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Merchants pay banks a fee on every credit card transaction. These credit card transactions cost American merchants an average of six times the total cost of cash transactions. The variation in fees among credit cards is also large, with some cards, such as rewards cards, costing merchants twice as much as others. The largest component of the fee merchants pay goes to finance rewards programs...

Over the past two decades, drug treatment courts have gained traction as popular alternatives to the conventional war on drugs and to its one-dimensional focus on incarceration. Specifically, the courts are meant to divert addicts from jails and prisons and into coerced treatment. Under the typical model, a drug offender enters a guilty plea and is enrolled in a long-term outpatient treatment...

Despite decades of effort, the international community has stumbled in attempts to craft tort remedies for victims of transboundary environmental damage. More than a dozen civil liability treaties have been negotiated that create causes of action and prescribe liability rules, but few have entered into force, and most remain unadopted orphans in international environmental law. In this Article, I...

This Article explores the relationship between medical malpractice tort reforms and death rates. Investigating this relationship is important both because of the frequent political conflict over such reforms and because medical malpractice causes tens of thousands of deaths each year. I first develop predictions from law and economics theory about medical malpractice tort reforms’ carelevel and...

How far below the earth’s surface do property rights extend? The conventional wisdom is that a landowner holds title to everything between the surface and the center of the earth. This Article is the first legal scholarship to challenge the traditional view. It demonstrates that the “center of the earth” theory is poetic hyperbole, not binding law. Broadly speaking, the deeper the disputed...

America’s public schools and teachers face a growing but currently unaddressed problem: How to comply with the law requiring teachers to meet the needs of all students with disabilities when those needs are incompatible. The Individuals with Disabilities Education Act requires schools to meet the individual needs of each student with disabilities. As the number of students with disabilities...

In Stone ex rel. AmSouth Bancorporation v. Ritter, two important strands of Delaware corporate law converged; namely, the concept of good faith and the duty of directors to monitor the corporation’s employees for law compliance. As to the former, Stone put to rest any remaining question as to whether acting in bad faith is an independent basis of liability under Delaware corporate law, stating...

This Article is about the hidden complexity of the textual exception to the Thirteenth Amendment. The amendment mandates that there shall be no slavery “except as a punishment for crime.” At first glance, the exception seems insignificant: The drafters sought to free the slaves, but did not want to curtail the power of state governments to sentence criminals to imprisonment or hard labor. Some...

In this Article, I extol the virtues of the short, nonprecedential opinions (NPOs) that make up more than 80 percent of the output of the federal courts of appeals. The recent amendment to Federal Rule of Appellate Procedure 32.1(a), requiring that all circuits allow citation to NPOs, has provoked considerable debate about how, and whether, to issue written dispositions in the class of cases...

Presidential signing statements had been considered relatively obscure executive policy tools that have been used since at least the time of President Monroe. Their usage by former presidents aroused little attention until highly publicized reporting alleged that President George W. Bush had issued an unprecedented number of signing statements relative to his predecessors. The intense debate that...

Over the past few years, patent law reform has been a hot topic of congressional debate. The cost and complexity of patent litigation and the frequency with which district judges are getting reversed on questions of claim construction are often cited as cause for alarm. Heeding the calls for reform, a patent pilot program for district courts was recently unveiled in the U.S. Congress in an...

Tribal sovereignty suffered greatly by the 1953 passage of Public Law 280, which gave certain states jurisdiction over the Indian country within their borders. However, recent cases show that tribes can preempt this state jurisdiction, and thereby reclaim some measure of sovereignty, if they prose¬cute crimes first—so long as the surrounding state has a statute abrogating the dual sovereignty...

Employers would just as soon not hire ex-offenders. They see the potential for workplace violence or theft, negligent hiring liability, and public relations nightmares. Because current law places the burden on employers to evaluate the risk that a particular ex-offender poses on the job, but gives them few tools with which to make that evaluation, employers would rather err on the side of caution...

In the active literature on regulatory reinvention, many have pointed to the Habitat Conservation Plan (HCP) program of the Endangered Species Act (ESA) as a successful example of the potential for collaborative and experimentalist regulatory innovation. Yet, despite its frequent mention as a prototype for fostering public participation and adaptive decisionmaking, no thorough, systematic...