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All Recent Publications
[see recent ONLINE publications only]
Working Papers
"An Introduction to Property Theory," (with Educardo M. Penalver) Cornell Legal Studies Research Paper No. 12-15 (2012). Cambridge Introductions to Philosophy and Law, Cambridge University Press (2012).
Full Text: [LSN]
Books
| A Guide to Teaching Lawyering Skills (with Lara Gelbwasser Freed, John Mollenkamp, Andrea J. Mooney, Ursula H. Weigold, and Michelle A. Fongyee Whelan (Durham, NC, Carolina Academic Press, 2012). |
Articles
"The Delaware Death Penalty: An Empirical Study," (with Sheri Lynn Johnson,Theordore Eisenberg, Valerie P. Hans & Martin T. Wells) 97 Iowa Law Review 1925 (2011-2012).
Full Text: [HeinOnline]
"Convicting Lenny: Mental Retardation, Wrongful Convictions and the Right to a Fair Trial," (with Sherri Johnson & Susan E. Millor) 56 New York Law School Law Review 943 (2011).
Full Text: [HeinOnline]
Articles
"Congress's Constitution," 160 University of Pennsylvania Law Review 715 (2012).
Full Text: [HeinOnline] [Scholarship@CornellLaw]
Book Reviews
"Multiplicity in Federalism and the Separation of Powers," 120 Yale Law Journal 1084 (2011). (reviewing Alison L. LaCroix, The Ideological Origins of American Federalism (2010)).
Full Text: [Scholarship@CornellLaw]
Books
| Civil Procedure ( St. Paul, MN.: Thomson/Reuters, 9th ed., 2012). |  |
| Principles of Civil Procedure (St. Paul, Minn.: Thomson/Reuters, 3rd ed., 2012) (Concise Hornbook Series). |  |
| Federal Rules of Civil Procedure: 2011(editor) (Foundation Press, Rev. ed. 2011). |  |
Articles
"Class Certification’s Preclusive Effects," 159 University of Pennsylvania Law Review PENNumbra, 203-230 (2011); Cornell Legal Studies Research Paper No. 11-17 (2011).
Full Text: [Scholarship@CornellLaw]
"Sequencing the Issues for Judicial Decisionmaking: Limitations from Jurisdictional Primacy and Intrasuit Preclusion", 63 Florida Law Review 301 (2011).
Full Text: [HeinOnline] [Scholarship@CornellLaw]
"Three Myths About Twombly-Iqbal," 45 Wake Forest Law Review 1337 (2010).
Full Text: [HeinOnline] [Scholarship@CornellLaw]
"Inventing Tests, Destabilizing Systems" (With Stephen C. Yeazell) 95 Iowa Law Review 821-861 (2010).
Contributions to Books
| "What is a Search? Two Conceptual Flaws in Fourth Amendment Doctrine & Some Hints of a Remedy", in Cynthia Lee, Searches and Seizures: The Fourth Amendment: Its Constitutional History and Contemporary Debate (2010) ; reprinted from 55 Stanford Law Review 119 (2002); Civil Rights Litigation & Attorneys Fees Annual Handbook, (Thomson West, Steven Saltzman. ed. 2003), and excerpted in 30 Search and Seizure Law Report, no. 10 (2003). |  |
Articles
"Probabilities in Probable Cause and Beyond: Statistical Versus Concrete Harms", 73 Law and Contemporary Problems 69 (2010).
Full Text: [WWW]
Electronic Publications
Bi-Weekly column on FindLaw.com (essays archived at http://writ.news.findlaw.com/colb), with many appearing at CNN.com.
Full Text: [WWW(2)]
Books
| The Oxford Introductions to U.S. Law: Constitutional Law (with Trevor Morrison) (Oxford University Press; 2010). |  |
Articles
"Spandrel or Frankenstein's Monster? The Vices and Virtues of Retrofitting in American Law," 54 William and Mary Law Review 339 (2012) Cornell Legal Studies Research Paper No. 13-61 (2013).
Full Text: [HeinOnline] [LSN]
"Coming Off the Bench: Legal and Policy Implications of Proposals to Allow Retired Justices to Sit by Designation on the Supreme Court" (with Lisa McElroy), 61 Duke Law Journal 81 (2011).
Full Text: [LSN]
"Same-Sex Marriage, Second-Class Citizenship, and Law’s Social Meanings", 97 Virginia
Law Review 1267 (2011).
Law Review 1267 (2011).
Full Text: [HeinOnline] [LSN]
"The Constitution and the Political Community," 27 Constitutional Commentary 499 (2011).
Full Text: [HeinOnline] [LSN]
"The Marginality of Citizens United," 20 Cornell Journal of Law & Public Policy 739 (2011).
"The Majoritarian Difficulty and Theories of Constitutional Decision Making," 13 University of Pennsylvania Journal of Constitutional Law 283 (2010).
Full Text: [HeinOnline]
"Federal Governmental Power: The Voting Rights Act," 26 Touro Law Review 505 (2010).
Full Text: [HeinOnline] [Scholarship@CornellLaw]
"Iqbal and Bad Apples," 14 Lewis & Clark Law Review 217 (2010).
Full Text: [HeinOnline] [Scholarship@CornellLaw]
Electronic Publications
Bi-Weekly column on FindLaw.com (essays archived at http://writ.news.findlaw.com/dorf/), with many appearing at CNN.com.
Full Text: [WWW(2)]
Working Papers
"Assuring Adequate Deterrence in Tort: A Public Good Experiment," ( with Christoph Engel ) Cornell Legal Studies Research Paper No. 12-27 (2012).
Full Text: [LSN]
Books
| Commercial and Debtor-Creditor Law: Selected Statutes (co-editor with D. Baird and T. Jackson) (Mineola: Foundation Press, 1984). (also annual editions 1986-2011) |  |
Casebooks
| Ames, Chafee, and Re On Remedies: Cases and Materials (with Emily Sherwin and Joseph R. Re) ( New York: Foundation Press, 2012). |
Bankruptcy and Debtor-Creditor Law : Cases and Materials (New York : Foundation Press/Thomson Reuters, 4th ed. 2011). |  |
Articles
"Actual Versus Perceived Performance of Judges," ( with Talia Fisher and Issi Rosen-Zvi ) 35 Seattle University Law Rview 695 (2012) Cornell Legal Studies Research Paper No. 12-23 (2012).
