Recent Scholarship

Where possible, links are provided for the full text of items listed below. Preference is given to freely accessible sources, but access to some materials may be available only through institutional database licenses or on a pay-for-use basis.

The full text of scholarship produced by Duke Law faculty members can also be found in the Law School's Faculty Scholarship Repository, and in links from individual faculty members' bibliographies on the Faculty Profile pages.

 

Forthcoming

  • Book Review, Journal of Moral Philosophy (forthcoming) (reviewing Dale Dorsey, The Basic Minimum: A Welfarist Approach (2012))
  • Book Review, Oeconmia (forthcoming) (reviewing Marc Fleurbaey & François Maniquet, A Theory of Fairness and Social Welfare (2011))
  • Extended Preferences and Interpersonal Comparisons, Economics & Philosophy (forthcoming)
  • The Oxford Handbook of Well-Being and Public Policy  (Oxford University Press, forthcoming 2014) (editor with Marc Fleurbaey)
  • Value and Cost-Benefit Analyses, in Oxford Handbook of Value Theory (forthcoming 2014)
  • Welfarism, Equity, and the Choice between Statistical and Identified Victims, in Statistical versus Identified Lives (I. Glenn Cohen, Norman Daniels & Nir Eyal eds., Harvard University Press, forthcoming)

Works in Progress

Books

Articles and Essays

Books

Articles and Essays

Articles and Essays

Newspaper Articles and Commentary

  • Has the Great Big-Bank Die Off Begun?, Seeking Alpha (July 11, 2012)

Works in Progress

Articles and Essays

Books

Articles and Essays

Articles and Essays

  • Individualized Education Program in, Special Education Advocacy ch. 5 (Ruth Colker & Julie Waterstone eds., 2011) (with Jane R. Wettach)

Books

  • Problems in Trial Advocacy (NITA 2006, 2007, 2011, 2013) (with Anthony J. Bocchino)

Articles and Essays

Newspaper Articles and Commentary

  • 6 Ways to Get Happy (or Less Miserable), The Careerist (January 7, 2014 at 2:20pm)
  • Obama's Payback to Labor Thwarted by DC Court, Daily Caller  (January 28, 2013, 9:25am)
  • Six Big Myths About Lawyers, The Careerist (February 19, 2013, 2:37pm)
  • The Unhappiest Job in America?, Talent Management (April 4, 2013)
  • Will Unions Kill Twinkies Again?, The Daily Caller (May 2, 2013 at 3:04p.m.)
  • A New Year’s Resolution for Labor, Daily Caller (January 3, 2012, 12:41pm)

Articles and Essays

Newspaper Articles and Commentary

  • Public by Sufferance Alone: The Worst of 2012 , Huffington Post (January 10, 2013, 8:51am) (with Jennifer Jenkins)
  • Presumed Guilty, Financial Times (February 23, 2011)

Forthcoming

Books

Articles and Essays

Newspaper Articles and Commentary

  • Terrorists, Pirates, and Drug Traffickers: Customary International Law and U.S. Criminal Prosecutions, Lawfare (January 11, 2013, 10:34 am)
  • Foreign Official Immunity in U.S. Courts Since Samantar, Lawfare (December 17, 2012, 6:51am)

Forthcoming

Works in Progress

Forthcoming

Articles and Essays

Newspaper Articles and Commentary

  • US-Europe Fight Over Airline Emissions Could Help Talks On Climate Change, Christian Science Monitor (January 15, 2013)

Forthcoming

Issues Edited

Articles and Essays

Forthcoming

  • Appeals, in International Encyclopedia of the Social & Behavioral Sciences (forthcoming) (with Marin K. Levy)  

Works in Progress

  • Book Review (forthcoming) (reviewing Jeffrey O'Connell & Thomas E. O'Connell, Political and Legal Adventurers: From Marx to Moynihan (2009))
  • The War on Poverty and Guaranteed Student Loans: The Consequences for the Legal Profession

Books

Articles and Essays

Newspaper Articles and Commentary

  • Bring the Justices Back to Earth (Op-Ed.), New York Times, April 10, 2012, at A23

