Faculty Bibliography

This is about a lot more than one university's disciplinary action.

Women’s Health Research, barely 40-year-old in the United States has recently received an all-important boost from First Lady Jill Biden. The $100 million in question are bound to make a meaningful difference in this all-important arena. It was the view of the White House that “our nation must fundamentally change how we approach and fund women’s health research.” The White House expressed its hope that “congressional leaders, the private sector, research institutions, and philanthropy” will answer the call to “improve the health and lives of women throughout the nation.”

Importance: As government agencies around the globe contemplate approval of the first psychedelic medicines, many questions remain about their ethical integration into mainstream medical practice. Objective: To identify key ethics and policy issues related to the eventual integration of psychedelic therapies into clinical practice. Evidence Review: From June 9 to 12, 2023, 27 individuals representing the perspectives of clinicians, researchers, Indigenous groups, industry, philanthropy, veterans, retreat facilitators, training programs, and bioethicists convened at the Banbury Center at Cold Spring Harbor Laboratory. Prior to the meeting, attendees submitted key ethics and policy issues for psychedelic medicine. Responses were categorized into 6 broad topics: research ethics issues; managing expectations and informed consent; therapeutic ethics; training, education, and licensure of practitioners; equity and access; and appropriate role of gatekeeping. Attendees with relevant expertise presented on each topic, followed by group discussion. Meeting organizers (A.L.M., I.G.C., D.S.) drafted a summary of the discussion and recommendations, noting points of consensus and disagreement, which were discussed and revised as a group. Findings: This consensus statement reports 20 points of consensus across 5 ethical issues (reparations and reciprocity, equity, and respect; informed consent; professional boundaries and physical touch; personal experience; and gatekeeping), with corresponding relevant actors who will be responsible for implementation. Areas for further research and deliberation are also identified. Conclusions and Relevance: This consensus statement focuses on the future of government-approved medical use of psychedelic medicines in the US and abroad. This is an incredibly exciting and hopeful moment, but it is critical that policymakers take seriously the challenges ahead.

For years, universities have been less inclined to protect speech and quicker to sanction it. After this spring’s protests, it will be difficult to turn back.

Some of the Supreme Court Justices and scholars who support a reinvigoration of the nondelegation doctrine would allow for an exception for grants of authority relating to foreign affairs. Others have criticized such an exception as unprincipled or as reflecting improper “foreign affairs exceptionalism.” This Article argues against a foreign affairs exception to the nondelegation doctrine but contends that the doctrine should be applied less strictly when a statutory authorization relates to an area of independent presidential power. The President has more independent power relating to foreign affairs than domestic affairs, so this limitation on the nondelegation doctrine will do more work in the foreign affairs area. But the President does not have unlimited power over foreign affairs and has some independent constitutional power relating to domestic affairs, so it is inaccurate and potentially misleading to refer to a “foreign affairs” exception. After establishing this point, the Article identifies three circumstances in which independent presidential power reduces nondelegation concerns, which we call “redundant authorizations,” “unlocking authorizations,” and “independent discretion authorizations.” The Article then analyzes a number of broad statutory authorizations relating to foreign affairs and domestic security and finds that some but not all of them can be justified by reference to the President’s independent powers. The Article concludes by considering the relevance of this analysis to the application of the major questions doctrine, and it explains why that doctrine likely poses less of a threat to authorizations related to foreign affairs than scholars have maintained.

The Fourteenth Amendment’s Section One is central to our constitutional law. Yet its underlying principles remain surprisingly obscure. Its drafting history seems filled with contradictions, and there is no scholarly consensus on what rights it protects, or even on what kind of law defines those rights. This Article presents a new lens through which to read the Fourteenth Amendment—new to modern lawyers, but not to the Amendment’s drafters. That lens is general law, the unwritten law that was taken to be common throughout the nation rather than produced by any particular state. Though later disparaged in the era of Erie Railroad Co. v. Tompkins, general law was legal orthodoxy when the Amendment was written. To those who created the Fourteenth Amendment, general law supplied the fundamental rights that Section One secured. On this view, while Section One identified the citizens of the United States, it did not confer new rights of citizenship. Instead, it secured preexisting rights—rights already thought to circumscribe state power—by partially shifting their enforcement and protection from state courts and legislatures to federal courts and Congress. This general-law understanding makes more sense of the historical record than existing theories, which consider the Fourteenth Amendment solely in terms of federal or state law. And it has significant implications for modern Fourteenth Amendment doctrine, from state action to civic equality to “incorporation” to “substantive due process.”

