Faculty Bibliography

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.

Times v. Sullivan sets a striking principle: without (nearly unobtainable) proof of “actual malice,” public officials can’t win defamation suits. If public persons’ reputations conflict with free discourse, the latter wins. Sullivan is iconic. But it’s increasingly beleaguered, said to immunize lies that tear our polity apart. These fears are well-founded. The Sullivan Regime is broken. But understanding why starts not, as critics suggest, from new technology or constitutional doctrine. It starts from the tort of defamation. What interest does the defamation tort protect? What injury does it redress? Leading accounts look to property, dignity, or other values. But these miss something vital. In our polity, a central, serious harm defamation redresses is democratic disempowerment: the destruction of political efficacy in one’s community. Defamation victims (say, those falsely branded sex offenders) lose more than honor. They lose their ability to be credibly heard, participate in civic discussion, have their voices matter. They are discredited. And in our democracy, where participation is core to personhood, this wrong is profound indeed. This insight shows Sullivan, in balancing vigorous press against defamation suits, wasn’t trading “speech” against “non-speech” (say, politicians’ dignity). Rather, the balance was among speech priorities—vigorous press, and democratically enabled People. Silencing by lawsuits, versus silence by slanders. But Sullivan saw speech on just one side. And in our Viral Age, this error causes crisis: a wave of democratic disempowerment, crashing hardest at democracy’s front lines (school boards, election workers, journalists). Fortunately, seeing the problem shows how we might solve it. End “actual malice” for most public persons, but end all defamation suits brought by the very powerful. Make swifter merits decisions, but re-empower lay juries. Surer defeats for nuisance plaintiffs, but stark damages for egregious defamers. Bold, paradoxical shifts to protect both vigorous critique and democratic participation. And which help tame broader discontents—from baseless conspiracies to bigoted cybermobs. Lastly, most broadly, seeing defamation this way hints at a new private law paradigm: one taking democratic efficacy as a core personal interest (like our bodies, lands, and psyches). Today, this interest faces new threats (like lawless “deplatformings”) but is ill-served by old protectors (like constitutional doctrines). In this context, democracy torts—civil remedies to guard our democratic efficacy—hold great promise.

With textualism’s ascendancy, courts increasingly invoke the canon to assume “ordinary meaning” unless the context indicates otherwise and the rule to enforce “plain meaning” regardless of extratextual considerations. Yet the relationship between ordinary meaning and plain meaning can become confused in practice. Courts use the terms interchangeably, and they conflate them doctrinally. Ordinary meaning and plain meaning are distinct. Ordinary meaning is what the text would convey to a reasonable English user in the context of everyday communication. Plain meaning refers to a judgment that whatever the text conveys in context is clear from the text. Thus, a term’s ordinary meaning is also its plain meaning only when it is clear from how the term is used in the statute that its context is ordinary, as opposed to technical. Courts conflate the two, however, when they assume ordinary meaning under the ordinary meaning canon and then conclude that they are therefore bound to enforce that meaning under the plain meaning rule. As a result, they end interpretation prematurely, excluding extratextual aids that might well show that the ordinary meaning assumption should give way. This Article is the first to investigate the relationship between ordinary meaning and plain meaning. It clarifies their differences, identifies the ways in which they are conflated, and evaluates when they should converge. For textualists, greater clarity on this score illuminates when and how to bring ordinary meaning and plain meaning together in a principled manner. For methodological pluralists, understanding the gap between ordinary meaning and plain meaning opens opportunities to argue beyond the text in our increasingly textualist world.

This is the introduction of the Research Handbook on the Politics of Constitutional Law (EE 2023) uniting 47 academics and 38 chapters, which offer a variety of scholarly perspectives on this eternal topic. Indeed, constitutional law is a “semi-autonomous” discipline: Constitutional law as such consists of texts and doctrines interpreting those texts that constitute the discursive domain of professional lawyers. But, as all good constitutional lawyers know, those texts and doctrines are completely and complexly intertwined with the political systems within which constitutional law is found. For that reason, understanding constitutional law means understanding constitutional politics as well. The Handbook deals with the politics of constitutional law around the world. We have chosen to organize the Handbook around “foundations,” “structures,” “rights,” and “futures.” The content of the categories of “structures” and “rights” is obvious; by “foundations,” we mean the key reasons, principles, trends, and extra-legal considerations underpinning constitutional creation and design; and by “futures,” some of the questions that seem likely to shape constitutional development around the world. The draft of the introduction is accompanied by the table of contents, as well as by a full list of contributors to the Handbook as submitted to the publisher.

An unprecedented account of social stratification within the US legal profession. How do race, class, gender, and law school status condition the career trajectories of lawyers? And how do professionals then navigate these parameters? The Making of Lawyers’ Careers provides an unprecedented account of the last two decades of the legal profession in the US, offering a data-backed look at the structure of the profession and the inequalities that early-career lawyers face across race, gender, and class distinctions. Starting in 2000, the authors collected over 10,000 survey responses from more than 5,000 lawyers, following these lawyers through the first twenty years of their careers. They also interviewed more than two hundred lawyers and drew insights from their individual stories, contextualizing data with theory and close attention to the features of a market-driven legal profession. Their findings show that lawyers’ careers both reflect and reproduce inequalities within society writ large. They also reveal how individuals exercise agency despite these constraints.

