Selected Publications

Books and Dissertation:

  2. Co-Author, revisions to Chapter 12, "Awards and Substantive Interlocutory Arbitral Decisions," in COLLEGE OF COMMERCIAL ARBITRATORS, GUIDE TO BEST PRACTICES IN COMMERCIAL ARBITRATION (4th ed. 2017).
  4. THE GREAT DEPRESSION AND THE LIMITS OF MARKET-BASED POLICY (University of California at Berkeley, Spring 2003).

Articles and Presentations:


  1. With Allison Snyder, "How to Protect Your Right to a Reasoned Construction Award, When That Is What You Want," 16 Constr. L.J. 7 (Summer 2020).
  2. "Tribunals, Providers, and Courts Must Help Protect Reasoned Awards," 38 Alternatives 56 (Apr. 2020).
  3. "Parties Usually Benefit Most from Reasoned Awards, Not Standard Awards," 38 Alternatives 44 (Mar. 2020).
  4. "Parties, Beware: Current Practices and Judicial Standards Threaten Your Right to Truly Reasoned Awards," 38 Alternatives 19 (Feb. 2020).


  1. With Allison Snyder, "The Second Circuit Needs to Break Precedent to Protect Reasoned Arbitration Awards," 12 N.Y.S. Disp. Resol. Lawyer 16 (2019).
  2. "The Arbitration Award: Delivering a Quality Decision," presented at AAA/ICDR 2019 Panel Conference, Nashville, Tenn. (Mar. 8-9, 2019).


  1. "Mineral Implied Covenants: Why Royalty Owners Still Should Care About Them," presented at Nat'l Ass'n of Royalty Owners (NARO) Annual Convention, Denver, CO (October 19, 2018).
  2. "Real-World Questions about Awards and Arbitrator Decisionmaking: A Modest Problem Set," presented at AAA Roundtable, San Francisco, CA (June 6, 2018).
  3. "Ten Practices to Embrace, Ten to Shun, When Writing Awards" and "Award and Post-Award Issues" [moderator, with Karen Evans and Francisco Rodriguez], both presented at ABA Arbitrator Training Institute, Miami, FL (May 17-18, 2018).
  4. "Putting Arbitration in Your Trial Toolbox: How to Stop Worrying About the Panel Hearing and Learn to Love It Instead," presented at Litigation Counsel of America Renaissance Symposium XIII, San Francisco, CA (April 20, 2018).


  1. "The Tom Brady Award and the Merit of Reasoned Awards," 8 Harvard J. of Sports and Entertainment L., no. 2 (2017).
  2. "How the Texas Supreme Court Lost its Position as a Leading Oil and Gas Royalty Court: A Tale of 18 Cases," 49 Tex. Tech. L. Rev. 1 (2017).
  3. "A Straying Court? What Has Happened to Implied Covenants and Other Landowner Protection in Texas?," presented in Austin, Texas Graves at Dougherty Fourth Annual Landowners' Seminar (May 12, 2017).
  4. "Reasoned Awards: Why the Fuss? Why the Confusion?" presented at AAA Roundtable, San Francisco, CA (Feb. 8, 2017).


  1. "Implied Covenants in Texas and in the More United States," presented at Houston Bar, Oil, Gas and Mineral Law Section, Houston, TX (May 26, 2016).
  2. "Implied Covenants in Texas and Out: Has the Texas Supreme Court Abandoned a Mainstream Approach?" presented at Texas State Bar, Oil and Gas Disputes 2016, Houston TX (Jan. 28, 2016).