Forthcoming

Works in Progress

Books

Articles and Essays

Books

Articles and Essays

Articles and Essays

Articles and Essays

Books

Issues Edited

Articles and Essays

Forthcoming

Books

Articles and Essays

Forthcoming

Articles and Essays

Forthcoming

  • Do the Securities Laws Matter? The Rise of the Leveraged Loan Market, Journal of Corporation Law (forthcoming)
  • Do the Securities Laws Matter? The Rise of the Leveraged Loan Market, Journal of Corporation Law (forthcoming)

Works in Progress

Forthcoming

Books

Articles and Essays

Newspaper Articles and Commentary

  • The Skeptical Principal, Concurring Opinions (May 21, 2013 at 9:00am) (Symposium on The Essays of Warren Buffett)
    The Essays of Warren Buffett: Lessons for Corporate America - See more at: http://www.concurringopinions.com/archives/category/symposium-the-essays-of-warren-buffett-lessons-for-corporate-america#sthash.zKSk5Am7.dpuf
    The Essays of Warren Buffett: Lessons for Corporate America - See more at: http://www.concurringopinions.com/archives/category/symposium-the-essays-of-warren-buffett-lessons-for-corporate-america#sthash.zKSk5Am7.dpuf

Forthcoming

  • Clever or Clueless? Observations About Bombing Norm Debates, in Bombing: How Legal and Ethical Norms Change (Matthew A. Evangelista ed., forthcoming)

Articles and Essays

Newspaper Articles and Commentary

  • Top Ten Reasons Sen. Gillibrand's Bill is the Wrong Solution to Military Sexual Assault, Just Security (December 9, 2013 at 11:30am)
  • Forum: The Moral Responsibility of Volunteer Soldier, 38 Boston Review 31 (Nov/Dec 2013)
  • A Peek But Still No Clear Policy on Using Force Against U.S. Citizens, Newsobserver.com  (February 6, 2013)
  • Despite McCain's Words, Our Military Needs More, Not Fewer Women, Newsobserver.com (June 10, 2013)
  • No Panacea in President's Counterterrorism Policy, Huffington Post (May 30, 2013 at 1:43p.m.)
  • Bad Policies Breed Bad Behavior on Modern Battlefield Situations, Cleveland Plain Dealer, April 22, 2012
  • Charles Dunlap on the Discussion Started by Mark Mazzetti, The Drone Zone, Lawfare, July 12, 2012
  • We Need New Policy, Not DrafteesNew York Times, March 18, 2012 (Room for Debate)

Works in Progress

  • Empirical Use of Behavioral Genetics and Neuroscience in Criminal Law, 2004-2010
  • On Cognitive Liberty
  • Privacy Lost and Found

Articles and Essays

Books

Works in Progress

  • Hindsight Standards
  • Silence

Issues Edited

Articles and Essays

Forthcoming

Works in Progress

Books

Articles and Essays

Newspaper Articles and Commentary

  • The Content of One's Racial Character, Huffington Post (April 4, 2013, 7:49am) (with Devon Carbado)

Works in Progress

Articles and Essays

Forthcoming

  • The Influence of the Andean Intellectual Property Regime on Access to Medicines in Latin America, in Balancing Wealth and Health: The Battle over Intellectual Property and Access to Medicines in Latin America  (Rochelle Dreyfuss & César Rodríguez-Garavito eds., forthcoming) (with Karen J. Alter)
  • The Law and Politics of the Andean Tribunal of Justice, (Oxford University Press, forthcoming) (with Karen J. Alter)
  • Pharmaceutical Patents and the Human Right to Health: The Contested Evolution of the Transnational Legal Order on Access to Medicines, in Transnational Legal Orders (Terence Halliday & Greg Shaffer eds., forthcoming 2013)

Works in Progress

  • Designing Adjudicatory Systems for International Economic Agreements, Project on ASEAN Integration Through Law
  • The Codification of Foreign Official Immunity (with Tim Meyer)

