Associate Professor of Law

SSRN Authors Page

Books

FEDERALISM AND THE TUG OF WAR WITHIN, Oxford University Press, 2012 (proposing a theory of federalism that balances tension among federalism’s underlying principles and the roles of the three branches in implementing it). http://www.oup.com/us/catalog/general/subject/Law/ConstitutionalLaw/?view=usa&ci=9780199737987;        Oxford Online:  http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199737987.001.0001/acprof-9780199737987.

Law Review Articles, Essays, and Book Chapters

Adapting Socrates: Teaching Creative, Critical Thought in the Chinese Classroom, forthcoming 2013 (article coauthored with two Chinese students and two Chinese law teachers discussing law teaching pedagogy in China).

Federalism Lessons for Climate Legislation, forthcoming 2013 (article analyzing points of jurisdictional overlap between existing state and local climate initiatives and proposed federal comprehensive climate legislation).

The Once and Future Challenges of American Federalism, in Alberto López Basaguren and Leire Escajedo San-Epifanio, eds., THE WAYS OF FEDERALISM IN WESTERN COUNTRIES AND THE HORIZONS OF TERRITORIAL AUTONOMY IN SPAIN, Vol. 1 (Springer, 2013) (book chapter analyzing current federalism controversies through the FEDERALISM AND THE TUG OF WAR WITHIN framework of analysis).

In Tribute to Judge James R. Browning: The Center of His Circle, 73 Montana L. Rev. 14 (2012) (invited short piece honoring the legacy of Judge Browning, Chief Judge Emeritus of the U.S. Court of Appeals for the Ninth Circuit).

Negotiating Federalism, 52 B.C.L. REV. 1 (2011) (article exploring the role of state-federal bargaining in allocating authority, shepherding collaboration, and interpreting federalism in contexts of jurisdictional overlap). Cited by Professor Lawrence Solum on the Legal Theory Blog on April 7, 2010. 

Intergovernmental Bargaining and Climate Federalism, United Nations Institute for Training and Research research paper, September, 2010 (web-published essay applying the negotiated federalism model in the specific context of multilevel climate governance), extrapolated from Negotiating Federalism.

Federalism at the Cathedral: Property Rights, Liability Rules, and Inalienability Rules in Tenth Amendment Infrastructure, 81 COLORADO L. REV. 1 (2010) (article critiquing the theoretical basis for, and practical implications of, the Court’s creation in New York v. United States of an inalienability rule for Tenth Amendment entitlements). Cited in PERCIVAL, ET. AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND POLICY (Aspen, 6th ed., 2009). Also cited by Professor Benjamin Barros on the Property Prof Blog on March 4, 2009.

How the New Federalism Failed Katrina Victims, in Robin Malloy & John Lovett, eds., LAW  AND RECOVERY FROM DISASTER: HURRICANE KATRINA (Ashgate Press, 2009) (book chapter addressing the relationship between federalism and the Katrina aftermath), drawn from Federalism and the Tug of War Within, 66 Md. L. Rev. 503 (2007).  Cited on the Legal Theory Blog (7/12/10), Law Matters Blog (7/12/10), and Poverty Law Blog (7/23/10).

Reporting on Palin: Negotiations in Political Theater, HARVARD NEGOTIATION LAW  REVIEW ONLINE, October 2, 2008 (essay using negotiation theory as a lens for analyzing a campaign’s efforts to manipulate its media coverage).

Federalism and the Tug of War Within: Seeking Checks and Balance in the Interjurisdictional Gray Area, 66 Maryland L. Rev. 503 (2007) (article exploring how tension between underlying federalism principles shaped the progression of federalism theory over the 20th century, culminating in the New Federalism’s difficulty accounting for interjurisdictional problems). Excerpted in STONE, SEIDMANN, SUNSTEIN, TUSHNET, & KARLAN, CONSTITUTIONAL LAW (Aspen, 6th ed., 2009) and FARBER, CHEN, & VERCHICK, DISASTER LAW AND POLICY (Aspen, 2010). Cited in the 2010 HARVARD LAW REVIEW “Foreword,” Heather Gerken, Federalism All the Way Down, 124 HARV. L. REV. 4, 20-21, nn. 50 & 58 (as scholarship developing the kinds of “new conceptual tools” needed in the federalism discourse).

