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Volume 75, Number 3 Category

High-End Bargaining Problems

Apr. 21, 2022—William W. Clayton | 75 Vand. L. Rev. 703 (2022) | Many important areas of the law place great confidence in the ability of contracting parties to bargain effectively. In this Article, I question the wisdom of a formalistic faith in bargaining by identifying flaws in the bargaining process at the high end of the market,...

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The Ghost of John Hart Ely

Apr. 21, 2022—Ryan D. Doerfler & Samuel Moyn | 75 Vand. L. Rev. 769 (2022) | The ghost of John Hart Ely haunts the American liberal constitutional imagination. Despite the failure long ago of any progressive constitutional vision in an increasingly conservative Supreme Court, Ely’s conjectures about the superiority of judges relative to legislatures in the protection of...

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The Informed Jury

Apr. 21, 2022—Daniel Epps & William Ortman | 75 Vand. L. Rev. 823 (2022) | The right to a criminal jury trial is a constitutional disappointment. Cases almost never make it to a jury because of plea bargaining. In the few cases that do, the jury is relegated to a narrow factfinding role that denies it normative voice...

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What Property Does

Apr. 21, 2022—Christopher Serkin | 75 Vand. L. Rev. 891 (2022) | For centuries, scholars have wrestled with seemingly intractable problems about the nature of property. This Article offers a different approach. Instead of asking what property is, it asks what property does. And it argues that property protects people’s reliance on resources by moderating the pace of...

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What’s the Deference? Interpreting the U.S. Sentencing Guidelines After Kisor

Apr. 21, 2022—Liam Murphy | 75 Vand. L. Rev. 957 (2022) | For more than three decades, the U.S. Sentencing Guidelines have constrained the punishment doled out by federal judges, limiting discretion that was once nearly unlimited and bringing standardization to the penological decisionmaking process. For twice as long, the Supreme Court has constrained judges in a different...

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Policing, Masculinities, and Judicial Acknowledgment

Apr. 21, 2022—Nicholas J. Prendergast | 75 Vand. L. Rev. 997 (2022) | In the 1980s, the Supreme Court held that courts must consider the “totality of the circumstances” when deciding the reasonableness of a police officer’s conduct in an excessive force suit. To this day, the precise meaning of “reasonableness” remains elusive. For years, courts around the...

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