Volume 60 May 2011 Number 8

Articles

Transmitting, Editing, and Communicating: Determining What “The Freedom of Speech” Encompasses

Stuart Minor Benjamin

Supervising Managed Services

James B. Speta

The Network Utility

Kevin Werbach

Essay

Agency Threats

Tim Wu

Note

Myspace, Yourspace, But Not Theirspace: The Constitutionality of Banning Sex Offenders From Social Networking Sites

Jasmine S. Wynton

Volume 60 April 2011 Number 7

Article

Environmental Harms, Use Conflicts, and Neutral Baselines in Environmental Law

Todd S. Aagaard

Lecture

Administrative Law in the 1930s: The Supreme Court’s Accommodation of Progressive Legal Theory

Mark Tushnet

Note

Promoting Progress with Fair Use

Joshua N. Mitchell

Volume 60 March 2011 Number 6

Article

Unbundling Risk

Lee Anne Fennell

Essay

Mohammed Jawad and the Military Commissions of Guantánamo

David J. R. Frakt

Notes

A Quest for Fair and Balanced: The Supreme Court, State Courts, and the Future of Same-Sex Marriage Review after Perry

Chase D. Anderson

Where Are My Children … and My Rights? Parental Rights Termination as a Consequence of Deportation

C. Elizabeth Hall

Volume 60     February 2011     Number 5

Articles

Executive Deference in U.S. Refugee Law: Internationalist Paths Through and Beyond Chevron

Bassina Farbenblum

Prescription for Fairness: A New Approach to Tort Liability of Brand-Name and Generic Drug Manufacturers

Allen Rostron

Notes

Relevance and Fairness: Protecting the Rights of Domestic-Violence Victims and Left-Behind Fathers under the Hague Convention on International Child Abduction

Noah L. Browne

“There Is Something Unique … about the Government Funding of the Arts for First Amendment Purposes”: An Institutional Approach to Granting Government Entities Free Speech Rights

Leslie Cooper Mahaffey

Volume 60     January 2011     Number 4

Articles

Blind Dates: When Should the Statute of Limitations Begin to Run on a Method-of-Execution Challenge?

Ty Alper

Rethinking Novelty in Patent Law

Sean B. Seymore

Notes

Fee Shifting in Investor-State Arbitration: Doctrine and Policy Justifying Application of the English Rule

David P. Riesenberg

Congressional Manipulation of the Sentencing Guideline for Child Pornography Possession: An Argument For or Against Deference?

John Gabriel Woodlee

Volume 60   November 2010   Number 3

Special Symposium Issue 2010 Civil Litigation Review Conference

Introduction

Progress in the Spirit of Rule 1

John G. Koeltl

Articles

Discovering a Better Way: The Need for Effective Civil Litigation Reform

John H. Beisner

Politics and Civil Procedure Rulemaking: Reflections on Experience

Paul D. Carrington

Judicial Case Management: Caught in the Crossfire

Steven S. Gensler

The Present Plight of the United States District Courts

Patrick E. Higginbotham

Defining the Problem of Cost in Federal Civil Litigation

Emery G. Lee III & Thomas E. Willging

Sanctions for E-Discovery Violations: By the Numbers

Dan H. Willoughby, Jr., Rose Hunter Jones, & Gregory R. Antine

Volume 60       October 2010       Number 1

Articles

From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure

Arthur R. Miller

Notes

Correcting Mandatory Injustice: Judicial Recommendation of Executive Clemency

Joanna M. Huang

War of the Words: How Courts Can Use Dictionaries Consistent with Textualist Principles

Phillip A. Rubin

The Arab-Israeli Conflict and Civil Litigation against Terrorism

Adam N. Schupack

Volume 59       May 2010       Number 8

Articles

Judicial Specialization and the Adjudication of Immigration Cases

Lawrence Baum

A Diversion of Attention? Immigration Courts and the Adjudication of Fourth and Fifth Amendment Rights

Jennifer M. Chacón

Restructuring Immigration Adjudication

Stephen H. Legomsky

The Rights of Others: Legal Claims and Immigration Outside the Law

Hiroshi Motomura

Constraint through Delegation: The Case of Executive Control over Immigration Policy

Cristina M. Rodríguez

Response

Practical Impediments to Structural Reform and the Promise of Third Branch Analytic Methods: A Reply to Professors Baum and Legomsky