Full Text: [HeinOnline] [LSN]
" The Effect of Contract Regulation on Franchising," (by Jonathan Klick, Bruce H. Kobayashi, and Larry E. Ribstein) (comment by Theodore Eisenberg 54-57 and Andreas Roider 58 - 61) 168 Journal of Institutional and Theoretical Economics 38 ( 2012).
Full Text: [WWW]
"The Origins, Nature, and Promise of Empirical Legal Studies and A Response to Concerns", Illinois Law Review (forthcoming 2011) ; also translated into Hebrew in Tel Aviv University Law Review.
Full Text: [LSN]
"The Effect of Rules Shifting Supreme Court Jurisdiction from Mandatory to Discretionary—An Empirical Lesson from Taiwan"(with K.C. Huang), International Review of Law & Economics (forthcoming 2011).
Full Text: [LSN]
"Judge-Jury Difference in Punitive Damages Awards: Who Listens to the Supreme Court?" (with Michael Heise), 8 Journal of Empirical Legal Studies # 2 (2011).
Full Text: [Scholarship@CornellLaw] [LSN]
"The Predictability of Juries" (with V. Hans), 60 DePaul Law Review 375 (2011).
Full Text: [HeinOnline] [Scholarship@CornellLaw]
"Isreal's Supreme Court Appellate Jurisdiction: An Empirical Study," (with Talia Fisher & Issi Rosen-Zvi) 96 Cornell Law Review 693 (2011).
Full Text: [HeinOnline] [Scholarship@CornellLaw]
"Attorney Fees and Expenses in Class Action Settlements: 1993-2008" (with Geoffrey P. Miller), 7 Journal of Empirical Legal Studies 248-281 (2010).
Full Text: [Scholarship@CornellLaw]
"Punitive Damages in Securities Arbitration: An Empirical Study," (with Stephen J Choi) 39 Journal of Legal Studies 497 (2010).
Full Text: [LSN]
"The Decision to Award Punitive Damages: An Empirical Study" (with Michael Heise, Nicole L. Waters and Martin T. Wells), 2 Journal of Legal Analysis 577 (2010).
Full Text: [HeinOnline] [Scholarship@CornellLaw]
"The Need for a National Civil Justice Survey of Incidence and Claiming Behavior," 37 Fordham Urban Law Journal 17-36 (2010).
Full Text: [LSN]
"Variability in Punitive Damages: An Empirical Assessment of the U.S. Supreme Court’s Decision in Exxon Shipping Co. v. Baker" (with M. Heise & M. Wells) 166 Journal of Institutional & Theoretical Economics 5-26 (2010).
Full Text: [Scholarship@CornellLaw] [LSN]
Articles
" Rulemaking vs. Democracy; Judging and Nudging Public Participation that Counts," (with Mary Newhart and Josiah Heidt) 2 Michigan Journal of Environmental and Administrative Law Issue 1 (2012) Cornell Legal Studies Research Paper No. 12-20 (2012).
Full Text: [LSN]
"Rulemaking 2.0," (with Mary Newhart, Claire Cardie, Dan Cosley, CeRI), 65 University of Miami Law Review 395 (2011).
Full Text: [HeinOnline] [Scholarship@CornellLaw]
"Rulemaking in 140 Characters or Less: Social Networking and Public Participation in Rulemaking," (with Paul Miller, Mary J. Newhart, Claire Cardie, Dan Cosley, and Rebecca Vernon) 31 Pace Law Review 382 (2011).
Full Text: [HeinOnline] [Scholarship@CornellLaw]
"False Comfort and Impossible Promises: Uncertainty, Information Overload and the Unitary Executive," 12 University of Pennsylvania Journal of Constitutional Law 357 (2010).
Full Text: [HeinOnline] [Scholarship@CornellLaw]
"Deconstructing Non-Delegation," 33 Harvard Journal of Law and Public Policy 87 (2010).
Full Text: [HeinOnline] [LSN]
Electronic Publications
"A Study in Rule-Specific Issue Classification for e-Rulemaking, Proceedings," (with Claire Cardie, et al.) of the 9th Annual International Conference on Digital Government Research, May 18-21, 2008 (Digital Government Research Center, USC Info Sciences Inst).
Full Text: [WWW(2)]
Articles
"The Deterrent Effect of Death Penalty Eligibility: Evidence from the Adoption of Child Murder Eligibility Factors" (with Matthew Harding), 11 American Law and Economics Review 453 (2009).
Books
| A Guide to Teaching Lawyering Skills (with Joel Atlas, John Mollenkamp, Andrea J. Mooney, Ursula H.Weigold, & Michelle A. Fongyee Whelan) (Durham, NC, Carolina Academic Press 2012). |
Articles
"Cooperative Federalism Post-Schaffer: The Burden of Proof and Preemption in Special Education, 2009 BYU Education and Law Journal 103 (2009).
Books
| Criminal Law Conversations (with Paul Robinson, Kimberly Ferzan eds.) (Oxford University Press, 2009). |  |
Articles
"When Should a Mistake of Fact Excuse," 42 Texas Tech Law Review 359-382 (2009).
Full Text: [HeinOnline]
"Dealing with Wayward Desire," 3 Criminal Law and Philosophy 1 (2009).
Contributions to Books
| "Digitizing the World's Laws," forthcoming in International Legal Information Management Handbook (Ashgate, 2010). | |
Full Text: [Scholarship@CornellLaw]
Articles
"The French Jury at a Crossroads" (with Valerie Hans) 86 Chicago-Kent Law Review 737 (2011).
Full Text: [HeinOnline]
"Beyond the Expected: Creating and Sustaining Relationships for your Institutions," 14 AALL Spectrum 10 (2010).
Full Text: [Scholarship@CornellLaw]
Working Papers
"To Dollars from Sense: Qualitative to Quantitative Translation in Jury Damage Awards", Cornell Legal Studies Research Paper No. 11-25 (2011).