What happened to antisemitic rants before social media.

There is a good argument that the foundations of modern administrative law were laid in 1980, with the disparate opinions of a sharply divided Court in Industrial Union Department v. American Petroleum Institute (commonly referred to as “the Benzene Case”). Consider four points. (1) The Benzene Case is now understood to be the first contemporary appearance of the Major Questions Doctrine. (2) The Benzene Case marked the return of the nondelegation doctrine, signaled most plainly by Justice William Rehnquist’s elaborate concurring opinion, but also by a favorable reference in the plurality opinion by Justice John Paul Stevens and an open-minded sentence from Justice Lewis Powell. (3) The Benzene Case is the origin of contemporary cost-benefit default principles, permitting or requiring agencies to exempt de minimis risks, to consider costs, and to engage in some form of cost-benefit balancing, unless Congress has squarely said otherwise. (4) The Benzene Case essentially defined “significant risk,” with a precise numerical definition (one in one thousand) that persists at the Department of Labor to this day. At the same time, a close analysis of the plurality opinion in the Benzene Case shows that it is best understood as a specification, above all, of the Absurdity Canon – a Church of the Holy Trinity v. United States for the modern administrative state. So understood, the Benzene Case had, and continues to have, an important and salutary effect on regulatory programs. Its significant current role, more than four decades after the opinions were issued, is an intriguing case study in doctrinal development, and in particular in how Supreme Court decisions can plant small seeds that become big trees.

Walter Isaacson’s new biography depicts a man who wields more power than almost any other person on the planet but seems estranged from humanity itself.

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.

The Legislature continues its Jim Crow tradition and actually goes a step further by defying a direct Supreme Court order.

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 people 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 seventeen years, including about their housing decisions. Second, we run online, incentivized trust-game experiments (N = 763 across all experiments) to 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 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.

Abstract Accounts of the post-Lateran IV period tend to emphasize the different procedural paths taken by English courts, which adopted jury trial for felony cases, and continental European courts, which turned toward inquisitorial methods and a greater reliance on confession. This article argues that the fact-finding strategies of the two systems had more in common than may appear at first glance due, in part, to a shared cultural reservoir exemplified by the strategy of circumstantial inquiry employed by confessors. Rather than focusing on the point of greatest difference, the trial jury, this article examines pre-trial investigative processes to emphasize shared jurisprudential priorities.

This Viewpoint looks at the lawsuits brought by pharmaceutical companies to challenge the Inflation Reduction Act of 2022, in particular claims under the First Amendment’s protection of free speech.

While the literature on putting a “human in the loop” in artificial intelligence (AI) and machine learning (ML) has grown significantly, limited attention has been paid to how human expertise ought to be combined with AI/ML judgments. This design question arises because of the ubiquity and quantity of algorithmic decisions being made today in the face of widespread public reluctance to forgo human expert judgment. To resolve this conflict, we propose that human expert judges be included via appeals processes for review of algorithmic decisions. Thus, the human intervenes only in a limited number of cases and only after an initial AI/ML judgment has been made. Based on an analogy with appellate processes in judiciary decision-making, we argue that this is, in many respects, a more efficient way to divide the labor between a human and a machine. Human reviewers can add more nuanced clinical, moral, or legal reasoning, and they can consider case-specific information that is not easily quantified and, as such, not available to the AI/ML at an initial stage. In doing so, the human can serve as a crucial error correction check on the AI/ML, while retaining much of the efficiency of AI/ML’s use in the decision-making process. In this paper, we develop these widely applicable arguments while focusing primarily on examples from the use of AI/ML in medicine, including organ allocation, fertility care, and hospital readmission.

Machine learning algorithms are increasingly able to predict what goods and services particular people will buy, and at what price. It is possible to imagine a situation in which relatively uniform, or coarsely set, prices and product characteristics are replaced by far more in the way of individualization. Companies might, for example, offer people shirts and shoes that are particularly suited to their situations, that fit with their particular tastes, and that have prices that fit their personal valuations. In many cases, the use of algorithms promises to increase efficiency and to promote social welfare; it might also promote fair distribution. But when consumers suffer from an absence of information or from behavioral biases, algorithms can cause serious harm. Companies might, for example, exploit such biases in order to lead people to purchase products that have little or no value for them or to pay too much for products that do have value for them. Algorithmic harm, understood as the exploitation of an absence of information or of behavioral biases, can disproportionately affect members of identifiable groups, including women and people of color. Since algorithms exacerbate the harm caused to imperfectly informed and imperfectly rational consumers, their increasing use provides fresh support for existing efforts to reduce information and rationality deficits, especially through optimally designed disclosure mandates. In addition, there is a more particular need for algorithm-centered policy responses. Specifically, algorithmic transparency—transparency about the nature, uses, and consequences of algorithms—is both crucial and challenging; novel methods designed to open the algorithmic “black box” and “interpret” the algorithm’s decision-making process should play a key role. In appropriate cases, regulators should also police the design and implementation of algorithms, with a particular emphasis on the exploitation of an absence of information or of behavioral biases.