Books

Articles and Essays

Books

Articles and Essays

Works in Progress

  • Problematic Rights and Rhetoric in the Trafficking-Terrorism Nexus

Books

Articles and Essays

  • Unpacking the Trafficking-Terror Nexus, in Gender National Security, and Counter-Terrorism: Human Rights Perspectives (Margaret L. Satterthwaite & Jayne C. Huckerby eds., 2013)
  • Introduction, in Gender, National Security, and Counter-Terrorism: Human Rights Perspectives 1-14 (Margaret L. Satterthwaite & Jayne C. Huckerby eds., 2013) (with Margaret L. Satterthwaite)
  • Endless Questions, in The Guantanamo Lawyers: Inside a Prison, Outside the Law 384-386 (Mark P. Denbeaux & Jonathan Hafetz eds., 2011)

Articles and Essays

Newspaper Articles and Commentary

  • Public by Sufferance Alone: The Worst of 2012 , Huffington Post (January 10, 2013, 8:51am) (with James Boyle)

Forthcoming

  • In the Shadow of Crisis: The Creation of International Courts in the Twentieth Century, 55 Harvard International Law Journal (forthcoming 2014)
  • Reverse-Rhetorical Entrapment: Naming and Shaming as a Two-Way Street, 46 Vanderbilt Journal of Transnational Law (forthcoming)

Articles and Essays

Forthcoming

  • How Do Courts Establish and Maintain Legitimacy?, in Oxford Handbook of American Law and the Judiciary (Lee Epstein & Stefanie A. Lindquist eds., forthcoming)

Works in Progress

Books

Articles and Essays

  • Reconsidering Judicial Preferences, 16 Annual Review of Political Science 11-31 (2013) (with Lee Epstein)

Forthcoming

Articles and Essays

Books

  • Intellectual Property: Cases and Materials (West Publishing, 1998; 2d ed., 2003; 3d ed., 2007; 4th ed., 2012) (with others) & Teacher's Manual 2003

Articles and Essays

Forthcoming

  • The Politics of Statutory Interpretation, 89 Notre Dame Law Review (forthcoming 2014) (reviewing Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012))

Articles and Essays

Articles and Essays

Works in Progress

Books

Articles and Essays

Newspaper Articles and Commentary

  • Viewpoints: Cuts Will Make Federal Judiciary Mediocre, Sacramento Bee (April 3, 2013, 12:00am)
  • The Constitution On Your Corner, National Law Journal (January 9, 2012)

Forthcoming

  • Appeals, in International Encyclopedia of the Social & Behavioral Sciences (forthcoming) (with Paul D. Carrington)
  • Judging Injustice on Appeal, 123 Yale Law Journal (forthcoming)

Books

Articles and Essays

Newspaper Articles and Commentary

  • What $18 Billion in 'Enforcement-Only' Buys, News & Observer (January 9, 2013)

Articles and Essays

Works in Progress

  • Guide to Environmental Justice and Protection in North Carolina (with grant support from Z. Smith Reynolds Foundation)

Articles and Essays

Newspaper Articles and Commentary

  • NC Must Say No to Allowing Fracking Secrets, NewsObserver.com (November 21, 2013) (with Matthew McFeeley)
  • N.C. Lawmakers Passed Bad Billboard Bill; Veto it, Governor, For the Record, Charlotte Observer (August 1, 2013)
  • Va. Doesn’t Need to Mess Around With Uranium, Washington Post (January 4, 2013)
  • Which is it Mitch?, The Broccoli Horrible (September 27, 2013, 11:31 am)

Forthcoming

  • Private Investment Companies and the JOBS Act, 20 Investment Lawyer (forthcoming)

Articles and Essays

  • Family Offices, in Investiment Adviser Regulation: A Step-By-Step Guide to Compliance and the Law, ch. 59 (3d ed., 2013)
  • Protection Against Conflicts of Interest, in Mutual Funds and Exchange Traded Funds Regulation, Ch.12 (Clifford E. Kirsch ed., 3d ed. 2013)

Forthcoming

Articles and Essays

Forthcoming

  • HIV/AIDS in the Southern USA: A Disproportionate Epidemic, 26 AIDS Care: Psychological and Socio-medical Aspects of AIDS/HIV (forthcoming, published online August 14, 2013) (with others)

Articles and Essays

Forthcoming

  • Sex and the Ballot Box: Perception of Ballot Measures Regarding Same-Sex Marriage and Abortion in California, Journal of Public Policy (forthcoming) (with Craig M. Burnett)

