Faculty Bibliography

This paper summarizes the results of a research carried out between January and May 2021 with all Brazilian public companies, identified in such period, aiming to analyze the racial diversity of the positions of members of the board of directors, CEO, and CFO. We obtained detailed answers from about 15% of the total sample of 442 public companies. To test the statistical significance of the results, we applied an evaluation method to all board members and officers of all other public companies, using the same methodology to identify fraudulent enrollments in affirmative action programs at Brazilian universities. Comparison of samples demonstrated that the results were statistically robust, leading to disconcerting conclusions. We identified that 0.00% of the positions of the boards of directors surveyed were occupied by black people and that only 1.05% of them were occupied by brown people. This demonstrates that the chance of a white person occupying some of the highest-paid positions in the country is 58 times greater compared to a non-white person. The results regarding the positions of CEO and CFO were even more impressive since no black or brown people were identified in such positions. Such data confirmed the research hypothesis that the corporate governance of Brazilian public companies reinforces certain characteristics of the Brazilian social structure, deeply marked by patriarchal and racist traits.

The prospect of mandatory random drug testing of physicians in the U.S. has been the subject of active discussion for well over three decades.1 To this day, however, such programs remain the exception rather than the rule.2 In this paper, we examine the state of mandatory random drug testing of physicians in the U.S. and explore the future prospects thereof. It was a 1986 Executive Order (Drug-Free Federal Workplace) of President Reagan that saw to it that physicians in the employ of the federal government were to be subjected to mandatory random drug testing.3 This development was attributable to the edict that “the head of each Executive agency shall establish a program to test for the use of illegal drugs by employees in sensitive positions.”4 The aforementioned initiative was further expanded by the enactment of the Drug-Free Workplace Act of 1988 (DFWA) which required some federal contractors and all federal grantees to maintain drug-free workplaces as a precondition to receiving a federal grant or a contract. 5 Health care enterprises, many of which are federal grantees, were inevitably affected. It follows that the lion’s share of the federal physician workforce that is required to submit to mandatory random drug testing is deployed by the U.S. Departments of Defense, Veterans Affairs, and Health and Human Services (HHS).

This article offers a reconceptualization of class-in-capitalism and its articulation with racialization and gender that builds on critical strands of Marxian thought and integrates insights from Black radical and feminist socialist traditions. Rather than a transhistorical materialist conception of class simpliciter, we develop a historically-specific conception of class embedded within an analysis of capitalist social relations. The result is an account of class based not on the appropriation of a “material surplus,” but on asymmetrical social relations in the division of labor and disposition of its fruits. Developing this conception along three key axes of asymmetries—property, production, and personhood—we show how the dynamics propelled by capitalist social relations are co-constitutive with those of racialization, while both the privatization of reproduction and gender-based super-exploitation are systemic features of these dynamics. We emphasize law’s role in the history of these relations, and end with implications of our analysis for their transformation.

We present the first evidence on the incidence of “trip wire” versus “last look” poison pills. Using a hand-collected data set of 130 poison pills implemented and/or amended between January 1, 2020, and March 31, 2023, we find that pills are almost evenly divided between trip-wire and last-look pills. We find that the main—if not exclusive—driver of the variance in this pill design feature is the law firm that installs the pill. We further find that top tier M&A firms (defined as ranked Band 1, 2 or 3 in Corporate/M&A by Chambers) are far more likely to put in a trip-wire feature. Firms outside of this top tier are far more likely to put in a last-look feature. We argue that a trip-wire feature is consistent with a well-known strand of the bargaining literature, demonstrating that irrevocable commitment provides bargaining leverage. The fact that top-tier law firms put in trip-wire pills is an implicit acknowledgement of that literature. Sophisticated practitioners understand the importance of irrevocable commitments in other areas of transactional practice as well (e.g., “don’t ask, don’t waive” standstill agreements). We further demonstrate that a last-look provision is not required under Delaware corporate law. Our finding that top-tier firms are more likely to adopt best practices is consistent with other literature showing a slow dissemination of cutting-edge features in transactional practice (e.g., Coates 2001; Subramanian 2005). We apply our findings to examine the poison pill that Twitter’s board of directors installed in April 2022, in response to Elon Musk’s offer to buy the company. Consistent with our overall findings, the Twitter pill, which included a last-look feature, was not put in by a law firm ranked Band 1–3 in Corporate/M&A by Chambers. We argue that this last-look feature might have been disastrous for Twitter, if Elon Musk had actually triggered the pill. At least with hindsight, Musk might have been able to acquire Twitter for billions less had he triggered the Twitter pill.