Full Text: [LSN]
Articles
"Japan’s New Lay Judge System: Deliberative Democracy in Action?" (with Corey, Zachary), 12 Asian-Pacific Law & Policy Journal 72-94 (2010).
Full Text: [HeinOnline]
"Science in the Jury Box: Jurors’ Comprehension of Mitochondrial DNA Evidence" (with Kaye, D.H., Dann, B.M., Farley, E.J., & Albertson, S.), 35 Law and Human Behavior 60-71 (2011).
"The Predictability of Juries" (with T. Eisenberg), 60 DePaul Law Review 375 (2011).
Full Text: [HeinOnline] [Scholarship@CornellLaw]
"The French Jury at a Crossroads" (with Claire Germain), 86 Chicago-Kent Law Review 737 (2011).
Full Text: [HeinOnline]
Contributions to Books
| "Facilitating Practices," in Issues in Competition Law and Policy, Vol II (Chicago : ABA Section of Antitrust Law; Wayne D Collins, Joseph Angland eds., 2008), p. 1189 |  |
Full Text: [LSN]
Working Papers
"Muslims and Religious Liberty in the Era of 9/11: Empirical Evidence from the Federal Courts", Cornell Legal Studies Research Paper (2011).
Full Text: [LSN]
"Religion, Schools, and Judicial Decision Making: An Empirical Perspective", Cornell Legal Studies Research Paper No. 11-28 (2011).
Full Text: [LSN]
Contributions to Books
| "Pass or Fail? Litigating High-Stakes Testing," in From Schoolhouse to Courthouse: The Judiciary's Role in American Education (Washington, DC: Brookings Institution Press; Joshua M. Dunn & Martin R. West, eds., 2009). |  |
Articles
"The Gross Beast of Burden of Proof: Experimental Evidence on how the Burden of Proof Influences Employment Discrimination Case Outcomes" (with David Sherwyn), 42 Arizona State Law Journal 901-947 (2010).
Full Text: [HeinOnline]
"The Decision to Award Punitive Damages: An Empirical Study" (with Theodore Eisenberg, Nicole L. Walters and Martin T. Wells), 2 Journal of Legal Analysis 577 ( 2010).
Full Text: [HeinOnline] [Scholarship@CornellLaw]
"Why ADR Programs Aren’t More Appealing: An Empirical Perspective," 7 Journal of Empirical Legal Studies 64 (2010).
"Variability in Punitive Damages: An Empirical Assessment of the U.S. Supreme Court’s Decision in Exxon Shipping Co. v. Baker," (with Theodore Eisenberg, and Martin T. Wells) 166 Journal of Institutional & Theoretical Economics 5 (2010).
Full Text: [Scholarship@CornellLaw] [LSN]
Comment: "Comparing Comparisons: Comparative Law and Finance," 166 Journal of Insititutional and Theoretical Economics 141 (2010).
"Federal Criminal Appeals: An Empirical Perspective," 93 Marquette Law Review 825 (2009).
Full Text: [HeinOnline]
"Plaintiphobia in State Court? An Empirical Study of State Court Trials on Appeal" (with Theodore Eisenberg), 38 Journal of Legal Studies 121 (2009).
"Courting Trouble: Litigation, High-Stakes Testing, and Education Policy," 42 Indiana Law Review 327 (2009).
Full Text: [Scholarship@CornellLaw]
"Judicial Decision-Making, Social Science Evidence, and Equal Educational Opportunity: Uneasy Relations and Uncertain Futures," 31 Seattle University Law Review 863 (2008).
Full Text: [WWW]
Casebooks
| Torts: Cases and Materials (with Aaron Twerski and W.Bradley Wendel) (Wolters Kluwer/Aspen, 3rd. 2011). |  |
| Torts: Cases and Materials (with Aaron D. Twerski) (New York, NY: Aspen Law & Business, 2nd ed. 2008). |  |
| Products Liability: Problems and Process (with Aaron Twerski) (New York: Aspen Pub., 6th ed. 2008) |  |
Articles
"Contract's Constitutive Core: Solving Problems by Making Deals," Cornell Legal Studies Research Paper No. 11-06 (2011).
Full Text: [LSN]
"Reaching Equilibrium in Tobacco Litigation" (with Aaron Twerski), 62 South Carolina Law Review 67 (2010).
Full Text: [HeinOnline] [Scholarship@CornellLaw]
"Manufacturers’ Liability for Defective Product Designs: The Triumph of Risk-Utility," (with Aaron Twerski) 74 Brooklyn Law Review 1061 (2009).
Full Text: [HeinOnline]
"The Status of Trespassers on Land," 44 Wake Forest Law Review 1071 (2009).
Full Text: [HeinOnline]
"Sellers of Safe Products Should Not Be Required to Rescue Users From Risks Presented by Other More Dangerous Products." 37 Southwestern University Law Review 595 (2008).
Working Papers
"Contract Law in Context: The Case of Software Contracts," __ Wake Forest Law Review __ (forthcoming) Cornell Legal Studies Research Paper No. No. 010-002 (Feb 18, 2010).
Full Text: [LSN]
Books
| Principles of the Law of Software Contracts (with Maureen A. O'Rourke) (St. Paul, Minnesota : American Law Institute Publishers, 2010). |  |
| Law for Society: Nature, Function, and Limits (with K. Clermont, S.L. Johnson, and R. Summers), (NY: Aspen Publishers; 2010). | |
Casebooks
| Contract and Related Obligation: Theory, Doctrine, and Practice (with Robert S. Summers) (St.Paul: West Publishing Co., 6th ed. 2011). |  |
Articles
"Defending Disclosure in Software licensing," (with Maureen O'Rourke) 78 University of Chicago Law Review 95 (2011).
Full Text: [HeinOnline] [Scholarship@CornellLaw]
"Contract Law in Context: The Case of Software Contracts," 45 Wake Forest Law Review 669 (2010).
Full Text: [HeinOnline] [Scholarship@CornellLaw]
"Principles of the Law of Software Contracts: Some Highlights," (with Maureen A. O'Rourke) 84 Tulane Law Review 1519 (2010).
Full Text: [HeinOnline] [Scholarship@CornellLaw]
"Rethinking Consideration in the Electronic Age" (with Maureen O'Rourke), 61 Hastings Law Journal 337-411 (2009).