Russell R. Wheeler

Volume 59      April 2010      Number 7

Article

The Last Bankrupt Hanged: Balancing Incentives in the Development of Bankruptcy Law

Emily Kadens

Administrative Law, Filter Failure, and Information Capture

Wendy E. Wagner

Tribute

Robinson O. Everett

Dean David F. Levi, Walter Thompson Cox III, Scott L. Silliman & James M. Markham

Notes

Protecting Shareholder Access to Director Elections: A Response to CA, Inc. v. AFSCME Urging the Adoption of a Blasius Standard of Review for the Exercise of a Fiduciary-Out Clause

Christopher Fawal

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Volume 59

Symposium on Evaluating Judging, Judges, and Judicial Institutions

In late September, a distinguished group of federal and state-court judges, legal scholars, and political scientists gathered at Duke Law School to discuss how best to study and rate judicial performance. The goal of the invitation-only, two-day workshop was to strengthen and broaden the theoretical foundation of empirical research to better evaluate the quality and legitimacy of judicial decisionmaking. Participants included an equal number of jurists, theoretical scholars, and empiricists who identified unanswered or inadequately addressed questions that can serve as the basis for discussion on how to advance empirical study of the judiciary.

Dean David F. Levi, former chief U.S. district judge for the Eastern District of California, organized the workshop, titled “Evaluating Judging, Judges and Judicial Institutions,” along with Professor G. Mitu Gulati of [...]]]>

Volume 59

Symposium on Evaluating Judging, Judges, and Judicial Institutions

In late September, a distinguished group of federal and state-court judges, legal scholars, and political scientists gathered at Duke Law School to discuss how best to study and rate judicial performance. The goal of the invitation-only, two-day workshop was to strengthen and broaden the theoretical foundation of empirical research to better evaluate the quality and legitimacy of judicial decisionmaking. Participants included an equal number of jurists, theoretical scholars, and empiricists who identified unanswered or inadequately addressed questions that can serve as the basis for discussion on how to advance empirical study of the judiciary.

Dean David F. Levi, former chief U.S. district judge for the Eastern District of California, organized the workshop, titled “Evaluating Judging, Judges and Judicial Institutions,” along with Professor G. Mitu Gulati of Duke Law School and Professor David E. Klein of the Woodrow Wilson Department of Politics at the University of Virginia, both of whom have undertaken scholarly research on the subject. The workshop was funded with a grant from the National Science Foundation.

The workshop produced nine short scholarly articles on topics ranging from how empiricists can improve their measurements of judges to why empiricists can never successfully measure judges. These articles are exclusively available on the Legal Workshop.

Currently available articles include:

Mitu Gulati, David E. Klein & David F. Levi, Evaluating Judges and Judicial Institutions: Reorienting the Perspective

Marin K. Levy, Kate Stith & José A. Cabranes, The Costs Of Judging Judges By The Numbers

Forthcoming articles include:

Joanna Shepherd, Diversity, Tenure, and Dissent (Available March 2, 2010)

Emily Sherwin, Investigating Judicial Responses to Rules (Available March 4, 2010)

Patrick S. Shin, Distinguishing Causal and Normative Questions in Empirical Studies of Judging (Available March 9, 2010)

Judge Harris Hartz, Evaluating Judges (Available March 11, 2010).

Jack Knight & Mitu Gulati, Talking Judges (Available March 16, 2010)

Alfred L. Brophy, Quantitative Legal History: Empirics and the Rule of Law in the Antebellum Judiciary (Available March 18, 2010)

Brian Z. Tamanaha, Devising Rule of Law Baselines: The Next Step in Quantitative Studies of Judging (Available March 25, 2010)

Please visit the Legal Workshop to access these articles and other short scholarly essays.

