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

  • The Oxford Handbook of Well-Being and Public Policy (forthcoming)
  • Value and Cost-Benefit Analyses (forthcoming)
  • Welfarism, Equity, and the Choice between Statistical and Identified Victims (forthcoming)
  • Book Review (forthcoming) (reviewing Marc Fleurbaey & Franois Maniquet, A Theory of Fairness and Social Welfare (2011))
  • Book Review (forthcoming) (reviewing Dale Dorsey, The Basic Minimum: A Welfarist Approach (2012))

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)

Books

Articles and Essays

Books

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

Forthcoming

  • New Problems for Subsidized Speech, 55 William & Mary Law Review (forthcoming)

Articles and Essays

Newspaper Articles and Commentary

  • 6 Ways to Get Happy (or Less Miserable), The Careerist (January 07, 2014)
  • Gerald Bard Tjoflat: A Profile, 11 11th Circuit Historical News (January 01, 2014 1, 18-23)
  • Will Unions Kill Twinkies Again?, The Daily Caller (May 02, 2013)
  • The Unhappiest Job in America?, Talent Management (April 04, 2013)
  • Six Big Myths About Lawyers, The Careerist (February 19, 2013)
  • Obama's Payback to Labor Thwarted by DC Court, Daily Caller (January 28, 2013)
  • A New Years Resolution for Labor, Daily Caller (January 03, 2012)

Articles and Essays

Newspaper Articles and Commentary

  • Public by Sufferance Alone: The Worst of 2012, Huffington Post (January 10, 2013) (with Jennifer Jenkins)

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)
  • Foreign Official Immunity in U.S. Courts Since Samantar, Lawfare (December 17, 2012)

Works in Progress

Articles and Essays

Forthcoming

Articles and Essays

Newspaper Articles and Commentary

  • US-Europe Fight Over Airline Emissions Could Help Talks On Climate Change, Christian Science Monitor (January 01, 2013)

Forthcoming

Issues Edited

Articles and Essays

Forthcoming

  • Appeals (forthcoming) (with Marin K. Levy)

Works in Progress

  • The War on Poverty and Guaranteed Student Loans: The Consequences for the Legal Profession (2013)
  • Book Review (2013) (reviewing Jeffrey O'Connell & Thomas E. O'Connell, Political and Legal Adventurers: From Marx to Moynihan (2009))

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

  • Advanced Torts: Cases and Materials (West Publishing, 2d ed. 2012) 2004; 2d ed. 2012) (with Joseph Sanders)
  • Cases and Materials on the Law of Torts (West Publishing, 2d ed. 2012) (1983; 2d ed. 1990 with J. Meeks, 3d ed. 1997, 4th ed. 2004 with J. Meeks, E. Pryor & J. Sanders, 5th ed. 2012 with Joseph Sanders & W. Jonathan Cardi)

Articles and Essays

Articles and Essays

Articles and Essays

Books

  • Securities Regulation: Cases and Materials (Aspen Law & Business, 2013) 5th ed. 2006, 6th ed. 2009 7th ed. 2013) (with Robert W. Hillman & Donald C. Langevoort) (with others)
  • Corporation Law (American Bar Association, 2012) (with Thomas Lee Hazen)

Issues Edited

Articles and Essays

Forthcoming

Articles and Essays

Forthcoming

Articles and Essays

Forthcoming

Articles and Essays

Books

Articles and Essays

Newspaper Articles and Commentary

  • The Skeptical Principal, Concurring Opinions (May 21, 2013) (Symposium on The Essays of Warren Buffett)

Forthcoming

  • Clever or Clueless? Observations About Bombing Norm Debates (forthcoming)

Articles and Essays

Newspaper Articles and Commentary

  • Book Review, Lawfare (July 18, 2014)  (reviewing Robert M. Gates, Duty: Memoirs of a Secretary at War (2014))
  • Does the Intelligence Community Fear Lawyers...or Legal Scrutiny?, Just Security (July 02, 2014)
  • Leave No Soldier Behind -- No Exceptions, The Great Debate (June 04, 2014)
  • Still Shortchanged: Some Observations About the New Army/Marine Corps COIN Doctrine, Small Wars Journal (May 18, 2014)
  • Top Ten Reasons Sen. Gillibrand's Bill is the Wrong Solution to Military Sexual Assault, Just Security (December 09, 2013)
  • Forum: The Moral Responsibility of Volunteer Soldier, Boston Review (November 01, 2013) (Nov/Dec 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)
  • A Peek But Still No Clear Policy on Using Force Against U.S. Citizens, Newsobserver.com (February 06, 2013)
  • Charles Dunlap on the Discussion Started by Mark Mazzetti, The Drone Zone,, Lawfare (July 12, 2012)
  • Bad Policies Breed Bad Behavior on Modern Battlefield Situations, Cleveland Plain Dealer (April 22, 2012)
  • We Need New Policy, Not Draftees, New York Times (March 18, 2012)