A resilience agenda is an essential part of protecting national security in a digital age. Digital technologies impact nearly all aspects of everyday life, from communications and medical care to electricity and government services. Societal reliance on digital tools should be paired with efforts to secure societal resilience. A resilience agenda involves preparing for, adapting to, withstanding, and recovering from disruptions in ways that advance societal interests, goals, and values. Emphasizing resilience offers several benefits: 1) Resilience is threat agnostic or at least relatively threat neutral; 2) its inward focus emphasizes actions under the control of a targeted country, rather than attempting to change behaviors of external adversaries; and 3) because resilience can address multiple threats simultaneously, it may be less subject to politicization. A resilience strategy is well-suited to address both disruptions to computer systems—whether from cyberattacks or natural disasters—and disruptions to the information environment from disinformation campaigns sowing discord. A resilience agenda is realistic, not defeatist, and fundamentally optimistic in its focus on how society can withstand and move forward from adverse events. This Article identifies tactics to bolster resilience against digitally enabled threats across three temporal phases: anticipating and preparing for disruptions, adapting to and withstanding disruptions, and recovering from disruptions. The tactics of a resilience strategy across these phases are dynamic and interconnected. Resilience tactics in the preparation phase could include creating redundancies (including low-tech or no-tech redundancies) or “pre-bunking” disinformation campaigns. Actions in the preparation phase help with adapting to and withstanding disruptions when they are ongoing. Forewarning people about cyberattacks can ensure they do not panic when crucial services cease to function. More persistent and recurrent threats like disinformation campaigns may require structural adaptations, like privacy law reform, to curb the exploitation of personal data that can be used for democracy-damaging disinformation. Recovering from disruptions draws on steps taken earlier. Resilience tactics in the recovery phase could include reverting to manual controls and turning to pre-positioned hardware stockpiles that enable continuity of operations after cyberattacks, as well as supporting and protecting journalists and researchers subjected to intimidating online abuse. These are just possibilities—a resilience strategy is ours to imagine and pursue, and doing so is a crucial step to strengthen national security for a digital age.

Psychiatry is rapidly adopting digital phenotyping and artificial intelligence/machine learning tools to study mental illness based on tracking participants’ locations, online activity, phone and text message usage, heart rate, sleep, physical activity, and more. Existing ethical frameworks for return of individual research results (IRRs) are inadequate to guide researchers for when, if, and how to return this unprecedented number of potentially sensitive results about each participant’s real-world behavior. To address this gap, we convened an interdisciplinary expert working group, supported by a National Institute of Mental Health grant. Building on established guidelines and the emerging norm of returning results in participant-centered research, we present a novel framework specific to the ethical, legal, and social implications of returning IRRs in digital phenotyping research. Our framework offers researchers, clinicians, and Institutional Review Boards (IRBs) urgently needed guidance, and the principles developed here in the context of psychiatry will be readily adaptable to other therapeutic areas.

