Faculty Bibliography

The COVID-19 pandemic has had an enduring effect across the entire spectrum of law and policy, in areas ranging from health equity and racial justice, to constitutional law, the law of prisons, federal benefit programs, election law and much more. This collection provides a critical reflection on what changes the pandemic has already introduced, and what its legacy may be. Chapters evaluate how healthcare and government institutions have succeeded and failed during this global 'stress test,' and explore how the US and the world will move forward to ensure we are better prepared for future pandemics. This timely volume identifies the right questions to ask as we take stock of pandemic realities and provides guidance for the many stakeholders of COVID-19's legal legacy. This book is also available as Open Access on Cambridge Core.

When Misfortune Becomes Injustice surveys the progress and challenges in deploying human rights to advance health and social equality over recent decades. Alicia Ely Yamin weaves together theory and firsthand experience in a compelling narrative of how evolving legal norms, empirical knowledge, and development paradigms have interacted in the realization of health rights, and challenges us to consider why these advances have failed to produce greater equality within and between nations. In this revised and expanded second edition, Yamin incorporates crucial lessons learned about the state of global health equity and public health systems during the COVID-19 pandemic, demonstrating just how incompatible the current institutionalized world order—based on neoliberal, financialized capitalism—is with one in which the rights of diverse people around the globe can be realized. COVID-19 struck a world that had been shaped by decades of disinvestment in public health, health systems, and social protection, as well as privatization of wealth and gaping social inequalities within and between countries, and the evident crisis of confidence in the capacity of democratic political institutions and global governance was deepened by the pandemic. Yamin argues that transformative human rights praxis in health calls for addressing issues of structural inequality and political economy, and working across disciplinary silos through networks and social movements.

Equity can be defined as the use of a more flexible, morally judgmental, and subjective mode of legal decision making that roughly corresponds with historical equity. This Element presents a simple contracting model that captures the role of equity as a safety valve, and shows how it can solve problems posed by opportunists–agents with unusual willingness and ability to take advantage of necessary imperfections in the law. In this model, a simple but imperfect formal legal regime is able to achieve first best in the absence of opportunists. But when opportunists are added, a more flexible regime (equity), can be preferred. However, equity is also vulnerable to being used opportunistically by the parties it intends to protect. Hence, the Element shows that it is often preferable to limit equity, reserving it for use only against those who appear sufficiently likely to be opportunists.

Economic arrangements, Ramseyer writes, are structured and implemented with the intent and hope that they will be carried out with 'care, intelligence, discretion, and effort.' Yet entrepreneurs work with partial information about the products, and people, they are dealing with. Contracting in Japan illustrates this by examining five sets of negotiations and unusual contractual arrangements among non-specialist businessmen, and women, in Japan. In it, Ramseyer explores how sake brewers were able to obtain and market the necessary, but difficult-to-grow, sake rice that captured the local terroir; how Buddhist temples tried to compensate for rapidly falling donations by negotiating unusual funerary contracts; and how pre-war local elites used leasing instead of loans to fund local agriculture. Ramseyer examines these entrepreneurs, discovering how they structured contracts, made credible commitments, obtained valuable information, and protected themselves from adverse consequences to create, maintain, strengthen, and leverage the social networks in which they operated.

An unflinching look at the beautiful, endangered, tourist-pummeled, and history-filled port city which now finds itself at the intersection of the twin crises of climate and race. Unknown to the happy, mostly white visitors who hop from one restaurant to another on the charming streets of the Charleston peninsula, or to readers of the glossy magazines in which the city is named a top destination year after year, rapidly rising sea levels and increasingly devastating storms are mere years away from rendering the Holy City uninhabitable. If this precarity is hidden, it is because the city and the state have a strong interest in keeping up appearances. And because the city’s Black and lower-income residents will bear the brunt of the storm. Charleston will show how the city must quickly reimagine its future before rising waters stymie its ability to act at all. Along the way, the city will need to confront and right historic wrongs. Susan Crawford’s evocative and profoundly important book will make us question whether Charleston is a bellwether for other towns and major cities along global coastlines. Charleston will chronicle the tumultuous recent past in the life of the city, from protests to hurricanes. It will show readers the city tourists never see, and lay out the risks now faced by a place that is in the business of marketing ahistorical, glossy luxury. We will hear from Rev. Joseph Darby, a well-regarded Black minister with a powerful voice across the city and region—who has an acute sense of the city’s shortcomings when it comes to matters of race and water. It will introduce Michelle Mapp, one of the city’s most promising Black leaders, who left her nonprofit post to attend law school at the Charleston School of Law and sees clearly how the systems around her must change. We will hear from Quinetha Frasier, a charismatic young Black entrepreneur with Gullah-Geechee roots who fears her people will be displaced by developers if they aren’t first wiped out by chronic flooding. Readers will meet Jacob Lindsey, the young white city planner charged with running the city’s ten-year “comprehensive plan” efforts—who ends up working for a private developer bent on turning what was once part of a river running next to the city into a giant commercial development. Each of these people, and the city in which they live, faces extraordinary risks in the form of coming environmental chaos. This emblematic American city crystallizes human tendencies to value profit and property above all else. At the same time, Charleston, like scores of other global coastal cities, urgently needs to chart a new future for its citizens in light of the changes ahead. Whether it can do so successfully will have crucial implications for cities everywhere. Illuminating and vividly rendered, Charleston is a clarion call and filled with characters who will stay in the reader’s mind long after the final page.

