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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

Mandatory Rules: A Primer

Posted on November 18, 2009
How does one determine whether a particular rule is jurisdictional or not? Over the last few years, the Court has focused on this question, most recently in a decision holding that the six-year statute of…

Happiness and Punishment

Posted on November 16, 2009
New findings in hedonic psychology have implications for punishment theory. Specifically, these findings suggest that criminals adapt surprisingly well to fines and even to incarceration, but that incarceration negatively affects post-prison life in ways that…

Myth of Mess? International Choice of Law in Action

Posted on November 13, 2009
Can choice of law productively contribute to global governance? A growing body of research by law and economics scholars suggests that the answer is yes. According to this research, well designed choice-of-law rules can both…

A Relational Approach to Schools? Regulation of Youth Online Speech

Posted on November 11, 2009
In 2006, Aaron Wisniewski, a middle school student at Weedsport Middle School in upstate New York, logged onto his home computer after school hours and sent his friends instant messages featuring a buddy icon depicting…

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Through the Looking Glass: A Response to Professor Dan Markel?s Retributive Damages

Posted on July 10, 2009
This Editorial is a response to Dan Markel’s Legal Workshop Editorial: Retributive Damages as Intermediate Public Sanctions: A Synopsis. In Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction,1 Professor Dan Markel “reimagine[s]” the law and…

Iterative Federalism and Climate Change

Posted on July 06, 2009
With the election of Barak Obama as President, national and global attention on climate change will turn to the federal government. Though the looming economic crisis may slow a federal response, President Obama has made…

Land Virtues

Posted on July 01, 2009
My article, Land Virtues,1 has two goals. First, it explores the descriptive and normative limitations of certain “law and economics” discussions of the ownership and use of land. Law and economics provides, among other things, “a…

Risk Governance and Deliberative Democracy in Health Care

Posted on June 29, 2009
A risk governance paradigm provides the best theoretical framework for understanding both the health care system and health law. By “risk governance,” I mean a set of practices organized around principles of risk allocation, management,…

Detention of Terrorists and the Acceleration of the Convergence Trend

Posted on June 26, 2009
Last year, Jack Goldsmith and I argued in the pages of the Stanford Law Review that the traditional models of criminal and military detention have converged toward one another in connection with the problem of…

Protect Us, Lord, from Title VII: A Response to Gelbach, Klick, and Wexler

Posted on June 22, 2009
In their recent article, Passive Discrimination,1 Jonah Gelbach, Jonathan Klick, and Lesley Wexler (hereafter “GKW”) offer yet another way to pile additional liabilities on hapless employers for race or sex discrimination under Title VII of the…

Passive Discrimination

Posted on June 22, 2009
In this Article, we present a distinct mechanism of employer discrimination largely ignored by scholars and regulators alike. What we term “passive discrimination” involves an employer’s use of wage and benefits packages that exploit observed,…

Pitfalls of Empirical Studies That Attempt to Understand the Factors Affecting Appellate Decisionmaking

Posted on June 18, 2009
I recently read a paper in which a prominent legal scholar argued that empirical evidence conclusively demonstrates that decisionmaking in the federal courts of appeals is highly politicized. No body of empirical evidence supports this…

HIV/AIDS and the Law of Unintended Consequences

Posted on June 17, 2009
The proposition that mankind’s interaction with its environment can have unintended consequences would surprise few Americans. For decades, ever since Rachel Carson published Silent Spring,1 the environmental movement has prepared us to understand that the choices…

Automating Contract Law: How Advances in Knowledge-Management Technology Can Help Transform the Empirical Study of Contract Law

Posted on June 15, 2009
Early one morning in January 1956, Herbert Simon announced to his graduate class at Carnegie Mellon that “[o]ver Christmas, Al Newell and I invented a thinking machine.”1 His claim was a bit premature, but Simon…

Ownership and Obligations

Posted on June 08, 2009
Much recent property theory, both in the United States and elsewhere, is devoted to a search for the essential core of ownership. So, Tom Merrill and James Penner have argued that the right to exclude…