In his 2006 article," Presumption of Innocence or Presumption of Mercy?: Weighing Two Modes of Justice," James Whitman contrasts the focus on rights for the innocent in the American criminal justice system with the concern for the humane treatment of the guilty in European systems in the inquisitorial tradition. I teach this article in my criminal procedure classes not to debate whether the European approach is better, but because it invites a conversation about what we should value in a criminal justice system and to what extent our system does (or in most cases does not) live up to our values. As Whitman states in his conclusion," The point of comparative law is not to engineer wholesale institutional transplants, but to broaden the mind-to help us escape the conceptual cage of our own tradition." It is in this spirit that I want to examine the classical Athenians' approach to criminal trials. A few words of background may be helpful for those unfamiliar with Athenian law. 3 Participation in the popular court system was largely limited to male citizens. The system was run by amateurs; there was typically no state prosecutor. In what the Athenians called private cases (dikai), the victim (or his family in the case of murder) brought suit. In addition to homicide, private suits included some forms of battery and theft. Public cases (graphai) could be brought by any male citizen acting as a volunteer prosecutor, though in practice prosecutors in public cases tended to be victims or otherwise interested parties. Although the Athenians did not have a distinct legal category of crime, they did have a cultural notion of crime as behavior affecting the community at large." Criminal" behavior could be prosecuted through either a private or public suit, depending not only on the nature of the charges but also in some cases on the prosecutor's goals.

Decades after data-driven consumer surveillance and targeted advertising emerged as the economic engine of the internet, data commodification remains controversial. The latest manifestation of its contested status comes in the form of a recent wave of more than a dozen state data protection statutes with a striking point of uniformity: a newly created right to opt out of data sales. But data sales as such aren’t economically important to businesses; further, property-like remedies to privacy problems have long and repeatedly been debunked by legal scholars, just as the likelihood of efficient privacy markets has been undercut by an array of experimental findings from behavioral economics. So, why are data sales a dominant point of focus in recent state legislation? This work proposes a cultural hypothesis for the recent statutory and political focus on data sales, and explores this hypothesis with an experimental approach. Inspired by the taboo trade-offs literature, a branch of experimental psychology looking at how people handle morally uncomfortable transactions, this work describes two experiments that explore reactions to data commodification. The experimental results show that selling data is far more contested than selling a traditional commodity good, suggesting that selling data fits within the domain of a taboo transaction. Further, various potential modifications to a data sale are tested, but in each case the initial resistance to the taboo transaction remains. The experimental results show a robust resistance to data commodification, suggesting that newly enacted state-level sales opt-out rights provide a culturally powerful balm to consumers. The results also suggest a new framework for analyzing economic measurements of privacy preferences, suggesting a new possibility for interpreting those findings in light of the tabooness of data commodification. More broadly, the normative implications of the results suggest the need for culturally-responsive privacy reform while keeping an eye to the possibility for taboos to distort technology policy in ways that ultimately fail to serve consumer protection interests.

Are administrative agencies illegitimate? A threat to democracy? A threat to liberty? To human welfare? To defining constitutional commitments? Many people think so. But an understanding of the actual operation of the administrative state, seen from the inside, makes it difficult to object to “rule by unelected bureaucrats” or “an unelected fourth branch of government.” Such an understanding casts a new light on some large objections from the standpoint of democracy, liberty, and welfare; indeed, it makes those objections seem coarse and largely uninformed. What is needed is more conceptual and empirical work on welfare and distributive justice, and on how regulators can increase both.

There is anger among many at the growing recognition that this conservative Supreme Court is marching, not resting. That little of the past--like precedent--will constrain it. And that the decisions of the preceding terms--overturning Roe v. Wade, expanding the "right to bear arms," ending affirmative action, among other extraordinary decisions--are just the beginning of a long and cold jurisprudential winter. Many on the Left have responded by proposing ambitious strategies for resisting the Court. There are calls for court packing, and for the impeachment of faithless justices. Two of the most prominent among younger American law professors have declared the "need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism." This response is a mistake. The right strategy to answer people who believe that they are doing right is not to try to convince them their principles are wrong. It is to show them that they are not following their principles. The answer to the growing originalist majority on the United States Supreme Court is not to attack originalism, but to show how incomplete and inconsistent this Court's originalism has become. That is my aim in this essay. Not because arguments change minds. Necessarily. But because they set the predicate for what would be a principled and appropriate response by Congress. It is time for Congress to reclaim the role that the framers of our second Constitution--the Civil War Amendments--intended for it. Because a principled originalism could not resist that claim, and that claim, more than anything else, would liberate rights in America from their current, narrow judicial hold.