Volume 59      February 2010      Number 5

Article

Searching for Terrorists: Why Public Safety Is Not a Special Need

Ric Simmons

Lecture

Congressional Power over the Jurisdiction of Federal Courts: The Meaning of the Word “All” in Article III

William A. Fletcher

Notes

Wielding the Wand Without Facing the Music: Allowing Utilization Review Physicians to Trump Doctors’ Orders, but Protecting Them from the Legal Risk Ordinarily Attached to the Medical Degree

Katherine L. Record

Losing the Loss Calculation: Toward a More Just Sentencing Regime in White-Collar Criminal Cases

Derick R. Vollrath

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Volume 59      January 2010      Number 4

Articles

International Idealism Meets Domestic-Criminal-Procedure Realism

Stephanos Bibas & William W. Burke-White

Of Christmas Trees and Corpus Christi: Ceremonial Deism and Change in Meaning over Time

B. Jessie Hill

Essay

Struck by Stereotype: Ruth Bader Ginsburg on Pregnancy Discrimination as Sex Discrimination

Neil S. Siegel & Reva B. Siegel

Postscript

A Postscript to Struck by Stereotype

Ruth Bader Ginsburg

Note

Narrowing the Bankruptcy Safe Harbor for Derivatives to Combat Systemic Risk

Bryan G. Faubus

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Volume 59      December 2009      Number 3

Articles

Cybersieves

Derek E. Bambauer

The Limits of Advocacy

Amanda Frost

Notes

Constitutional Limits on Private Policing and the State’s Allocation of Force

M. Rhead Enion

The NCAA’s Lost Cause and the Legal Ease of Redefining Amateurism

Virginia A. Fitt

Not Peace, but a Sword: Navy v. Egan and the Case Against Judicial Abdication in Foreign Affairs

Jason Rathod

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Volume 59 November 2009 Number 2

Articles

How the Dissent Becomes the Majority: Using Federalism to Transform Coalitions in the U.S. Supreme Court

Vanessa Baird & Tonja Jacobi

Living Originalism

Thomas B. Colby & Peter J. Smith

Notes

Reasonableness Meets Requirements: Regulating Security and Privacy in Software

Paul N. Otto

Making Amends: Amending the ICSID Convention to Reconcile Competing Interests in International Investment Law

Kate M. Supnik

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Volume 59 October 2009 Number 1

Articles

Constraining Public Employee Speech: Government’s Control of Its Workers’ Speech to Protect Its Own Expression

Helen Norton

Notes

Rescuing the Hero: The Ramifications of Expanding the Duty to Rescue on Society and the Law

Amelia H. Ashton

When Insiders Become Outsiders: Parental Objections to Public School Sex Education Programs

Emily J. Brown

The Fiduciary Duty in Mutual Fund Excessive Fee Cases: Ripe for Reexamination

Emily D. Johnson

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Volume 58 May 2009 Number 8

Articles

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

Hon. Harry T. Edwards & Michael A. Livermore

A More Perfect System: The 2002 Reforms of the Board of Immigration Appeals

John D. Ashcroft & Kris W. Kobach

The NLRB in Administrative Law Exile: Problems with Its Structure and Function and Suggestions for Reform

Catherine L. Fisk & Deborah C. Malamud

Political Control of Federal Prosecutions: Looking Back and Looking Forward

Daniel Richman

Federalism Accountability: “Agency-Forcing” Measures

Catherine M. Sharkey

Depoliticizing Administrative Law

Cass R. Sunstein & Thomas J. Miles

The Parliament of the Experts

Adrian Vermeule

Administration of War

John Yoo

Comment

Comment on Professor Yoo, Administration of War

Richard H. Kohn

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Volume 58 April 2009 Number 7

Foreword

Measuring Judges and Justice

Jeffrey M. Chemerinsky & Jonathan L. Williams

Introduction

“Only Connect”: Toward a Unified Measurement Project

David F. Levi & Mitu Gulati

Articles

Economic Trends and Judicial Outcomes: A Macrotheory of the Court

Thomas Brennan, Lee Epstein & Nancy Staudt

The Warp and Woof of Statutory Interpretation: Comparing Supreme Court Approaches in Tax Law and Workplace Law

James J. Brudney & Corey Ditslear

Judicial Evaluations and Information Forcing: Ranking State High Courts and Their Judges

Stephen J. Choi, Mitu Gulati & Eric A. Posner

Judging the Judges

Frank B. Cross & Stefanie Lindquist

Remaking the United States Supreme Court in the Courts’ of Appeals Image

Tracey E. George & Chris Guthrie

The “Hidden Judiciary”: An Empirical Examination of Executive Branch Justice

Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich

Are Empiricists Asking the Right [...]]]>

Volume 58 April 2009 Number 7

Foreword

Measuring Judges and Justice

Jeffrey M. Chemerinsky & Jonathan L. Williams

Introduction

“Only Connect”: Toward a Unified Measurement Project

David F. Levi & Mitu Gulati

Articles

Economic Trends and Judicial Outcomes: A Macrotheory of the Court

Thomas Brennan, Lee Epstein & Nancy Staudt

The Warp and Woof of Statutory Interpretation: Comparing Supreme Court Approaches in Tax Law and Workplace Law