Judicial Independence in Excess: Reviving the Judicial Duty of the Supreme Court

Posted on June 05, 2009
In 2006, Justices Sandra Day O’Connor and Stephen Breyer initiated a campaign to elevate public concern for the independence of our judiciary. They were of course correct that judicial independence is indispensable to public trust…

Kurt Lash?s Majoritarian Difficulty

Posted on June 01, 2009
The Ninth Amendment reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” When I first encountered these words as a student in…

A Response to James McDonald?s ?Milberg?s Monopoly? in Duke Law Journal Vol. 58

Posted on May 29, 2009
This is a response to James McDonald’s student Note, Milberg’s Monopoly: Restoring Honesty and Competition to the Plaintiffs’ Bar in Volume 58 of the Duke Law Journal. Click here for the Note. Although the Duke Law Journal’s…

Mandatory Reassignment under the ADA: The Circuit Split and Need for a Socio-Political Understanding of Disability

Posted on May 28, 2009
Congress designed the Americans with Disabilities Act of 1990 (ADA) to ensure that the disabled have equal access to employment opportunities, government services, and other public accommodations. While most antidiscrimination statutes simply ban decisions based…

Litigation Discovery Cannot Be Optimal But Could Be Better: The Economics of Improving Discovery Timing in a Digital Age

Posted on May 25, 2009
Cost-benefit ?proportionality? limits on discovery have long been prescribed by a wide range of commentators. The judiciary codified a proportionality requirement in Federal Rule of Civil Procedure 26(b)(2)(C) and later in e-discovery rules based on…

Ending the Endogeneity of Earmark Rules

Posted on May 22, 2009
For centuries, livestock owners have marked their animals by clipping their ears. Paradoxically, the term we give to special interest provisions?”earmarks”?conflicts with its origins in this agrarian practice. Far from revealing ownership, earmarks actually conceal…

Heterosexuality and Title VII

Posted on May 18, 2009
Dawn Dawson was an outsider among outsiders.1 A self-described gender-nonconforming lesbian woman, Dawson worked as a hair assistant and stylist trainee at Bumble & Bumble, a high-end salon in New York City. Her coworkers at the…

Telling Law Students What?s Ahead

Posted on May 15, 2009
Group-ride bicyclists start their mornings with a “route rap.” Before an extended ride begins, participants gather round, standing next to their bikes, and listen to their leader describe the itinerary ahead. They might each hold…

Retributive Damages as Intermediate Public Sanctions: A Synopsis

Posted on May 13, 2009
Punitive damages’ complex and rapidly evolving nature has unsurprisingly attracted the attention of scholars from a variety of disciplines. But what are punitive damages for? In terms of normative answers, a number of scholars, such…

Substance or Illusion? The Dangers of Imposing a Standing Threshold

Posted on May 11, 2009
The article from which this essay is derived criticizes the D.C. Circuit?s evaluation of petitioners? standing in so-called ?increased-risk? cases?cases in which individuals or interest groups allege that an agency action places them at increased…

The Offshoring of American Government

Posted on May 08, 2009
In 2004, callers to the California state welfare hotline had a curious choice to make: press ?one? for English and speak with a worker in India, or press ?two? for Spanish and speak with a…

Refugee Roulette: The U.S. Asylum System, Pervaded by Chance, Demands Reform

Posted on May 06, 2009
Arbitrary government action is antithetical to the rule of law. It is most abhorrent when it can result in imprisonment, torture, or death, as can occur when a refugee’s petition for asylum is denied. In…

Modernization, Moderation, and Political Minorities: A Response to David A. Strauss

Posted on May 04, 2009
The Supreme Court is frequently accused of declaring laws unconstitutional based on little more than the justices’ ideological preferences. This is an especially common criticism of the Court’s capital-punishment, equal-protection, and substantive-due-process jurisprudence, where the…

The Modernizing Mission of Judicial Review

Posted on May 04, 2009
Constitutional interpretation looks to the past: to an old text, to old precedents, to the views of the founding generations, to tradition. That is the conventional wisdom, at least. Judicial review, as it’s usually conceived,…

Listening to History? Parents Involved, Brown, and the Colorblind Constitution

Posted on May 01, 2009
“[W]hen it comes to using race to assign children to schools,” Chief Justice Roberts pronounced in Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007), “history will be heard.”1 History indeed earned…

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