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"The Threes": Re-Imagining Supreme Court Decisionmaking
(Vanderbilt Law Review, 2008)
In this Essay--the first in a series of essays designed to reimagine the Supreme Court--we argue that Congress should authorize the Court to adopt, in whole or part, panel decisionmaking. We recognize, of course, that this ...
Discounting Dilemmas: Editors' Introduction
(Journal of Risk and Uncertainty, 2008)
Two developments pose dilemmas for well established discounting techniques: (1) The
extremely long time horizons associated with recently prominent environmental policy problems, such as climate change and nuclear waste ...
"The Threes": Re-Imagining Supreme Court Decisionmaking
(Vanderbilt Law Review, 2008)
In this Essay--the first in a series of essays designed to reimagine the Supreme Court--we argue that Congress should authorize the Court to adopt, in whole or part, panel decision making... With respect to the prospect ...
Experts, Mental States, and Acts
(Seton Hall Law Review, 2008)
This article, written for a symposium on "Guilt v. Guiltiness: Are the Right Rules for Trying Factual Innocence Inevitably the Wrong Rules for Trying Culpability?," argues that the definition of expertise in the criminal ...
Capitalism and the Tax System: A Search for Social Justice
(SMU Law Review, 2008)
America is a country founded on ideas. The Enlightenment presented one set of ideas that attended our birth, and one Enlightenment belief that is as strong today as during the revolution is our faith in capitalism and the ...
Overruling Erie: Nationwide Class Actions and National Common Law
(University of Pennsylvania Law Review, 2008)
In this essay, part of a symposium on the Class Action Fairness Act, I argue that CAFA should be read as having overruled Erie Railroad Co. v. Tompkins as applied to the nationwide class actions that fall within CAFA's ...
The New Role for Assurance Services in Global Commerce
(Journal of Corporation Law, 2008)
In this Article we examine the rapid emergence and expansion of a private-sector compliance and enforcement infrastructure that we believe increasingly may be providing a substitute for public and legal regulatory ...
Medellin: The New, New Formalism?
(Lewis & Clark Law Review, 2008)
The Supreme Court's 2008 decision in Medellin v. Texas appears to represent a formalist turn in the Court's approach to foreign relations cases. The opinion emphasizes text as the key to treaty interpretation and it stresses ...
Climate Change and the Endangered Species Act: Building Bridges to the No-Analog Future
(Boston University Law Review, 2008)
This Article examines the challenges global climate change presents for the Endangered Species Act (ESA) and its primary administrative agency, the U.S. Fish and Wildlife Service (FWS). Climate change will reshuffle ...
Chief Judges: The Limits of Attitudinal Theory and Possible Paradox of Managerial Judging
(Vanderbilt Law Review, 2008)
"Grutter v. Bollinger" is familiar to American lawyers, academics, and law students as the Supreme Court decision allowing the consideration of race in law school admissions.... Accusations like those made in "Grutter" are ...