Works in Progress

  • Empirical Use of Behavioral Genetics and Neuroscience in Criminal Law, 2004-2010 (2012)
  • On Cognitive Liberty (2012)
  • Privacy Lost and Found (2012)

Articles and Essays

  • Testing the Presumption of Consent to Emergency Treatment for Acute Ischemic Stroke, 311 Journal of the American Medical Association 1689-1691 (2014) (with others)
  • A Neurological Foundation for Freedom, 2012 Stanford Technology Law Review 4
  • Incriminating Thoughts, 64 Stanford Law Review 351-408 (2012)
  • Searching Secrets, 160 University of Pennsylvania Law Review 1239-1308 (2012)
  • Law and Behavioral Morality (2012) (Nomos 52)

Works in Progress

  • Hindsight Standards (2012)
  • Silence (2012)

Issues Edited

Articles and Essays

Forthcoming

Books

Articles and Essays

Newspaper Articles and Commentary

  • The Content of One's Racial Character, Huffington Post (April 04, 2013) (with Devon Carbado)

Forthcoming

  • 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 (forthcoming)

Works in Progress

  • Designing Adjudicatory Systems for International Economic Agreements (2013)
  • The Codification of Foreign Official Immunity (2013) (with Tim Meyer)

Books

  • Intellectual Property and Human Rights (2013)

Articles and Essays

Books

Articles and Essays

Works in Progress

  • Problematic Rights and Rhetoric in the Trafficking-Terrorism Nexus (2013)

Books

Articles and Essays

  • Unpacking the Trafficking-Terror Nexus (2013)
  • Introduction (2013) (with Margaret L. Satterthwaite)

Articles and Essays

Newspaper Articles and Commentary

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

Forthcoming

  • How Do Courts Establish and Maintain Legitimacy? (forthcoming)

Works in Progress

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, 2d ed. 2012) ( 1998; 2d ed., 2003; 3d ed., 2007; 4th ed., 2012) (with others)

Articles and Essays

Forthcoming

  • International Maritime Boundaries (, forthcoming)

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 03, 2013)
  • The Constitution On Your Corner, National Law Journal (January 09, 2012)

Forthcoming

  • Appeals (forthcoming) (with Paul D. Carrington)

Books

Articles and Essays

Newspaper Articles and Commentary

  • What $18 Billion in 'Enforcement-Only' Buys, News & Observer (January 09, 2013)

Works in Progress

  • Do Racial Disparities Exist During Pretrial Decisionmaking? Evidence from North Carolina (2014) (with others)

Articles and Essays

  • An Exploration of "Noneconomic" Damages in Civil Jury Awards, William and Mary Law review 971-1027 (2014) (with others)
  • The Cumulative Impact of Unemployment on Risks of Acute Myocardial Infarction, Archives of Internal Medicine (2012) (with others)
  • Health Implications of Grandparents Caring for Grandchildren in China, 67 Journals of Gerontology Series B 99-112 (2012) (with Feinian Chen)
  • Psychological Well-Being of the Institutionalized and Community-Residing Oldest Old in China: The Role of Children, 75 Social Science & Medicine 1874-1882 (2012) (with others)

Works in Progress

  • Guide to Environmental Justice and Protection in North Carolina (2014) (with grant support from Z. Smith Reynolds Foundation)

Articles and Essays

  • Reports Identify Regulatory Gaps to be Filled to Allow Development of Shale Hydrocarbon Potential in North Carolina, Environmental News 4 (2012) 4/1/2012
  • Using the Public Trust Doctrine to Achieve Ocean Stewardship (2013)

Newspaper Articles and Commentary

  • NC Must Say No to Allowing Fracking Secrets, NewsObserver.com (November 21, 2013) (with Matthew McFeeley)
  • Which is it Mitch?, The Broccoli Horrible (September 27, 2013)
  • N.C. Lawmakers Passed Bad Billboard Bill; Veto it, Governor, Charlotte Observer (August 01, 2013)
  • Va. Doesnt Need to Mess Around With Uranium, Washington Post (January 04, 2013)

