Faculty Bibliography
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This Viewpoint discusses the controversy surrounding the FDA’s efforts to withdraw Makena from the market and the broader implications for the accelerated approval pathway.
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It favors the rights of religious groups over those of gay couples—and, if Obergefell were to be overruled, it would create two classes of marriage.
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The case against the Indian Child Welfare Act, which requires that children be kept within their communities of origin.
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Are falsehoods protected by the First Amendment? To answer that question, we need a framework. Four questions matter. The first question involves the speakers’ State of Mind (and hence their level of culpability). In saying something that is false, people might be (1) lying, (2) reckless, (3) negligent, or (4) reasonable but mistaken. The second question involves the Magnitude of Harm. How much damage is caused by the falsehood? There is a continuum here, but for heuristic purposes, let us say that the damage might be (1) grave, (2) moderate, (3) minor, and (4) nonexistent. The third question involves the Likelihood of Harm. Here too we have a continuum, including (1) certain, (2) probable, (3) improbable, and (4) highly improbable. The fourth and final question involves the Timing of Harm. Yet again there is a continuum, but for heuristic purposes, it might be (1) imminent, in the sense of occurring immediately, (2) imminent, in the sense of the occurring in the near future, (3) occurring not in the near future but reasonably soon, or (4) occurring in the distant future. As we shift from the four sets of (1) to the four sets of (4), the argument for constitutional protection gains force.
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Environmentalists did not cheer President Bill Clinton’s decision in May1994 to nominate then-First Circuit Judge Stephen Breyer to fill Justice Harry Blackmun’s seat on the Supreme Court. Just the opposite. Many instead expressed serious concerns about Breyer’s impact on environmental law were he to be confirmed, and openly questioned whether a Justice Breyer might be “hazardous to our health.” This article considers whether, in light of Breyer’s actual record over the past twenty-seven years on the Court, environmentalist concerns about Breyer at the time of his nomination were realized. The article concludes they were not. Breyer was instead friendly to environmental protection concerns even if he fell shy of being an unqualified friend on the bench. In almost all of the most important environmental cases of the past twenty-seven years, he was a reliable vote joining the majority in the big cases environmentalists won — often providing the critical fifth vote. And although Justice Breyer on a handful of occasions was less a reliable vote in dissent with liberal justices sounding the alarm in the big cases environmentalists lost, in none of those cases was his vote dispositive of the outcome. For this reason, although environmentalist concerns at the time of Breyer’s nomination were reasonable, and had the potential to cause the very problems environmentalists identified, they proved largely insignificant in actual application. Finally, Justice Breyer’s actual record on the Court suggests the wisdom of rethinking what it means to be a “dream” justice for environmental law. Most simply put, the best Justice for environmental law may not be a Justice who always votes in favor of the outcome favored by environmentalists in individual cases.
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A Conversation held on February 24, 2022, at The George Washington University Law School.
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Congress just enacted the most important reform of the rules governing the transparency of binding international agreements in the past half-century, and for the first time included nonbinding agreements.
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Spanish AbstractLa autora examina desde un punto de vista comparativo la historia del crimen y castigo en las sociedades islámicas. En la mayoría de los estudios sobre derecho penal islámico, los principios, prácticas y justificaciones del castigo suelen presentarse como compartimentos estancos entre los cuales media una amplia distancia. El artículo explora el terreno en el que se encuentran dichos compartimentos, situando el foco en los principios y prácticas del derecho penal en la Siria omeya, el Iraq abbasí y el Egipto mameluco. Al presentarnos este proceso, la autora ilustra el rasgo más llamativo del derecho penal islámico medieval. Dicho rasgo consiste en lo que ella denomina una «jurisprudencia de la duda y de la lenidad o de la benevolencia» que contrasta con las «prácticas políticas de control y severidad». Al abordar este contraste señala que se puede llegar mucho más lejos en el conocimiento de este campo de estudio prestando atención no sólo a los principios legales y a las prácticas, sino también a las razones que justifican la vigencia del derecho penal islámico.English Abstract:This article examines the history of crime and punishment in Islamic societies, comparatively. In most studies of Islamic criminal law, the principles, practices, and justifications for punishment typically operate in siloes separated by a wide plain. This lecture explores the ground where they meet. This lecture focuses on the criminal law principles and practices in Umayyad Syria, ‘Abbasid Iraq, and Mamluk Egypt. In the process, she illustrates the most striking feature of medieval Islamic criminal: it featured a «jurisprudence of doubt and lenity» in contrast to «political practices of control and severity». In addressing that contrast, she argues that more insight can be gained by approaching the field with greater attention to not only the principles, practices, but also the justifications for Islamic criminal law.الملخصتبحث المؤلفة من وجهة نظر مقارنة في تاريخ الجريمة والعقاب في المجتمعات الإسلامية. في معظم دراسات القانونالجنائي الإسلامي، جرت العادة على تقديم مبادئ، وممارسات، ومبررات العقوبة كمقصورات منفصلة عن بعضها البعض.و يستكشف هذا المقال الحقل الذي تلتقي فيه هذه المقصورات بالتركيز على مبادئ وتطبيقات القانون الجنائي في سورياالأموية، والعراق العباسي، ومصر المملوكية. ومن خلال تقديم المؤلفة هذا المسار لنا، فهي تبرز السمة الأبرز في القانونالجنائي الإسلامي في العصور الوسطى. وتتمثل هذه السمة فيما تسميه بفقه الشك والتساهل أو الرأفة الذي يتعارض معالممارسات السياسية التي تتميز بالسيطرة والصرامة. وفي معالجة هذا التناقض، فهي تشير إلى أنه من الممكن تحصيلمعرفة معتبرة في هذا المجال من خلال الاهتمام ليس فقط بالمبادئ والممارسات القانونية، بل أيضًا بالأسباب التي تبررسريان القانون الجنائي الإسلامي.
