Faculty Bibliography

The Supreme Court decided two cases of central importance to free speech during the 2022 term – in both cases without addressing the First Amendment implications. In Andy Warhol Foundation v. Goldsmith, the Court upheld a ruling that Andy Warhol’s reworkings of Lynn Goldsmith’s photograph of the artist Prince into highly stylized silkscreens and drawings were not transformative, and thus were unfair, at least when images of the artworks were licensed to illustrate articles about Prince. In Jack Daniel’s v. VIP Products, the court found that a parody dog toy in the general shape of a Jack Daniel’s bottle, with the label “Bad Spaniels,” deserved no special protection for its parody against Jack Daniel’s trademark claim. The Court reached these results using ideas about the lesser status of profitable speech that it flatly rejected in other cases the same term, and with rationales that seem directly at odds with its First Amendment jurisprudence. In this Article, we show that the Court’s decisions cannot be reconciled with its approach to any other area of speech and that they are already having pernicious effects in the lower courts. We consider some possible explanations for the inconsistency: the possibility that the Court just doesn’t see First Amendment issues in IP cases; the possibility that a political realignment has left conservative Justices less enchanted with speech in the marketplace; and the possibility that this is part of a broader trend away from holding courts to the same constitutional standard as the other branches of government, combined with statutes that leave room for substantial judicial discretion in individual cases. Whatever the explanation or explanations, the decisions in Warhol and Jack Daniel’s to cut back dramatically on judicially-created, speech-protective rules may have the ironic effect of forcing the Court to confront directly the constitutional fragility of much modern IP law.

Does the Constitution guarantee free speech on university campuses? The Supreme Court has essentially said so, at least insofar as we are speaking of public universities. Some private universities are interested in adhering to the First Amendment, even though it does not bind them. But what do First Amendment protections entail or require? It is clear that in general, universities may not discriminate on the basis of viewpoint. It is also clear that as educational institutions, universities may sometimes regulate speech to protect their essential mission – by, for example, forbidding “true threats,” prohibiting plagiarism, protecting speakers from being shouted down, forbidding students from taking over buildings, and ensuring that students and teachers focus on the topics of their courses. By exploring thirty-seven scenarios, it is possible to concretize these general propositions, and to see which questions are easy and which questions are hard. The broadest conclusion is that to the extent that universities seek to comply with the First Amendment, they must permit a great deal of speech that is offensive, hateful, and even horrifying.

Election law has changed over the last decade. What will access to voting look like in the future?

From a human rights perspective, impeachment offers an extraordinary mechanism for halting or preventing violations serious enough to motivate the legislature’s intervention. The need for this mechanism is greatest when officials who cannot otherwise be removed are committing or directing the violations. Historically, impeachment has often served human rights goals. Nonetheless, the power of impeachment has also been abused for partisan advantage or to undermine the independence of the judiciary. Human rights tribunals have articulated limits on the impeachment process to protect the rights of officials and of the voters who supported them. These limits also need to preserve the potential of impeachment for protecting democracy and human rights.

Despite heightened awareness of fairness issues within the machine learning (ML) community, there remains a concerning silence regarding discrimination against a rapidly growing and historically vulnerable group: older adults. We present examples of age-based discrimination in generative AI and other pervasive ML applications, document the implicit and explicit marginalization of age as a protected category of interest in ML research, and identify some technical and legal factors that may contribute to the lack of discussion or action regarding this discrimination. Our aim is to deepen understanding of this frequently ignored yet pervasive form of discrimination and to urge ML researchers, legal scholars, and technology companies to proactively address and reduce it in the development, application, and governance of ML technologies. This call is particularly urgent in light of the expected widespread adoption of generative AI in many areas of public and private life.

The foundations of modern administrative law were laid in 1980, with the disparate opinions of a sharply divided Court in Industrial Union Department, AFL-CIO 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 then-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 the 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--with the specific purpose of ensuring against the imposition of high costs for small benefits, and thus of requiring a kind of proportionality between costs and benefits. So understood, the Benzene Case had, and continues to have, an important and salutary effect on regulatory programs. Its significant and much broader current role, more than four decades after the opinions were issued, is an intriguing case study in doctrinal development, and in particular, how Supreme Court decisions can plant small seeds that become big trees.

This Viewpoint discusses the litigation strategy of state-initiated lawsuits alleging illegal and immoral conduct regarding the pricing of insulin by pharmaceutical companies and pharmacy benefit managers.

Gender-Affirming Psychiatric Care 1st Edition and published by American Psychiatric Association Publishing. The Digital and eTextbook ISBNs for Gender-Affirming Psychiatric Care are 9781615374731, 1615374736 and the print ISBNs are 9781615374724, 1615374728. Save up to 80% versus print by going digital with VitalSource.

There is little credible evidence to help inform policy and practice for remote courts. In this study of self-represented family law litigants, preliminary information suggests that remote court may not affect appearance rates or case timelines but may come at a cost in terms of litigants’ perceptions of fairness.

When medical AI systems fail, who should be responsible, and how? We argue that various features of medical AI complicate the application of existing tort doctrines and render them ineffective at creating incentives for the safe and effective use of medical AI. In addition to complexity and opacity, the problem of contextual bias, where medical AI systems vary substantially in performance from place to place, hampers traditional doctrines. We suggest instead the application of enterprise liability to hospitals—making them broadly liable for negligent injuries occurring within the hospital system—with an important caveat: hospitals must have access to the information needed for adaptation and monitoring. If that information is unavailable, we suggest that liability should shift from hospitals to the developers keeping information secret.

