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Free Trade, Fair Trade, and Selective Enforcement
(Columbia Law Review, 2018)
The 2016 presidential election was one of the most divisive in recent memory, but it produced a surprising bipartisan consensus. Donald Trump, Hillary Clinton, and Bernie Sanders all agreed that U.S. trade agreements should ...
Uninformative Patents
(Houston Law Review, 2017)
It is a bedrock principle of patent law that an inventor need not know or understand how or why an invention works. The patent statute simply requires that the inventor explain how to make and use the invention. But ...
Condemning the Decisions of the Past
(Fordham Urban Law Journal, 2011)
This brief Essay, part of a Fordham Urban Law Journal Symposium on eminent domain in New York, argues that there is a seldom-recognized purpose to eminent domain: preserving the ability of elected representatives to respond ...
Reinvention
(Notre Dame Law Review, 2017)
It is axiomatic that once an invention has been patented, it cannot be patented again. This aligns with the quid pro quo theory of patents — the public would receive nothing new in exchange for the second patent. Enforcing ...
The Use and Misuse of Econometric Evidence in Employment Discrimination Cases
(Washington & Lee Law Review, 2014)
Experts routinely criticize three aspects of regression analyses presented by the opposing party in employment discrimination cases: omitted explanatory variables, sample size, and statistical significance. However, these ...
The Invisible Revolution in Plea Bargaining
(Texas Law Review, 2016)
This article, the most comprehensive study of judicial participation in plea negotiations since the 1970s, reveals a stunning array of new procedures that involve judges routinely in the settlement of criminal cases. ...
Unfulfilled Promises
(DePaul Law Review, 2016)
The passage of the ACA is a source of great pride for President Barack Obama's Administration, and the President undoubtedly hopes that the ACA will be his greatest legacy. 285 As a result, it is difficult to understand ...
The Reasonable Investor of Federal Securities Law
(The Journal of Corporation Law, 2017)
Federal securities law defines the materiality of corporate disclosures by reference to the views of a hypothetical “reasonable investor.” For decades the reasonable investor standard has been a flashpoint for debate — ...
The Fiscal Illusion Zombie
(American University Law Review, 2017)
This is a Response to Bethany R. Berger's recent Article, The Illusion of Fiscal Illusion in Regulatory Takings. In that Article, Professor Berger argues against the view that governments should be forced to compensate ...
The Permit Power Revisited
(Duke Law Journal, 2014)
Two decades ago, Professor Richard Epstein fired a shot at the administrative state that has gone largely unanswered in legal scholarship. His target was the “permit power,” under which legislatures prohibit a specified ...