Full Text: [Scholarship@CornellLaw]
"Maybe Dick Speidel Was Right about Court Adjustment," 46 San Diego Law Review 595-607(2009).
"U.C.C. Article 2 Express Warranties and Disclaimers in the Twenty-First Century," 11 Duquesne Business Law Journal 167 (2009).
"Warranties and Disclaimers in the Electronic Age," 11 Yale Journal of Law and Technology 1 (2008).
Full Text: [Scholarship@CornellLaw]
Books
| Finance, Financial Institutions and Financial Regulation (Coursebook forthcoming with Thomson-West) (2010). | |
| Global Issues in Financial Institutions Law (forthcoming) (with Michael P. Malloy & Heidi Mandanis Schooner, Thomson-West 2010). | |
Contributions to Books
| "The Structure of Distribution in Law & Economics," in Norms and Values in Law & Economics (forthcoming) (University of Chicago Press; Aristides N. Hatzis ed., 2010) | |
Articles
"The Analytics of Distribution," 20 Southern California Interdisciplinary Law Journal __ (forthcoming, 2011).
"Bubbles, Busts and Blame," 37 (1) Cornell Law Forum 14 (2011).
Full Text: [LSN]
"Bretton Woods 1.0: An Essay in Constructive Retrieval," Cornell Law Faculty Working Papers Paper 82 (2011).
Full Text: [Scholarship@CornellLaw]
"Forward: Interpreting - and Learning From? - Yet Another 'Meltdown'," 61 Syracuse Law Review 411 (2010).
Full Text: [LEXIS]
"Promise against Peril: Of Power, Purpose, and Principle in International Law," 17 ILSA Journal of International & Comparative Law 71 (2010).
“A Fixer-Upper for Finance” 87 Washington University Law Review 1213 (2010).
Full Text: [HeinOnline] [Scholarship@CornellLaw]
"Taking Distribution Seriously," (forthcoming) 59 Emory Law Journal __ (2010).
Full Text: [Scholarship@CornellLaw] [LSN]
"Making Sense of the Health-Care Reform Debate," 53 Challenge 28 (2010).
Full Text: [Scholarship@CornellLaw]
Working Papers
"The Death Penalty in Delaware: An Empirical Study" (With John H. Blume, Theodore Eisenberg, and Valerie P. Hans) Cornell Legal Studies Research Paper No. 08-025 (Aug 6, 2008) Available at SSRN
Full Text: [Scholarship@CornellLaw] [LSN]
Books
| Law for Society: Nature, Function, and Limits (with K. Clermont, R. Hillman, and R. Summers), (NY: Aspen Publishers; 2010). | |
Contributions to Books
| "Mental Retardation and the Death Penalty Five Years After Atkins" (with J Blume, and Christopher Seeds), in The Future of America's Death Penalty (Carolina Academic Press, 2009). |  |
| "Coker v. Georgia: of Rape, Race, and Burying the Past," in Death Penalty Stories (Foundation Press: Blume and Steiker eds., 2009). |  |
Articles
"When Lightning Strikes Back: South Carolina's Return to the Unconstitutional, Standardless Capital Sentencing Regime of the Pre-Furman Era" (with John H. Blume, Emily Paavola, and Keir Weyble), 4 Charleston Law Review 479-535 (2010).
Full Text: [HeinOnline] [Scholarship@CornellLaw]
"An Empirical Look at Atkins v. Virginia and its Application in Capital Cases" (with John H. Blume and Christopher Seeds) 76 Tennessee Law Review 627-639 (2009).
Full Text: [Scholarship@CornellLaw]
Back to a Future: Reversing Keith Simpson's Death Sentence and Making Peace with the Victim's Family Through Post-Conviction Investigation. (with John H. Blume) 77 UMKC Law Review 963-988 (2009).
Full Text: [HeinOnline] [Scholarship@CornellLaw]
"Of Atkins and Men: Deviations from Clinical Definitions of Mental Retardation in Death Penalty Cases," (with John H. Blume and Christopher Seeds) 18 Cornell Journal of Law and Public Policy 689-733 (2009).
Full Text: [Scholarship@CornellLaw]
"Does Unconscious Racial Bias Affect Trial Judges?" (with Jeffrey J. Rachlinski, et al.), 84 Notre Dame Law Review 1195 (2009).
Full Text: [HeinOnline]
"Competent Capital Representation: the Necessity of Knowing What Jurors Tell Us About Mitigation" (with John H. Blume and Scott Sundby) 36 Hofstra Law Review 1035 (2008)
Full Text: [Scholarship@CornellLaw]
Articles
"Measuring State Compliance with Right to Education Using Indicators: A Case Study of Colombia's Obligations Under the ICESCR," (forthcoming Human Rights Quarterly)
Full Text: [Scholarship@CornellLaw]
"Intent-to-Benefit: Individually Enforceable Rights under International Treaties," 44 Stanford Journal of International Law 63 (2008).
Books
| "Is the separation of powers the basis for the legitimacy of an internationalised judiciary?" in Highest Courts and Globalisation (Sam Muller and Sidney Richards, eds.) (Cambridge Univ. Press, 2010). |  |
| Judicial Transformations: The Rights Revolution in the Courts of Europe (Oxford University Press, 2009). |  |
| Judicial Deliberations: A Comparative Analysis of Judicial Transparency, Control, Debate and Legitimacy (Oxford: Oxford University Press, 2004), (reissued in paperback in 2009). |  |
Contributions to Books
| "Transforming Deliberations" in The Legitimacy of Highest Courts’ Rulings: Judicial Deliberations and Beyond (T.M.C. Assert Press, Nick Huls, Maurice Adams & Jacco Bomhoff, eds. 2009). |  |
Articles
"Who Is the 'Sovereign' in Sovereign Debt?: Reinterpreting a Rule-of-Law Framework from the Early Twentieth Century," 33 Yale Journal of International Law 63 (2008).
Full Text: [HeinOnline]
Articles
"Rethinking the Concept of Exclusion in Patent Law," 98 Georgetown Law Journal 1643 (2010).