In the midst of the #MeToo movement, California voters recalled a judge for being lenient on sexual assault. As a new documentary argues, that recall campaign had unintended results.

A federal official wrote a parody of Harvard’s attitude toward Asian Americans and shared it with the dean of admissions. Why did a judge try to hide that from the public?

At the heart of Silicon Valley Bank’s failure are uninsured depositors — specifically startup companies who held far more than the insured limit of $250,000 and who couldn’t make payroll without access to their accounts. It’s tempting in light of SVB’s failure to assume that the insured deposit limit needs to be raised, but that solution creates new problems. A better approach would be for the U.S. to follow the example of other countries and create “payment banks” that take little-to-no risk, are highly regulated, and have access to the payment network. They would be a place where companies could park funds — like VC investment earmarked for payroll — without exposing themselves to the risks that normal banks create.

Lucian Bebchuk and Oliver Hart explain why Israel’s proposed legal transformation would undermine not only its democracy but also its economy.

Even in a period of relative economic calm, a bank less than one-tenth the size of JPMorgan Chase was not allowed to fail without some special protection for one group of creditors — those large, uninsured depositors.

In “Playing God,” the journalist Mary Jo McConahay argues that an alliance of extremely conservative bishops and Catholic activists is exerting a profound impact on our national politics.

Republican state attorneys general are threatening action against pharmacies that dispense it, as a federal lawsuit challenges the F.D.A.’s authority to approve it.

The U.S. Constitution does not guarantee a right to health care. Yet since 1976, the Supreme Court has held that deliberate indifference to the serious medical needs of incarcerated people — a population that is disproportionately sick, poor, and from marginalized racial and ethnic groups — violates the Eighth Amendment’s prohibition against cruel and unusual punishment. What this right means in practice, however, is far from settled, given that the standards for “deliberate indifference” and “serious medical need” are subject to judicial interpretation. Lacking quality standards, robust monitoring, and funding from public medical insurance programs, correctional administrators must provide health care for incarcerated people with limited guidance and often scarce resources. Incarcerated people have little recourse for woefully inadequate medical care except litigation, but they face multiple barriers to accessing the legal system and counsel, and rare wins yield only incremental relief. In the wake of Dobbs v. Jackson Women’s Health Organization, it is particularly important to elucidate the relevant legal landscape and explore mechanisms for safeguarding the constitutional right to health care in correctional facilities.

Economies grow when people make ever-more productive use of the assets and skills they control. Growth requires shifting those resources and that labor to ever-more-productive uses. Before the industrial revolution, economies grew steadily, but very slowly. As they grew, people did shift resources and labor, but without much urgency. By the 20th century, however, most large economies were accelerating from linear to exponential rates of growth. With that change, people faced large incentives to shift their resources more rapidly. That shift was often a prerequisite to exponential growth--but more profitable uses also resulted from the exponential growth. Where an economy grows slowly, people need not worry much about their ability to shift resources to higher valued uses. After all, the slow rates of growth mean that they are not likely to want to move assets to new uses very often. So, if they worry others in their village might try to expropriate their wealth, it may make sense for them to opt for an unanimity requirement for decisions about resource transfer. Where growth is slow, in other words, it may be rational to prioritize protection from opportunistic claimants over flexibility. Sometimes, however, multiple veto players delay shifts in the asset use, for protection from exploitive claims comes with diminished flexibility as a trade-off. An unanimity requirement makes every claimant a veto holder. This problem is exacerbated as increasing growth makes transfer of resources more frequently incentivized. In this essay, we explore several examples from early 20th century Japanese property law that gave multiple parties a veto over changes in asset use. We illustrate how these unanimity rules dampened the pace of economic change, and we discuss how courts and legislators responded.