This report is the second in a series of two reports by the Program on International Financial Systems dedicated to cryptoassets. The first report in this series was published in February 2023 (“Phase I Report”) and overviewed the regulation of cryptoassets in the United States. This report describes how other jurisdictions have begun to implement more effective regulatory frameworks for the issuance, trading, and custody of cryptoassets, identifies the costs to US markets and investors stemming from the lack of an effective framework in the US, and recommends reforms that can reposition the US as a leader in cryptoasset regulatory structure. The US government has recognized that the rise of cryptoassets creates an opportunity to reinforce American leadership in global financial markets and at the technological frontier. Providing regulatory clarity to the cryptoasset sector will help to ensure cryptoasset market participants from the US and around the world continue to entrust their resources to the private sector of the US economy, as the number and types of available cryptoasset products expand over time. The report consists of three parts: Part I compares the status of cryptoasset regulation in the United States with four major jurisdictions that have taken significant steps toward dedicated cryptoasset regulatory structures: (1) Japan, (2) the European Union, (3) Hong Kong, and (4) the United Kingdom. It also briefly reviews three other jurisdictions that have taken meaningful steps toward similar frameworks: (1) Australia, (2) Canada, (3) Singapore, and (4) the United Arab Emirates. The comparison shows that the US has fallen far behind other jurisdictions in implementing a regulatory structure that facilitates the efficient issuance, trading, and custody of cryptoassets while protecting cryptoasset investors and customers of cryptoasset service providers. Part II identifies the current and future costs for US markets arising in part from the absence of an effective cryptoasset regulatory framework. We present data indicating that the share of global cryptoasset trading activity that occurs on US trading platforms and the share that is denominated in US-issued assets lag far behind traditional financial markets and are declining, limiting the ability of US cryptoasset investors and businesses to participate in those markets and lessening the ability of US policymakers and regulators to supervise and regulate them. We show that the US has lost and will continue to lose cryptoasset-related jobs and businesses, tax revenue, and other economic benefits associated with cryptoasset-related activities as a result in part of the ongoing regulatory uncertainty in the US. We also show that despite the presence of domestic cryptoasset trading platforms and other service providers that comply with US laws, including anti-fraud, anti-money laundering, and relevant state law regimes, and that voluntarily implement additional rigorous customer protections, many US investors have relied on service providers that take advantage of regulatory gaps and that do not adhere to similar standards, suffering losses from fraud and mismanagement. Part III recommends reforms that can reposition the US at the forefront of cryptoasset regulatory structure. These reforms include the creation of a workable framework for the registration and operation of cryptoasset trading platforms, clarifying the regulatory status of cryptoassets, and implementing workable custody requirements. Although some of our recommendations could require new legislation, we include recommendations for how US regulators can begin to address the most pressing problems pending the passage of necessary legislation.

Nuisance is once again a hot topic in legal practice and scholarship. Public nuisance law is at the center of efforts to hold product manufacturers, energy companies, and internet platforms liable for billions in losses. Scholars have in turn offered competing accounts of the legitimacy and scope of this form of liability. Meanwhile, private nuisance has been the subject of renewed academic attention, including the issuance of new Restatement provisions, that aim to make sense of its distinctive features. Unfortunately, to date, these two lines of inquiry have mostly been pursued in isolation, a pattern that reflects the prevailing wisdom (famously articulated by William Prosser and others) that the two nuisances share nothing beyond a common name. To the contrary, this Article maintains that the key to practical and theoretical progress in this complex area of law is to appreciate that the two nuisances are variants of the same general concept. As variants, they do indeed differ: a private nuisance is a wrong involving the violation of another’s right to use and enjoy their property, whereas public nuisance in the first instance does not turn on the violation of private property rights. And yet both nuisances involve wrongful interferences with others’ access to, or use of, physical spaces or resources. By attending to and appreciating this common core, lawyers, judges, and scholars will be better positioned to develop nuisance law in a consistent and principled manner.

This article explores subjects in optimal income taxation characterized by recent research interest, practical importance in light of concerns about inequality, potential for misunderstanding, and prospects for advancement. Throughout the analysis, paths for further investigation are highlighted. Areas of focus include multidimensional abilities and endogenous wages; asymmetric information and the income of founders; production and consumption externalities from labor effort; market power and rents; behavioral phenomena relating to perceptions of the income tax schedule, myopic labor supply, and the interactions of savings, savings policies, and labor supply; optimal income transfers; the relationship between optimal income taxation and the use of other instruments; and issues relating to the social welfare function and utility functions, including non-welfarist objectives, welfare weights, heterogeneous preferences, and taxation of the family.

