Faculty Bibliography
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How do judgments about law and morality shift? Why do we come to see political or other conduct as acceptable, when we had formerly seen it as unacceptable, immoral, or even horrific? Why do shifts occur in the opposite direction? Why accounts for the power of “the normal”? A clue comes from the fact that some of our judgments are unstable, in the sense that they are an artifact of, or endogenous to, what else we see. This is true of sensory perception: Whether an object counts as blue or purple depends on what other objects surround it. It is also true for ethical judgments: Whether conduct counts as unethical depends on what other conduct is on people's viewscreens. There are plausible evolutionary explanations for these findings. It follows that conduct that was formerly seen as unethical may come to seem ethical, as terrible behavior becomes more common, and also that conduct that was formerly seen as ethical may come to seem unethical, as good behavior becomes more common. In these circumstances, law (and enforcement practices) can have an important signaling effect, giving people a sense of what is normal and what is not.
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What passes for the American intellectual right is a sorry thing. Indeed, it lacks even the virtues of unity and coherence; in reality, it is fractured, an ever-changing hodgepodge of views and conflicting mini-movements. To the extent there exists any institutional structure at all, it is only to be found on the right wing of liberalism, Conservatism Inc., which coheres in a brittle way only at the price of stasis, recycling nostrums for Reagan’s birthday, policing intellectual challenges, and establishing yet another Center for Madison and Mammon at some nominally Catholic university or other, funded to the tune of $10 million by some calculating donor who suspects Leo XIII was a dangerous socialist.
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Pence is misusing the Constitution's "speech or debate" clause to avoid Jan. 6 testimony — he ought to know better.
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A uniform value of a statistical life (VSL) is part of established practice within the federal government. Some people have applauded a uniform VSL on the ground that it respects the equality of persons; takes harm to poor people as seriously as it does harm to wealthy people; avoids expressive harms; and builds appropriate wealth redistribution into regulatory policy. Other people have strenuously objected to a uniform VSL, emphasizing that to reduce mortality risks, poor people are willing to pay less than rich people are, and urging that poor people should not have to pay more than they are willing to pay. Whether a uniform VSL is in the interest of poor people depends on whether we are dealing with subsidies or regulations. In the case of subsidies, a uniform VSL is highly likely to benefit poor people. If we are dealing with regulations, we cannot know whether a uniform VSL helps or harms poor people without knowing the incidence of costs (and benefits).
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Regulation of mitochondrial replacement therapy (MRT) in the United States must be understood against the backdrop of the regulation—and, in some cases, lack thereof—of other reproductive technologies. Moreover, given the proximity between MRT and sensitive ethical concerns, political debates over the right to procreate, access to abortion, and concern for fetal personhood provide crucial context. This chapter situates MRT in these larger contexts and juxtaposes the National Academies of Medicine’s proposal for MRT regulation in the United States with the way Congress has thus far regulated the technology by essentially enacting a prohibition via an appropriations rider. The authors also discuss the regulatory scheme surrounding funding for MRT research as the United States lags behind other jurisdictions in nationally available funding. A final part of this chapter considers additional legal and ethical issues raised by the prospect of MRT, including the threat of medical tourism to circumvent US prohibitions.
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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.
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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.
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There are many misconceptions about nudges and nudging, and some of them are widespread. For example, some people believe that that nudges are manipulative; that nudges are hidden or covert; that nudges are difficult to define; that nudges are an insult to human agency; that nudges are based on excessive trust in government; that nudges exploit behavioral biases; that nudges depend on a belief that human beings are irrational; and that nudges work only at the margins, do not affect structures, and cannot accomplish much. These are mistakes. Nudges are generally transparent rather than covert or forms of manipulation; nudges are not difficult to define; nudges always respect, and often promote, human agency; because nudges insist on preserving freedom of choice, they do not put excessive trust in government; many nudges are educative, and even when they are not, they tend to make life simpler and more navigable; and some nudges have quite large impacts. It is true that for countless problems, nudges are hardly enough. They cannot eliminate poverty, unemployment, and corruption. But by itself, any individual initiative – whether it is a tax, a subsidy, a mandate, or a ban – is unlikely to solve large problems. Denting them counts as an achievement.
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The current battle is not about democracy. It is about justice, the rule of law and minority rights, which are essential to making a democracy the best and fairest it can be.
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How can support for unions be at an all-time high yet union membership fall to an all-time low? It's because our labor law is a complete disaster.
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This Viewpoint discusses how some pulse oximeters can provide incorrect oxygen saturation data for dark-skinned patients compared with light-skinned patients, describes the reasons that biased oximeters remained in use, and highlights why a rule recently proposed by the US Department of Health and Human Services may bring about needed change in the use of pulse oximetry for patients with dark skin.
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Should the justice system sustain remote operations in a post-pandemic world? Commentators are skeptical, particularly regarding online jury trials. Some of this skepticism stems from empirical concerns. This paper explores two oft-expressed concerns for sustaining remote jury trials: first, that using video as a communication medium will dehumanize parties to a case, reducing the human connection from in-person interactions and making way for less humane decision-making; and second, that video trials will diminish the ability of jurors to detect witness deception or mistake. Our review of relevant literature suggests that both concerns are likely misplaced. Although there is reason to exercise caution and to include strong evaluation with any migration online, available research suggests that video will neither materially affect juror perceptions of parties nor alter the jurors’ (nearly nonexistent) ability to discern truthful from deceptive or mistaken testimony. On the first point, the most credible studies from the most analogous situations suggest video interactions cause little or no effect on human decisions. On the second point, a well-developed body of social science research shows a consensus that human detection accuracy is only slightly above chance levels, and that such accuracy is the same whether the interaction is in person or virtual.
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The marshal doesn’t have subpoena power, but the Judiciary Committee does.