The Supreme Court faces a real dilemma in the Loper Bright case, in which the Court will explicitly consider whether to overrule the Chevron decision. The dilemma is decades in the making, and arises from the interplay of large structural forces, between which the Court is uneasily positioned. On the one hand, the background conditions of the American administrative state, which produce an array of broad and vague delegations to administrative agencies on highly technical subjects, tend to limit the scope of judicial review of agency legal interpretations. On the other hand, the fundamental importance of judicial review of agency legal authority as a legitimating mechanism for the administrative state presses judges towards plenary review of agency legal interpretations. The combination of these two large-scale pressures creates the deference dilemma. It threatens to make plenary judicial review of agency legal interpretations both intolerable and indispensable. In what follows, I explain this basic problem, explore its causes and sources, and speculate about some possible futures for the Chevron framework in particular and the deference dilemma in general. The most interesting possibility is an express overruling of Chevron, combined however with a reframing of “deference” that preserves much of the content of Chevron under a different label. On this reframing, the overruling majority will say — along lines indicated by Henry Monaghan decades ago — that de novo or plenary judicial review of agency legal interpretations is required by legal sources (either by the Administrative Procedure Act, by Article III, or both), yet will also say that de novo interpretation might of course itself yield the conclusion that, in a given statute, Congress has delegated primary responsibility to agencies to fill in statutory gaps or ambiguities.

Legal discourse about business entities has displayed a logical fallacy regarding the consequences of corporate separateness. A fallacy of equivocation occurs when a term is used with one meaning in the premise and with another meaning in the conclusion. Legal personality undoubtedly provides a separate—in the sense of distinct—nexus for the imputation of legal rights and duties. This, however, does not mean that corporations are or should be treated as legally separate—in the sense of insulated—from shareholders in all contexts. Moreover, legal insulation between corporations and shareholders for some purposes (e.g., limited liability) does not necessarily entail insulation for other purposes (e.g., the application of a contractual or regulatory scheme). In effect, there is significant, if varying, permeability between the legal spheres of corporations and shareholders across different areas of law, including corporate law. Rather than a nonconductor that always isolates the legal spheres of the corporation and related parties, legal personality operates as a semi-permeable membrane. Nevertheless, the recurrent fallacy of complete corporate separateness has obscured and hampered the development of legal doctrine in several contexts.

In a number of important cases restricting the authority and independence of federal agencies, the Supreme Court’s conservative majority has adopted reasoning that, if applied consistently, could have more far-reaching consequences for the administrative state. To explore the limits of the Court’s evolving doctrines, this Article shows how their application might lead to a conclusion that the structure or mandate of the Federal Reserve, as created by Congress, is unconstitutional. On the assumption that at least some of the conservative Justices would not want to reach this result, the Article goes on to survey strategies available to the Court for avoiding such an outcome. It explains how, if a constitutional challenge to the Federal Reserve were to reach the Court, its choice among these strategies would further delineate the reach of its campaign against the administrative state. Even in the absence of an actual challenge, this exercise reveals how the Court’s political philosophy is shaping its jurisprudence.

The 2020 Holding Foreign Companies Accountable (HFCA) Act will force China-based firms to delist from U.S. exchanges if China fails to permit audit inspections during a two-year period. The Act also requires such firms, as soon as China blocks such inspections, to disclose ties to the Chinese party-state. We first explain why the delisting provisions, while well-intentioned, may well harm U.S. investors. We then turn to the disclosure provisions, explaining that they appear to be motivated by a desire to name-shame Chinese firms rather than to protect investors. While China-based firms do pose unique risks to U.S. investors, the Act fails to mitigate--and may well exacerbate--these risks.