Pence is misusing the Constitution's "speech or debate" clause to avoid Jan. 6 testimony — he ought to know better.

In the 1960s, Annette Gordon-Reed was the first Black child to enroll in a white school in her hometown. Now she reflects on having a new school there named for her.

On April 13, 2022, the Food & Drug Administration (FDA) issued a new draft guidance for industry for "developing plans to enroll more participants from underrepresented racial and ethnic populations in the U.S. into clinical trials ." In so doing, the FDA reaffirmed the reality that racial and ethnic minorities remain underrepresented in clinical trials. FDA Commissioner Robert M. Califf, MD offered that the "U.S. population has become increasingly diverse, and ensuring meaningful representation of racial and ethnic minorities in clinical trials for regulated medical products is fundamental to public health." Commissioner Califf went on to pledge that "achieving greater diversity will be a key focus throughout the FDA to facilitate the development of better treatments and better ways to fight diseases that often disproportionately impact diverse communities." This Commentary is dedicated to a thorough review of the new FDA policy and the implications thereof.

The marshal doesn’t have subpoena power, but the Judiciary Committee does.

This chapter explores the implications of the Supreme Court’s revocation of pregnant person’s right to choose to terminate a pregnancy; specifically, it explores implications for individuals’ right to choose to prevent a pregnancy through the purchase and use of contraceptives.Examining what the justices explicitly stated about the impact of the decision in Dobbs v. Jackson Women’s Health Organization on access to contraception, what they did not discuss, and what are likely and possible effects of the discussion, the chapter explores immediately and grave uncertainty and heightened risk not only of unwanted pregnancies but also of job and wage insecurity for many people who can become pregnant as well as jeopardy to public confidence in the courts and law.

Racial residential segregation is a crucial aspect of the persisting racial inequality in the United States. We reexamine this enduring problem from a novel perspective, exposing the relationship between segregation and contract duration. In the housing context, the main contract duration decision involves the choice between buying (long duration) and renting (short duration). And this choice can affect, and be affected by, the racial composition of a neighborhood. If, because of discriminatory misperceptions based on mistaken stereotypes or discriminatory preferences, moving into a racially diverse neighborhood is perceived by some white residents to be a riskier or otherwise less preferred alternative, then (i) a white person moving into such a diverse neighborhood would be more likely to rent than buy; and (ii) a white person who is intent on buying, would be likely to choose a less diverse, predominantly white neighborhood. To empirically explore the relationship between contract duration and segregation, we apply two methodological approaches: First, we analyze rich survey data collected by the Bureau of Labor Statistics, which cover 8,984 individuals who were surveyed annually over a period of 17 years, including about their housing decisions. Second, we run online, incentivized trust-game experiments (N=763 across all experiments), where we study the relationship between duration choices and partner choices. Our findings suggest that short-duration, rental contracts may help reduce discriminatory outcomes. The shorter duration and the lower perceived risk of renting may encourage white residents to move into more diverse neighborhoods. And renting in a more diverse neighborhood may help dispel discriminatory misperceptions that are based on mistaken stereotypes or even eradicate discriminatory preferences, such that when the time comes to buy a house (long-duration contract) the search will include more diverse neighborhoods. If short-duration, rental contracts can be more conducive to racial integration, this provides a reason to soften the strong policy preference for homeownership. We also briefly explore the relationship between contract duration and other contractual design choices beyond the housing context.

The next round of cyberattacks might come from a discussion about knitting.

How did environmental law first emerge in the United States? Why has it evolved in the ways that it has? And what are the unique challenges inherent to environmental lawmaking in general and in the United States in particular? Since its first edition, The Making of Environmental Law has been foundational to our understanding of these questions. For the second edition, Richard J. Lazarus returns to his landmark book and takes stock of developments over the last two decades. Drawing on many years of experience on the frontlines of legal and policy battles, Lazarus provides a theoretical overview of the challenges that environmental protection poses for lawmaking, related to both the distinctive features of US lawmaking institutions and the spatial and temporal dimensions of ecological change. The book explains why environmental law emerged in the manner and form that it did in the 1970s and traces how it developed over sequent decades through key laws and controversies. New chapters, composing more than half of the second edition, examine a host of recent developments. These include how Congress dropped out of environmental lawmaking in the early twenty-first century; the shifting role of the judiciary; long-overdue efforts to provide environmental justice to disadvantaged communities; and the destabilization of environmental law that has resulted from the election of Presidents with dramatically clashing environmental policies. As the nation’s partisan divide has grown deeper and the challenge of climate change has dramatically raised the perceived stakes for opposing interests, environmental law is facing its greatest challenges yet. This book is essential reading for understanding where we have been and what challenges and opportunities lie ahead.

