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The One Percent Problem
(Columbia Law Review, 2011)
Parties frequently seek exemption from regulation on the ground that they contribute only a very small share to a problem. These one percent arguments are not inherently questionable; it can be efficient to exclude relatively ...
Reclaiming the Legal Fiction of Congressional Delegation
(Virginia Law Review, 2011)
The framework for judicial review of agency statutory interpretations is based on a legal fiction – namely, that Congress intends to delegate interpretive authority to agencies. Critics argue that the fiction is false ...
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 ...
Comparative Empiricism and Police Investigative Practices
(North Carolina Journal of International Law & Commercial Regulation, 2011)
In the search and seizure context, the United States is much more heavily wedded to warrants and exclusion than European countries and in the interrogation setting requires more robust warnings than most nations in Europe. ...
Reference-Dependent Valuations of Risk: Why Willingness-to-Accept Exceeds Willingness-to-Pay
(Journal of Risk and Uncertainty, 2011)
The gap between willingness-to-pay (WTP) and willingness-to-accept (WTA) benefit values typifies situations in which reference points — and direction of movement from reference points — are consequential. Why WTA-WTP ...
Regulation in the Behavioral Era
(Minnesota Law Review, 2011)
Administrative agencies have long proceeded on the assumption that individuals respond to regulations in ways that are consistent with traditional rational actor theory, but that is beginning to change. Agencies are now ...
The Google Book Settlement and the TRIPS Agreement
(Stanford Technology Law Review, 2011)
The proposed amended settlement in the Google Book case has been the focus of numerous comments and critiques. This "perspective" reviews the compatibility of the proposed settlement with the TRIPS Agreement and relevant ...
Organizational Apologies: BP as a Case Study
(Vanderbilt Law Review, 2011)
This Article examines the conduct of BP executives in the weeks following the Deepwater Horizon oil spill to illuminate the use of apology by organizations. After briefly describing the value of apology and its nuances ...
Constitutional Adjudication in Japan: Context, Structures, and Values
(Washington University Law Review, 2011)
Judges in Japan share the prevailing communitarian orientation of their society, an orientation that rejects Manichean choices and moral or "scientific" absolutes, but instead relies on their collective and individual ...
Gaming the Past: The Theory and Practice of Historic Baselines in the Administrative State
(Vanderbilt Law Review, 2011)
This article explores in detail the attributes and operation of historic baselines. That historic baselines are found throughout regulatory law is no accident. Particularly when the policy goal involves turning back the ...