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...
Owning the Center of the Earth
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...
The Individuals With Disabilities Education Act: Why Considering Individuals One at a Time Creates Untenable Situations for Students and Educators
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...
Reorienting the Debate on Presidential Signing Statements: The Need for Transparency in the President's Constitutional Objections, Reservations, and Assertions of Power
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...
An Aesthetic Defense of the Nonprecedential Opinion: The Easy Cases Debate in the Wake of the 2007 Amendments to the Federal Rules of Appellate Procedure
In this Article, I extol the virtues of the short, nonprecedential opinions (NPOs) that make up more than 80 percent of the output of the federal courts of appeals.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...
No Slavery Except as a Punishment for Crime: The Punishment Clause and Sexual Slavery
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...
The Convergence of Good Faith and Oversight
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...
Does Practice Make Perfect? An Examination of Congress's Proposed District Court Patent Pilot Program
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...