In recent years, the popular press and academic commentators have expressed a concern that controlling shareholders of foreign issuers with a cross-listing in the United States (and especially Chinese issuers) are exploiting U.S. investors by paying unfairly low prices in freezeout transactions. But despite the political and economic significance of these claims, there is no systematic evidence on them. We contribute to filling this gap by comparing the gains of the investors in freezeouts of cross-listed issuers and freezeouts of domestic issuers during the 2000-2021 period. The data show that investors in fact receive approximately 6-11% lower returns in freezeouts of issuers located in “Restrictive Markets” (i.e., jurisdictions that U.S. authorities have flagged as posing a particularly high risk of exploitation) than investors in domestic companies. In addition, we show that this difference is driven by Chinese issuers. These results support the conclusion that minority investors in Chinese-controlled companies do not have the same protections as minority investors in U.S. companies, which may result in greater challenges for Chinese-controlled companies in raising capital (e.g., through a higher cost of capital) and an efficiency loss (as inefficient freezeouts might be facilitated).

Though often hailed as an originalist triumph, Dobbs v. Jackson Women’s Health Organization has also been condemned as an originalist betrayal. To some, it abandoned originalism’s principles in favor of a Glucksbergesque history-and-tradition test, or even a “living traditionalism”; to others, its use of originalism was itself the betrayal, yoking modern law to an oppressive past. This essay argues that Dobbs is indeed an originalist opinion: if not distinctively originalist, then originalism-compliant, the sort of opinion an originalist judge could and should have wriCen. Dobbs shows the importance of looking to our original law—to all of it, including lawful doctrines of procedure and practice, and not just to wooden caricatures of original public meaning. As the case was framed, the Court’s focus on history and tradition was the correct approach; on the evidence presented, it reached the correct originalist result. Understanding the Fourteenth Amendment as securing old rights, rather than as leCing judges craft new ones, leaves more rather than fewer choices for today’s voters. In any case, it may be the law we’ve made, both in the 1860s and today

Yabancı hukuka yargısal atıf yapılmasına ilişkin tartışmalarda hâkimler değerleri tartışmaktadır. Ancak çoğu zaman tartıştıkları değerleri kabul etmemektedirler veya çoğunluk ve muhalif görüşlerde neden bir değeri diğerine tercih ettiklerine dair özel gerekçeler sunmamaktadırlar, bunun yerine genel bir iddiada bulunmak için olumsuz yabancı hukuk modellerini benimsemeyi tercih ediyorlar. Bu fenomenin bir örneği, keyfiliğe atıfta bulunmak için "kadijustiz" kelimesinin (Max Weber tarafından ortaya atılan ve Yargıç Felix Frankfurter tarafından 1949'da alınan bir kararla yaygınlaştırılan bir terim) Amerikan yargısal atfıdır. Ancak bu uygulama iki nedenden dolayı yanlıştır. Birincisi, İslam hukuk tarihçilerinin Orta Çağ'dan erken modern dönemlere kadar Memlük, Osmanlı ve diğer mahkemelerdeki İslami yargı prosedürlerini ayrıntılı olarak incelerken uzun zamandır işaret ettiği gibi, bu doğru değildir. İkincisi, kadijustiz'e yargısal atıf, tartışmalı yargısal karar alma süreçlerinde belirli değerlerin diğerlerine göre benimsenmesinin nedenlerini gizlemekte ve böylece, buna atıf yapan hakimlerin argümanlarını genel olarak zayıflatmaktadır.

Many consumers suffer from inadequate information and behavioral biases, which can produce internalities, understood as costs that people impose on their future selves. In these circumstances, “Choice Engines,” powered by Artificial Intelligence (AI), might produce significant savings in terms of money, health, safety, or time. Consider, for example, choices among motor vehicles or appliances. AI-powered Choice Engines might also take account of externalities, and they might nudge or require consumers to do so as well. Different consumers care about different things, of course, which is a reason to insist on a high degree of freedom of choice, even in the presence of internalities and (to some extent) externalities. But it is important to emphasize that AI might be enlisted by insufficiently informed or self-interested actors, who might exploit inadequate information or behavioral biases, and thus reduce consumer welfare. AI might increase internalities or externalities. It is also important to emphasize that AI might show behavioral biases, perhaps the same ones that human beings are known to show, perhaps others that have not been named yet, or perhaps new ones, not shown by human beings, that cannot be anticipated.

In a Time interview, Trump tells us how law, order and freedom are at stake in November.

The Constitution gives the president no “duties” over presidential elections; his actions are therefore personal, and not immune.

The editors of the Harvard Law Review respectfully dedicate this issue to Justice Sandra Day O’Connor.