Works in Progress

Articles and Essays

  • Cheap, Easy or Connected: The Conditions for Creating Group Coordination, 86 Southern California Law Review 495-516 (2013) (with Daneil B. Rodriguez et. al.)
  • Cheap, Easy, or Connected: The Conditions for Creating Group Coordination, 86 Southern California Law Review 495-516 (2013) (with Daniel Rodriguez & Nicholas Weller)
  • Concepts of Law, 86 Southern California Law Review 517-570 (2013) (with Mark Turner)
  • Gaming Direct Democracy: How Voters' Views of Job Performance Interact with Elite Endorsements on Ballet Measures, 5 California Journal of Politics Policy 627-643 (2013) (with Craig M. Burnett)
  • Gaming Direct Democracy: How Voters’ View of Job Performance Interact with Elite Endorsements of Ballot Measures, California Journal of Politics and Policy (forthcoming 2013) (with Craig M. Burnett)
  • Knowledge and Networks: An Experimental Test of How Network Knowledge Affects Coordination, Social Networks (forthcoming 2013) (with Daniel Enemark & Nicholas Weller)
  • When Common Wisdom Is Neither Common Nor Wisdom: Exploring Voters' Limited Use of Endorsements On Three Ballot Measures, 97 Minnesota Law Review 1557- 1595 (2013) (with Craig M. Burnett)
  • Effects of Network Structure on Costly Coordination, in Association for Advancement of Artificial Intelligence Fall Symposium on Social Networks and Social Contagion (2012) (with Nicholas Weller)
  • Going Cognitive: Tools for Rebuilding the Social Sciences , in Grounding Social Sciences in Coginitive Sciences (Ron Sun ed., MIT Press 2012) (with Mark Turner)
  • Human Matching Behavior in Social Networks: An Algorithmic Perspective, PLoS ONE 7(8): e41900 doi:10.1371/journal.pone.0041900 (August 22, 2012) (with others)
  • Human Matching Behavior in Social Networks: An Algorithmic Perspective, 7 PLOS One e41900 (August 22, 2012) (with Lorenzo Coviello et.al.) (doi:10.1371/journal.pone.0041900)
  • The Challenge of Flexible Intelligence for Models of Human Behavior, in Association for the Advancement of Artificial Intelligence, Spring Symposium on Game Theory for Security, Sustainability and Health (2012) (with Mark Turner & Nicholas Weller)
  • The Mythology of Game Theory, in Proceedings of the International Conference on Social Computing, Behavioral-Cultural Modeling & Prediction. Springer Lecture Notes in Computer Science (Shanchieh Jay Yang et.al. eds., 2012)
  • The Theory of Minds Within the Theory of Games, in Proceedings of the International Conference on Artificial Intelligence (2012) (with Mark Turner & Nicholas Weller)
  • Agenda Power in the U.S. Congress in a Comparative Perspective, in Oxford Handbook of the American Congress Ch. 20 (Eric Schickler & Frances Lee eds., Oxford University Press 2011) (with Gary W. Cox)
  • Does More Connectivity Help Groups to Solve Social Problems?, in Proceedings of the ACM Conference of Electronic Commerce (2011) (with Daniel Enemark, Ramamohan Paturi & Nicholas Weller)
  • Pathways to Persuasion: How Neuroscience Can Inform the Study and Practice of Law, in Law and Neuroscience: Current Legal Issues, Volume 13 (Michael Freeman ed., Oxford University Press 2011) (with Cheryl Boudreau & Seana Coulson)
  • Statutory Interpretation: How Much Work Does Language Do? Deriving Interpretive Principles From a Theory of Communication and Lawmaking, 76 Brooklyn Law Review 979-996 (2011) (with Daniel B. Rodriguez)
  • Superstatutory Entrenchment: A Positive and Normative Interrogatory, 120 Yale Law Journal Online 387 (2011) (with Daniel Rodriguez)

Articles and Essays

  • From Charisma to Routine: Presiding over Catastrophe's Aftermath, 29 Negotiation Journal 119-123 (2013) (reviewing Kenneth R. Feinberg, Who Gets What: Fair Compensation After Tragedy and Financial Upheaval (2012))
  • Evaluating and Improving the MDL Process, 38 Litigation 26-32 (Spring 2012) (with Hon. John G. Heyburn II)
  • Litigation After "Natural" Disasters, 15th International Liability Forum 13-22 (Munich Re 2012)
  • The American Law Institute's New Principles Of Aggregate Litigation, 8 Journal of Law, Economics, & Policy 183-212 (2011) (with others)

