In this Article, we suggest that litigation can be analyzed as though it is a competitive research and development project. Developing this analogy, we present a two-stage real option model of the litigation process that involves sequential information revelation and bargaining over the surplus generated by early settlement. Litigants are risk-neutral and have no private…
Two recent decisions, one by the Supreme Court and one by the Ninth Circuit, have occasioned an ink spill of Exxon Valdez proportions and no little contention. The question, broadly stated, is when the First Amendment should protect speech alleged to constitute a threat by the speaker to kill or seriously injure someone. Given the level…
This Article considers the arguments regarding the choice between an ideal income tax and an ideal consumption tax, focusing on an argument first made by Atkinson and Stiglitz regarding neutral taxation of commodities. This argument shows that, under its assumptions, a properly designed consumption tax is Pareto superior to an income tax: it is either…
It is a basic axiom of American jurisprudence that legal issues are classified as either "jurisdictional" or "nonjurisdictional." If a rule or requirement is classified as jurisdictional, then "courts will interpret and apply it rigidly, literally, and mercilessly." Jurisdictional defects are absolutely fatal to a claim. Moreover, parties neither waive jurisdictional requirements nor consent to…
During the 2004 election cycle, Americans went online in unprecedented numbers to obtain and exchange information about candidates and campaign issues. In addition to facilitating political debate, this explosion of online political activity has galvanized substantial expenditures of money - over $ 27 million was spent on online advertisements, e-mail list services, and other Internet…
The abstract global ideas of sustainable development and of the rule of law meet in the forests of the tropics, where the absence of viable community forest management institutions is driving deforestation and, therefore, the larger legal and ecological stability of the region. This interaction needs to be better understood by rule of law theorists…
In light of the Supreme Court's decision this Term in Schaffer v. Weast, this Note analyzes the current state of special education law and argues that parents, attorneys, and advocates should look beyond the Individuals with Disabilities Education Act (IDEA) to Section 504 in the post-Schaffer public school. This Note shows how these two standards…
For the last fifteen years or so, Justice Antonin Scalia and his sympathizers within and outside the academy have dominated discussion and debate over how best to interpret the Constitution. Their preferred methodology, "originalism," shorn for the moment of complications, essentially requires courts to follow the original meaning of constitutional text. Courts should accordingly determine…
