Faculty Bibliography

The Research Handbook on Health, AI and the Law explores the use of AI in healthcare, identifying the important laws and ethical issues that arise from its use. Adopting an international approach, it analyses the varying responses of multiple jurisdictions to the use of AI and examines the influence of major religious and secular ethical traditions.

From at least the early twentieth century, legal scholars have recognized that rights and other legal relations inhere between individual legal actors, forming a vast and complex social network. Yet, no legal scholar has used the mathematical machinery of network theory to formalize these relationships. Here, we propose the first such approach by modelling a rudimentary, static set of real property relations using network theory. Then, we apply our toy model to measure the level of modularity—essentially, the community structure—among aggregations of these real property relations and associated actors. In so doing, we show that even for a very basic set of relations and actors, law may employ modular structures to manage complexity. Property, torts, contracts, intellectual property, and other areas of the law arguably reduce information costs in similar, quantifiable ways by chopping up the world of interactions between parties into manageable modules that are semi-autonomous. We also posit that our network science approach to jurisprudential issues can be adapted to quantify many other important aspects of legal systems. This article is part of the theme issue 'A complexity science approach to law and governance'.

A crucial path to legal status for immigrant victims of crimes is the U visa, which Congress established with strong bipartisan support to protect victims of particular crimes who are helpful to law enforcement. Because the U visa was intended to encourage reporting of crimes, the application requires a certification form to be completed by a federal, state, or local authority that is investigating or prosecuting the alleged offense. Arbitrary and inconsistent certification decisions by state and local authorities make it especially important to identify relevant federal authorities that can serve as certifying authorities for U visas. This Piece argues that congressional committees and subcommittees that engage in investigations qualify as certifying authorities under the statute and regulations. To date, these congressional committees have never certified a U visa. The Piece provides three examples of congressional investigations in which U visa certification would be warranted: investigations into medical abuses of detained women, the so-called “Zero Tolerance” family-separation policy, and the use of solitary confinement in immigration detention.

Health care delivery is shifting away from the clinic and into the home. Even prior to the COVID-19 pandemic, the use of telehealth, wearable sensors, ambient surveillance, and other products was on the rise. In the coming years, patients will increasingly interact with digital products at every stage of their care, such as using wearable sensors to monitor changes in temperature or blood pressure, conducting self-directed testing before virtually meeting with a physician for a diagnosis, and using smart pills to document their adherence to prescribed treatments. This volume reflects on the explosion of at-home digital health care and explores the ethical, legal, regulatory, and reimbursement impacts of this shift away from the 20th-century focus on clinics and hospitals towards a more modern health care model. This title is also available as Open Access on Cambridge Core.

In his first interview after the release of his controversial report, the former special counsel insists that it was not his job to write for the public.

The use of Artificial Intelligence (AI) based on data-driven algorithms has become ubiquitous in today's society. Yet, in many cases and especially when stakes are high, humans still make final decisions. The critical question, therefore, is whether AI helps humans make better decisions as compared to a human alone or AI an alone. We introduce a new methodological framework that can be used to answer experimentally this question with no additional assumptions. We measure a decision maker's ability to make correct decisions using standard classification metrics based on the baseline potential outcome. We consider a single-blinded experimental design, in which the provision of AI-generated recommendations is randomized across cases with a human making final decisions. Under this experimental design, we show how to compare the performance of three alternative decision-making systems--human-alone, human-with-AI, and AI-alone. We apply the proposed methodology to the data from our own randomized controlled trial of a pretrial risk assessment instrument. We find that AI recommendations do not improve the classification accuracy of a judge's decision to impose cash bail. Our analysis also shows that AI-alone decisions generally perform worse than human decisions with or without AI assistance. Finally, AI recommendations tend to impose cash bail on non-white arrestees more often than necessary when compared to white arrestees.

Eliminating the line could help ensure that voters, not party insiders, have the final say.

