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  • Andrew Lanham, “Protection for Every Class of Citizens”: The New York City Draft Riots of 1863, the Equal Protection Clause, and the Government’s Duty to Protect Civil Rights, 13 UC Irvine L. Rev.(forthcoming 2023).

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  • A Global History of Crime: Antiquity (Adriaan Lanni ed., forthcoming 2023).

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  • Adriaan Lanni, Enforcement in Classical Athens, in 1 A Global History of Crime: Antiquity (Adriaan Lanni ed., forthcoming 2023).

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    Over the past three decades, the Supreme Court has led a historicist revolution in equity jurisprudence. In a series of decisions known as the “new equity” cases, the Court has sought to limit federal equitable remedies to the forms of relief typically issued by the English Court of Chancery at the Founding. It has read this stringent limitation into various federal statutes that refer to equity—from ERISA to the Judiciary Act. But these cases miss the mark on their own quasi-originalist terms. By focusing on statutes as the basis for the judiciary’s power to grant equitable relief, the Court has overlooked the underlying source of that power—the provision of Article III that extends “the judicial Power” to cases in “Equity.” This Article uncovers federal equity’s constitutional source. Applying the Supreme Court’s historically-inflected methodology, it argues that “the judicial Power” in “Equity” is best understood as vesting the federal courts with inherent power to grant equitable relief. That power is coextensive with the remedial authority of the Founding-era English Chancellor. Put simply, Article III empowers the courts to apply the system of equitable remedies that was administered by the Court of Chancery in 1789 as the baseline of federal equity power. Thus, absent express Congressional action altering this system (which is rare), it is Article III itself—not federal statutes—that supplies authority for and defines the limits of federal equity. Returning equity to its constitutional source suggests that the judiciary has greater leeway to develop the federal system of equitable remedies than the Court’s time-bound new equity cases seem to permit. To be sure, the remedial power incorporated by Article III was not illimitably flexible. Founding-era Chancellors were bound by settled rules from which they did not depart absent legislative authorization. But nor was it fixed in time. Chancery could elaborate the system of equitable remedies in a gradual, accretive, precedent-based way. Article III vests an equivalent power in the federal courts. By ignoring this power and instead tying federal equity to particular statutes, the Court has, in the name of fidelity to history, adopted an ahistorical, cramped understanding of the federal equity power.

  • Adriaan Lanni, Introduction: Ancient Approaches to Crime, in 1 A Global History of Crime (Adriaan Lanni ed., forthcoming 2023).

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  • Adriaan Lanni, Meeting the Challenges of Scaling Up Restorative Justice in the United States, in Restorative Justice at a Crossroads: Dilemmas of Institutionalization (forthcoming).

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  • Adriaan Lanni, Erin V. Freeborn & Lucas Wilson, Restorative Justice Intersections with the Legal System in Massachusetts: Criminal Diversion to Programs in Prison, in The International Encyclopedia of Restorative Justice (forthcoming).

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    This Article investigates the time of COVID-19 to test the claims of supporters of stakeholder capitalism (“stakeholderism”). Such supporters advocate encouraging and relying on corporate leaders to use their discretion to serve stakeholders such as employees, customers, suppliers, local communities, and the environment. The pandemic followed and was accompanied by peak support for stakeholderism and broad expressions of commitment to it from corporate leaders. Nonetheless, and even though the pandemic heightened risks to stakeholders, we document that corporate leaders negotiating deal terms failed to look after stakeholder interests. Some supporters of stakeholder capitalism argue that corporate leaders should and do give weight to stakeholder interests because delivering value to stakeholders is a major element of corporate purpose. Other supporters maintain that corporate leaders considering a sale of the company should and do seek to benefit stakeholders, because fulfilling implicit promises to do so serves shareholders’ ex ante interest in inducing stakeholder cooperation, arguably essential to corporate success. We find that the evidence is inconsistent with the claims of both views. We conduct a detailed examination of all the $1B+ acquisitions of public companies that were announced during the COVID pandemic, totaling more than 100 acquisitions with an aggregate consideration exceeding $700 billion. We find that deal terms provided large gains for the shareholders of target companies, as well as substantial private benefits for corporate leaders. However, although many transactions were viewed at the time of the deal as posing significant post-deal risks for employees, corporate leaders largely did not obtain any employee protections, including payments to employees who would be laid off post-deal. Similarly, we find that corporate leaders failed to negotiate for protections for customers, suppliers, communities, the environment, and other stakeholders. After conducting various tests to examine whether this pattern could have been driven by other factors, we conclude that it is likely to have been driven by corporate leaders’ incentives to benefit stakeholders only to the extent needed to serve shareholders’ interests. While we focus on decisions in the acquisition context, we explain why our findings also have implications for ongoing-concern decisions, and we discuss and respond to potential objections to our conclusions. Overall, our findings cast substantial doubt on the claims made by supporters of stakeholder capitalism. Those who seriously care about corporations’ external effects on shareholders should not harbor illusory hopes that corporate leaders would protect stakeholder interests on their own. Instead, they should concentrate their efforts on securing governmental interventions (such as carbon taxes and employee protection policies) that could truly protect stakeholders.