Palazzolo, The Public Trust, and the Property Owner’s Reasonable Expectations: Takings and the South Carolina Marsh Bridge Debate, 15 S.E. ENVTL. L. J. 121 (2006) (invited symposium article reviewing the implications of the Palazzolo v. Rhode Island aftermath for takings claims relating to public trust tidelands and wetlands).  Republished as a chapter in PROPERTY: A LEGAL PARADIGM (Amicus Books, 2009) and ENVIRONMENT AND THE PUBLIC TRUST DOCTRINE (Amicus Books, forthcoming, 2010).

New Orleans, The Chesapeake, and the Future of Environmental Assessment: Overcoming the Natural Resources Law of Unintended Consequences, 40 U. RICH. L. REV. 981 (2006) (invited lead article in symposium; tracing flood control and wetlands protection policies that led to New Orleans’ post-Katrina flooding and Chesapeake Bay wetlands loss, and proposing a network-based model of assessment to help forestall future unintended consequences). Selected as one of the 20 best environmental law articles of 2006 by LAND USE & ENVIRONMENTAL LAW REVIEW faculty panel.

Building the Emotionally Learned Negotiator, 22 NEGOTIATION J. 209 (2006) (invited essay reviewing three recent books on emotion in negotiation, situating each work within a proposed theory of practice for learned negotiators). Quoted on second edition jacket of FISHER & SHAPIRO, BEYOND REASON (Viking, 2005).

The Discourse Beneath: Emotional Epistemology in Legal Deliberation and Negotiation, 10 HARV. NEGOT. L. REV. 231 (2005) (article exploring how the cognitive processing of emotionally resonant data facilitates inductive reasoning and how the subterranean exchange of emotional information between participants facilitates negotiation).  Excerpted in BROOKS & MADDEN, RELATIONSHIP-CENTERED LAWYERING: SOCIAL SCIENCE THEORY FOR TRANSFORMING LEGAL PRACTICE (Carolina Academic Press, 2009).

Zoning, Taking, & Dealing: The Problems and Promise of Bargaining in Land Use Planning, 7 HARV. NEGOT. L. REV. 337 (2002) (article analyzing the theoretical disconnect between the Supreme Court’s anti-bargaining takings jurisprudence and optimal practice of land use law).  Republished in LAND USE AND PLANNING HANDBOOK (West Publishing, 2003 ed.).

Public Trust & Distrust: Theoretical Implications of the Public Trust Doctrine for Natural Resources Management, 31 ENVTL. L. 477 (2001) (essay contrasting the public trust with other theoretical frameworks for natural resource management and environmental protection).  Included in Federalist Society CLE materials, July, 2005.

ADR, the Judiciary, & Justice: Coming to Terms with the Alternatives, 113 HARV. L. REV. 1851 (2000) (note reviewing developments in alternative dispute resolution and related due process issues).

Other Publications

“Negotiating Federalism Past the Zero-Sum Game,” ADMINISTRATIVE AND REGULATORY LAW NEWS, Fall 2012 (invited essay reviewing the enterprise of state-federal intergovernmental bargaining that will be impacted by the Supreme Court’s spending power analysis in its 2012 Affordable Care Act decision). 

“Spending Power Bargaining After Sebelius,” OUP Blog, July 3, 2012 (essay commenting on the spending power implications of Chief Justice Robert’s opinion in the Supreme Court’s Affordable Care Act decision). Available at http://blog.oup.com/2012/07/spending-power-bargaining-after-obamacare/.  (Versions of the same essay were published on the AMERICAN CONSTITUTION SOCIETY BLOG and the ENVIRONMENTAL LAW PROFS BLOG later that month.)  

“Obamacare and Federal Authority,” THE OREGONIAN, June 27, 2012, at B-6 (op-ed discussing the core federalism issues in the Supreme Court’s Affordable Care controversies).  Linked to online guest column, “Obamacare, Federalism, in Supreme Court Tug of War,” republishing original RegBlog essay at http://www.oregonlive.com/opinion/index.ssf/2012/06/obamacare_federalism_in_a_supr.html.

