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Submissions from 2009

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Building Antitrust Agency Capacity in Context, Salil Mehra
(January 12, 2009)

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Quick Off the Mark? In Favor of Empowering the President-Elect, Nina A. Mendelson
(April 6, 2009)

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Summum and the Establishment Clause, Bernadette Meyler
(August 24, 2009)

Introduction:

Chief Justice Roberts: [T]he more you say that the monument is Government speech to get out of the first, free speech—the Free Speech Clause, the more it seems to me you’re walking into a trap under the Establishment Clause. If it’s Government speech, it may not present a free speech problem, but what is the Government doing speaking—supporting the Ten...


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Imperfect Oaths, the Primed President, and an Abundance of Constitutional Caution, Bruce Peabody
(June 14, 2009)

Introduction:

Presidential inaugurations frequently invite widespread civic celebration, the broad rhetoric of an incoming Chief Executive, and traditions stretching back for decades and even centuries. The inaugural ceremonies of January 20, 2009 offered all this and something more: a set of important constitutional puzzles radiating from Barack Obama’s imperfect recitation of his oath of office.

At 12:04 p.m., Mr. Obama attempted...


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Symposium: The Future of Law and Development, Part II, Mariana Prado, Susan D. Franck, and John Cioffi
(November 1, 2009)

Introduction:

My comments will be mostly connected to Tom’s third question, relating to the future, and I would like to start by responding to Salil Mehra. I generally agree that there is an excessive focus on replicable “tools” and “best practices” in Law and Development studies, but I think there are a lot of questions to be asked regarding Mehra’s suggestion...


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The Synergy of Early Offers and Medical Explanations/Apologies, Christopher J. Robinette
(May 17, 2009)

Introduction:

Medical malpractice law has been subjected to strong criticism by both medical and legal commentators. It has been challenged as inefficient, inaccurate, and even counterproductive. Although many reforms have been proposed, most tend to benefit one group—either physicians or patients—to the exclusion of the other. Professor Jeffrey O’Connell’s “early offers” proposal provides a reform of the system that is beneficial...


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A Lawyer's Worst Nightmare: The Story of a Lawyer and His Nurse Clients Who Were Both Criminally Charged Because the Nurses Resigned En Mass, Mitchell H. Rubinstein
(January 19, 2009)

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Lost in Space: Laurence Tribe's Invisible Constitution, Eric J. Segall
(March 23, 2009)

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A Team Production Approach to Corporate Law and Board Composition, Bernard S. Sharfman and Steven J. Toll
(February 16, 2009)

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Ricci v. DeStefano: End of the Line or Just Another Turn on the Disparate Impact Road?, Charles A. Sullivan
(November 29, 2009)

Introduction:

Reports of the death of Title VII’s disparate impact theory of discrimination in the wake of Ricci v. DeStefano may be exaggerated. Widely praised and widely criticized in the newspapers and the blogosphere, Ricci is the latest, but not the last, chapter in a long-running feud between Congress and the Supreme Court regarding disparate impact.

As the Supreme Court summarized...


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Privatizing and Publicizing Speech, Nelson Tebbe
(August 9, 2009)

Introduction:

When should we allow governments to deploy private-law rules in order to circumvent public-law obligations? Two cases this year call that question to mind. They ask the Supreme Court to explore interactions between property law and constitutional rules concerning free speech and antiestablishment.

On the one hand, the Court recently handed down Pleasant Grove City v. Summum, which involved a...


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Senate Termination of Presidential Recess Appointments, Seth Barrett Tillman
(January 5, 2009)

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Terminating Presidential Recess Appointments: A Reply to Professor Brian C. Kalt, Seth Barrett Tillman
(January 5, 2009)

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Professionalizing Moral Engagement (A Response to Michael Hatfield), Robert K. Vischer
(June 22, 2009)

Introduction:

In Professionalizing Moral Deference, Michael Hatfield argues that the way we form lawyers “begins with moral desensitization,” a technique that teaches future lawyers “to override [their] moral intuition.” In making his case, Hatfield offers the infamous torture memos as Exhibit A, but they may not be the best vehicle for proving his thesis. As the work of John Yoo shows,...


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The Mother's Milk of Politics is Corrupting Absolutely, Dan Walker
(March 16, 2009)

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Deference to Clients and Obedience to Law: The Ethics of the Torture Lawyers (A Response to Professor Hatfield), W. Bradley Wendel
(August 2, 2009)

Introduction:

In the early months of the Obama administration, we are learning a great deal more about the previous administration’s program of using “enhanced interrogation techniques” on alleged al-Qaeda detainees. On April 16, 2009, the new administration released to the public several memos, prepared by lawyers at the Office of Legal Counsel (“OLC”) in the administration of George W. Bush, dealing...


