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Beyond Blakely
(Federal Sentencing Reporter, 2004)
Federal criminal sentencing in the wake of Blakely v. Washington is, to put it charitably, a mess. In holding that Blakely's sentence under the Washington State Sentencing Guidelines was imposed in a manner inconsistent ...
Taking Adaptive Management Seriously: A Case Study of the Endangered Species Act
(Kansas Law Review, 2004)
If one compares the way in which the ESA was implemented in 1982 to the way it is today, the list of differences would far outweigh the similarities. Indeed, the ESA has been transformed so much through administrative ...
Heuristics and Biases at the Bargaining Table
(Marquette Law Review, 2004)
In this essay, written for a symposium on The Emerging Interdisciplinary Cannon of Negotiation, we examine the role of heuristics in negotiation from two vantage points. First, we identify the way in which some common ...
The Impact of the Impact Bias on Negotiation
(Marquette Law Review, 2004)
The theory of principled or problem-solving negotiation assumes that negotiators are able to identify their interests (or what they really want) in a negotiation. Recent research on effective forecasting calls this assumption ...
Damages: Using a Case Study to Teach Law, Lawyering, and Dispute Resolution
(Journal of Dispute Resolution, 2004)
Seven law school faculty members and one practicing attorney recently developed and taught a wholly new kind of law course based on an already published case study, Damages: One Family's Legal Struggles in the World of ...
Other Disciplines, Methodologies, and Countries: Studying Courts and Crisis
(Missouri Law Review, 2004)
How do governments and their citizens respond to fear and risk in times of crisis? Dr. Lee Epstein and Professor Christina Wells, in papers presented on the final symposium panel focus in particular on the Supreme Court's ...
Judicial Review of Agency Inaction: An Arbitrariness Approach
(New York University Law Review, 2004)
This Article contends that the current law governing judicial review of agency inaction,
though consistent with the prevailing theory of agency legitimacy, is inconsistent with the founding principles of the administrative ...
The Myth of What is Inevitable Under Ecosystem Management: A Response to Pardy
(Pace Environmental Law Review, 2004)
This article, second in a five-part dialogue appearing in the Pace ELR, responds to Professor Bruce Pardy's initial evaluation of ecosystem management. I defend ecosystem management, arguing it is not directed at changing ...
The President's Power to Detain "Enemy Combatants": Modern Lessons from Mr. Madison's Forgotten War
(Northwestern University Law Review, 2004)
This article uses three sets of cases from the War of 1812 to illustrate three problems with how modern courts have approached the detention of "enemy combatants" in the United States. The War of 1812 cases show that modern ...
Reforming Corporate Governance: What History Can Teach Us
(Berkeley Business Law Journal, 2004)
In this Article, I turn to the history of corporate law for insight into the role that the corporate form plays in the organization of business enterprises. I then draw implications from this history for thinking about ...