Instant-runoff voting (IRV) is having a moment. More than a dozen American localities have adopted it over the last few years. So have two states. Up to four more states may vote on switching to IRV in the 2024 election. In light of this momentum, it’s imperative to know how well IRV performs in practice. In particular, how often does IRV elect the candidate whom a majority of voters prefer over every other candidate in a head-to-head matchup, that is, the Condorcet winner? To answer this question, this article both surveys the existing literature on American IRV elections and analyzes a new dataset of almost two hundred foreign IRV races. Both approaches lead to the same conclusion: In actual elections—as opposed to in arithmetical examples or in simulated races—IRV almost always elects the Condorcet winner. What’s more, a Condorcet winner almost always exists. These findings help allay the concern that candidates lacking majority support frequently prevail under IRV. The results also reveal an electorate more rational than many might think: voters whose preferences among candidates are, at least, coherent in virtually all cases.

In this paper, we examine the primary impact of two categories of food recovery policies on food donation and the secondary impact on food safety, food waste, and food insecurity in U.S. states. As one method of food recovery, food donation can reduce food waste while mitigating food insecurity, and it can be promoted in U.S. states through strong liability protection policies that provide legal protection to food donors and through tax incentivization policies that financially reward food donors via deductions and/or credits. To provide an initial evaluation of the effects of these policies, we coded each state’s food recovery policies in 2012 and 2018 and compared strong policies versus weak policies. Using data from multiple sources, we found that states with stronger liability protection policies had more food donations, and states that provide tax incentivization had more food waste. Although our analyses were correlational, rather than causal, and were reliant upon limited data, our results demonstrate that the current food recovery policy landscape in U.S. states does relate to important food waste outcomes. We discuss the implications of these findings for crafting more effective policies that encourage food recovery.

The clock is running out on Trump in the New York election interference case.

This JAMA Forum discusses the legacies of slavery, efforts underway at colleges and universities to explore and address the legacies of slavery, and health care system actions to address structural racism.

A requiem for Section 3 of the Fourteenth Amendment.

This Viewpoint discusses the Alabama Supreme Court’s opinion on in vitro fertilization and how it plays into a larger push for fetal and embryonic personhood.

Scholarship on the phenomena of big data and algorithmically-driven digital environments has largely studied these technological and economic phenomena as monolithic practices, with little interest in the varied quality of contributions by data subjects and data processors. Taking a pragmatic, industry-inspired approach to measuring the quality of contributions, this work finds evidence for a wide range of relative value contributions by data subjects. In some cases, a very small proportion of data from a few data subjects is sufficient to achieve the same performance on a given task as would be achieved with a much larger data set. Likewise, algorithmic models generated by different data processors for the same task and with the same data resources show a wide range in quality of contribution, even in highly performance-incentivized conditions. In short, contrary to the trope of data as the new oil, data subjects, and indeed individual data points within the same data set, are neither equal nor fungible. Moreover, the role of talent and skill in algorithmic development is significant, as with other forms of innovation. Both of these observations have received little, if any, attention in discussions of data governance. In this essay, I present evidence that both data subjects and data controllers exhibit significant variations in the measured value of their contributions to the standard Big Data pipeline. I then establish that such variations are worth considering in technology policy for privacy, competition, and innovation. The observation of substantial variation among data subjects and data processors could be important in crafting appropriate law for the Big Data economy. Heterogeneity in value contribution is undertheorized in tech law scholarship and implications for privacy law, competition policy, and innovation. The work concludes by highlighting some of these implications and posing an empirical research agenda to fill in information needed to realize policies sensitive to the wide range of talent and skill exhibited by data subjects and data processors alike.

