The Iranian nuclear crisis reflects international worries about Iran’s intentions in developing a nuclear energy program with potential military applications. This Article suggests that strengthening existing international institutions to more effectively provide ongoing verification of the civilian character of the Iranian program offers a diplomatic avenue of resolving this crisis. The...
Detention Without End?: Reexamining the Indefinite Confinement of Terrorism Suspects Through the Lens of Criminal Sentencing
While there has been a great deal of focus on who may be detained in the armed conflict with al-Qaeda and associated forces (the so-called war on terror), there has been relatively little consideration of how long the government may hold individuals. The Article provides a new approach to this issue. It argues that review of long-term terrorism detentions should be addressed not merely through...
California’s Unloaded Open Carry Bans: A Constitutional and Risky, but Perhaps Necessary, Gun Control Strategy
California recently passed bans on openly carrying an unloaded gun in public, but these bans may ironically result in increased concealed carrying of loaded guns in public. Before the recent string of mass shootings in Arizona, Colorado, and Connecticut, and before the U.S. Senate’s failed effort to pass gun control legislation, California strengthened its already strict gun control framework by...
Transparently Opaque: Understanding the Lack of Transparency in Insurance Consumer Protection
Consumer protection in most domains of financial regulation centers on transparency. Broadly construed, transparency involves making relevant information available to consumers as well as others who might act on their behalf, such as academics, journalists, newspapers, consumer organizations, or other market watchdogs. By contrast, command-and-control regulation that affirmatively limits...
Exclusion, Punishment, Racism and Our Schools: A Critical Race Theory Perspective on School Discipline
Punitive school discipline procedures have increasingly taken hold in America’s schools. While they are detrimental to the wellbeing and to the academic success of all students, they have proven to disproportionately punish minority students, especially African American youth. Such policies feed into wider social issues that, once more, disproportionately affect minority communities: the school...
Football and the Infield Fly Rule
In a previous article, I defended baseball’s infield fly rule, the special rule long beloved by legal scholars, in terms of equitable balance in distribution of costs and benefits between competing teams. This essay applies those cost-benefit and equity insights to football. It explores several plays from recent Super Bowls, the cost-benefit balance on those plays, and the appropriate role in...
Against Endowment Theory: Experimental Economics and Legal Scholarship
Endowment theory holds the mere ownership of a thing causes people to assign greater value to it than they otherwise would. The theory entered legal scholarship in the early 1990s and quickly eclipsed other accounts of how ownership affects valuation. Today, one finds appeals to a generic “endowment effect” throughout the legal literature. Recent experimental results, however, suggest that the...
Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case
Crucial to the U.S. Supreme Court’s disposition of the constitutional challenge to the Affordable Care Act (ACA) was a hypothetical mandate to purchase broccoli, which the U.S. Congress never had considered and nobody thought would ever be enacted. For the five justices who concluded that the ACA exceeded Congress’s commerce power, a fatal flaw in the government’s case was its inability to...