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The Supreme Court’s decision in Bostock v. Clayton County was an important victory for gay and transgender workers—but the Court’s textual analysis has failed to persuade a number of thoughtful commentators, and it threatens to leave anti-discrimination law in disarray. The root of the problem is that Bostock trumpeted a “simple test” of but-for causation that could not alone explain the correctness of the results that the Court reached. This explanatory gap not only has left Bostock’s holding vulnerable to attack, but also has engendered uncertainty about the many disparate-treatment issues for which Bostock now provides the governing precedent. Indeed, because Bostock took it upon itself to interpret Title VII from textualist first principles, its analysis will orient—and perhaps disorient—judicial approaches to all manner of disparate-treatment claims for many years to come. What disparate-treatment law needs, but the Court has thus far failed to provide, is a coherent, general, and textually grounded account of what it means for a decision to be made “because of” a protected characteristic—one that accords with Bostock’s motivating intuitions, but that transcends its overly simplistic account of its own reasoning. Drawing on a venerable body of work in analytic philosophy concerning “determinable” properties and their corresponding “determinates,” this Article develops an account that meets that need. In brief, this “dimensional” account of disparate treatment recognizes a decision as being made “because of [an] individual’s X” whenever the decision is motivated by a property that characterizes the individual in the dimension of X—regardless of whether a different decision would have been made if the individual had belonged to any other determinate class that is defined along that dimension. After introducing and defending this analysis, the Article traces its implications for a wide range of current controversies—involving bisexuality, pregnancy, race and gender stereotypes, and more. Finally, the Article defends the dimensional account and its implicit application in Bostock on textualist terms. It argues that the account best captures the meaning that an “ordinary reader” would ascribe to Congress’s enactment of Title VII—so long as the reader construes the statute in light of characteristic features of legislative communication, as sophisticated accounts of modern textualism would demand.
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A law professors’ global conversation on ‘progressive property’ confirms institutions of private ownership as foundational for individual human freedom and dignity, while also insisting on the design of such institutions with a view, grounded in the principle of the equal value of every person, to the ability of each person to access and enjoy these values of the institution of property. The conversation takes as a premise that a design for a good and just system of property entitlements is not deducible from any single metric but rather falls unavoidably to political judgment and choice. That does not mean, though, impulsive choice, but rather choice through the exercise of deliberative reason and critical judgment leavened by tradition and experience. This article seeks illumination of the progressive-property paradigm through a consideration of three judgments from Associate Justice Johan Froneman, in cases before the Constitutional Court of South Africa on property under that country’s constitution. The discussion takes its turn towards what it names as a pragmatist strain in our received traditions of political argument – finding in the judicial work of Froneman J, as represented in these judgments, characteristics of realism, contextualism, a mediation of functional and formal demands on adjudication under a rule of law, and an optimistic outlook on the possibility of political practical reason.
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Racial dissidents prompted the military to abandon racial exclusion, nudged courts to invalidate the constitutionality of racial segregation, moved governments at the municipal, state, and federal levels to outlaw racial discrimination in markets for public accommodation, employment, and housing, and pushed the federal government to remove obvious racial barriers to Blacks seeking voter registration. In what is often called the "classical" or "heroic" civil rights movement, racial justice advocates were nourished and led by an array of organizations, including the National Association for the Advancement of Colored People (naacp), the naacp Legal Defense Fund (ldf), the Congress of Racial Equality (core), the Southern Christian Leadership Conference (sclc), the Student Nonviolent Coordinating Committee (sncc), and many kindred organizations. In response, Black Montgomery boycotted the buses for 381 days, created an alternative governing structure for itself, and also sued city and state authorities, winning a judgment at the Supreme Court that extended Brown v. Board of Education’s invalidation of segregation from schooling to transportation. Why and how segregation was overthrown in the armed forces without legislation or judicial intervention is a neglected subject that surely ought to be focused upon in an analysis of the civil rights movement written from a military perspective.
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One of my clients is living out the terrifying consequences of such a system. Clare Bronfman pled guilty to two crimes, neither of which were in any way sex
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Applying a cost-benefit analysis to people’s problems may seem “bloodless,” but it can be a corrective to interest group lobbying, ideology, and bias.