For fans of Thinking Fast and Slow and The Power of Habit, a groundbreaking new study of how disrupting our well-worn routines, both good and bad, can rejuvenate our days and reset our brains to allow us to live happier and more fulfilling lives.Have you ever noticed that what is thrilling on Monday tends to become boring on Friday? Even exciting relationships, stimulating jobs, and breathtaking works of art lose their sparkle after a while. People stop noticing what is most wonderful in their own lives. They also stop noticing what is terrible. They get used to dirty air. They stay in abusive relationships. People grow to accept authoritarianism and take foolish risks. They become unconcerned by their own misconduct, blind to inequality, and are more liable to believe misinformation than ever before. But what if we could find a way to see everything anew? What if you could regain sensitivity, not only to the great things in your life, but also to the terrible things you stopped noticing and so don’t try to change? Now, neuroscience professor Tali Sharot and Harvard law professor (and presidential advisor) Cass R. Sunstein investigate why we stop noticing both the great and not-so-great things around us and how to “dishabituate” at the office, in the bedroom, at the store, on social media, and in the voting booth. This groundbreaking work, based on decades of research in the psychological and biological sciences, illuminates how we can reignite the sparks of joy, innovate, and recognize where improvements urgently need to be made. The key to this disruption—to seeing, feeling, and noticing again—is change. By temporarily changing your environment, changing the rules, changing the people you interact with—or even just stepping back and imagining change—you regain sensitivity, allowing you to more clearly identify the bad and more deeply appreciate the good.

In The World and Us, Roberto Mangabeira Unger sets out to reinvent philosophy. His central theme is our transcendence, everything in our existence points beyond itself, and its relation to our finitude: everything that surrounds us, and we ourselves, are flawed and ephemeral. He asks how we can live so that we die only once, instead of dying many small deaths; how we can breathe new life and new meaning into the revolutionary movement that has aroused humanity for the last three centuries, but that is now weakened and disoriented; and how we can make sense of ourselves without claiming for human beings a miraculous exception to the general regime of nature. For Unger, philosophy must be the mind on fire, insisting on our prerogative to speak to what matters most. From this perspective, he redefines each of the traditional parts of philosophy, from ontology and epistemology to ethics and politics. He turns moral philosophy into an exploration of the contest between the two most powerful contemporary moral visions: an ethic of self-fashioning and non-conformity, and an ethic of human connection and responsibility. And he turns political philosophy into a program of deep freedom, showing how to democratize the market economy, energize democratic politics, and give the individual worker and citizen the means to flourish amid permanent innovation.

Justice Gorsuch will have completed his seventh year on the Supreme Court when the Justices recess for the summer later this year. If those seven years are prologue, the Justice’s longer-term impact on environmental law may well exceed even the worst fears expressed by environmentalists who opposed his confirmation. Whether assessed quantitatively or qualitatively, Justice Gorsuch is a solidly conservative vote skewed against legal positions that environmentalists favor, with the potential to unsettle the entire federal administrative state upon which much of federal environmental law depends. His votes and opinions do not evince hostility to environmentalism per se, but instead reflect misgivings about the heightened roles that the national government and federal executive branch officials serve in administering environmental law. No doubt there will be instances when Justice Gorsuch’s views on cross-cutting issues of constitutional law tip in favor of particular outcomes protective of the environment, but these are likely to be the exception. Justice Gorsuch’s views on separation of powers have already proven incompatible with the efforts of the United States Environmental Protection Agency and other federal agencies to assert the kind of expansive authority necessary to meet today’s compelling environmental problems. His views on federalism are even more foreboding, especially his exceedingly narrow conception of congressional Commerce Clause authority to address environmental protection concerns. With regard to federalism, there is potential for some votes favorable to environmentalists when state and local governments, rather than the federal government, champion environmental causes. However, even that mitigating potential seems likely to be diminished in light of the Justice’s evident concern that environmental protection requirements, regardless of the sovereign imposing them, unduly burden individual liberty and private property interests.

Health care workers are disproportionately at risk for workplace violence. They are 5 times more likely to experience violence at work than other workers, accounting for 73% of all nonfatal workplace injuries from violence. Attacks against health care workers are on the rise. A national survey of nurses found a 119% increase in nurses reporting worsening workplace violence between March 2021 and March 2022. This increase is part of a broader trend of rising violence against health care workers over the last decade. This Viewpoint seeks to understand the current legislative responses at the state level to this outburst of deadly violence and analyze how the law is adapting to protect health care personnel.