  1. "American Oil and Gas Implied Covenants and their Functions: ‘As Much A Part of the Contract – Is As Effectually One of Its Terms – As If Had Been Plainly Expressed,'" 2015 Rocky Mtn. Min. L. Found. ¶ 29.01.
  2. "Some Advice About Bice, North Dakota's Marketable-Product Decision," 90 North Dakota Law Review no. 3 (2015).
  3. "Mineral Royalties, Deductions, and Fawcett v. OPIK: Continuity and Change in the Revised But-Still-Standing Kansas Marketable-Product Rule," 64 Univ. of Kansas L. Rev. 63 (2015).
  4. "Arbitrator Use and Misuse of Experts," presented at AAA Roundtable, San Francisco, CA. (Nov. 11, 2015).
  5. "Implied Covenants: Landman's Friend or Foe?," presented at Rocky Mtn. Min. L. Found. Annual Inst., Anchorage, AK (July 18, 2015).
  6. Co-author, "Arbitration: The Underused Alternative for Oil and Gas Disputes," TX Lawyer)(June 17, 2015).
  7. "Preserving Public Natural Resources: Value and Sustainability in a World of High Costs and Budget Shortfalls," 10 Tex. J. Oil, Gas & Energy L. 265 (2015).
  8. "Clarifying Oklahoma's Marketable-Product Royalty Rule," 86 Okla. Bar J. 370 (2015).


  1. "Mineral Implied Covenants: Why Royalty Owners Should Care About Them," presented at Nat'l Ass'n of Royalty Owners (NARO) Annual Convention, Santa Fe, N. M. (October 2014).
  2. "Stewarding Public Oil, Gas, and Hard Minerals: The Express and Implied Development Rights that Protect Public Resources," 9 Tex. J. Oil, Gas & Energy L. 215 (2014).


  1. "Twenty-Five Years On: Arbitration Sails Onward Over the Supportive Sea of International Commerce," 7 World Arb. & Med. Rev., No. 2 (2013).
  2. With Barry Pulliam and Roger Ridlehoover, "Litigation in the Oil and Gas Industry," available at http://www/oilandgas (Feb. 8, 2012).
  3. With Rick Harper, "International Environmental Law: Can It Overcome Its Weaknesses to Create an Effective Remedy for Global Warming?," 10 Santa Clara Int'l L. Jo. 253 (2013).
  4. With Jerald Block and Barry Pulliam, "Trying the Expert Case," presented at Litigation Counsel of America Fall Conference, The Greenbrier, West Virginia (Oct. 17, 2013).


  1. "Growing Pains: Building American Arbitration's Legitimacy Through Everyday Arbitral Decisions," 5 World Arb. & Mediation Rev. 57 (2011).


  1. "Do Arbitrators Know Something that Judges Don't?," 94 Judicature 107 (2010).
  2. "The private oilfield lease: The implied covenants that have fostered oil and gas development in the U.S.," Newsletter of the Int'l Bar Ass'n, Legal Practice Division (Oct. 2010).


  1. "Draft to Make Arbitrators Follow the Law," The Recorder (Dec. 18, 2009).
  2. "Global Warming, the Regulations Ahead, and the Oil-and-Gas Industry," 48 Nat. Res. J. 745 (2009).


  1. "The Legacy of the City of Hope," The Recorder (June 3, 2008).


  1. "Private Pensions and the Justification for Social Security," 48 South Tex. L. Rev. 1 (2006).


  1. "The Restatement (First) of the Oilfield Operator's Fiduciary Duty," 45 Nat. Res. J. 587 (2005);
  2. "A Minority of One? The Reasons to Reject the Texas Supreme Court's Recent Abandonment of the Duty to Market in Market-Value Leases," 37 Tex. Tech L. Rev. 271 (2005).


  1. "The Emerging Mutual Benefit Implied Covenant for Royalty Owners," 17 Nat. Res. & Energy J. 171 (Trends & Insights 2003).
  2. "Judging Made Too Easy: The Judicial Exaggeration of Exculpatory and Liability-Limiting Clauses in the Oilfield's Operator Fiduciary Duty Cases," 56 S.M.U. L. Rev. 925 (2003).


  1. With Spencer Hosie, "The Congenital Problem of Royalty Underpayments in the Oil and Gas Industry: The Qui Tam Experience," (Speech, Institute for Energy Law, Houston, Texas, November 7-8, 2002).
  2. "The Precedent Trap and the Irrational Persistence of the Vela Rule," 39 Houston L. Rev. 979 (2002).