“Health Care Reform and Federalism’s Tug of War Within,” REGBLOG, AMERICAN CONSTITUTION SOCIETY BLOG, June 21, 2012 (essay explaining the battle over the Affordable Care Act in terms of the classic American federalism debates, and proposing a better way of analyzing this and all federalism issues). Available at http://www.law.upenn.edu/blogs/regblog/2012/06/21-ryan-federalism.html.  (Republished on OXFORD BLOG, June 28.)

“Environmental Adventures in China,” Series on the ENVIRONMENTAL LAW PROFS BLOG, Spring 2012. Available at http://lawprofessors.typepad.com/environmental_law/.  Sample post: “China and the Rocky Mountain Arsenal,” February 28, 2012, available at http://lawprofessors.typepad.com/environmental_law/2012/02/china-environmental-experiences-2-rocky-mountain-arsenal.html.

“Do One Thing for Sustainability,” HAMPTON ROADS SMART REGION BLOG, March 19, 2010 (guest blog explaining the William & Mary “Do One Thing for Sustainability (‘DOT’) Initiative). Available at http://smartregion.org/2010/03/do-one-thing-for-sustainability/.

“Beyond I-Got-Mine-Jack Health Care,” versions published in the VIRGINIAN-PILOT (VA), September 21, 2009 at 9; the STAR LEDGER (NJ), September 22, 2009 at 13, and as a guest blog on the American Constitution Society at William & Mary School of Law, September 23, 2009 (op-ed urging those who warn that health care reform will lead to rationing not to forsake the victims of the rationing we already have).  Available at http://acs.blogs.wm.edu/2009/09/29/i-got-mine-jack-health-care/.

“Breaking Ground on the New Green Deal,” AMERICAN CONSTITUTION SOCIETY AT WILLIAM & MARY SCHOOL OF LAW, Guest Blog, February 14, 2009 (op-ed urging reluctant members of Congress to act on stimulus proposals to invest in a renewable energy economy).  Available at http://acs.blogs.wm.edu/2009/02/14/breaking-ground-on-the-new-green-deal/.  Republished October 1, 2009, by the Hampton Roads Partnership Blog.

“A Swing State Voter’s Epiphany,” CHICAGO TRIBUNE, November 6, 2008, at C-43 (op-ed forecasting redemption for the fractured American electorate based on deep election-day kindnesses in politically divided southeastern Virginia).  Republished November 7, 2008, by the Hampton Roads Partnership Blog at: http://smartregion.org/2008/11/the-american-way-a-swing-state-epiphany/.

“Protecting Even ‘Incendiary’ Speech from Censorship,” CHRONICLE OF HIGHER EDUCATION, March 18, 2005 (letter to the editor arguing that “the answer to disquieting speech is more speech” in response to controversy over Professor Ward Churchill’s post-9/11 remarks).  Available at http://chronicle.com/weekly/v51/i28/28b01701.htm.  

“New Housing Laws Favor Developers,” WESTERN CITY, Vol. LXXXIX, No. 3 (March 2003), at 14 (article critiquing incentives for localities by new limits on judicial discretion in applying land use fee-shifting statutes). Quoted at length in the California State Senate’s June 23, 2003 Bill Analysis for proposed SB 619, a bill seeking substantial reform of the state’s affordable housing laws to expedite the development of affordable housing in California.  (Bill Analysis available at ftp://leginfo.public.ca.gov/pub/03-04/bill/sen/sb_0601-0650/sb_619_cfa_20030630_121633_asm_comm.html.)

Commentary: Vedanta Society of Southern Cal. v. California Quartet (limiting “private attorney general” fee-shifting under California Environmental Quality Act), 2003 CAL. ENVTL. L. REPORTER 16 (Jan. 2003).

Commentary: Environmental Defense Center v. EPA (affirming in part and remanding in part EPA’s Clean Water Act stormwater regulations), 2003 CAL. ENVTL. L. REPORTER 122 (March 2003).

“The Once and Future Farm: Keeping Farms in Vermont,” CONSERVATION MATTERS, Vol. VI, No. 3 (Fall 1999), at 32 (article contrasting environmentally unsound “factory” farming practices with stewardship approach of small farms, and proposing an economically sustainable intergenerational transfer program to forestall further decline).

 The Worcester Report, The Better Homes Foundation, 1992 (monograph analyzing MA housing crisis).