Forthcoming

  • Non-State Law in the Hague Principles on Choice of Law in International Contracts, Festschrift (forthcoming)
  • On Liberalism and Legal Pluralism, in Transnational Law: Rethinking Law and Legal Thinking (Maduro, Tuori, Sankari eds, Cambridge University Press, forthcoming)
  • Was ist Recht jenseits des Staates? Eine Einführung [What is Law Beyond the State? An Introduction], in Transnationalisierung des Rechts (Gralf-Peter Calliess ed., forthcoming)

Books

Articles and Essays

Articles and Essays

Articles and Essays

Newspaper Articles and Commentary

  • Opportunities Exist for Progress, National Journal (January 9, 2013, 9:36 am)

Articles and Essays

Forthcoming

  • Terror and Integrity: Preventive Detention in the Age of Jihad (Oxford University Press, forthcoming)

Articles and Essays

Newspaper Articles and Commentary

  • Fracking: the Role of Eminent Domain, Raleigh News & Observer (June 7, 2012)

Forthcoming

  • The Conflicted Assumptions of Modern Constitutional Law, 5 Journal of Law, Philosophy & Culture (forthcoming)
  • The Constitution and the Commander in Chief (forthcoming)

Books

Articles and Essays

Forthcoming

  • After Nature: Living in the Anthropocene(Harvard University Press, forthcoming)
  • Introduction: Law and Neoliberalism, Law & Contemporary Problems (forthcoming) (with David Singh Grewal)

Articles and Essays

Newspaper Articles and Commentary

  • A Terrible Beauty, Avidly (February 15, 2013)
  • How the Ag-Gag Bill Would Make Criminals Out of Do-Gooders, Newsobserver.com (May 28, 2013)
  • Open the Slaughterhouses, New York Times (April 9, 2013 at A23)
  • How to be American Here in the Future, Huffington Post (November 9, 2012, 3:07pm)
  • Whiteness in the Age of Obama, Huffington Post (November 26, 2012, 4:43pm)

Works in Progress

  • U.S. Executive Branch Patent Policy, Global and Domestic (Oct 12, 2013)

Books

Articles and Essays

Newspaper Articles and Commentary

  • Patentable Subject Matter at the Supreme Court: An Exceptional Case?SCOTUSblog (Feb. 4, 2013, 12:22 PM)

Books

Articles and Essays

Forthcoming

Works in Progress

Articles and Essays

Newspaper Articles and Commentary

Books

  • Constitutional Theory: Arguments and Perspectives (1993, 2d ed. 2000, 3d ed. 2007, 4th ed. 2013) (with others)
  • Federal Courts in the Twenty-First Century (1996, 2d ed. 2002, 3d ed. 2007, Lexis-Nexis 4th ed. 2013) (with Fink & Tushnet)
  • Civil Procedure (Foundation Press, 2004, 2d ed. 2008, 3d ed. 2012 & 2013 Suppl.) (with Suzanna Sherry & Jay Tidmarsh)

Articles and Essays

Newspaper Articles and Commentary

  • Genesis Healthcare Corp. v. Symczyk: Losing Small Sure Beats Losing Big, Justice Watch (April 19, 2013 at 3:17 p.m.)

Forthcoming

Works in Progress

  • Alternative Theories of the Crime
  • Arms and Agents of the State
  • Full Faith and Credit to Laws
  • The Feigned Issue in the Federal System

Articles and Essays

Newspaper Articles and Commentary

Forthcoming

  • Endangered Species Protection in a Changing Climate, in Adapting to Climate Change (Carl Bauer & Lance Gunderson eds., forthcoming) (with Camille Parmesan et al.)
  • The Next Generation of Trade and Environment Conflicts: The Rise of Green Industrial Policy, Northwestern Law Review (forthcoming) (with Mark Wu)
  • Turning the World Upside Down: How Frames of Reference Shape Environmental Law, Environmental Law (forthcoming) (with Martin Doyle)

