Scholarship
Josh
Davis's SSRN Page
Scholarship-in-Progress:
"An Imbalance of Representation: A Critique of the Antitrust Modernization
Commission Recommendations Regarding Civil Remedies in Private Antitrust Cases."
"Of Social Facts and Value Judgments: Inconsistency in the Supreme Court’s
Approach to Judicial Restraint."
"Of Gaps and Overlaps: Gasoline Products, the Seventh Amendment and Class
Certification."
Articles:
"The Inherent Structure of Free Speech Law: Government as Patron or Regulator
in the Student Speech Cases," (forthcoming 2009) (co-authored with Joshua
D. Rosenberg). [SSRN]
"The Immanent Structure of Free Speech Doctrine: Bong Hits, Jesus, and
the Role of the Public Schools in Controlling Student Speech," (2008) (co-authored
with Joshua D. Rosenberg). [SSRN]
"Benefits from Private Antitrust Enforcement: An Analysis of Forty Cases,"
42 University of San Francisco Law Review 879 (2008) (co-authored with
Robert H. Lande). [SSRN]
"Benefits from Antitrust Private Antitrust Enforcement: Forty Individual
Case Studies," (forthcoming 2008) (co-authored with Robert H. Lande). [SSRN]
"Chimerical Class Conflicts in Federal Antitrust Litigation: The Fox Guarding
the Chicken House in Valley Drug," 39 University of San Francisco
Law Review 141 (2004) (co-author) (symposium issue).
"Expected Value Arbitration," 57 Oklahoma Law Review 47
(2004). [SSRN]
"Supreme Court Review of the Foreign Trade Antitrust Improvements Act:
A Case of a Misleading Question?," 38 University of San Francisco Law
Review 431 (2004).
"Efforts to Delay Competition from Generic Drugs: Litigation Along a Seismic
Fault Between Antitrust and Intellectual Property Law," 39 University
of San Francisco Law Review 1 (2004) (co-author) (symposium issue).
Essay, "Virginia v. Black: Toward Neutral Principles?,"
25 Dublin University Law Journal 210 (2003).
Essay, "Arbitration: Trial by Other Means or Settlement by Other Means?,"
38 University of San Francisco Law Review 7 (2003) (symposium issue).
"Taking Uncertainty Seriously: Revising Injunction Doctrine," 34
Rutgers Law Journal 363 (2003). [SSRN]
"How Democratic is the United States Supreme Court?," 37 University
of San Francisco Law Review 1 (2002) (symposium issue).
"Teaching Values –The Center for Applied Legal Ethics," 36
University of San Francisco Law Review 593 (2002) (symposium issue).
"Toward a Jurisprudence of Trial and Settlement: Allocating Attorney’s
Fees by Amending Federal Rule of Civil Procedure 68," 48 Alabama Law
Review 65 (1996).
Note, "Cardozo's Judicial Craft and What Cases Come to Mean," 68
New York University Law Review 777 (1993).
"The View from Half-Court," 17 Nova Law Review 799 (1993)
(with Adam Winkler).
Amicus Briefs:
Ketchum v. Moses, 24 Cal. 4th 1122 (2001) (with Charles B. Renfrew,
Robert J. Nelson, and Caryn Becker) (represented The Bar Association of San
Francisco).
Kolstad v. American Dental Association, 527 U.S. 526 (1999) (with
James M. Finberg, Jonathan D. Selbin, and Paulina do Amaral) (represented the
Lawyers' Committee for Civil Rights Under Law, the National Association for
the Advancement of Colored People, the Mexican American Legal Defense and Education
Fund, the National Partnership for Women & Families, the National Women's
Law Center, the National Organization for Women Legal Defense and Education
Fund, and the American Civil Liberties Union).
Carter v. West Publishing Co., No. 99-11959-E (11th Cir. 1999) (with
James M. Finberg) (represented the National Employment Lawyers Association,
the National Association for the Advancement of Colored People, the Florida
State Conference of NAACP Branches, the National Women’s Law Center, the
American Jewish Congress, and the Rainbow/PUSH Coalition, Inc.).
Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) (request
for rehearing en banc) (with James M. Finberg) (represented the National Employment
Lawyers Association).
Symposia Organized:
"Notoriety -- When the Spotlight is on Ethics," State Bar of California,
University of San Francisco (May 2008).
Symposium: The Uncertain Future of Antitrust: Responding to the Antitrust Modernization
Commission, 40 University of San Francisco Law Review 561 (Fall 2005)
(participants included Commissioner W. Stephen Cannon, Professors Stephen Calkins,
Herbert Hovenkamp, and Robert Lande, and assistant attorneys general Kathleen
Foote (California) and J. Thomas Prud’homme (Texas)).