  • Adriaan Lanni, The Debate over the Rule of Law in Classical Athens: A Legal Consciousness Approach, in 1 The Cambridge History of Democracy: From Democratic Beginnings to c. 1350 (Eric Robinson & Valentina Arena eds., forthcoming 2023).

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    Due to the shortcomings of environmental policy, there is growing interest in the role that private actors can play in the fight against climate change. One of the most important theories in this field argues that large asset managers, and in particular large index funds, can and will undertake the role of “climate stewards” and push corporations to reduce their carbon footprint. This “portfolio primacy” theory is based on the view that index fund portfolios mirror the entire market and therefore have strong financial incentives to reduce market-wide threats, such as climate change. But how much can we rely on portfolio primacy to mitigate the effects of climate change? In this Article, I provide a conceptual and empirical assessment of the potential impact of portfolio primacy on climate change mitigation by examining the scope of action, economic incentives, and fiduciary conflicts of index fund managers. The analysis reveals three major limits, each reinforcing the others, that undermine the promise of portfolio primacy. First, the potential scope of index fund stewardship is narrow, as most companies around the world, including most carbon emitters, are private, controlled by state governments or private shareholders, or influenced by major blockholders. Second, index funds internalize only a fraction of the social cost of climate change and therefore have very weak incentives to engage in ambitious climate stewardship. Third, index fund managers advise dozens of index funds with conflicting interests with respect to climate mitigation and therefore face serious fiduciary conflicts that would hamper any ambitious mitigation strategy. This analysis shows that portfolio primacy cannot become a powerful tool in the fight against climate change. On the contrary, by creating the misleading impression that index funds will have a significant impact on climate change, portfolio primacy may well reduce political support for climate regulation and thus harm climate progress.

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    The law presumes that individuals are rational. But what about when the patient has neuropsychiatric impairments that hinder judgement?

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    Our twenty-first-century culture of performed remorse has become a sorry spectacle.

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    Students for Fair Admissions is one of only a few Supreme Court cases about the rights of Asian Americans. But what will it achieve on their behalf?

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    Election administration is a job for professionals.

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    The point of remembering our agitated past is to gain hope, not despair.

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    The Supreme Court hears a challenge to affirmative action this week—and will likely overrule more than four decades of precedents on college admissions.

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    How our inability to change America’s most important document is deforming our politics and government.

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    Charlayne Hunter-Gault’s ‘My People: Five Decades of Writing About Black Lives’ offers a survey of turbulent times and those who made history throughout them

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    Human decision-makers frequently override the recommendations generated by predictive algorithms, but it is unclear whether these discretionary overrides add valuable private information or reintroduce the human biases and mistakes that motivated the adoption of the algorithms in the first place. We develop new quasi-experimental tools to measure the impact of human discretion over an algorithm, even when the outcome of interest is only selectively observed, in the context of bail decisions. We find that 90% of the judges in our setting generally underperform the algorithm when making a discretionary override, with most judges making override decisions that are no better than random. Yet the remaining 10% of judges outperform the algorithm in terms of both accuracy and fairness when making a discretionary override. We provide suggestive evidence on the behavior underlying these differences in judge performance, showing that the high-performing judges are more likely to use relevant private information and less likely to overreact to highly-salient events compared to the low-performing judges.

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    Clinical research often excludes people with disabilities who have impaired decisional capacity, but they can be included through supported decision-making, where their decisions can be assisted by designated supporters of their choosing. This will promote equitable access to research.

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    In a copyright case, the Justices revealed their own anxieties about interpreting precedents.

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    This Viewpoint examines the murky legal treatment of various health-related wearable or other general wellness products for patients, physicians, and manufacturers, and recommends solutions.

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    Social and behavioral science research proliferated during the COVID-19 pandemic, reflecting the substantial increase in influence of behavioral science in public health and public policy more broadly. This review presents a comprehensive assessment of 742 scientific articles on human behavior during COVID-19. Two independent teams evaluated 19 substantive policy recommendations (“claims”) on potentially critical aspects of behaviors during the pandemic drawn from the most widely cited behavioral science papers on COVID-19. Teams were made up of original authors and an independent team, all of whom were blinded to other team member reviews throughout. Both teams found evidence in support of 16 of the claims; for two claims, teams found only null evidence; and for no claims did the teams find evidence of effects in the opposite direction. One claim had no evidence available to assess. Seemingly due to the risks of the pandemic, most studies were limited to surveys, highlighting a need for more investment in field research and behavioral validation studies. The strongest findings indicate interventions that combat misinformation and polarization, and to utilize effective forms of messaging that engage trusted leaders and emphasize positive social norms.