By revealing a community in radical transition, constitutional crises expose money’s relationship to the market. That essential dynamic is more easily disregarded in routine times. Modern commentators deflect analysis further by imputing a basic divide between real and monetary activity. This essay retheorizes that relationship using the Civil War experience as a setting. The exercise illuminates money as a practice that constructs the market architecture across crises and calms. First, contriving a public unit of account creates commensurability in value and makes possible prices. That accomplishment is, at the same time, an arresting act of constitutional reorganization. To create a money, communities literally transmute political obligation into a unit and enable that entity to circulate: modern money is a sovereign liability that can offset individual indebtedness. Consonant with that faculty, the initiative expands public capacity and realigns private relations. Second, enabling money as a medium structures its operation. Money issues from public and private market actors who are advantaged by their ability to create it and it attracts users into its measurement system through their demand for that medium. Those features – discrete issue and particularized demand – are inherent to the phenomenon of circulation and, in turn, affect production. Third, a government curates exchange by enforcing those transactions in money that it approves. As it defines “commodities,” shapes contract, and develops property, the polity dredges the monetary channels of exchange. In the face of money’s sweeping effects as a unit of account, medium of exchange, and mode of payment, its disregard in modern economic theory is a major default. Analyzing money creation exposes it as the structure that configures economic activity.

How does corporate law treat legal entity boundaries in groups of companies? This is a critical question given that large corporations typically have hundreds of subsidiaries. Investigating the treatment of this question in key jurisdictions over time reveals a critical, but thus far overlooked, development in corporate law around the globe. Corporate law rules of internal governance increasingly overcome entity boundaries and apply on a pass-through basis, such as by allowing shareholders of a parent company to sue subsidiary directors, inspect subsidiary books and records, and approve major asset sales by subsidiaries. This phenomenon, which can be described as the rise of “entity transparency” in corporate law, reflects a gradual trend that has accelerated in the twenty-first century. Interestingly, there appears to be little direct correlation between a jurisdiction’s willingness to disregard entity boundaries to enforce shareholder rights, on the one hand, and to impose liability on shareholders for the benefit of creditors, on the other. The Article then offers an economic account for the distinct treatment of corporate separateness vis-à-vis shareholders and creditors, and explores the broader theoretical and normative ramifications of its analysis. The rise of entity transparency in corporate law underscores the importance of unbundling different dimensions of corporate separateness, challenges the view that overcoming entity boundaries between parent companies and subsidiaries invariably requires extraordinary circumstances, and has implications for a wide array of legal issues across various areas of law.

This chapter begins with an explanation of why, in the United States, philosophical analysis has become a prominent feature of private law scholarship. Historical, sociological, and constitutional peculiarities of the American experience all figure in our account. It then distinguishes two ways in which philosophy has been brought to bear on private law. The first involves the use of analytical and moral philosophy to critique and develop alternatives to policy-driven, welfarist approaches that tend to dominate elite U.S. legal-academic writing. The second harnesses philosophical analysis to defend the intelligibility of ordinary lawyerly discourse about private law as against reductionists (whether deontological and welfarist) who treat legal concepts as empty vessels to be filled with extra-legal content. Our aim is to help scholars understand the current state of private law scholarship in the U.S. and appreciate the role that philosophy can play in the explanatory, justificatory, and critical aspects of the legal academic enterprise.