This chapter examines the role of liability in shaping the use of artificial intelligence (AI) in medicine. It examines various forms of liability—physician medical malpractice, lack of informed consent, corporate liability for hospitals, and developer liability. Finally, it turns to the preemption of liability and regulation. This chapter focuses primarily on US law, with some reference to EU law.

Millions of times every year, American prosecutors make the all-important decision whether to decline or file formal criminal charges after police have made an arrest. This declination decision determines whether an arrest will become a full-fledged criminal case and thus whether an individual arrestee will become a defendant. It establishes the classic dividing line between investigation and adjudication, triggering numerous constitutional consequences. Through declination, prosecutors also check and regulate police decision-making within the executive branch. In an era of racialized mass incarceration, prosecutorial declination can function as a mode of equitable gatekeeping, regulating the impact of sloppy or biased policing practices on communities, courts, and the rest of the criminal pipeline. It is therefore a unique structural moment of institutional and constitutional significance. Declination is especially influential because police and prosecutors are the two main decision-makers within the carceral executive branch. This Article conceptualizes the relationship between them as an overlooked example of internal separation of powers, with the declination decision as its most impactful regulatory moment. Administrative law teaches that intrabranch checks are vital, especially when interbranch separation of powers has proven ineffective as it famously has with respect to the penal executive. The prosecutorial declination decision, in turn, is an especially promising intrabranch checking tool. It offers decisional friction, oversight, and accountability within the executive at precisely the moment when good law enforcement decision-making makes a big difference for millions of people. In our massive misdemeanor system, this regulatory promise usually fails. Misdemeanor prosecutors routinely rubber-stamp police arrest decisions and convert arrests automatically into formal charges: namely, they abdicate their screening and checking functions by deferring to police. Misdemeanor declination rates are typically very low—often less than five percent—which means that police effectively get to decide not only who will be arrested but who will be formally charged with a crime. This is not how the criminal system is supposed to work. In administrative law terms, such prosecutorial abdication is a violation of basic branch design and a worrisome species of intrabranch collusion. It is, however, neither universal nor foreordained. Around the country, many newly elected prosecutors have embraced strong misdemeanor declination policies, not only as a way of checking police but increasing equity, efficiency, and accountability. Such policies exemplify how misdemeanor declination is an underappreciated opportunity to regulate the penal executive from within and to mitigate the excesses and injustices of the low-level carceral state.

Liberals see human beings as subjects, not objects. They reject despotism in its many forms. With Justice Robert Jackson, liberals believe that “compulsory unification of opinion achieves only the unanimity of the graveyard.” Liberal authoritarianism is an oxymoron. Illiberal democracy is illiberal, and liberals oppose it for that reason. Liberals are puzzled by many of those, on the left and the right, who describe themselves as “antiliberal” or “postliberal.” With respect to some claims of “antiliberals” or “postliberals,” liberals agree with Amos Tversky and Daniel Kahneman: “The refutation of a caricature can be no more than a caricature of refutation.” With respect to those claims of “antiliberals” or “postliberals” that do not amount to a caricature, liberals insist on the importance of freedom of thought and action and deliberative democracy, and on the need to respect reasonable pluralism.

The philanthropic sector is highly consequential, particularly in the United States, and the most important policies directed toward this sector are tax policies. Yet most economic analysis of the optimal tax treatment of charitable giving is ad hoc, treating it as a subject unto itself. This article advances a different approach: integrating the tax treatment of charitable giving into the optimal income tax framework that has been developed over the past half century. The results supplement or overturn conventional wisdom. Notably, the analysis of revenue effects and the purported efficiency of subsidies to charitable giving is recast, focusing on the pertinent externalities rather than the direct revenue costs, which themselves are irrelevant in the basic case. Distributive concerns regarding donors are also misplaced because distributive effects can be offset by tax rate adjustments to the broader income tax and transfer system. These ideas are developed systematically, with an emphasis on intuition rather than technical formalism. The analysis also broadens and deepens the assessment of externalities from charitable giving, which are more numerous and heterogeneous than is generally recognized. Finally, refocusing our understanding of the optimal tax treatment of charitable giving identifies important subjects requiring further research.

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.

Informal social sanctions such as ostracism are the primary means of controlling deviance in communities. Formal legal sanctions are a costly back-up. Yet outside of university laboratories, studies of ostracism barely exist. We examine legal cases brought by targets of ostracism in Japan, encompassing nearly all the non-trivial reported opinions. The cases do not involve villagers who actually offended their community. Instead, most plaintiffs are victims of opportunistic ostracism, where ostracism is used to extort property, hide community-wide malfeasance, or harass rivals. We explore carefully the non-random character of the disputes and provide a formal model in the annex. We conclude that typical plaintiffs in these lawsuits are not seeking to harness the government's coercive power. Instead, they bring suit for the informational role of courts, aiming to have the court publicly certify that they did not misbehave, contrary to what ostracism might be thought to imply. This analysis contributes to the growing body of legal scholarship on social norms and the role of the courts as informational intermediaries.

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.