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    The exclusion of people with disabilities from clinical research without appropriate justification is discriminatory, is counter to federal regulations and research guidelines, and limits study generalizability. This matter is understudied, and data on the disability status of trial participants are rarely collected or reported. We analyzed ninety-seven recent interventional protocols in four therapeutic areas registered on ClinicalTrials.gov. Eighty-five percent of protocols allowed broad investigator discretion to determine eligibility, whereas only 18 percent explicitly permitted people with disabilities to use forms of support (such as supported decision making or assistive devices) to facilitate study participation. Eligibility criteria affecting people with disabilities included exclusions for psychiatric (68 percent), substance use (62 percent), HIV or hepatitis (53 percent), cognitive or intellectual (42 percent), visual (34 percent), hearing (10 percent), mobility (9 percent), long-term care (6 percent), and speech and communication (3 percent) disability-related domains. Documented justification was provided for only 24 percent of these exclusions. We recommend greater scrutiny of study eligibility criteria, scientific or ethical justification of exclusions, and accessible study design.

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    The following article adapts and consolidates two comment letters submitted last spring by a group of twenty-two professors of finance and law on the SEC's proposed climate change disclosure rules. The professors reiterate their recommendation that the SEC withdraw its proposal as legally misguided, while outlining some of the issues that the proposal will face when challenged in court.

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    Whether or not one sees the Supreme Court’s Dobbs decision as barely concealed theocracy, it fails to provide any coherent legal analysis of why the right to abortion is not protected by the Fourteenth Amendment.

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    Men have utterly failed to protect women so women must take matters into their own hands. This book shows them how. The Bonobo Sisterhood explores the power and potential of female alliances to stop male-on-female violence.

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    Why is a young, ideologically-driven judge with a lifetime appointment to the bench allowed to ignore legal precedents?

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    Archivists regularly contend with a wide range of security threats, including data breaches, inadvertent loss, and legal action by those hoping to make sealed records public. These threats are particularly salient when sensitive materials are donated with delayed-release conditions. Trust in archivists’ ability to enforce such conditions gives donors the confidence to enter into the historical record materials that they might otherwise destroy. But as these materials are increasingly born-digital (and therefore hackable, convenient to exfiltrate en masse, and more easily corrupted), and as governments and private parties become ever more aggressive in their efforts to secure early releases, we must innovate in order to stand still. To compensate for these new dynamics, we propose Strong Dark Archives (SDA), a blended legal and technical protocol for securing delayed-released archival materials among a network of libraries. SDA leverages modern cryptography and institutional agreements to coordinate access-control across multiple accredited archival organizations, providing broad resilience to data breaches, technical failures, and legal process. Through this distributed approach to security, SDA imposes meaningful friction on efforts to force the early disclosure of archival records.

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    Is the constitution ideally "legal" or "political"? "Written" or "unwritten"? How thick or thin are its principles and guarantees? Where does constitutional fidelity fit among liberal political virtues? What of "restraint" in the conduct of judicial constitutional review, or "originalism" in constitutional interpretation? These are questions raised by lawyers in constitutional-democratic societies throughout the world. In Constitutional Essentials: On the Constitutional Theory of Political Liberalism, Michelman not only raises these questions but explains why these debates persist in modern day constitutional democracies. Through the lens of John Rawls' seminal work Political Liberalism, Michelman responds to the problems governments of constitutional-democratic societies face from deep-lying disagreement among citizens. Rawls' suggested one solution: a "constitution," one that included a bill of rights-that all, despite other disagreements, could accept. Michelman explains Rawls' proposal, placing it within a duality of functions -"regulatory" and "justificatory" - for which, he says, lawyers in constitutional-democratic societies typically look to their countries' bodies of constitutional law. A close examination of the constitution-centered proposition on political legitimacy, this book will be valuable reading to academics in the fields of politics, philosophy, and law.

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    Donald Trump tried to delegitimize the legal process at all levels. Sadly, Judge Aileen Cannon's decision played into that narrative.

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    Judge Aileen Cannon’s opinion screams out that she applies more lenient rules to Donald Trump.

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    The present debate over the legal treatment of traditional knowledge (TK) and genetic resources tends to rationalize the precarious conditions in which Indigenous peoples and local communities live. The debate is organized around the question whether TK should be treated as part of the public domain or whether property rights should apply. Both sides presuppose either a robust utilitarianism or else a narrow conception of historical redress for past injustices. This Article argues that both property and the public domain depend on the disruption of places, people, and cultures that may stand in the way of the material conditions industrialized societies use as a proxy for human welfare. The TK debate tends to avoid fundamental moral and justice-related aspects of TK protection, including the centrality of TK to Indigenous peoples’ cultural identities and ways (and quality) of life, as well as their long-term socioeconomic development. The Article proposes a theological framework of “biblical stewardship” rooted in imago Dei—the foundational concept informing Jewish and Christian understandings of human nature and social interaction—to address the socio-moral dimensions that are constitutive of TK systems and the institutional context in which they unfold. The biblical stewardship framework focuses on the cooperative and kinship arrangements that enable and sustain productive capacity for TK. It centers the need for Indigenous peoples and local communities to be able to develop and protect their knowledge assets as a precondition for those communities’ thriving, both in the present and the future. Moreover, biblical stewardship supplies a basis for accountability by Indigenous peoples and local communities for how their TK is managed, shared, and utilized within a broader framework of progress and the public good—including obligations that foreclose access and benefit-sharing agreements that may undermine conditions for flourishing of plant, animal, or human life.

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