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Choose the Best Answer: Organizing Climate Change Negotiation in the Obama Administration, Jonathan Zasloff
(January 26, 2009)

Submissions from 2008

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Child Rape, Moral Outrage, and the Death Penalty, Susan A. Bandes
(August 7, 2008)

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Engaging Capital Emotions, Douglas A. Berman and Stephanos Bibas
(June 16, 2008)

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Continuing the Debate About Presidential Debates, Alexander J. Blenkinsopp
(September 25, 2008)

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Bargaining in the Shadow of the European Microsoft Decision: The Microsoft-Samba Protocol License, Seldon J. Childers and William H. Page
(June 9, 2008)

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Bargaining in the Shadow of the European Microsoft Decision: The Microsoft-Samba Protocol License (Part II), Seldon J. Childers and William H. Page
(June 12, 2008)

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Sad Time: Thoughts on Jurisdictionality, the Legal Imagination, and Bowles v. Russell, Perry Dane
(January 14, 2008)

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No Third Class Processes for Foreigners, Benjamin G. Davis
(September 2, 2008)

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The Influence of Ex Parte Quirin and Courts-Martial on Military Commissions, Morris D. Davis
(September 22, 2008)

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A Comment on Rosenberg's New Edition of The Hollow Hope, Richard Delgado
(October 6, 2008)

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Heller's Future in the Lower Courts, Brannon P. Denning and Glenn Harlan Reynolds
(July 17, 2008)

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Appreciating Mandatory Rules: A Reply to Critics, Scott Dodson
(February 25, 2008)

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Congressional Polarization Due to Maximizing Political Satisfaction: Why Elhauge’s Current Enactable Preferences Default Rule Fails to Avoid the Congressional Deadlock and Polarization that Stems from Expansionist Statutory Interpretation, Timothy J. Droske
(January 28, 2008)

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The Case for Field Preemption of State Laws in Drug Cases, Richard A. Epstein
(August 21, 2008)

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Antitrust Issues Raised by the Emerging Global Internet Economy, David S. Evans
(May 5, 2008)

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Antitrust Issues Raised by the Emerging Global Internet Economy (Part II), David S. Evans
(May 12, 2008)

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Balancing Mandate and Discretion in the Institutional Design of Federal Climate Change Policy, Robert L. Glicksman
(February 11, 2008)

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Sprint/United Management Company v. Mendelsohn and Case-by-Case Adjudication of "Me Too" Evidence of Discrimination, David Gregory
(July 7, 2008)

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Military Commissions and National Security Courts After Guantánamo, Amos N. Guiora
(November 3, 2008)

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The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights, David T. Hardy
(December 22, 2008)

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"Too Plain for Argument?" The Uncertain Congressional Power to Require Parties to Choose Presidential Nominees Through Direct and Equal Primaries, Richard L. Hasen
(April 7, 2008)

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Instead of ENDA, A Course Correction for Title VII, Jennifer S. Hendricks
(November 10, 2008)

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Rediscovering the Law's Moral Roots, Morris B. Hoffman
(August 4, 2008)

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Honor's Constitutional Moment: The Oath and Presidential Transitions, Paul Horwitz
(December 15, 2008)

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Human Rights and Globalization: Putting the Race to the Top in Perspective, Holning Lau
(June 2, 2008)

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Introducing the New and Improved Americans with Disabilities Act: Assessing the ADA Amendments Act of 2008, Alex B. Long
(November 17, 2008)

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Diversity and Race-Neutrality, Kenneth L. Marcus
(October 13, 2008)

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If Obscenity Were to Discriminate, Barry P. McDonald
(August 28, 2008)

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The Case for a Constitutional Easement Approach to Permanent Monuments in Traditional Public Forums, Paul E. McGreal
(October 27, 2008)

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Beyond Guantánamo, Obstacles and Options, Gregory S. McNeal
(August 11, 2008)

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Beyond Guantánamo, Obstacles and Options (Part II), Gregory S. McNeal
(August 14, 2008)

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Ordeal By Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality, Colin Miller
(July 14, 2008)

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Climate Change Legislation in Context, Hari M. Osofsky
(March 31, 2008)

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The Unavailability Requirement, Aaron R. Petty
(March 3, 2008)

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Competition and Privacy in Web 2.0 and the Cloud, Randal C. Picker
(June 28, 2008)

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The Jurisdictional Time Limit for an Appeal: The Worst Kind of Deadline—Except for All Others*, E. King Poor
(January 7, 2008)

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Crying Havoc Over the Outsourcing of Soldiers and Democracy's Slipping Grip on the Dogs of War, Joshua S. Press
(September 8, 2008)

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Hot Spots in the Legislative Climate Change Proposals, Carol M. Rose
(February 4, 2008)

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Sprint/United Management Co. V. Mendelsohn: The Supreme Court Appears to Have Punted on the Admissibility of “Me Too” Evidence of Discrimination. But Did It?, Mitchell H. Rubinstein
(April 14, 2008)

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The Significance of Sprint/United Management Company v. Mendelsohn: A Reply to Professors Gregory and Secunda, Mitchell H. Rubinstein
(July 10, 2008)

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The Many Mendelsohn “Me Too” Missteps: An Alliterative Response to Professor Rubinstein, Paul Secunda
(June 23, 2008)

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Dysfunctional Deference and Board Composition: Lessons from Enron, Bernard S. Sharfman and Steven J. Toll
(October 9, 2008)