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This is the first in a series of reports by the Program on International Financial Systems dedicated to cryptoassets (also referred to as “digital assets”). This initial report defines and describes cryptoassets and the market structure for trading cryptoassets in the United States. It also provides an overview of the U.S. regulatory structure for the issuance and trading of cryptoassets and related financial products. A subsequent report will provide specific recommendations for improving the regulation of cryptoassets in the United States.In recent months, U.S. government officials have sharpened their focus on the policy issues raised by cryptoassets. For example, in fall 2022, U.S. financial regulators released a set of four reports on digital assets pursuant to the Biden Administration’s Executive Order 14067. The three Treasury Department reports address (1) the potential role of a central bank digital currency (“CBDC”) in the U.S. system of money and payments, (2) the implications for consumers, investors, and businesses from cryptoassets, and (3) countering the use of cryptoassets in illicit financing. In October 2022, the Financial Stability Oversight Council issued a report addressing the interconnectedness between cryptoasset markets and other financial markets and the financial stability risks arising from those connections. Our report is unique and complementary to these efforts in being the first to provide a comprehensive review of the market structure for trading cryptoassets and the regulation of cryptoassets in the United States.We also note that our report follows the November 2022 failure of Bahamian-based cryptoasset trading platform FTX, formerly the third largest such platform by global volume. The failure of FTX, which had U.S. operations and many U.S. investors and customers, underscores the timely need for enhanced public understanding of the market structure for trading cryptoassets and the regulation of cryptoassets in the United States.
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Most industrial organization research, including applications to competition policy, undertakes partial equilibrium analysis in a single sector, often with a fixed number of firms. For welfare analysis, this approach is valid only if the rest of the economy is perfectly competitive, an assumption far from reality. This article examines competition policy in a simple, multisector, general equilibrium model with free entry and exit, allowing for differing distortions in each sector. Flows between sectors readily reverse standard prescriptions. But such results may be partially offset or overturned yet again when incorporating free entry and exit. Analysis of efficiencies also changes qualitatively.
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The drug-scheduling system, particularly the approach to rescheduling, should be reformed to ensure all beneficial medicines, including marijuana and psilocybin, are available to scientists and patients.
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The next round of cyberattacks might come from a discussion about knitting.
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On January 20, 2020, I testified before the Massachusetts legislature’s Joint Committee on Housing in favor of two bills then being considered that would have revived rent control in the Commonwealth. My testimony was a head-on attack on the industry arguments against the bills. Their arguments are of course rationalizations of their economic interest. But they make serious wrong and misleading claims about consequences of rent control for the public interest and for its intended beneficiaries. Elected legislators, alas, are responsive both to the massive money spent lobbying against rent control and to some extent in good faith to the industry arguments. My goal, as laid out in the edited testimony published on the LPE Project Blog was to supplement not to displace the narration of blatant injustice and the invocation of a human right to decent housing with arguments in the policy language of the policy makers. The post also includes brief preliminary and concluding comments on the law and political economy approach as I understand it and as it relates to the testimony.
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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.
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What should happen when claims for religions accommodation clash when antidiscrimination norms? Increasing conflicts of this sort are arising in the contexts or employment, education, and health care. The distinctively American reliance on litigation exacerbates conflicts of this sort by treating them as winner-take-all disputes. After examining a range of current disputes over religious exemptions and antidiscrimination laws, I will compare alternatives to winner-take-all litigation. These include proportionality review by courts, federalism – allowing decentralized and and contrasting solutions, and negotiated resolutions, which can include settlements, contracts, legislation, and mediation. Because civil wars have erupted over just these kinds of disagreements, the exploration for workable alternatives is a vital task – and the result can produce compromises or converging positions.
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Every year for the last umpteen years (I’ve lost count), shortly before or shortly after Transparency International releases its annual Corruption Perceptions Index (CPI) and associated repor…
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What recent successful governance reforms teach about future reforms of the presidency.
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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.
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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.
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Favorite
Global Climate Change and US Law (Michael Gerrard, Jody Freeman & Michael Burger eds., 3d ed. 2023).
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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.
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There are reforms that can be enacted without harming civil liberties, like reducing the jurisdiction of the Court over essentially political issues.
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Part 1 of a three-part series on oral arguments in Turkiye Halk Bankasi A.S. v. United States, a case that raises the question whether the U.S. government can criminally prosecute corporations owned by foreign states.
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In Common Good Constitutionalism, Professor Adrian Vermeule expounds a constitutional vision that might “direct persons, associations, and society generally toward the common good.” The book must be taken seriously as an intellectual challenge, particularly to leading theories of originalism. That said, the challenge fails. The book fails to support its hostility toward originalism, to motivate its surprising claims about outcomes, or even to offer an account of constitutionalism at all. Its chief objections to originalism are unpersuasive and already answered in the literature it cites. The book does highlight important points of history and jurisprudence, of which originalists and others might need to take account; yet those points remain underdeveloped. In the end, the book might be best understood as what Vermeule once called a “constitutional manifesto”: a work of “movement jurisprudence” whose political aims come into conflict with theoretical rigor.
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Both in the history of western law generally and in the American constitutional order in particular, broad delegation that empowers executive government, in conjunction with the administrative state, is not best understood as an alternative and competitor to lawful government by the people. Rather it may be a means of lawful government by the people, an exercise rather than a betrayal of popular sovereignty. In particular, it may be the way in which the people of some given polity have called upon law to protect and enforce popular sovereignty in an oligarchic world, one in which corporations and economic elites exploit and abuse their legal entitlements, including through judicial processes. Delegated executive authority, and the resulting executive and administrative state, might best be seen as a kind of gigantic force that the many have created and deployed to protect themselves from the abuses of the few.