”Why Can't a Woman Be More Like a Man? American and Australian Approaches to Exclusionary Conduct”
Melbourne University Law Review, forthcoming
By George A. Hay with Rhonda L. Smith

Abstract: This article compares, in broad terms, how Section 2 and Section 46 approach exclusionary conduct. Responding to suggestions from some seeking reform and others dissatisfied with the outcome of certain cases in Australia, the authors explore whether there are deficiencies in the Section 46 approach that can be remedied by alligning it more closely with Section 2.

“Insource the Shareholding of Outsourced Employees: A Global Stock Ownership Plan”
By Robert C. Hockett

Abstract: This article assesses the current global market and the costs and gains of globalization to Americans, with particular focus on those victims of globalization whose jobs have been outsourced. Looking to balance the benefits, the author finds a solution rooted in financial engineering. The key is to channel a portion of the globalization-wrought gains reaped by outsourcing firms to the outsourced employees themselves by adapting the already familiar Employee Stock Ownership Plan (ESOP). Shares would be offered not simply to current labor, but now to "shadow" labor as well.

”Taking Distribution Seriously”
By Robert C. Hockett

Abstract: It is common for legal theorists and policy analysts to think and communicate mainly in maximizing terms. To attend systematically to the inter-translatability of maximization language on the one hand, equalization and identification language on the other, is to "take distribution seriously." This article delineates the method of achieving this balance in legal and policy analysis and examines the benefits gained.

”Online Access to Court Records—from Documents to Data, Particulars to Patterns”
By Peter Martin

Abstract: For over a decade the public has had remote access to federal court records held in electronic format, including documents filed by litigants and judicial rulings. The federal "Public Access to Court Electronic Records" system, or PACER, offers citizens, businesses, journalists, and scholars unprecedented access to the details of individual court proceedings. Some of the gains one might hope or expect to flow from enhanced judicial transparency remain largely untouched by this system. The article explores PACER's evolution, larger impact, and unrealized possibilities, and examines why state courts are, in general, approaching online access to court records so differently.

“Daniel Defoe and the Written Constitution”
Cornell Law Review, forthcoming
By Bernadette A. Meyler

Abstract: America, it is proposed, spawned the use of written documents, inaugurating a radically new form of political organization when it adopted the U.S. Constitution as its foundational text. Yet the notion of the written constitution had, in fact, received an earlier imprimatur from the pen of Daniel Defoe. This article elaborates the contours of written constitutionalism that Defoe outlined and demonstrates the close alignment of some of Defoe's arguments with the scholarship of today. The author illuminates the importance of looking to the emerging genre of the novel as well as other widely read forms—rather than focusing exclusively on more traditional historical sources—to discern the construction of a popular imaginary at the time of the Founding.

”The State Attorney General and Preemption”
Reemption Choice: The Theory, Law, and Reality of Federalism's Core Question, William Buzbee, ed., Cambridge University Press, 2008, forthcoming
By Trevor W. Morrison

Abstract: This paper examines the implications of agency preemption for state attorneys general, and vice versa. Its principal intended audience is Congress and the federal agencies; its prescriptions focus mostly on choices the legislature and agencies could make to better accommodate the important functions of democratically accountable state attorneys general. Unlike the Supreme Court's current "presumption against preemption," the author’s approach focuses on the identity of the actor enforcing the state law.

”Unconscious Bias and the 2008 Presidential Election”
By Jeffrey J. Rachlinski and Gregory Scott Parks

Abstract: The 2008 presidential campaign and election mark the first time a Black person (Barack Obama) and a woman (Hillary Clinton) have a real chance at winning the Presidency. Close analysis of the campaigns reveals that race and gender have placed enormous constraints on how these two Senators can run their candidacy. This is not surprising in light of the history of race and gender in voting and politics in America. The campaigns have had to struggle not only with overt sexism and racism, but with unconscious, or implicit, biases in their campaigns. Recent research from social psychologists indicates that unconscious race and gender biases are widespread and influence judgment. Because existing anti-discrimination law is designed to combat overt, or explicit, biases, it does not address unconscious biases well.