The only question is whether American citizens today can uphold that commitment.

This Viewpoint discusses the maternal mortality crisis in the US, the need for an extension of Medicaid postpartum coverage, and the residual challenges across the US related to maternal health.

Doing so would intrude on Georgia’s right and obligation to defend its own laws and choose its own presidential electors.

The U.S. Supreme Court has eliminated the right to abortion and is revisiting all sorts of other fundamental questions today—about voting rights, affirmative action, gun laws, and much more. Once-arcane theories of constitutional interpretation are profoundly affecting the lives of all Americans. In this brief and urgent book, Harvard Law School professor Cass Sunstein provides a lively introduction to competing approaches to interpreting the Constitution—and argues that the only way to choose one is to ask whether it would change American life for the better or worse. If a method of interpretation would eliminate the right of privacy, allow racial segregation, or obliterate free speech, it would be unacceptable for that reason. But some Supreme Court justices are committed to “originalism,” arguing that the meaning of the Constitution is settled by how it was publicly understood when it was ratified. Originalists insist that their approach is dictated by the Constitution. That, Sunstein argues, is a big mistake. The Constitution doesn’t contain instructions for its own interpretation. Any approach to constitutional interpretation needs to be defended in terms of its broad effects—what it does to our rights and our institutions. It must respect those rights and institutions—and safeguard the conditions for democracy itself.

Trump has no serious first amendment defense in a court of law. Here’s why Laurence H Tribe and Dennis Aftergut Words that criminal defendants have written or spoken are used against them all the time. Perhaps you’ve heard of a confession?

This Viewpoint discusses why the legality of calling patients located in another state has suddenly been called into question.

No case in our system of justice could more directly and fundamentally address the stakes of American democracy and the rule of law.

This Viewpoint discusses recent judicial developments and the newly-enunciated FDA position that levonorgestrel is a nonabortifacient.

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.

Observational studies provide crucial information early during epidemics and pandemics, but they often suffer from methodological shortcomings, which can be resolved. Scientific research is a necessary part of epidemic preparedness and response. Observational studies, in which the intervention and outcome(s) of interest are not under the researcher’s control, are used in epidemics to describe basic properties of a pathogen and its transmission; clinical symptoms; associations between interventions and patient outcomes; and the effectiveness of public health measures to curb disease spread.

The modern world is legalized: legal language, institutions, and professionals are everywhere. But what is law’s power in global life? What does all this legality have to do with hegemony, with hierarchy and inequality, and with the diversity of human experience? What is its history and how does that history matter in world affairs? Above all, what does it mean to think “critically” about law and global affairs? In this poignant and iconoclastic book, two leading scholars take us to the heart of the matter, examining law’s relationship with history, power, and political economy. David Kennedy and Martti Koskenniemi have often inspired each other and are both considered “critical” voices in international law, but they have never explored their similarities and differences as deeply as they do here. Of Law and the World takes the form of a conversation, as the authors reflect on the study of international law, the motivations underlying their research, and the payoffs and limitations of their investigations into law’s role in global affairs. They revisit and renew debates about the past and future of the many legalities that shape our world. Erudite, open-minded, and informed by decades of experience and observation, Of Law and the World is an unflinchingly honest confrontation with humanity’s struggle to live together.

This Viewpoint explains the history of the Comstock Act, its use by those seeking to restrict abortion, and why it threatens abortion access in the US.

This Viewpoint discusses how regulators across the world should approach the legal and ethical challenges, including privacy, device regulation, competition, intellectual property rights, cybersecurity, and liability, raised by the medical use of large language models.

In the last several months, several major disciplines have started their initial reckoning with what ChatGPT and other Large Language Models (LLMs) mean for them – law, medicine, business among other professions. With a heavy dose of humility, given how fast the technology is moving and how uncertain its social implications are, this article attempts to give some early tentative thoughts on what ChatGPT might mean for bioethics. I will first argue that many bioethics issues raised by ChatGPT are similar to those raised by current medical AI – built into devices, decision support tools, data analytics, etc. These include issues of data ownership, consent for data use, data representativeness and bias, and privacy. I describe how these familiar issues appear somewhat differently in the ChatGPT context, but much of the existing bioethical thinking on these issues provides a strong starting point. There are, however, a few “new-ish” issues I highlight – by new-ish I mean issues that while perhaps not truly new seem much more important for it than other forms of medical AI. These include issues about informed consent and the right to know we are dealing with an AI, the problem of medical deepfakes, the risk of oligopoly and inequitable access related to foundational models, environmental effects, and on the positive side opportunities for the democratization of knowledge and empowering patients. I also discuss how races towards dominance (between large companies and between the U.S. and geopolitical rivals like China) risk sidelining ethics.

In “Ultra-Processed People,” Chris van Tulleken takes a close look at the franken-snacks that barely resemble what they’re imitating.