believe that there is a form separable from the content and that ten minutes of conversation with Henry James would reveal to us the ?true? plot of The Turn… Read More »

Valuing Intellectual Property: An Experiment

Posted on November 29, 2010
In recent decades, research in behavioral psychology and experimental economics has undermined some of the fundamental principles of the ?rational choice? model of neoclassical economics?in particular, the assumption that decision-makers have stable preferences...

Bundling Public and Private Goods: The Market for Sustainable Organics

Posted on November 27, 2010
I. The Need for Sustainable Agriculture Advocates of alternative agriculture argue that conventional modes of agricultural production are problematic because they ignore natural limits. The goal of sustainable agriculture, a form of alternative agriculture, is to farm in accordance with the structure of local ecosystems...

Guns, Butter, and Judges: Judicial Frameworks for Cases Implicating Security-Wealth Tradeoffs

Posted on November 26, 2010
Security is not free. To be marginally safer from any external threat, a state often must be willing to pay billions of dollars. The full cost of security goes beyond military budgets: When military action is taken?for example, through a campaign or an embargo?national wealth is often sacrificed in opportunity… Read More »

Subconstitutionalism

Posted on November 22, 2010
Many nation states have a two-tiered constitutional structure that establishes a superior state and a group of subordinate states that exercise overlapping control of a single population. The superior state (or what we will sometimes call the ?superstate?) has a constitution (a ?superconstitution?) and the subordinate states (which we will… Read More »

Same-Sex Second-Parent Adoption and Intestacy Law: Applying the Sharon S. Model of ?Simultaneous? Adoption to Parent?child Provisions of the Uniform Probate Code

Posted on November 19, 2010
Sarah, an eight-year-old girl, could not wait for her third-grade field trip to the Museum of Natural History. Best of all, her mother, Jill, who normally worked both a full-time job during the week and a part-time job on the weekend, took the day off to chaperone the trip...

Sanctions For E-Discovery Violations: By The Numbers

Posted on November 15, 2010
E-discovery sanctions are at an all-time high. We identified 230 sanction awards in 401 cases involving motions for sanctions relating to the discovery of electronically stored information (ESI) in federal courts prior to January 1, 2010. We analyzed these cases for a variety of factors, including sanctioning court, sanctioning authority,… Read More »

How State Supreme Courts Take Consequences Into Account: Toward a State-Centered Understanding of State Constitutionalism

Posted on November 12, 2010
Over the past thirty years, state supreme courts have eclipsed the U.S. Supreme Court in shaping the meaning of constitutional values, both in their home states and throughout the nation. State supreme courts, for example, have interpreted their constitutions to provide broader rights protections than U...

The Price of Pleasure

Posted on November 08, 2010
A woman who becomes pregnant with a man to whom she is not married is essentially on her own. If she chooses to terminate the pregnancy, the man owes her nothing. If she takes the pregnancy to term, the man may be required to contribute to prenatal and birthing medical… Read More »

A Role for the Judiciary in Reforming Executive Compensation: The Implications of Securities and Exchange Commission v. Bank of America Corp.

Posted on November 03, 2010
I. Introduction Few areas of corporate governance have received as much attention as executive compensation. In the nineteenth century, robber barons were criticized and mocked, and in the early twentieth century, newspapers frequently disparaged top executives...

The Origins of the Privileges or Immunities Clause, Part II: John Bingham and the Second Draft of the Fourteenth Amendment

Posted on November 01, 2010
Kurt T. Lash The current debates over the incorporation of the Second Amendment have reignited interest in the historical understanding of the Privileges or Immunities Clause of the Fourteenth Amendment. The Supreme Court?s history-laden analysis of the Second Amendment in District of Columbia v...

Accounting for the Limitations of Congress?s Enforcement Power: A Response to Regulating Privatized Government through § 1983

Posted on October 25, 2010
Alexander Reinert Richard Frankel?s argument in Regulating Privatized Government through § 1983 is compelling. It is well grounded in history, doctrine, and policy, and the desire to expand liability for private violations of constitutional rights is sure to be appealing to those of us who have litigated civil rights claims on behalf… Read More »

Regulating Privatized Government through § 1983

Posted on October 25, 2010
Richard Frankel My article, Regulating Privatized Government through § 1983, argues that courts are improperly interpreting 42 USC § 1983 to grant private entities subject to the statute an exemption from respondeat superior liability. This problem has arisen in the increasingly common context where governments contract out core public functions to private companies,… Read More »

Rule 10b-5 and the Rise of the Unjust Enrichment Principle

Posted on October 18, 2010
Securities regulation has traditionally focused on encouraging truthful disclosure that facilitates the accurate pricing of securities. A typical securities fraud claim under the primary antifraud rule, Rule 10b-5, must thus point to a misrepresentation or omission that is material to investors...

Procreation, Harm, and the Constitution

Posted on October 13, 2010
Introduction This Essay provides relatively novel answers to two related questions: First, are there moral reasons to limit the sorts of existences it is permissible to bring people into, such that one would be morally prohibited from procreating in certain circumstances? Second, can the state justify a legal prohibition on… Read More »

The Repeat Appointment Factor: Exploring Decision Patterns of Elite Investment Arbitrators

Posted on October 11, 2010
INTRODUCTION Scholarship on arbitral behavior and decision making has theorized that, as utility maximizers who wish to increase their chances of reappointment in future disputes, arbitrators will tend to satisfy both parties by rendering compromise awards...

Did the Madisonian Compromise Survive Detention at Guantanamo?

Posted on October 08, 2010
This Essay takes up the Court?s less-heralded second holding in Boumediene v. Bush?that a federal habeas court must have the institutional capacity to find facts, which in Boumediene meant that a federal district court must be available to the petitioners...

Dispatch from the Supreme Court Archives: Vagrancy, Abortion, and What the Links Between Them Reveal About the History of Fundamental Rights

Posted on October 04, 2010
Historians spend a lot of time in archives, and much of what they find, in its original form, would likely engage, no one but themselves. Every so often, however, they find documents?letters, memos, draft opinions?that might be of interest to a broader audience...

Patent at Your Own Risk: Linguistic Fences and Abbott Labs v. Sandoz

Posted on September 30, 2010
Patenting is the procedure by which novel scientific inventions become protected by an intellectual property right. The United States Constitution provides the foundation for patent law and vests the power and duty of its implementation in Congress. Congress fulfilled its constitutional duty by granting inventors an intellectual property right… Read More »

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