Polygenic risk scores ("PRSs") provide genome-wide estimates of disease risk by aggregating the effects of thousands of genetic variants across the genome. These scores are the subject of immense scientific interest as research tools and more recently as clinical instruments that may allow for physicians to stratify populations based on underlying genetic predisposition, or to tailor therapeutic interventions based on their needs and likelihood of benefit. While their status as research tools has long-been recognized, these scores are no undergoing clinical trials, increasing the evidence base for their use in clinical settings. These scores have also entered the consumer market, prompting industry experts to call on greater regulatory insight. However, in part due to the speed of these developments, the legal literature has failed to comprehensively assess the nature of these scores, and whether they differ fundamentally from previous forms of genetic scoring which have been regulated by the complex (yet familiar) regulatory regime for genetic testing. This Article fills this gap in the literature by comparing the state-of-the-art methodological tools used to generate these scores with familiar forms of genetic testing (e.g., IVDs and LDTs). We identify four dimensions that make PRS distinct from previous genetic testing regimes -- (1) the underlying method of assessing genetic risk; (2) an evolving evidence base; (3) lack of consensus on methodology; (4) diversity of device functions that PRSs may apply to. Taking these insights in concert, this Article also offers several principles for regulatory design as it relates to PRSs. These principles include the need for a unified approach across all devices that incorporate PRSs, the value of taking a risk-based framework, and drawing lessons from AI/ML regulation. Ultimately, while the existing risk-based device framework will serve as a stopgap for the most clinically impactful use cases (and those that pose the most risk to patients and the public), PRSs and other novel technologies may evince the need for updates to the authorities granted to the existing regulatory regime to balance scientific innovation with the public interest.

The concept of the rule of law is invoked for purposes that are both numerous and diverse, and that concept is often said to overlap with, or to require, an assortment of other practices and ideals, including democracy, free elections, free markets, property rights, and freedom of speech. It is best to understand the concept in a more specific way, with a commitment to seven principles: (1) clear, general, publicly accessible rules laid down in advance; (2) prospectivity rather than retroactivity; (3) conformity between law on the books and law in the world; (4) hearing rights; (5) some degree of separation between (a) lawmaking and law enforcement and (b) interpretation of law; (6) no unduly rapid changes in the law; and (7) no contradictions or palpable inconsistency in the law. This account of the rule of law conflicts with those offered by (among many others) Friedrich Hayek and Morton Horwitz, who conflate the idea with other, quite different ideas and practices. The seven ideas can be specified in different ways that are broadly compatible with the goal of describing the rule of law as a distinct ideal, and some of the seven ideas might be understood to be more fundamental than others.

A poor-quality dietary pattern is a leading risk factor for chronic disease and death in the United States, and the costs of medical care continue to unsustainably rise. Despite this reality, nutrition training for physicians fails to adequately prepare for them to address the complex factors that influence diet-related disease. Expanding nutrition education for physicians-in-training is imperative to equip them for the growing demand of food is medicine services and is also supported by recent policy efforts in the United States as well as the governing bodies of graduate and undergraduate medical education. A multisector approach that links graduate medical education, clinical care delivery innovation, and health and food policy experts provides momentum to advance nutrition education as a core strategy for food is medicine expansion globally.

There are two justifications for the major questions doctrine. The first justification, vigorously offered by Justice Neil Gorsuch, might be described as Lockean; it sees the doctrine as an effort to preserve legislative primacy and to reduce the policymaking authority of the executive branch. On the Lockean view, the major questions doctrine is a clear-statement principle, and it is in evident tension with textualism. The second justification, vigorously offered by Justice Amy Coney Barrett, might be described as Wittgensteinian; it sees the doctrine as an effort to capture Congress's likely instructions. The Wittgensteinian justification fits comfortably with textualism, and it does not operate as a clear-statement principle at all. The Court can be seen as having adopted an incompletely theorized agreement in favor of the major questions doctrine, but at some point, the two justifications might lead in different directions. While neither justification is implausible, both of them run into serious objections.

The idea of disregarding the U.S. Supreme Court—simply ignoring its decisions—has become a flash point. “Americans will not tolerate defiance of the institution and the rule of law,” remarked one conservative law professor, irate about the possibility that President Joe Biden or other political officials might engage in such behavior. Who has defied the Supreme Court in the past? If leading examples include Andrew Jackson the ethnic cleansing populist or George Wallace the Southern segregationist, the answer has to be: no one good.