Full Text: [WESTLAW]
Working Papers
"Rewiring Old Architecture: Why U.S. Courts Have Been So Slow and Uneven in Their Take-up of Digital Technology," Cornell Law Faculty Working Papers Paper 84 (2011).
Full Text: [Scholarship@CornellLaw]
"Abandoning Law Reports for Official Digital Case Law," Cornell Legal Studies Research Paper No. 11-01 (2011).
Full Text: [Scholarship@CornellLaw]
"Finding and Citing the 'Unimportant' Decisions of the U.S.
Full Text: [LSN]
Working Papers
"Forgetting Oblivion: The Demise of the Legislative Pardon," Cornell Law Faculty Working Papers. Paper 83. (2011)
Full Text: [Scholarship@CornellLaw]
Contributions to Books
"Transparency and Textuality: Wilkie Collins' Law Books," in The Secrets of Law (Stanford University Press; forthcoming, 2009). | |
Articles
“'Our Cities Institutions' and the Institution of the Common Law," 22 Yale Journal of Law & the Humanities 441 (2010).
Full Text: [HeinOnline]
"Summum and the Establishment Clause," 104 Northwestern University Law Review Colloquy 95 (2009).
Full Text: [LSN]
"Commerce in Religion" 84 Notre Dame Law Review 887 (2009).
"Like a Nation State" 55 UCLA Law Review 1621 (2008).
"Daniel Defoe and the Written Constitution," 94 Cornell Law Review 73 (2008).
Full Text: [Scholarship@CornellLaw]
“Religious Expression in the Balance: A Response to Murad Hussain’s Defending the Faithful," 117 Yale Law Journal Pocket Part 186 (2008).
Full Text: [WWW(2)]
Book Reviews
Review of Bradin Cormack, A Power to Do Justice: Jurisdiction, English Literature, and the Rise of Common Law, 1509-1625; 27 Law & History Review 685 (2009).
"Review of John Orth, How Many Judges Does It Take to Make a Supreme Court,” 26 Law & History Review 453 (2008).
Books
| A Guide to Teaching Lawyering Skills (with Joel Atlas, Lara Gelbwasser Freed, John Mollenkamp, Ursula H. Weigold, & Michelle A. Fongyee Whelan) (Durham, NC, Carolina Academic Press, 2012). |
Books
The Food and Financial Crises in Sub-Saharan Africa: Origins,Impacts,and Policy Implications ( Muna B. Ndulo and David R. Lee, eds.) ( CAB International, 2012). |  |
| "Constitution Making and Zimbabwe" in Framing the State in Times of Transition: Case Studies in Constitution Making (Laurel Miller, ed.) (US Peace Institute, 2010). |  |
| Failed and Failing States: The Challenges to African Resonstruction (Muna Ndulo and Margaret Grieco, eds.) (Cambridge Scholars Publications, 2010). |  |
Power, Gender and Social Change in Africa (Cambridge Scholars Publishing; Muna Ndulo & Margaret Grieco eds., 2009). |  |
| Africa's Finances: The Contribution of Remittances (Cambridge Scholars Press; R Bardouille, Muna Ndulo, Margaret Grieco, eds., 2008) |  |
Contributions to Books
"Zimbabwe's Unfulfilled Struggle for a Legitimate Constitutional Order" in Framing the State in Times of Transition: Case Studies in Constitution Making (Washington, DC : United States Institute of Peace; Laurel E. Miller, ed. with Louis Aucoin, 2010). |  |
| "The Role of Judicial Reform in Development and Transitional Justice" (with Roger Duthie), in Transitional Justice and Development: Making Connections (Social Science Research Council, New York; Pablo de Greiff & Roger Duthie eds., 2009). |  |
| "The Commission and the Court under the African Human Rights System," Second Revised Edition of International Human Rights Monitoring Mechanisms: Essays in Honor of Jakob Th. Moller (Martinus Nijhoff pub; G. Alfredsson, J. Grimheden, B. G. Ramcharan, and A. de Zayas, eds., 2009). |  |
| "Chinese Investments in Africa: A Case Study of Zambia," in Crouching Tiger, Hidden Dragon? : Africa and China (University of KwaZulu-Natal Press; Kweku Ampiah & Sanusha Naidu, 2008). |  |
| "The African Commission and Court under the Africa Human Rights System," in Africa's Human Rights Architectural (Center for Conflict Resolution, Fanele, Auckland Park, Johannesburg; John Akokpari & Daniel Shea Zimbler, eds., 2008). |  |
Articles
"United Nations Peacekeeping Operations and Security and Reconstruction" 44 Akron Law Review 769-807 (2011).
Full Text: [HeinOnline] [Scholarship@CornellLaw]
"African Customary Law, Customs, and Women's Rights," 18 Indiana Journal of Global Legal Studies 87-120 (2011).
Full Text: [HeinOnline] [Scholarship@CornellLaw]
"Free and Fair Elections, Violence and Conflict" (with Sara Lulo), 51 Harvard International Law Journal Online 155 (2010).
Full Text: [WWW(2)] [Scholarship@CornellLaw]
"The United Nations Responses to the Sexual Abuse and Exploitation of Women and Girls By Peacekeepers During Peacekeeping Missions," 27 Berkeley Journal of International Law 127 (2009).
Full Text: [Scholarship@CornellLaw]
"Mineral Development Contracts in Zambia: The Case for Renegotiation," 5 Zambia Analysis (April 2008).
"Challenge of Devolution of Powers to Local Communities in the SADC Region," Africa Notes, (Cornell University, Winter 2008).
