Skin in the Game: The Promise of Contingency-Based M&A Fees

In February 2000, The American Lawyer reported that the venerable law firm of Cravath, Swaine & Moore (Cravath) entered into an agreement to help its client, Time Warner Inc. (Time Warner), merge with American Online (AOL). Normally, such an engagement would not be news. In 2013, for example, Cravath was legal counsel on fifty-four mergers totaling $144 billion dollars […]

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Rulemaking as Legislating

The central premise of the nondelegation doctrine prohibits Congress from delegating its Article I legislative powers. Yet Congress routinely delegates to agencies the power to promulgate legislative rules—rules that carry the force and effect of law just as statutes do. Given this tension between the nondelegation doctrine and the modern regulatory state, some scholars have attacked the nondelegation doctrine as […]

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Military Courts and Article III

Few areas of the Supreme Court’s federal courts jurisprudence raise as many questions—and provide as few coherent answers—as the permissible scope of Congress’s power to invest the “judicial [p]ower of the United States” in actors other than judges who enjoy Article III’s tenure and salary protections, and, in the case of criminal trials, to do so without the protections […]

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Testing Tribe’s Triangle: Juries, Hearsay, and Psychological Distance

Since its inception, evidence policymakers have vacillated with respect to whether the rule barring hearsay evidence at trial is a doctrine designed to promote decisional accuracy or a doctrine designed to promote procedural justice. To the extent that policymakers view the rule barring hearsay evidence as promoting decisional accuracy, the rationale for this view stems from the “testimonial triangle” promulgated by […]

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Law and the Art of Modeling: Are Models Facts?

In 2013, the Supreme Court made the offhand comment that empirical models and their estimations or predictions are not “findings of fact” deserving of deference on appeal. The four Justices writing in dissent disagreed, insisting that an assessment of how a model works and its ability to measure what it claims to measure are precisely the kinds of factual […]

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The Eagle and the Hare: U.S.–Chinese Relations, the Wolf Amendment, and the Future of International Cooperation in Space

On July 20, 1969, the Apollo 11 lunar module, Eagle, landed on the moon, definitively ending the space race with the Soviet Union and signaling what was hoped to be a bright new dawn for humanity. In December 2013, the Chinese Yutu (Jade Rabbit) lunar rover touched down on the moon, making China only the third country to successfully […]

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Educational Empowerment: A Child’s Right to Attend Public School

Josh Powell was fourteen years old when he realized he was falling behind academically. Homeschooled under Virginia’s religious exemption statute, Powell had never seen the inside of a classroom, taken a standardized test, or had his work reviewed by a licensed teacher. Neither the state nor the local school board imposed any requirements on his parents’ homeschool program, and no […]

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