Books

  • The Practice and Policy of Environmental Law (Foundation Press, 2008, 2d ed. 2010, 3d ed. 2014) (with J.B. Ruhl, John Nagle & Alexandra Klass)
  • Concepts and Insights in Environmental Law and Policy (Foundation Press 2003, 2d ed. 2007, 3d ed. 2010, 4th ed. 2013)(with Barton Thompson, Jr.)
  • Drinking Water: A History (Overlook Press 2012, paperback edition 2013)
  • International Environmental Law and Policy (Foundation Press 1998, 2d ed. 2002, 3d ed. 2007, 4th ed. 2010, 5th ed. 2011) (with Durwood Zaelke & David Hunter) & Teacher's Manual and Treaty Supplement 2010

Articles and Essays

Newspaper Articles and Commentary

  • Our Water System Withstood Hurricane Sandy, but the Threats Aren't Over, Washington Post, November 9, 2012, at B03.

Books

Articles and Essays

Books

  • Environmental Regulation: Law, Science, and Policy (Aspen Publishers, 4th ed. 2003,  5th ed. 2006, 6th ed. 2009, 7th ed. 2013) (with Robert Percival, Alan Miller & James Leape) & Annual Supplements 1998-2002 & Statutory and Case Supplement with Internet Guide 2011-2014.

Newspaper Articles and Commentary

  • Why the Justice Department May be Right, Huffington Post (May 17, 2013 at 2:27p.m.)

Forthcoming

Works in Progress

Articles and Essays

Newspaper Articles and Commentary

  • Understanding the Dangers of a Debt Default, Constitution Daily (October 5 2013)

Forthcoming

Works in Progress

  • Bundling Is Not Commandeering: Taxing Versus Spending in NFIB (2014) (with Robert D. Cooter)
  • Madison's Reasoning (2014)

Issues Edited

Articles and Essays

Newspaper Articles and Commentary

  • Does CNN Deserve to be Reelected?, Huffington Post (November 8, 2012, 2:44 PM)
  • Romney, Women, and the Supreme Court, Huffington Post (November 5, 2012, 9:10 AM)

Forthcoming

  • Why the State Cannot Simply Abolish Marriage, 90 Indiana Law Journal (forthcoming)

Articles and Essays

Books

  • American First Amendment in the Twenty-First Century: Cases and Materials (Foundation Press 3d ed. 2002, 4th ed. 2011)

Articles and Essays

Articles and Essays

Newspaper Articles and Commentary

  • The Anti-Tesla Campaign: Where is that Old-Tyme Free Market Fervor, Huffington Post (June 5, 2013 at 2:55pm)

Articles and Essays

  • 'The Individualized Education Program' and "School Discipline and Students with Special Needs', in Special Education Advocacy ch. 5 and 7 (Ruth Colker & Julie Waterstone eds., 2011) (with Brenda Berlin & Julie Waterstone)
  • School Discipline and Students with Special Needs in, Special Education Advocacy ch. 7 (Ruth Colker & Julie Waterstone eds., 2011) (with Julie Waterstone)

Articles and Essays

Forthcoming

Works in Progress

  • Identifying Barriers to Optimal Malaria Policies Using a Systematic Literature Review and Stakeholder Engagement in East Africa (draft May 2013) (with Christopher Paul et al. )

Books

Articles and Essays

Forthcoming

Works in Progress

Books

  • The Supreme Court and the Constitutional Structure (West Publishing, 2012)

Articles and Essays

Newspaper Articles and Commentary

Forthcoming

  • Maybe Just a Little Bit Special, After All?, 63 Duke Law Journal (forthcoming)
  • The Almost-Restatement of Income Tax of 1954: When Tax Giants Roamed the Earth, Brooklyn Law Review (forthcoming)
  • Will the Federal Income Tax Have a Bicentennial? , Florida State University Law Review (forthcoming)

Books

Articles and Essays

Newspaper Articles and Commentary

  • How Congress Could Have Spared Us Tax-Day Headaches, BloombergView (May 8, 2013)
  • U.S. Income Tax -- 100 Years Old, and Almost Never Happened, The Globe and Mail (April 11, 2013, 5:00am)
  • When We Loved Form 1040, New York Times (April 1, 2013 at A19)

Forthcoming

Articles and Essays