Symposium: Soaring Prices for Prescription Drugs – Incentive for Innovations
or Antitrust Violations?, 39 University of San Francisco School of Law
1 (Fall 2004) (participants included Professors Herbert Hovenkamp, Mark Lemley,
James Langenfeld, and Cris Leffler).
Symposium: Mandatory Arbitration Clauses, 38 University of San Francisco
Law Review 1 (Fall 2003) (participants included Professors Jay Folberg,
Jean Sternlight, Stephen Ware, and David Schwartz).
Symposium: Christopher L. Eisgruber's Constitutional Self-Government, 37 University
of San Francisco Law Review 1 (Fall 2002) (participants included Professors
Rebecca Brown, John Denvir, Roderick Hills, Mark Tushnet, Jeremy Waldron, and
Christopher Eisgruber).
Symposium: Teaching Values in Law School, 36 University of San Francisco
Law Review 591 (Spring 2002) (participants included Professors Christopher
Eisgruber, Joshua Rosenberg, Paul Tremblay, and W. Bradley Wendel).
Other Publications:
"Proposal: Expected Value Arbitration," in Dispute Resolution
Alert (JAMS Spring 2005).
Report of the California Supreme Court Multijurisdictional Practice Implementation
Committee: Final Report and Proposed Rule (March 2004) (adopted by the California
Supreme Court – the proposed rules became effective November 2004).
"Statistical Proof," in Employment Discrimination Law (4th
ed. BNA, 2004) (contributor).
Final Report and Recommendations, California Supreme Court Advisory Task Force
on Multijurisdictional Practice (Reporter) (Jan. 7, 2002) (adopted by California
Supreme Court 2002).
2 California Antitrust Law (2d ed. 2001), State Bar of California,
Antitrust and Unfair Competition Law Section (Chapter 11 Indirect-Purchaser
Actions) (with Joseph R. Saveri, Charles Kagay, and Francis O. Scarpulla).
1 California Antitrust & Unfair Competition Law (3d ed. 2003), State Bar
of California, Antitrust and Unfair Competition Law Section (Chapter 6 Indirect-Purchaser
Actions) (with Joseph R. Saveri and Francis O. Scarpulla) and (4th ed. 2005)
(Chapter 6 Indirect-Purchaser Actions) (with Joseph R. Saveri).
California Class Action Practice and Procedure (Lexis 2003) (ed. Elizabeth
J. Cabraser) (contributing author).
“Decisions Interpreting California’s Rules of Class Action Procedure,”
in Survey of State Class Action Law (ABA 2000), republished in Newberg
on Class Actions, State Supplement Section (California) (with Elizabeth
J. Cabraser, William B. Hirsch, Fabrice Vincent, Barry R. Himmelstein and Stephen
H. Cassidy) (2001-02, 2003).
“Thoughts on Finding the ‘Truth,’” The Lawyer (2001).
2000 Cumulative Supplement to Employment Discrimination Law (3d ed. BNA) (Chapter
39, Statistical Proof) (contributor).
“Allison v. Citgo Petroleum Corp.: A Noble Retreat,” 9
Class Actions and Derivative Suits 24 (Winter 1999) (with James M.
Finberg).
Semiannual Advanced ALI-ABA Course of Study, "Civil Practice and Litigation
Techniques in Federal and State Courts: Current Issues Involving Rule 12(b)(6)
and Rule 9(b)," (published in 1998 and 1999) (with Elizabeth J. Cabraser).
Presentations
Presenter, "Judicial Activism and Judicial Resolution of Contested Facts
in Antitrust Cases," Ninth Annual Antitrust Colloquium, Loyola University
Chicago School of Law, Chicago, Illinois (May 2009).
Presenter, "Free Speech in Three Easy Steps: What's the Next Step?,"
University of San Francisco School of Law Faculty Teaching and Scholarship Workshop,
San Francisco, California (February 2009).
Presenter, Moderator, Panel on Lawyer Civility, Center for Law and Ethics and
the American Board of Trial Advocates, University of San Francisco School of
Law, San Francisco, California (January 2009).
Presenter, "Judicial Resolution of Contested Facts in Antitrust Cases,"
American Antitrust Institute symposium, "Future of Private Antitrust Enforcement,"
Washington, DC (December 2008).
Panelist on inadvertent disclosures, State Bar of California ethics symposium,
"Notoriety -- When the Spotlight is on Ethics," University of San
Francisco (May 2008).
Panel on Expected Value Arbitration, Annual Meeting of the International Institute
for Conflict Prevention and Resolution (2008).