Books
| Defending Humanity: When Force is Justified and Why (with G. P. Fletcher) (Oxford University Press, 2008). |  |
Contributions to Books
| "Joint Intentions" in Rethinking Criminal Law Theory:New Canadian Perspectives in the Philosophy of Domestic, Transnational, and Internatinal Criminal Law (Hart Publishing, Oxford and Portland, Oregon, Francois Tanguay-Renaud and James Stribopoulos, eds. 2012). |  |
| "Attempt, Conspiracy, and Incitement to Commit Genocide" in The UN Genocide Convention (Oxford University Press: Paola Gaeta ed., 2009). |  |
Full Text: [Scholarship@CornellLaw]
Encyclopedia Essays in Oxford Companion to International Criminal Justice (Oxford; New York: Oxford University Press; Antonio Cassese ed. 2009): Aggression, Aiding and Abetting, Murray Bernays, Conspiracy, Demjanjuk, Ex Parte Quirin, Excuses and Justifications, Filartiga, Homma, Inchoate Offenses, Intoxication, Kadic v. Karadzic, Krupp and Others, Maltzer and Others, Mental Disease, Mistake of Fact, Mistake of Law, Necessity and Duress, Self Defense, Sosa v. Machlain, US Military Tribunals Sitting at Nuremberg. |  |
| "Peace, Security, and Prosecutorial Discretion," in The Emerging Practice of the International Criminal Court (Leiden; Boston: Martinus Nijhoff Publishers; C. Stahn and G. Sluiter eds. 2009). |  |
Full Text: [LSN]
| "Towards a Unique Theory of International Criminal Sentencing," in International Criminal Procedure: Towards a Coherent Body of Law (London: CMP Publishing; G. Sluiter, Sergey Vasiliev eds., 2009). |  |
Full Text: [Scholarship@CornellLaw]
| Prosecutor v. Stakic: “The Co-Perpetrator Model of Joint Criminal Enterprise,” 14 Annotated Leading Cases of International Criminal Tribunals 739 (2008). |  |
Full Text: [LSN]
Articles
"Nash Equilibrium and International Law", 96 Cornell law Review 869 (2011).
Full Text: [HeinOnline]
"Joint Intentions to Commit International Crimes," 11 Chicago Journal of International Law 693 (2010). To be entitled "Joint Intentions" in Rethinking Criminal Law Theory (François Tanguay-Renaud & James Stribopoulos eds., forthcoming 2011).
Full Text: [HeinOnline] [Scholarship@CornellLaw]
"The Torture Lawyers: A Reply to Parry and Harel," 51 Harvard International Law Journal Online 96 (2010).
Full Text: [WWW(2)] [Scholarship@CornellLaw]
"The Torture Lawyers," 51 Harvard International Law Journal 193 (2010).
Full Text: [Scholarship@CornellLaw]
"Meta-Theory of International Criminal Procedure: Vindicating the Rule of Law," 14 UCLA Journal of International Law and Foreign Affairs (2009).
Full Text: [HeinOnline] [Scholarship@CornellLaw]
"Group Think: the Law of Conspiracy and Collective Reason," 98 Journal of Criminal Law & Criminology 147 (2008).
"The Bounds of Necessity," 6 Journal of International Criminal Justice 289 (2008).
"The Law as Cruelty: Torture as an International Crime," 6 Journal of International Criminal Justice (guest editor with G. P. Fletcher) Special Issue, (2008).
Books
| An Introduction to Property Theory (with Gregory S. Alexander) (Cambridge University Press, Cambridge Introductions to Philosophy and Law, 2012). |
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| Property Outlaws : How Squatters, Pirates, and Protesters Improve the Law of Ownership (with Sonia Katyal) (Yale University Press, 2010). |  |
| Property and Community (New York : Oxford University Press; ed. with Gregory Alexander, 2010). |  |
Contributions to Books
| "The Costs of Regulation or the Consequences of Poverty? : Progressive Lessons from de Soto" in Hernando de Soto and Property in a Market Economy (Farnham, England ; Burlington, VT : Ashgate Pub., D. Benjamin Barros ed, 2010). |  |
Articles
"The Illusory Right to Abandon," 109 Michigan Law Review 191 (2010).
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"Properties of Community" (with Gregory S. Alexander), 10 Theoretical Inquiries in Law 127 (2009).
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"Land Virtues," 94 Cornell Law Review 821 (2009).
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"A Statement of Progressive Property," (with Laura S. Underkuffler and Gregory Alexander) 94 Cornell Law Review 743 (2009).
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Books
| Behavioral Law and Economics (Edward Elgar Publishing; editor, 2009). |  |
Contributions to Books
| "Institutional Design Capitalizing on the Intuitive Nature of Decision Making" (with Mark Lubell, et al.), in Better Than Conscious: Exploiting the Capacity of Humans to Reach Decicions by Both Serial and Parallel Processing of Information (Christopher Engel & Wolf Singer, eds. 2008). |  |
Articles
"Implicit Bias, Election '08, and the Myth of a Post-Racial America" (with Gregory S. Parks), 37 Florida State University Law Review 659 (2010).
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"Why Heightened Pleading- Why Now?," 114 Penn State Law Review 1247-1256 (2010).
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"The Hidden 'Judiciary': An Empirical Examination of Executive Branch Justice," (with Chris Guthrie, and Andrew Wistrich) 58 Duke Law Journal 1477 (2009).
"Implicit Race Bias and the 2008 Presidential Election: Much Ado About Nothing?," (with Gregory Scott Parks) 157 University of Pennsylvania Law Review PENNumbra 210 (2009).
"Barack Obama, Implicit Bias, and the 2008 Election" (with Gregory S. Parks) 35(1) Cornell Law Forum 8 (2009)/
Full Text: [WWW(2)]
"Does Unconscious Racial Bias Affect Trial Judges?" (with Sheri Lynn Johnson, et al.), 84 Notre Dame Law Review 1195 (2009).
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"Heuristics, Biases, and Philosophy," 43 Tulsa Law Review 865-883 (2008).
"Blinking on the Bench: How Judges Decide Cases" (with C. Guthrie, & A. Wistrich), 93 Cornell Law Review 1 (2007); (discussed in the ABA Journal, June 2008).
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Books
| The Two Faces of American Freedom (Harvard University Press, 2010). |  |
Articles
"Pax Arabica? Provisional Sovereignty and Intervention in the Arab Uprising," (with Asli U. Bali) 42 California Western International Law Journal 321 (2011 - 2012).
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"American Overreach: Strategic Interests and Millennial Ambitions in the Middle East" (with Asli Bali), 15 Geopolitics 210 (2010).
"Statesman or Scribe? Legal Independence and the Problem of Democratic Citizenship," 77 Fordham Law Review 1665 (2009).
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"Obama and the New Age of Reform," 16 Constellations 271 (2009) Cornell Law Faculty Publications, Paper # 32 (2009).