This is the original version of the Tanner Lectures on Human Values, delivered at Harvard University in 1994. The central question is this: How is law possible in a heterogeneous society, composed of people who sharply disagree about basic values? Such disagreements involve the most important issues of social life: the distribution of wealth, the role of race and gender, the nature of free speech and private property. Much of the answer to this puzzle lies in an appreciation of how people who disagree on fundamental issues can achieve incompletely theorized agreements on particular cases. Lecture I sets out the basic idea of incompletely theorized agreements and argues that such agreements have many virtues. Lecture II opposes rules to rulelessness. Its principal goal is to point the way toward a more refined understanding of the ideal of the rule of law, one that sees a degree of particularity, and a degree of lawmaking at the point of application, as an important part of that ideal. The lectures end with the suggestion that incompletely theorized agreements on particular outcomes play a large role not only in law, but also in many other sectors of social life, prominently including democratic discussion.

The Justices seem to want to avoid a major decision about whether Trump can serve as President—but if they do so they may set off a national crisis.

The Supreme Court decided two cases of central importance to free speech during the 2022 term – in both cases without addressing the First Amendment implications. In Andy Warhol Foundation v. Goldsmith, the Court upheld a ruling that Andy Warhol’s reworkings of Lynn Goldsmith’s photograph of the artist Prince into highly stylized silkscreens and drawings were not transformative, and thus were unfair, at least when images of the artworks were licensed to illustrate articles about Prince. In Jack Daniel’s v. VIP Products, the court found that a parody dog toy in the general shape of a Jack Daniel’s bottle, with the label “Bad Spaniels,” deserved no special protection for its parody against Jack Daniel’s trademark claim. The Court reached these results using ideas about the lesser status of profitable speech that it flatly rejected in other cases the same term, and with rationales that seem directly at odds with its First Amendment jurisprudence. In this article, we show that the Court’s decisions cannot be reconciled with its approach to any other area of speech, and that they are already having pernicious effects in the lower courts. We consider some possible explanations for the inconsistency: the possibility that the Court just doesn’t see First Amendment issues in IP cases; the possibility that a political realignment has left conservative justices less enchanted with speech in the marketplace; and the possibility that this is part of a broader trend away from holding courts to the same constitutional standard as the other branches of government, combined with statutes that leave room for substantial judicial discretion in individual cases. Whatever the explanation or explanations, the decisions in Warhol and Jack Daniel’s to cut back dramatically on judicially-created speech-protective rules may have the ironic effect of forcing the Court to confront directly the constitutional fragility of much modern IP law.

A longstanding and influential view in U.S. correctional policy is that "nothing works" when it comes to rehabilitating incarcerated individuals. We re-examine this hypothesis by studying an innovative law-enforcement-led program recently launched in the county jail of Flint, Michigan: Inmate Growth Naturally and Intentionally Through Education (IGNITE). We develop a new instrumental variable approach to estimate the effects of IGNITE exposure, leveraging quasi-random court delays that cause individuals to spend more time in jail both before and after the program's launch. We find that IGNITE exposure dramatically reduces both within-jail misconduct and post-release recidivism. Qualitative evidence suggests a cultural change within the jail as a key mechanism.

Recent laws in the US, along with the Digital Services Act (DSA), seek to provide “due process” for individual content moderation decisions. Due process, understandably enough, often contains a component of treating like cases alike. It seems to follow, then, that if two relevantly similar users are treated differently, there is a problem of inconsistency, and that problem might be addressed by requiring more “due process” in the forms of appeals and clear rules and explanations of those rules to offenders. But it is said that consistency is the hobgoblin of small minds. In internet regulation, it is a damaging goal if taken as a mandate to make individual decisions uniformly consistent with each other.

Western European nations offer an alternative to strict bans on abortion that holds out the promise of protecting life—both fetal and maternal life—as much as possible. More important than the details of policies directly aimed at abortion access are Western European systems of social support for women before, during, and after pregnancy—a thick social safety net in which contraception is readily available, as is medical care during pregnancy and after delivery, with generous family leave policies and widespread availability of child care. And these policies are all set in a “culture of life” that extends beyond the abortion issue itself. These Western European policies emerged from bargains among political parties with distinctive ideologies and histories. However, the contours of U.S. party politics make it difficult to imagine how the Western European model could be implemented in the United States.