Forthcoming

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

Articles and Essays

  • Family Offices (2013)
  • Protection Against Conflicts of Interest (2013)

Articles and Essays

  • HIV/AIDS in the Southern USA: A Disproportionate Epidemic, 26 AIDS Care: Psychological and Socio-medical Aspects of AIDS/HIV 351-359 (2014) (with others)
  • Family Court Proceedings (2012) (with others)

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

  • Knowledge and Networks: An Experimental Test of How Network Knowledge Affects Coordination, 36 Social Networks 122-133 (2014) (with others)
  • State and Local Government Finance: The New Fiscal Ice Age, 17 Annual Review of Political Science 105-122 (2014) (with D. Roderick Kiewiet)
  • Cheap, Easy or Connected: The Conditions for Creating Group Coordination, 86 Southern California Law Review 495-516 (2013) (with Daneil B. Rodriguez et. al.)
  • Concepts of Law, 86 Southern California Law Review 517-570 (2013) (with Mark Turner)
  • Gaming Direct Democracy: How Voters View of Job Performance Interact with Elite Endorsements of Ballot Measures, California Journal of Politics and Policy (2013) (with Craig M. Burnett)
  • 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)
  • When Common Wisdom Is Neither Common Nor Wisdom: Exploring Voters' Limited Use of Endorsements On Three Ballot Measures, 97 Minnesota Law Review 1557 (2013) (with Craig M. Burnett)
  • Human Matching Behavior in Social Networks: An Algorithmic Perspective, 7 PLOS One (2012) (doi:10.1371/journal.pone.0041900) (August 22, 2012) (with others)
  • Human Matching Behavior in Social Networks: An Algorithmic Perspective, 2012 PLoS ONE 7 (8): e41900 doi:10.1371/journal.pone.0041900 (with others)
  • The Challenge of Flexible Intelligence for Models of Human Behavior, 2012 3-12 (Marshall School of Business, Working Paper No. FBE 03-12, 2012) (with others)
  • Testing the Foundations of Quantal Response Equilibrium (2013) (with others)
  • Effects of Network Structure on Costly Coordination (2012) (with Nicholas Weller)
  • Going Cognitive: Tools for Rebuilding the Social Sciences (2012) (with Mark Turner)
  • The Mythology of Game Theory (2012)
  • The Theory of Minds Within the Theory of Games (2012) (with others)

Articles and Essays

  • Evaluating and Improving the MDL Process, 38 Litigation 26-32 (2012) (with John G. Heyburn II)
  • Litigation After "Natural" Disasters, 15 International Liability Forum 13-22 (2012)
  • From Charisma to Routine: Presiding over Catastrophe's Aftermath (2013) (reviewing Kenneth R. Feinberg, Who Gets What: Fair Compensation After Tragedy and Financial Upheaval (2012))

Forthcoming

Books

Articles and Essays

Articles and Essays

Articles and Essays

Newspaper Articles and Commentary

  • Opportunities Exist for Progress, National Journal (January 09, 2013)

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, News & Observer (June 07, 2012)

Forthcoming

  • The Conflicted Assumptions of Modern Constitutional Law, 5 Journal of Law, Philosophy & Culture (forthcoming)

Books

Articles and Essays

Forthcoming

Articles and Essays

Newspaper Articles and Commentary

  • How the Ag-Gag Bill Would Make Criminals Out of Do-Gooders, Newsobserver.com (May 28, 2013)
  • Open the Slaughterhouses, New York Times (April 09, 2013)
  • A Terrible Beauty, Avidly (February 15, 2013)
  • Whiteness in the Age of Obama, Huffington Post (November 26, 2012)
  • How to be American Here in the Future, Huffington Post (November 09, 2012)

Articles and Essays

Newspaper Articles and Commentary

  • Patentable Subject Matter at the Supreme Court: An Exceptional Case?, SCOTUSblog (February 04, 2013)
  • Moving Beyond "Isolated" Gene Patents, 341 Science (January 01, 2013) (with Robert Cook-Deegan)

Books

  • Intellectual Property Rights: Legal and Economic Challenges for Development (, 2014) (editor with others)