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Before his abuses of power were exposed, he was celebrated as a scourge of Nazis, Communists, and subversives.
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The dramatic collapse of Sam Bankman-Fried’s crypto exchange, FTX, may have come as a shock to the Miami Heat, Tom Brady, Twitter bots and financial-news talking heads. But crypto is following a well-worn path of financial innovations, such as subprime mortgages and credit-default swaps, that began with dazzling rewards and ended with crippling losses.
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It is a huge pleasure to engage with Prof. Shaw’s careful and close reading of my article. Though almost a decade old, many of the issues are becoming only more relevant as it seems that Roe v Wade will be overruled in the U.S. and travel for abortion will become a sad reality. I appreciate how deeply Prof. Shaw interacts with my article and am full of praise for his work, but given the small space allocated here I only focus on our few places of disagreement.
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The two days of discussions began with a frank acknowledgment that religion has all too often been a source of, or a pretext for, conflict in today’s increasingly interdependent world.
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If Amazon can move its business online, then labor law requires that the union be able to move its picket line online too.
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The sobering realization that little has changed in the scope of inpatient harm makes it plain that efforts intent on improving patient safety must be redoubled if the status quo is to be reversed. Living up to the recommendations of the iconic Institute of Medicine (IOM) Report (To Err Is Human: Building a Safer Health System) must remain top of mind. Much can and must be done to assure to the degree possible the safety of the inpatient population.
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President Biden presided over the best midterm elections for the party in the White House in 20 years — despite Washington insiders predicting that Democrats would be wiped out.
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This JGIM Perspective discusses new and emerging challenges with accessing controversial medical therapies like medical aid in dying and abortion. While some states permit these therapies for only their residents, other states prohibit these therapies for their own residents. We summarize recent developments and growing challenges for clinicians treating “medical tourism” patients from other jurisdictions.
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Many consumers suffer from present bias. To present-biased consumers, the long-term is a foreign country, and they are not sure that they will ever visit. If consumers suffer from present bias, there is room to rethink national policies in multiple domains. For example, regulatory mandates might turn out to be better than economic incentives. Fuel economy and energy efficiency mandates might produce billions of dollars in annual savings to present-biased consumers. The net benefits of mandates that simultaneously reduce internalities and externalities might exceed the net benefits of incentives that reduce externalities alone, even if mandates turn out to be a highly inefficient way of reducing externalities.
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Students for Fair Admissions is one of only a few Supreme Court cases about the rights of Asian Americans. But what will it achieve on their behalf?
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Election administration is a job for professionals.
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The point of remembering our agitated past is to gain hope, not despair.
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Our brief argued that the Constitutional Court should recognize the rights of individual animals under the constitutional language of rights of nature. The Court adopted most of the arguments we presented in the brief.
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I want to begin by thanking the editors of Law and History Review for hosting this rich exchange on Vice Patrol, as well as Marie-Amélie George, Yvonne Pitts, and Steven Maynard for their generous and generative comments. Engaging so deeply and so rigorously with another scholar's project, connecting it to one's own research and even to one's own life experience, is an act of remarkable collegiality, and I am grateful for their time and reflections.
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Written for a symposium issue celebrating the thirty-year anniversary of the publication of The Economic Structure of Corporate Law by Frank Easterbrook and Daniel Fischel (“E&F”), this Essay discusses the interaction of my research over the years with their writings. During the period in which the book and articles were written, and in the many years since then, I have paid close attention to E&F’s writings in my research in the economics of corporate governance. Indeed, a significant part of my research in this field engaged closely with E&F’s writing and reached conclusions that substantially differed from theirs. Below I discuss this engagement of my work with E&F’s writings, and our respective approaches, in five corporate research areas: (i) takeover policy and rules; (ii) contractual freedom in corporate law; (iii) state competition in the provision of corporate law rules; (iv) efficiency and distribution in corporate law; and (v) corporate purpose.
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Easterbrook and Fischel’s The Economic Structure of Corporate Law advances their now famous passivity thesis, which posits that managers should remain passive in the face of an unsolicited tender offer for the company’s shares. Consistent with the broader Chicago-school economic belief, Easterbrook and Fischel argue that markets are generally efficient, and therefore restrictions on the market (like poison pills) are bad. In doing so, Easterbrook and Fischel also consider and reject externalities that might cause the market for corporate control to not function well. Thirty years have passed since Easterbrook and Fischel’s seminal work and the world has changed in meaningful ways, with the rise of stakeholder governance, ESG, and stockholder activism. We therefore propose some ground rules that would govern pills in today’s corporate world. These rules, we believe, would effectively balance the board’s interest in considering a broad set of constituencies and the challenges of facing increasingly sophisticated and coordinated shareholder activists against the rights of all shareholders, including activists, to solicit support for their ideas or attempt to gain control of the company.
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Alito says the breach put justices’ lives in danger. That’s all the more reason for a serious investigation.
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The Supreme Court hears a challenge to affirmative action this week—and will likely overrule more than four decades of precedents on college admissions.