What do restorative justice initiatives and racial justice initiatives have to offer one another? In high schools and in criminal law settings, these phrases name and mobilized people, resources, and critiques. Despite real differences in original methods, there seems much for racial justice and restorative justice to share. Racial justice advocates rightly call for both personal change and also systemic transformation. Restorative justice points toward political, legal, and economic policies and practices while also working hard on transformations of the attitudes, feelings, and world-views of individual. Both need to attend as well to media and public education, as well as the day-to-day interactions in communities. And both point to ways to connect the personal and the structural, the interpersonal and the political, the individual freedom to act and the collective systems that so often seem hard to move. And both can focus on the concentric circles of actors and contributing influences on conflicts that can be resources for change.

For decades, when companies learned their employees were considering unionizing, they followed a familiar playbook: do everything possible to fight and frustrate the unionization effort. Leaders often take a union drive personally, and see unions as a threat, failing to see the legitimacy of workers’ demands. But right now, with a tight labor market and rising worker organizing, companies should reconsider this approach, and opt for ones that lead to better outcomes for both workers and employers. An ugly anti-union effort can hurt morale, reputation, and increase turnover. Conversely, companies that take steps like voluntary recognition, partnering to create the best conditions for a fair campaign, and respecting workers’ decision can preserve a positive relationship with their employees.

This paper provides a case study of the acquisition of Twitter by Elon Musk. Our analysis indicates that when negotiating the sale of their company to Musk, Twitter’s leaders chose to disregard the interests of the company’s stakeholders and to focus exclusively on the interests of shareholders and the corporate leaders themselves. In particular, Twitter’s corporate leaders elected to push under the bus the interests of company employees, as well as the mission statements and core values to which Twitter had pledged allegiance for years. Our analysis supports the view that the stakeholder rhetoric of corporate leaders, including in corporate mission and purpose statements, is mostly for show and is not matched by their actual decisions and conduct (Bebchuk and Tallarita (2020)). Our findings also suggest that corporate leaders selling their company should not be relied upon to safeguard the interests of stakeholders, contrary to the predictions of the implicit promises and team production theories of Coffee (1986), Shleifer-Summers (1988) and Blair-Stout (1999).

This Viewpoint reviews California’s recently proposed CalRx initiative to manufacture biosimilar insulin, highlights challenges facing the initiative, and suggests ways in which, if successful, the initiative could serve as a model for state-managed development of drugs other than insulin, reduce drug prices, and provide other benefits.

A majority of the Justices today are self-described textualists. Yet even as these jurists insist that “the text of the law is the law,” they appeal to “substantive” canons of construction that stretch statutory text in the direction of favored values, from federalism to restraining the administrative state. The conflict between these commitments would seem obvious - and indeed, candid textualists have long acknowledged that there is a “tension” here. But textualist theorists have also advanced several arguments to assuage or finesse that tension, and the sheer availability of those arguments has given the textualist Justices’ resort to these devices a respectability that, we argue here, it does not deserve. With the Justices now openly debating the compatibility of textualism and substantive canons, this Article surveys and critically assesses the assorted efforts to square this particular circle. Those strategies include (1) recharacterizing substantive canons as elements of the “background” against which Congress legislates, (2) linking them to “constitutional values,” and (3) restricting their use to resolving “ambiguities.” Each of those defenses, we argue, either commits textualists to jurisprudential positions they ordinarily denounce or, at best, implies such a narrow scope for substantive canons that nothing resembling their current use would survive. The Article thus concludes that textualists should either abandon their reliance on substantive canons or else concede that their textualism is not what they have often made it out to be.

This comprehensive examination of U.S. law as it relates to climate change completely updates and reconsiders material from the prior editions while also adding extensive new material. It offers an increased emphasis on all aspects of energy regulation, as well as additional material on emerging issues such as adaptation and geoengineering. The legal landscape around climate change is complex, unstable, and expanding. Scientists continue to publish new findings, policy makers regularly adopt new regulations, and petitioners file new litigation, nationwide and around the world. Hence the need for this third edition. Most of it is completely new, and the few chapters carried over from the second edition have been thoroughly updated.

There are reforms that can be enacted without harming civil liberties, like reducing the jurisdiction of the Court over essentially political issues.