Articles and Essays

Forthcoming

Articles and Essays

Books

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

Articles and Essays

Newspaper Articles and Commentary

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

Forthcoming

Works in Progress

  • Alternative Theories of the Crime (2012)
  • Arms and Agents of the State (2012)
  • Full Faith and Credit to Laws (2012)
  • The Feigned Issue in the Federal System (2012)

Articles and Essays

Newspaper Articles and Commentary

  • Post-Decision SCOTUScast, Atlantic Marine Construction Co. v. U.S. District Court for the Western District of Texas, Federalist Society (February 03, 2014)
  • Post-Argument SCOTUScast, Atlantic Marine Construction Co. v. U.S. District Court for the Western District of Texas, Federalist Society (November 12, 2013)
  • The Case for "Constitutional Backdrops" (January 01, 2012)

Forthcoming

  • Endangered Species Protection in a Changing Climate (forthcoming) (with others) (with Camille Parmesan)

Books

  • The Practice and Policy of Environmental Law (Foundation Press, 2014) (2008, 2d ed. 2010, 3d ed. 2014) (with others)
  • Concepts and Insights in Environmental Law and Policy (Foundation Press, 2013) (2003, 2d ed. 2007, 3d ed. 2010, 4th ed. 2013) (with Barton Thompson, Jr.)
  • Drinking Water: A History (Overlook Press, 2012) (paperback edition 2013)

Articles and Essays

Newspaper Articles and Commentary

  • Our Water System Withstood Hurricane Sandy, but the Threats Aren't Over, Washington Post (November 09, 2012, at B03)

Books

  • Environmental Regulation: Law, Science, and Policy TRUE (Aspen Publishers, 2013) (4th ed. 2003,  5th ed. 2006, 6th ed. 2009, 7th ed. 2013) (with others)

Newspaper Articles and Commentary

  • Why the Justice Department May be Right, Huffington Post (May 17, 2013)

Forthcoming

Works in Progress

Articles and Essays

Newspaper Articles and Commentary

  • Understanding the Dangers of a Debt Default, Constitution Daily (October 05, 2013)

Forthcoming

  • Constructed Constraint and the Constitutional Text, 64 Duke Law Journal (forthcoming) (with Curtis A. Bradley)
  • None of the Law But One, Drake Law Review (forthcoming) (Constitutional Law Symposium on “The Obamacare Case and Its Significance for the 50th Anniversary of LBJ’s Great Society”)

Works in Progress

  • Bundling Is Not Commandeering: Taxing Versus Spending in NFIB (2014) (with Robert D. Cooter)
  • Madison's Reasoning (2014)
  • Not the Power to Destroy or Dragoon: A Collective Action Theory of the Spending Power (2013) (with Robert D. Cooter)

Issues Edited

Articles and Essays

Newspaper Articles and Commentary

  • Does CNN Deserve to be Reelected?, Huffington Post (November 08, 2012)
  • Romney, Women, and the Supreme Court, Huffington Post (November 05, 2012)

Forthcoming

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

Articles and Essays

  • The National Security State: The End of Separation of Powers, Monthly Review 136-159 (2014) (July-August 2014)
  • Missing McVeigh (2014) (reviewing Jody Lynee Madeira, Killing McVeigh: The Death Penalty and the Myth of Closure (2012))

Works in Progress

  • Do Racial Disparities Exist During Pretrial Decisionmaking? Evidence from North Carolina (2014) (with others)

Articles and Essays

Newspaper Articles and Commentary

  • The Anti-Tesla Campaign: Where is that Old-Tyme Free Market Fervor, Huffington Post (June 05, 2013)

Forthcoming

  • Recalibrating Risk: Crises, Perceptions, and Regulatory Change (, forthcoming) (editor with Edward Balleisen, Lori Bennear, & Kim Krawiec)
  • Improving International Regulatory Cooperation: TTIP as a Step Toward a Global Policy Laboratory, 78 Law & Contemporary Problems (forthcoming) (with Alberto Alemanno)
  • Impact Assessment: Diffusion and Integration (forthcoming) (with Daniel Lima Ribeiro)

Articles and Essays

Forthcoming

Books

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

Articles and Essays

Newspaper Articles and Commentary

Books

Articles and Essays

Newspaper Articles and Commentary

  • How Congress Could Have Spared Us Tax-Day Headaches, BloombergView (May 08, 2013)
  • U.S. Income Tax -- 100 Years Old, and Almost Never Happened, The Globe and Mail (April 11, 2013)
  • When We Loved Form 1040, New York Times (April 01, 2013)

Forthcoming

Articles and Essays