The use of annual stress tests to set minimum capital requirements for large banks was among the most important innovations in prudential regulation following the Global Financial Crisis of 2007-2009. Using stress tests for this purpose promised greater risk sensitivity at the individual firm level and a better assessment of the banking system as a whole than the pre-crisis methods of setting fixed minimum capital requirements or using banks' internal models. A dozen years later, however, the robust stress testing regime that motivated its use for setting capital requirements has been diluted and is now a more routinized, predictable process. As the current Federal Reserve stress tests proceed to conclusion in June, Harvard law professor Dan Tarullo, who oversaw supervision and regulation as a Federal Reserve governor from 2009 to 2017, seeks to prompt a debate on whether stress testing should remain the basis for large bank minimum capital requirements in the U.S.

The United States has an Economic Constitution, governing federal regulation, and explaining how to conduct regulatory impact analysis, with reference to quantification and monetization of the costs and benefits of proposed and final regulations. Known as OMB Circular A-4, the Economic Constitution of the United States was thoroughly revised in 2023, with new directions on behavioral economics and nudging; on discount rates and effects on future generations; on distributional effects and how to account for them; and on benefits and costs that are hard or impossible to quantify. The revised document leaves numerous open questions, involving (for example) the valuation of human life, the valuation of morbidity effects, and the value of the lives of children.

Artificial intelligence (AI)-enabled chatbots are increasingly being used to help people manage their mental health. Chatbots for mental health and particularly ‘wellness’ applications currently exist in a regulatory ‘gray area’. Indeed, most generative AI-powered wellness apps will not be reviewed by health regulators. However, recent findings suggest that users of these apps sometimes use them to share mental health problems and even to seek support during crises, and that the apps sometimes respond in a manner that increases the risk of harm to the user, a challenge that the current US regulatory structure is not well equipped to address. In this Perspective, we discuss the regulatory landscape and potential health risks of AI-enabled wellness apps. Although we focus on the United States, there are similar challenges for regulators across the globe. We discuss the problems that arise when AI-based wellness apps cross into medical territory and the implications for app developers and regulatory bodies, and we outline outstanding priorities for the field.

In arguments about Presidential immunity, the conservative Justices, who avoided mentioning Trump, made clear that they are less concerned with holding him accountable than with shielding former Presidents from retribution.

Importance: Interest in administering psychedelic agents as mental health treatment is growing rapidly. As drugmakers invest in developing psychedelic medicines for several psychiatric indications, lawmakers are enacting legal reforms to speed access globally, and health agencies are preparing to approve these treatments. Meanwhile, US states, such as Oregon and Colorado, are making psychedelics available for supervised use outside the conventional health care system. Observations: Despite legal change and potentially imminent regulatory approval in some countries, standards for integrating psychedelics into health care have lagged, including norms for designing and implementing informed consent processes. Informed consent is complicated by the unique features of psychedelics and their means of administration. Because no governments have approved any classic psychedelics for general medical or psychiatric use, only clinical researchers have obtained informed consent from trial participants. Accordingly, there is an unmet need for informed consent processes tailored to the challenges of administering psychedelics in nonresearch settings. Conclusions and Relevance: Analysis of the challenges of designing and implementing psychedelic informed consent practices revealed 7 essential components, including the possibility of short- and long-term perceptual disturbances, potential personality changes and altered metaphysical beliefs, the limited role of reassuring physical touch, the potential for patient abuse or coercion, the role and risks of data collection, relevant practitioner disclosures, and interactive patient education and comprehension assessment. Because publicly available informed consent documents for psychedelic clinical trials often overlook or underemphasize these essential elements, sample language and procedures to fill the gap are proposed.

Due to infrequent and inconsistent testing, there is no reliable count of how many infants are exposed to substances in utero, yet recent data on drug use and child fatalities signal an unmitigated crisis. Efforts to limit responsibility of Child Protective Services (CPS) for substance-exposed infants, including laws to prevent doctors from conducting toxicology screenings when there is reasonable suspicion the infant was exposed, severely diminish the likelihood that the parent and child will receive necessary care. Plans of Safe Care, voluntary offers of services seen as a more compassionate alternative to CPS involvement, are not backed by any evidence of their actual efficacy in keeping children safe.

A crucial path to legal status for immigrant victims of crimes is the U visa, which Congress established with strong bipartisan support to protect victims of particular crimes who are helpful to law enforcement. Because the U visa was intended to encourage reporting of crimes, the application requires a certification form to be completed by a federal, state, or local authority that is investigating or prosecuting the alleged offense. Arbitrary and inconsistent certification decisions by state and local authorities make it especially important to identify relevant federal authorities that can serve as certifying authorities for U visas. This Piece argues that congressional committees and subcommittees that engage in investigations qualify as certifying authorities under the statute and regulations. To date, these congressional committees have never certified a U visa. The Piece provides three examples of congressional investigations in which U visa certification would be warranted: investigations into medical abuses of detained women, the so-called “Zero Tolerance” family-separation policy, and the use of solitary confinement in immigration detention.