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Book Reviews
Working Papers
"From Multiculturalism to Technique: Feminism, Culture and the Conflict of Laws Style", 64 Stanford Law Review (2012); Cornell Legal Studies Research Paper No. 11-30 (2011).
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Books
Collateral Knowledge: Legal Reason in the Global Financial Markets (Chicago Series in Law and Society) (University of Chicago Press; 2011). |  |
Contributions to Books
| "Placeholders: Engaging the Hayekian Critique of Financial Regulation," in Collateral Knowledge: Legal Reasoning in the Global Financial Markets chapter 5 (Annelise Riles, ed., forthcoming, 2010). | |
Full Text: [Scholarship@CornellLaw]
| "Is the Law Hopeful?," in Hope in the Economy (H. Miyazaki and R. Swedberg eds., forthcoming, 2010). | |
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| "Ho ni okeru kibo towa nanika? What kind of hope does law entail?" in Kibogaku (Hope Studies), (Tokyo: Tokyo University Press, Genda Yuji and Uno Shigeki, eds., 2009). |  |
| "Cultural Conflicts," in Law and Anthropology (Oxford University Press; Michael Freeman and David Napier, eds., 89-125, 2009). |  |
| "Private Global Governance, Legal Knowledge, and the Legitimacy of the State" in Beyond the State- Rethinking Private Law. (Tubingen: Mohr (Siebeck), Nils Jansen and Ralf Michaels eds. 2008), 181-205; 56(3) The American Journal of Comparative Law 527 (2008). | |
"And Never the Twain Shall Meet? An Exchange on the Strengths and Weaknesses of Anthropology and Economics in Analyzing the Commons" (with Ravi Kanbur), in The Contested Commons: Conversations Between Anthropologists and Economists, (Blackwell Press, Pranab Bardhan and Isha Ray, eds. 2008). p266-79 |  |
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Articles
"Collateral Expertise: Legal Knowledge in the Global Financial Markets," 51 Current Anthropology 795-818 (2010).
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"Hope in the Law," 35 Cornell Law Forum 8 (Fall 2009).
"International Law in Domestic Courts: A Conflict of Laws Approach" (with K. Knop and R. Michaels) 103 American Society of International Law Proceedings (2009).
Full Text: [Scholarship@CornellLaw] [LSN]
"Reforming Knowledge? A Socio-Legal Critique of the Legal Education Reforms in Japan" (with Takashi Uchida), 1 Drexel Law Review 3 (2009).
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"The Anti-Network: Global Private Law, Legal Knowledge, and the Legitimacy of the State," 56 American Journal of Comparative Law 605 (2008).
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Forward: in Transdisciplinary Conflict of Laws (with K. Knop and R. Michaels) 71(3) Law & Contemporary Problems 1 (2008).
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"Cultural Conflicts," in Transdisciplinary Conflict of Laws 71(3) Law & Contemporary Problems 273 (2008).
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Contributions to Books
| Age and Disability Within the Scope of American Discrimination Law ( with Garth Glissman) Chapter 8 in Disability and Aging Discrimination in Law: Perspevctives in Law and Psychology (Springer 2011). |
| "Predicting the Future of Employment Law," in Global Issues in Employment Law (West, Samuel Estreicher, Miriam Cherry eds., 2008), excerpted from 76 Indiana Law Journal 29 (2001). |  |
Articles
"Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?" (with Kevin Clermont), 3 Harvard Law and Policy Review 103 (2009).
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Books
| Demystifying Legal Reasoning (with Larry Alexander) (New York : Cambridge University Press, 2008). |  |
Casebooks
| Ames, Chafee, and Re On Remedies: Cases and Materials (with Theodore Eisenberg and Joseph R. Re) (New York: Foundation Press, 2012). |
Contributions to Books
"The Rules of Obligations," in The Goals of Private Law (Oxford; Portland, Or.: Hart; Andrew Robertson, Hang Wu Tang, eds., 2009). |  |
| "Features of Judicial Reasoning," in The Psychology of Judicial Decision Making (D. Klein & G. Mitchell, eds., 2010). |  |
| "Law and Philosophy at Odds" (with Larry Alexander), in On Law and Philosophy in |  |
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| "Legal Positivism and the Taxonomy of Private Law," in Structure and Justification in Private Law: Essays for Peter Birks (Oxford : Hart Publishing Ltd; Charles Rickett, ed., 2008). |  |
| "The Story of Conley: Precedent by Accident," in Civil Procedure Stories 281 (Kevin M. Clermont, ed., 2d ed. 2008). |  |
Articles
"Why In Re Omegas Group Was Right: An Essay on the Legal Status of Equitable Remedies," 92 Boston University Law Review 885 (2012).
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" Interpreting Tort Law," 39 Florida State University Law Review 227 (2011).
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"The Truth About Property Rules: Some Obstacles to the Economic Analysis of Remedies." 2 Washington University Jurisprudence Review 39-74 (2010).
"Legal Taxonomy," 15 Legal Theory 25-54 (2009).
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"Mandatory Arbitration for Customers but not for Peers: A Study of Arbitration Clauses in Consumer and Non-Consumer Contracts" (with G. Miller, and E. Sherwin), 92 Judicature 118 (2008).
"The Jurisprudence of Pleading: Rights, Rules, and Conley v. Gibson," 52 Howard Law Journal 73 (2008).
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"Arbitration's Summer Soldiers: An Empirical Study of Arbitration Clauses in Consumer and Nonconsumer Contracts," (with Theodore Eisenberg and Geoffrey P. Miller) 41 University of Michigan Journal of Law Reform 871 (2008).
Full Text: [Scholarship@CornellLaw]
"Unjust Enrichment and Creditors," 27 The Review of Litigation 141 (2008).
