Running it Twice (or Thrice): Double-Header, Triple-Header, and Reverse Baseball Arbitration

This Essay illustrates how the “Running It Twice” concept that makes poker games less of a gamble can also be used in another forum where large amounts of money can be at stake: arbitrations. I introduce three new forms of arbitration based on this concept: Double-Header Baseball Arbitration, Triple-Header Baseball Arbitration, and Reverse Baseball Arbitration. In this Essay, I show that that these new forms of arbitration are superior to current methods because they result in what the average or median qualified arbitrator would award—thereby making arbitration more accurate, predictable, and fair

Presidential Signing Statements and Executive Power

A recent debate about the Bush administration\u27s use of presidential signing statements has raised questions about their function, legality, and value. We argue that presidential signing statements are legal and that they provide a useful way for the president to disclose his views about the meaning and constitutionality of legislation. In addition, basic tenets of positive political theory suggest that signing statements do not undermine the separation of powers or the legislative process and that, under certain circumstances, they can provide relevant evidence of statutory meaning. Although President Bush has raised many more constitutional challenges within his signing statements than prior presidents have, at least on their face these challenges are similar to challenges made by other recent presidents, such as President Clinton. Whether Bush\u27s views of executive power are significantly different from Clinton\u27s, and if so, whether they are inferior, remain open questions, but these issues are independent of whether signing statements are lawful

Ending the Reign of Slot Machine Justice

Federal appellate courts employ a random assignment system to select the circuit judges who will serve on any particular three-judge panel. The premise of this system is that random assignment is the fairest way of selecting judges, in light of resource constraints that make the use of full-circuit panels for every case impracticable.This paper contends that the random assignment system, while perhaps efficient, is certainly not fair. Winning a case in the U.S. courts of appeals hinges too much on luck, and not enough on the merits. This system produces slot machine justice, in which the outcome crucially turns on the three judges selected to hear the case. Aside from problems of basic fairness, the random selection of judges creates other serious problems for the judiciary as well. These include the decreased predictability of the law and extreme ideological results. As the circuit courts\u27 caseload has increased, these problems have become even worse. Prominent jurists have noted that there is an increasing likelihood that aberrant precedents will be influential and that courts have become less predictable and more quirky. These problems, to a large extent, can be traced to the random assignment system.For this reason, the random assignment system should be replaced with a system in which the judges are assigned on the basis of the parties\u27 preferences. Such a system will fundamentally improve the justice of the federal judiciary\u27s decisions, as every federal appellate decision will reflect, as closely as possible, what the average three-judge panel on that federal circuit would decide. It will also mean that there is less variation between decisions made by the same circuit, enabling each court of appeals to develop more coherent and consistent, as well as less ideologically driven, bodies of jurisprudence

Divide and Conquer: How the Democrats Can Maintain Control of the Ninth Circuit

Due to its large size, the Ninth Circuit employs a limited en banc review, where only eleven of its active judges sit en banc, consisting of the chief judge and ten other active judges who are randomly selected. Accordingly, limited en banc allows for “minority rule” in a subset of cases, such as when the random draw results in six or more judges holding minority views for that particular case. Although a few Ninth Circuit judges have criticized the limited en banc procedure because of the possibility of minority decisions, most of the judges on the Ninth Circuit have apparently accepted the limited en banc procedure on the basis that there is no perceived realistic alternative. This Essay challenges this consensus and presents a mechanism to fix the Ninth Circuit’s representativeness problem while retaining the efficiency of the current procedure. Because the Trump Administration has significantly cut into the advantage Democratic appointees have on the Ninth Circuit, this mechanism is needed for the Democratic appointees to maintain control of Ninth Circuit law

Running it Twice (or Thrice): Double-Header, Triple-Header, and Reverse Baseball Arbitration

This Essay illustrates how the “Running It Twice” concept that makes poker games less of a gamble can also be used in another forum where large amounts of money can be at stake: arbitrations. I introduce three new forms of arbitration based on this concept: Double-Header Baseball Arbitration, Triple-Header Baseball Arbitration, and Reverse Baseball Arbitration. In this Essay, I show that that these new forms of arbitration are superior to current methods because they result in what the average or median qualified arbitrator would award—thereby making arbitration more accurate, predictable, and fair

Management of two circulations in a COVID‐19 patient with secondary superinfection

Abstract Optimal oxygenation in the intensive care unit requires adequate pulmonary gas exchange, oxygen‐carrying capacity in the form of hemoglobin, sufficient delivery of oxygenated hemoglobin to the tissue, and an appropriate tissue oxygen demand. In this Case Study in Physiology, we describe a patient with COVID‐19 whose pulmonary gas exchange and oxygen delivery were severely compromised by COVID‐19 pneumonia requiring extracorporeal membrane oxygenation (ECMO) support. His clinical course was complicated by a secondary superinfection with staphylococcus aureus and sepsis. This case study is provided with two goals in mind (1) We outline how basic physiology was used to address life‐threatening consequences of a novel infection—COVID‐19. (2) We describe a strategy of whole‐body cooling to lower the cardiac output and oxygen consumption, use of the shunt equation to optimize flow to the ECMO circuit, and transfusion to improve oxygen‐carrying capacity when ECMO alone failed to provide sufficient oxygenation