Explainability in artificial intelligence and machine learning (AI/ML) is emerging as a leading area of academic research and a topic of significant regulatory concern. Increasingly, academics, governments, and civil society groups are moving toward a consensus that AI/ML must be explainable. In this Article, we challenge this prevailing trend. We argue that for explainability to be a moral requirement—and even more so for it to be a legal requirement—it should satisfy certain desiderata which it often currently does not, and possibly cannot. In particular, this Article argues that the currently prevailing approaches to explainable AI/ML are often (1) incapable of guiding our action and planning, (2) incapable of making transparent the actual reasons underlying an automated decision, and (3) incapable of underwriting normative (moral and legal) judgments, such as blame and resentment. This stems from the post hoc nature of the explanations offered by prevailing explainability algorithms. As the Article explains, these algorithms are “insincere-by-design,” so to speak. This often renders them of very little value to legislators or policymakers who are interested in (the laudable goal of) transparency in automated decision-making. There is, however, an alternative—interpretable AI/ML—which the Article will distinguish from explainable AI/ML. Interpretable AI/ML can be useful where it is appropriate, but presents real trade-offs as to algorithmic performance, and in some instances (in medicine and elsewhere) adopting an interpretable AI/ML may mean adopting a less accurate AI/ML. This Article argues that it is better to face those trade-offs head on, rather than embrace the fool’s gold of explainable AI/ML.

When the Supreme Court of the United States decided San Antonio Independent School District v. Rodriguez, the Court's five-to-four decision not only closed the door to federal courts to predominantly Mexican American low-income students seeking constitutional protection against unequal public education; it also rejected claims of federal constitutional right to equal educational opportunity, rebuffed calls for heightened judicial scrutiny of classifications drawn on the basis of wealth or poverty, and let stand unaltered school finance arrangements producing different per pupil expenditures depending solely on where students live. Setbacks though can inspire. Faced with the decision in Rodriguez, advocates pursued efforts in federal legislation reforms, expanded federal aid to schools with predominantly low-income students, and state-based litigation and reform efforts. And because the Rodriguez decision rejected stringent judicial scrutiny of wealth-based classifications, it opened the door to the use of socioeconomic status as a priority for admission to educational programs. Such creative responses are also legacies of Rodriguez. Current serious challenges can and should similarly elicit resilient and inventive approaches, including the uses of digital and technology resources as well as greater self-direction for students and their teachers in a world soon to be reshaped by readily available artificial intelligence resources. Although disappointment with public schooling has led families of different racial, ethnic, and income groups to pursue charter schools, vouchers or tax credits for use in private schools or family-funded private schooling, and homeschooling, new technologies and resources can strengthen equal educational opportunities for all children in the nation.

There's far more to his hush money case than meets the eye.

The ancient Athenian democracy provides our first richly documented example of a self-conscious transitional justice policy. This chapter explores the classical Athenians’ complex response to the atrocities committed during the reign of the Thirty Tyrants at the end of the fifth century BCE. Following the return of the democracy, the Athenians carefully balanced retribution and forgiveness: an amnesty protected collaborators from direct prosecution, but in practice private citizens could indirectly sanction even low-level oligarchic sympathizers by raising their collaboration as character evidence in unrelated lawsuits. They also balanced remembering and forgetting: discussion of the civil war in the courts memorialized the atrocities committed during the tyranny but also whitewashed the widespread collaboration by ordinary citizens, falsely depicting the populace as members of the democratic resistance.