Full Text: [Scholarship@CornellLaw]
Books
| The Religious Left and Church-State Relations (Princeton University Press 2009). |  |
Casebooks
Leading Cases in Constitutional Law (with Choper, Fallon, Kamisar) (St. Paul, MN : Thomson/West, 2010.) |  |
| Leading Cases in Constitutional Law (with Choper, Fallon, Kamisar) (St. Paul, MN : Thomson/West, 2009.) |  |
| Leading Cases in Constitutional Law (with Choper, Fallon, Kamisar) (St. Paul, MN : Thomson/West, 2008.) |  |
| Supplement to The First Amendment: Cases, Comments, Questions (with Jesse H. Choper) (St. Paul: West Publishing Co., 4d ed., 2010, 2009, 2008, 2007, 2006). |  |
| Supplement to Constitutional Law: Cases, Comments, Questions (with Choper, Fallon, and Kamisar) (St. Paul: West Publishing Co., 10th ed. 2010, 2009, 2008, 2007) |  |
Articles
"Ed Baker: Friend and First Amendment Scholar," 12 University of Pennsylvania Journal of Constitutional Law 963 (2010).
Books
Law for Society: Nature, Functions, and Limits (with K. Clermont, R. Hillman, and S.L. Johnson), (NY: Aspen Publishers, 2010). | |
| Form and Function in a Legal System: A General Study (Cambridge University Press; 2010) (paperback version of 2006 ed.) |  |
| Supplements to The Uniform Commercial Code (with James J. White, ed.) (St. Paul, MN: West Group, 5th ed. 2005), (yearly, 2007-). |  |
Contributions to Books
| "Positivistic Theories About Law, Especially in Contrast to Natural Law Theories--A General Account," in Festschrift for Okko Behrends (Gottingen, Germany: Wallstein, 2008). | |
Contributions to Books
"Democratic Governance, Distributive Justice and Development," in Distributive Justice and International Economic Law (Cambridge University Press; Chi Carmody, Frank Garcia, John Linarelli, eds. forthcoming, 2010) | |
Full Text: [Scholarship@CornellLaw] [LSN]
| "Trade, Labor and Migration," in Social Regionalism in the Global Economy (forthcoming)(Routledge; Adelle Blackett, Christian Lévesque eds., 2010). | |
Articles
"Convergences and Divergences in International Legal Norms on Migrant Labor," 32 Comparative Labor Law & Policy Journal 405 (2011).
Full Text: [HeinOnline]
"Migrant Domestic Workers in Cairo: A Case Study of Informality in Legal and Economic Ordering," 58 American Journal of Comparative Law 987 (2010).
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Articles
"Takings and the Problem of Value: Grappling with Truth in Land-Restriction Cases," 11 Vermont Journal of Environmental Law 465 (2010).
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"Judicial Takings: A Medley of Misconceptions Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection," 61 Syracuse Law Review 203 (2011).
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Articles
"The Decision to Award Punitive Damages: An Empirical Study" (with Theodore Eisenberg, Michael Heise, and Nicole L. Walters), 2 Journal of Legal Analysis 2 (2010).
Full Text: [Scholarship@CornellLaw]
"Variability in Punitive Damages: An Empirical Assessment of the U.S. Supreme Court’s Decision in Exxon Shipping Co. v. Baker," (with T. Eisenberg, & M. Heise), 166 Journal of Institutional & Theoretical Economics 5 (2010).
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Books
| Torts: Cases and Materials (with Aaron Twerski and James A. Henderson, Jr.) (Wolters Kluwer/Aspen, 3rd. 2011). | |
| Lawyers and Fidelity to Law (Princeton University Press; 2010). |  |
| The Law Governing Lawyers: National Rules, Standards, and Statutes (with Susan R. Martyn and Lawrence J. Fox) (Aspen Law and Business, 2005 annual updates through 2011). | |
| Professional Responsibility: Examples and Explanations (Wolters Kluwer/Aspen, 3rd ed. 2010). |  |
Contributions to Books
| "The Craft of Legal Interpretation," in Interpretation of Law in the Age of Enlightenment (Yasutomo Morigiwa, Michael Stolleis and Jean-Louis Halperir, eds.) Springer, 2011. |  |
| "Personal Integrity and the Conflict Between Ordinary and Institutional Values" in Legal Ethics: Professional Ethics and Personal Integrity (Tim Dare and W. Bradley Wendel, eds.) Cambridge Scholars Press 2010. | |
| Articles on Legal Ethics and Adversary System of Justice, in International Encyclopedia ofEthics (Blackwell Publishing, Hugh LaFollette, ed., forthcoming). | |
| "Legal Advising and the Rule of Law," in Reaffirming Legal Ethics : Taking Stock and New Ideas(Routledge; 2010). |  |
Articles
"Legal Ethics is about the Law, Not Morality or Justice: A Reply to Critics," 90 Texas Law Review 727 (2012). Cornell Legal Studies Research Paper No. 13-02
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"Three Concepts of Roles," 48 San Diego Law Review 547 (2011) (memorial symposium in honor of Fred Zacharias).
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"Explanation in legal Scholarship: The Inferential Structure of Doctrinal Analysis," 96 Cornell law Review 1035 (2011).
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Books
A Guide to Teaching Lawyering Skills (with Joel Atlas, Lara Gelbwasser Freed, John Mollenkamp, Andrea J. Mooney, Ursula H. Weingold) ( Durham, NC, Carolina Academic Press, 2012). |
Working Papers
'Sandbagging: Default Rules and Acquisition Agreements," 36 Delaware Journal of Corporate Law No.3 (2011). Cornell legal Studies Research Paper No. 12-19 (2012).
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"Creditors and Debt Governance" in Research Handbook on the Economics of Corporate Law (Edward Elgar Publishing; Claire Hill & Brett McDonnell, eds., 2011).
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Articles
"The Goldilocks Approach: Financial Risk and Staged Regulation," 97 Cornell Law Review 1267 (2012). Cornell Legal Studies Research Paper, No. 12-57 (2012).
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"Regulating for the Next Financial Crisis," 37(1) Cornell Law Forum 20 (2011).
"Destructive Coordination," 96 Cornell Law Review 323-364 (2011).
Full Text: [HeinOnline] [Scholarship@CornellLaw]
"Why Not a CEO Term Limit?," Boston University Law Review (forthcoming), Cornell Legal Studies Research Paper No. 011-05 (Feb. 13, 2011).
Full Text: [Scholarship@CornellLaw]
"Reframing Financial Regulation," 90 Boston University Law Review 1 (2010).
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