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What Riegel Portends for FDA Preemption of State Law Products Liability Claims, Catherine M. Sharkey
(July 21, 2008)

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What Riegel Portends for FDA Preemption of State Law Products Liability Claims (Part II), Catherine M. Sharkey
(July 24, 2008)

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The Problematic Nature of Contractionist Statutory Interpretations, Brian G. Slocum
(May 26, 2008)

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The Future of International Antitrust and Improving Antitrust Agency Capacity, Daniel D. Sokol
(December 8, 2008)

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A Floor, Not a Ceiling: Federalism and Remedies for Violations of Constitutional Rights in Danforth v. Minnesota, Ilya Somin
(June 19, 2008)

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An Ounce of Prevention: Solving Some Unforeseen Problems with the Proposed Amendments to Rule 56 and the Federal Summary Judgment Process, Adam N. Steinman
(November 24, 2008)

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On Jurisdictional Elephants and Kangaroo Courts, Stephen I. Vladeck
(October 20, 2008)

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Jurisdiction, Merits, and Procedure: Thoughts on Dodson's Trichotomy, Howard M. Wasserman
(February 18, 2008)

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What Twombly and Mead Have in Common, Amy J. Wildermuth
(April 21, 2008)

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Finding a Happy and Ethical Medium Between a Prosecutor Who Believes the Defendant Didn't Do It and the Boss Who Says That He Did, Melanie D. Wilson
(August 25, 2008)

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Is Military Law Relevant to the "Evolving Standards of Decency" Embodied in the Eighth Amendment?, Corey Rayburn Yung
(September 29, 2008)

Submissions from 2007

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Massachusetts v. EPA Heats Up Climate Policy No Less Than Administrative Law: A Comment on Professors Watts and Wildermuth, Jonathan H. Adler
(July 23, 2007)

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Mandatory Pro Bono and Private Attorneys General, Samuel R. Bagenstos
(April 16, 2007)

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Selecting the President: A Bad Idea Out There in California, Robert W. Bennett
(October 1, 2007)

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Pleading Standards Should Not Change After Bell Atlantic v. Twombly, Keith Bradley
(November 19, 2007)

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The Greening of Harry Blackmun, Stephen B. Burbank
(March 26, 2007)

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Nonjurisdictionality or Inequity, Elizabeth Chamblee Burch
(September 17, 2007)

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Coming Clean About "Junk DNA", Simon A. Cole
(November 5, 2007)

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Is the “Junk” DNA Designation Bunk?, Simon A. Cole
(September 4, 2007)

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Why The Blight Distinction in Post-Kelo Reform Does Matter, David A. Dana
(July 9, 2007)

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Jurisdictionality and Bowles v. Russell, Scott Dodson
(August 6, 2007)

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Ideological Drift Among Supreme Court Justices: Who, When, and How Important?, Lee Epstein, Andrew Martin, Kevin McQuinn, and Jeffrey Segal
(March 19, 2007)

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The Use and Limits of Martin-Quinn Scores to Assess Supreme Court Justices, with Special Attention to the Problem of Ideological Drift, Wade Farnswarth
(April 2, 2007)

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Taking the Legislative Temperature: Which Federal Climate Change Legislative Proposal Is "Best"?, Victor B. Flatt
(December 3, 2007)

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Taking the Legislative Temperature: Which Federal Climate Change Legislative Proposal is “Best”? (Part II), Victor B. Flatt
(December 17, 2007)

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Justices Who Change: A Reply to Epstein et al., Linda Greenhouse
(March 19, 2007)

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"Ingenious Argument" or a Serious Constitutional Problem? A Comment on Professor Epstein's Paper, Philip Hamburger
(October 29, 2007)

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Please, Let’s Bury the Junk: The CODIS Loci and the Revelation of Private Information, D.H. Kaye
(September 24, 2007)

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There Is Nothing Pragmatic About Originalism, David S. Law and David McGowan
(October 22, 2007)

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There Is Nothing Pragmatic About Originalism, David S. Law and David McGowan
(October 15, 2007)

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Volition and Voltaire: A Response to Professor Bagenstos, Tom Lininger
(April 23, 2007)

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Originalism and Supermajoritarianism: Defending the Nexus, John O. McGinnis and Michael B. Rappaport
(June 25, 2007)

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What Tool Works Tells Us About Tailoring Patent Misuse Remedies, David McGowan
(May 21, 2007)

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Is Dick Cheney Unconstitutional?, Glenn Harlan Reynolds
(November 12, 2007)

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Is Post-Kelo Reform Bad for the Poor?, Ilya Somin
(May 7, 2007)

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Memo to the President (and his opponents): Ideology Still Counts, David A. Strauss
(August 20, 2007)

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Massachusetts v. EPA: Breaking New Ground on Issues Other Than Global Warming, Kathryn A. Watts and Amy J. Wildermuth
(June 4, 2007)

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Massachusetts v. EPA: Breaking New Ground on Issues Other Than Global Warming (Part II), Kathryn A. Watts and Amy J. Wildermuth
(June 11, 2007)