Scientific evidence regularly guides policy decisions, with behavioural science increasingly part of this process. In April 2020, an influential paper proposed 19 policy recommendations (‘claims’) detailing how evidence from behavioural science could contribute to efforts to reduce impacts and end the COVID-19 pandemic. Here we assess 747 pandemic-related research articles that empirically investigated those claims. We report the scale of evidence and whether evidence supports them to indicate applicability for policymaking. Two independent teams, involving 72 reviewers, found evidence for 18 of 19 claims, with both teams finding evidence supporting 16 (89%) of those 18 claims. The strongest evidence supported claims that anticipated culture, polarization and misinformation would be associated with policy effectiveness. Claims suggesting trusted leaders and positive social norms increased adherence to behavioural interventions also had strong empirical support, as did appealing to social consensus or bipartisan agreement. Targeted language in messaging yielded mixed effects and there were no effects for highlighting individual benefits or protecting others. No available evidence existed to assess any distinct differences in effects between using the terms ‘physical distancing’ and ‘social distancing’. Analysis of 463 papers containing data showed generally large samples; 418 involved human participants with a mean of 16,848 (median of 1,699). That statistical power underscored improved suitability of behavioural science research for informing policy decisions. Furthermore, by implementing a standardized approach to evidence selection and synthesis, we amplify broader implications for advancing scientific evidence in policy formulation and prioritization.

In the face of war and atrocities, the principles of the 75-year-old document remain sound.

For decades, college-admissions offices have quietly imposed higher standards on female applicants.

Can AI safety shed any light on old corporate governance problems? And can the law and economics of corporate governance help us frame the new problems of AI safety? The author identifies five lessons — and one dire warning — on the corporate governance of AI and other socially sensitive technologies that have been made vivid by the corporate turmoil at OpenAI.

Cloud services have become an important part of the information technology toolkit in the global financial sector. As cloud adoption by financial institutions has increased, financial regulators have raised concerns about potential concentration risk resulting from cloud migration.2 This report aims to provide clarity around the discussion of cloud adoption and concentration risk in the financial sector. Section I of the report provides background on cloud adoption in the financial sector. Section II clarifies the potential risks associated with the use of third-party technology service providers by financial institutions, and examines those risks in the context of cloud adoption and traditional information technology (IT) infrastructure. Section III outlines the regulatory frameworks in different jurisdictions for addressing potential concentration risks associated with cloud adoption. Section IV concludes by setting out policy recommendations for mitigating potential concentration risks associated with cloud adoption in the financial sector. The report has several key takeaways: • Concentration risk is not new to the financial sector, nor is it unique to the cloud. Indeed, it is not obvious that such risks could be avoided if financial institutions were to rely on traditional IT infrastructure instead of the cloud. The critical question is how to manage or mitigate concentration risk. • In order to assess the landscape of concentration risk in the financial sector, regulators should develop a clear and consistent definition of concentration risk and the underlying scenarios to which that definition applies. • Regulators should also focus on gathering information about technology outsourcing by financial institutions, including the use of cloud-based services. Concentration risk can be addressed through information sharing and coordination among FIs, cloud providers, and supervisory authorities. • Cloud adoption in the financial sector is still in its early stages. As cloud adoption increases, regulators should weigh the risks of concentration against the benefits of scale and quality of services provided by major cloud providers. • In developing regulatory and supervisory approaches, regulators should engage directly with cloud providers in order to understand the tools available to financial institutions and the security and resiliency practice of cloud providers. • Regulatory requirements and supervisory practices for cloud adoption should be tailored to specific risks and a one-size-fits-all approach should not be adopted for all financial institutions.

Both antitrust and trademark law are, broadly speaking, “unfair competition” regimes. But the power that the law confers on trademark owners has expanded even as the constraints imposed by antitrust have contracted. In recent years, disputes over the use of trademarks as “keywords” used by search engines and their advertisers to target advertising when a consumer searches online have raised both trademark and antitrust issues. While U.S. trademark law generally considers keyword advertising to be pro-competitive and nonconfusing, a significant court of appeals case held that attempts to suppress such advertising did not violate the antitrust laws. Despite this unfortunate result, disputes over keyword advertising can still teach us important lessons about trademark theory, particularly the economic theory that trademark rights are justified to lower consumers’ search costs.

A former O'Connor clerk recalls her inner toughness tempered by good humor and abiding pragmatism.

Blocked at the federal level, Massachusetts must act by passing a new state law.