  1. "The Mutual Benefit Implied Covenant for Oil and Gas Royalty Owners," 41 Nat. Res. J. 795 (2001).
  2. With Jeff Leitzinger and Roger Ridlehoover, "Balance Needed in Operating Agreements as Industry's Center of Gravity Shifts to State Oil Firms," Oil & Gas Journal 74 (Oct. 23, 2000), reprinted in 2001-1 Natural Resources Digest (Natural Resources Team, IRS))(July 2001).


  1. "Lessons for Judges from the Civil Justice Reform Act," 83 Judicature 222 (2000).


  1. "Interbranch Politics and the Judicial Resistance to Federal Civil Justice Reform," 33 Univ. of San Francisco L. Rev. 1 (1999).


  1. "Cost Responsibility or Regulatory Indulgence for Electricity's Stranded Costs," 47 Am. L. Rev. 775 (1998).
  2. "Avoiding the Mistakes of FERC and California's Full Stranded-Cost Recovery in Electricity," 11 Elec. J. 57 (March 1998).
  3. "A New Equilibrium in Deregulated Energy," 12 Nat. Res. & Energy J. 295 (Viewpoint Spring 1998).
  4. "The Irreconcilable Differences Between FERC's Natural Gas and Electricity Stranded-Cost Treatments," 46 Buffalo L. Rev. 71 (1998).


  1. "Coming of Age: Initiating the Oilfield into Performance Disclosure," 50 S.M.U. L. Rev. 663 (1997).
  2. "Antitrust in the New [De]Regulated Natural Gas Industry," 18 Energy L.J. 1 (1997).
  3. "The Need for Uniform Discovery Time Limits," 80 Judicature 1 (Viewpoint May-June 1997).
  4. "Reforming Oil and Gas Accounting Protections," Lewis Mosburg's Internet Oil & Gas Newsletter (Jan./Feb. 1997, Mar./Apr. 1997).


  1. "Oilfield Class Actions," Nat. Res. & Energy L.J. 38 (Viewpoint, Fall 1996)(ABA Section Magazine).
  2. "The Class Action Tool in Oilfield Litigation," 45 Kan. L. Rev. 1 (1996).
  3. "The Strange Case of American Civil Procedure and Its Missing Discovery Time Limits," 24 Hofstra L. Rev. 865 (1996).
  4. "A Twelve-Step Program for Copas to Strengthen Oil and Gas Accounting Protections," 49 S.M.U. L. Rev. 1447 (1996).


  1. "The Take-or-Pay Crisis: Diagnosis, Treatment, and Cure for Immorality in the Marketplace," 22 N.M. L. Rev. 353 (1992).


  1. With Thomas Paterson, "The Effects of Monsanto, Matsushita, and Sharp on the Plaintiff's Incentive to Sue," 23 Connecticut L. Rev. 333 (1991).
  2. "Disconnection: How Ma Bell Was Cut Off from Her Young, and What to Think About It," 67 Tex. L. Rev. 1173 (1989)(Book Review).


  1. With Stephen D. Susman, "The Business Tort and the Pattern of Racketeering," 4 BNA Civil Rico Rpt. (Pt. 2) 1 (1988).
  2. "The Terminated Distributor and Vertical Price Fixing: What's Left After Sharp?," 3 Antitrust 10 (Fall 1988).


  1. With Stephen D. Susman, "If It Ain't Broke, Don't Fix It," 55 Antitrust L.J. 59 (1986).
  2. With William White, "Civil RICO After Sedima: The New Weapon Against Business Fraud," 23 Houston L. Rev. 743 (1986).


  1. "Abandoning the Constitution: The New Wave in Constitutional Theory," 59 Tulane L. Rev. 280 (1984).


  1. Note, "Enforcing the NLRA: The Need for the Duty to Bargain over Partial Plant Closings," 60 Tex. L. Rev. 279 (1982).