James J. Brudney & Corey Ditslear

Judicial Evaluations and Information Forcing: Ranking State High Courts and Their Judges

Stephen J. Choi, Mitu Gulati & Eric A. Posner

Judging the Judges

Frank B. Cross & Stefanie Lindquist

Remaking the United States Supreme Court in the Courts’ of Appeals Image

Tracey E. George & Chris Guthrie

The “Hidden Judiciary”: An Empirical Examination of Executive Branch Justice

Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich

Are Empiricists Asking the Right Questions about Judicial Decisionmaking?

Jack Knight

Predicting Court Outcomes through Political Preferences: The Japanese Supreme Court and the Chaos of 1993

J. Mark Ramseyer

Are Appointed Judges Strategic Too?

Joanna M. Shepherd

Responses

Justices as Economic Fixers: A Response to A Macrotheory of the Court

Scott Baker, Adam Feibelman & William P. Marshall

The Continuing Search for a Meaningful Model of Judicial Rankings and Why It (Unfortunately) Matters

Scott Baker, Adam Feibelman & William P. Marshall

Probing the Effects of Judicial Specialization

Lawrence Baum

A Response to Professors George and Guthrie, Remaking the United States Supreme Court in the Courts’ of Appeals Image

Michael Boudin

A Response to Professor Ramseyer, Predicting Court Outcomes through Political Preferences

Michael Boudin

No Warrant for Radical Change: A Response to Professors George and Guthrie

Erwin Chemerinsky

Do Judges Think? Comments on Several Papers Presented at the Duke Law Journal’s Conference on Measuring Judges and Justice

Robert Henry

A Response to Professor Knight, Are Empiricists Asking the Right Questions about Judicial Decisionmaking?

H. Jefferson Powell

On Doctors and Judges

Barak Richman

Just Because You Can Measure Something, Does It Really Count?

Laura Denvir Stith

Does the Supreme Court Follow the Economic Returns? A Response to A Macrotheory of the Court

Ernest A. Young & Erin C. Blondel

The Court and the Code: A Response to The Warp and Woof of Statutory Interpretation

Lawrence Zelenak

Book Review

Autocrat of the Armchair

David F. Levi

Interview

A Conversation with Judge Richard A. Posner

Notes

Applying Lawrence: Teenagers and the Crime against Nature

Daniel Allender

A Picture Imperfect: The Rights of Art Consignor-Collectors When Their Art Dealer Files for Bankruptcy

Hilary Jay

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Volume 58 March 2009 Number 6

Articles

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

Scott A. Moss

The Lost History of Governance and Equal Protection

V.F. Nourse, Sarah A. Maguire

Essay

Are American CEOs Overpaid, and, if So, What if Anything Should Be Done about It?

Richard A. Posner

Lecture

What Can Brown Do for You?: Neutral Principles and the Struggle over the Equal Protection Clause

Pamela S. Karlan

Notes

Restoring RLUIPAs Equal Terms Provision

Sarah Keeton Campbell

Abandonment and Reconciliation: Addressing Political and Common Law Objections to Fetal Homicide Laws

Douglas S. Curran

Fraud on the Market Gets a Minitrial: Eisen through In re IPO

Patricia Groot

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Volume 58 February 2009 Number 5

Articles

Judgment-Sharing Agreements

Christopher R. Leslie

Notes

Remembering Democracy in the Debate over Election Reform

Matthew Michael Calabria

A Question of Costs: Considering Pressure on White-Collar Criminal Defendants

Sarah Ribstein

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Volume 58 January 2009 Number 4

Articles

Chevron’s Mistake

Lisa Schultz Bressman

Money, Politics, and Impartial Justice

Joanna M. Shepherd

Notes

Avoiding Mere Incantations: Evaluating Success on Nonfee Claims When Determing Prevailing-Party Status under 42 U.S.C. § 1998

Jessica L. Brumley

Counting Offenses

Jeffrey M. Chemerinsky

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