Congress has enacted into law thousands of statutory provisions containing rules of construction. These rules direct courts to the permissible interpretations of the statutes that Congress enacts. With respect to the self-determination contracts between Indian tribes and the United States at issue in these cases, the Indian Self-Determination and Education Assistance Act (ISDA) prescribes two interpretive rules that serve as congressional directives to this Court. First, each provision of the self-determination contract must be construed liberally for the benefit of the tribe. Second, the same is true of the statute itself: each provision of the ISDA must be construed liberally for the benefit of the tribe. The ISDA’s interpretive rules were intended to ensure agency compliance with Congress’s policy to promote tribal self-determination and are consistent with well-established rules guiding interpretation of treaties, agreements, and statutes that address Indian affairs and implement the United States’ unique responsibilities to Indian tribes. Congress enacted these rules in response to the executive branch’s repeated cramped readings of the relevant provisions of law and the resulting failures to ensure adequate federal financial support for tribes’ self-determination contracts. The parties here agreed to these rules as part of their contracts, and Congress codified these rules in the ISDA, as it has codified substantially identical rules for other agreements between tribes and the United States under other parts of the ISDA. Under ordinary principles of both contractual and statutory interpretation, these rules control in these breach-of-contract cases. The goal of interpretation— whether of a contract or statute—is to discern the authors’ intent from the written text. The plain text of the contracts and statute makes clear the parties’ and Congress’s intent regarding how the terms of their agreement and the applicable provisions of law are to be construed. As this Court has previously explained in a similar case, to prevail under these rules of construction, the government must demonstrate that its reading “is clearly required by the statutory language.” Salazar v. Ramah Navajo Chapter, 567 U.S. 182, 194 (2012). The government has made no such showing here. Instead, its arguments seek to bypass the ISDA’s text and read into the statute and contracts restrictions on the government’s financial-support obligations that are based solely on inferences drawn against Indian tribes. Congress gave no indication, much less a clear one, that any of the government’s suggested inferences should be drawn. And adopting such inferences would require this Court to disregard Congress’s unequivocal directives to construe each provision of the ISDA and self-determination contract liberally in the tribe’s favor. Applying the ISDA’s rules of construction is consistent with longstanding principles of federal Indian law and congressional and judicial practice in other statutory contexts. In the context of federal Indian Law, the Indian canon already requires liberal construction of the ISDA and the agreements as a matter of the United States’ trust responsibility and duty of protection to Indian tribes. The canon’s well-settled application to agreements between the United States and tribes and to statutes affecting their interests further supports enforcement of these express congressional rules. Congressionally mandated provisions telling courts to construe a provision liberally in favor of one party are a familiar feature of government contracting law. Federal courts have similarly applied Congress’s rules of construction in cases concerning the Employee Retirement Income Security Act, the Federal Arbitration Act, the Religious Land Use and Institutionalized Persons Act, the Miller Act, and numerous other statutes. Moreover, these are breach-of-contract cases in which the Court is construing statutory provisions incorporated into a contract. It is commonplace to enforce contractual provisions setting forth rules of interpretation, just like courts enforce any other provision of a contract. Indeed, that is precisely what this Court did in Salazar. It is unexceptional thus that the ISDA—a law authorizing and governing a specific type of government contracting with tribes—directs a liberal construction of those contracts for tribes’ benefit. The Court should enforce the ISDA’s rules of construction and affirm the decisions below in respondents’ favor.

The Court’s opinion in Dobbs v. Jackson Women’s Health Organization embraces a form of due process traditionalism. With Burkean and Thayerian arguments at work, the Court offers an understanding of the Due Process Clause which allows substantive protection of rights only if they are vindicated by tradition and essential to “ordered liberty.” Within the opinion’s logic, the major challenge is to accept due process traditionalism without simultaneously throwing a variety of nontraditional or antitraditionalist substantive due process cases into doubt. There are uneasy relationships between the traditionalist thrust of the Court’s opinion and the Court’s nontraditional or antitraditionalist jurisprudence in other areas of constitutional law. A central reason must be that the Court believes in some forms of moral progress. The central weakness of the Dobbs opinion is its rejection of the idea that moral progress can and should play a role in the understanding of constitutional rights.