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Abstract:
This paper, a chapter in the Cato Institute's forthcoming Supreme Court Review, offers one of the first looks at the impact of Justices Roberts and Alito on the Supreme Court. It also evaluates the extent to which Justice Kennedy has emerged - and has not emerged - as a swing justice following Justice O'Connor's departure. Reviewing the aggregate statistics from OT 05, it shows how, in some respects, Chief Justice Roberts has emerged as both the Court's uniter and its swing vote. After reviewing historical trends, the chapter then turns to the coming year's docket and evaluates the forthcoming cases in terms of the shifting voting dynamics. A critical question for the coming term will be whether Justice Kennedy hews to views and votes in dissenting opinions like Sternberg and Grutter or, whether in reliance on stare decisis or some other principle, he tacks more toward the center.

Supreme Court, Roberts

Abstract:
Over the past several decades, scholars and policymakers have debated the future of arbitration in the United States. Those debates have taken on new significance in the present Congress, which is considering a variety of reform proposals. Among the most widely watched are ones that would prohibit the enforcement of predispute arbitration clauses in employment, consumer and franchise contracts. Reviewing the available empirical literature, the paper explains how many of the assumptions driving the arbitration reform debate are unproven at best and flatly wrong at worst. It then tries to sketch out the economic impact of any move by Congress to limit arbitration in certain fields. The effect, I submit, would be to harm the very consumers and employees whom Congress is trying to protect. While arbitration certainly can be refined on the edges and more empirical research needs to be done, advocates for reform simply have not made their case.

Arbitration

Abstract:
Recent political science scholarship has shed new light on the largely unexplored role of clerks at the United States Supreme Court. Two recent books (Sorcerers' Apprentices and Courtiers at the Marble Palace), written in the school of the new institutionalism, argue that the clerks' roles have both evolved with the Court's needs and influenced the Court's operations. This paper uses a review of those two books as a springboard for a broader discussion about the role of Supreme Court clerks and, more generally, the challenges of interdisciplinary study - how political science scholarship can influence understanding of a legal institution and, conversely, how legal scholarship can influence political science.

Clerks, New Institutionalism, Political Science

Abstract:
This Article forms part of a broader research agenda that studies the relationship between arbitration and constitutional law. Taking its cue from the recent Canadian Softwood Lumber dispute over the constitutionality of NAFTA's dispute resolution boards, this paper asks a broader question: "Why is arbitration compatible with Article III?" Under the traditional account, parties waive their right to an Article III forum, thereby eliminating any Article III issue. Accounts grounded in waiver, however, fail to grapple adequately with the significant structural concerns presented by arbitration. Instead, this paper defends the need for a more robust theory, one that accounts for these structural concerns and can address the novel constitutional challenges presented by a variety of arbitral schemes ranging from domestic employment disputes to international commercial ones. Drawing on appellate review theory, the paper proposes a matrix for assessing the constitutionality of arbitration - an approach that comports with the core principles of the theory and also enhances its explanatory value. The paper concludes by applying this modified appellate review theory to a variety of contexts in arbitration law - including international commercial arbitration and NAFTA arbitration.

arbitration, constitution

Abstract:
In the United States and elsewhere, arbitrators like judges typically enjoy an absolute immunity from civil liability. For more than a century, and despite the emergence of a robust competitive market for dispute resolution services, that doctrine has gone unquestioned in both the case law and, with few exceptions, in the scholarship as well. Employing a law and economics methodology, this article takes an original approach and argues that the doctrine of arbitral immunity should be abolished. Instead, any limit on or elimination of the arbitrator's liability should come in the form of contractually negotiated liability waivers, a perfectly viable option under most institutional rules. Replacing the dominant regulatory regime with a contractual one better reflects the incentives in the marketplace for dispute resolution services, corrects price distortions caused by the immunity doctrine and encourages the use of arbitration.

Arbitration immunity

Abstract:
The concept of the "reasonable man" has bedeviled scholars in a variety of fields, including tort law, criminal law and criminal procedure. Among the puzzles has been whether reasonableness embodies an objective test, a subjective one or some hybrid test. Several recent Supreme Court decisions have wrestled with these issues in the Miranda doctrine. This essay draws on the literature about the meaning of "reasonableness" and analyzes it in the Miranda context. It draws both positive lessons about how various justices conceptualize the "reasonable man" and normative ones about how they should do so in this and other contexts.

Criminal Procedure, Miranda, Reasonableness

Abstract:
This paper offers a comprehensive look at the state of empirical research in the field of arbitration. Its release coincides with the reintroduction of the Arbitration Fairness Act, which would constitute the most significant reform of arbitration law in the United States since the FAA's enactment. Moving beyond typical the typical punch/counterpunch that has characterized much of the policy debate in this area, this paper identifies areas of common ground on which arbitration's proponents and opponents can agree. It then consider an issue-by-issue critique of arbitration and responds in detail to several of the recent attacks on the field. The paper closes by charting out a research agenda on arbitration and urges Congress to act cautiously before deciding whether to reform this important method of dispute resolution.

Abstract:
The Apprendi-Blakely line of cases represents a bold attempt by the Supreme Court to reassert the role of the jury as an important institution in criminal law processes. While courts and scholars have focused much attention on the implication of this line of cases for horizontal separation of powers, they have spent relatively little time considering its consequences for vertical separation of powers, instead simply assuming that what's good for the federal goose is good for the fifty-state gander. This Article begins to fill that lacuna in the scholarship. One of the great puzzles of the Apprendi doctrine is how two of its most ardent apologists (Justices Scalia and Thomas) can reconcile their commitment to the doctrine with their commitment to federalism principles. The Article proposes that such a harmonization is possible if, but only if, the Court is willing to begin to decouple its new strain of Sixth Amendment jurisprudence from its incorporation jurisprudence. The recent revival of the Privileges or Immunities Clause coupled with a newfound willingness to revisit the incorporation debates paves the way for the Court to develop a new era of jury-right jurisprudence more sensitive to the needs of states and also more consistent with the Founders' original vision of how the constitutional jury right should function.

Apprendi, Jury Right, Criminal Law, Federalism

Abstract:
The Supreme Court's recent decision in Medellin rekindled a long-standing debate over delegation, which concerns the legal effect given to the decisions of foreign bodies (like the International Court of Justice) in the United States. Drawing on conflicts-of-law principles, this paper identifies and seeks to correct three distortions in the debate. First, it broadens the definition of delegation. Second, it advances a more nuanced system for classifying different types of delegations. Third, it wades into the normative debate over the desirability of various delegations. The closing section draws a parallel between the strategies employed in Medellin to those employed in the EC to expand the reach of European law in Member States.