Faculty Bibliography

In evaluating interventions, policymakers should consider both their welfare effects, including their effects on people’s emotional states, and their effects on distributive justice, including their effects on those at the bottom of the economic ladder. The arguments for investigating welfare effects, and effects on distributive justice, are meant as objections to efforts to evaluate behaviorally informed interventions solely in terms of (for example) revealed preferences and effects on participation rates. The arguments are also meant as a plea for investigation and specification of the effects of such interventions on experienced well-being. If interventions give people a sense of security and safety, that is a strong point in their favor; if they make people feel frightened and sad, that is a strong point against them. A central concern is that policymakers sometimes neglect the emotional impact, whether negative or positive, of behaviorally informed interventions. Personalized approaches can promote distributive goals and also target interventions to those who are most likely to be helped by them.

In both countries, people protest their judiciary, but in Israel, these protests have not turned violent even as tensions rise.

Policy must support generation of evidence on safety and effectiveness.

The Fifth Edition embodies the authors’ collective wisdom from teaching the text over many years and incorporates numerous substantive and pedagogical changes. New notes introduce the principal cases succinctly and clearly. These notes orient readers to the topics at hand and illuminate related puzzles and controversies. They both assist students in understanding the cases that follow and serve to spur careful analysis and robust classroom discussion. Many new headings and subheadings have also been added. These, too, are intended to facilitate understanding by clearly indicating how various issues fit together within the larger topic. The revision includes over 50 new cases, squibs, and other materials. These updates reflect both developments in traditional fields of tort liability and new phenomena such as the rise of online platforms where products are now sold and commerce is carried on. Some of these new cases show courts grappling with questions of gendered and racialized wrongs in ways that they would not have done even a decade ago. Since the Fourth Edition, many provisions of the Second Restatement (of Torts, Agency, or other fields of law) have been superseded or supplemented by corresponding provisions of the Third Restatement. Moreover, many states have adopted pattern jury instructions that succinctly outline the elements of various claims and defenses. These new materials provide clear guidance regarding the current scope and contours of numerous claims and defenses. There are also important organizational changes and deletions. To name just a few: several chapters have been reorganized to address the rise of classical accident law and to clarify how modern tort law develops from it, to update and expand upon limitations on punitive damages, and to clarify the elements of battery and the defenses to battery. Furthermore, the casebook has been shortened and its materials have been focused on those topics addressed in current first-year torts classes. Lastly, this edition expands the book’s treatment of an emerging area of law: public nuisance. While public nuisance originally landed in the United States along with the rest of the English common law, it owes its contemporary prominence in mass tort litigation to the tobacco suits of the 1990’s. In the wake of the stunning success of the tobacco litigation, ambitious public nuisance claims have proliferated to encompass contemporary social problems such as the public health scourge of lead paint contamination, greenhouse gases, and opioids. This important legal field is comprehensively addressed in the portion of the casebook discussing mechanisms of recovery for increasingly common situations in which many people are put at risk, and many ultimately hurt, by the same tortious conduct.

The Supreme Court’s decision is good for science and especially good for women.

This paper explores whether platform liability should be strict or negligence based. Platforms get revenue by selling products or services to consumers and selling advertising or information to others. There are indirect network effects: higher consumer participation generates more revenue from advertising or data sales but also magnifies the social harm. Both strict liability and negligence motivate platforms to take socially efficient precautions to reduce risks of harm, but they have different impacts on consumer participation. If network benefits are weak (strong), the price charged to consumers is positive (zero). If the price is positive, negligence stimulates more (the same) consumer participation than strict liability when victims are bystanders (consumers). If the price is zero, strict liability stimulates more (the same) consumer participation than negligence when victims are consumers (bystanders). When network benefits are large, the standard results from the literature are reversed.

This chapter probes the doctrine of stare decisis as it functions in constitutional cases in the Supreme Court of the US. It solves what some have viewed as two puzzles about constitutional stare decisis in the US. One involves how past decisions that the justices believe to be erroneous can displace the original meaning of a constitution that purports to be ‘the supreme law of the land’. The other mystery is how it can be that if erroneous precedents sometimes prevail over the US Constitution’s original meaning, they do not always do so. In response to the first puzzle, this chapter appeals to the Hartian concept of a ‘rule of recognition’, grounded in official practice and ‘acceptance’. In addressing the second puzzle, this chapter relies on Hart’s distinction between rules of recognition and ‘rules of change’. In the Supreme Court, the chapter argues, an important practical function of the doctrine of stare decisis is to empower the justices to act as constitutional law-makers choosing whether to effect or not to effect legal change. In addition to clarifying the role of constitutional stare decisis in the Supreme Court, this chapter seeks to advance understanding of possible variations in the functioning of stare decisis in different legal systems and of Hartian jurisprudential concepts, including those of rules of recognition and rules of change.

Conservatives in the US are close to making Congress call a convention for proposing constitutional amendments. How could it be protected for majority rule?

The Federal Home Loan Banks (FHLBs) are the less well-known siblings of Fannie Mae and Freddie Mac. Since these government-sponsored enterprises were created in 1932, changes in housing finance markets have rendered largely irrelevant their original purpose of increasing the availability of mortgages. Yet the level and scope of their activities have increased dramatically in recent decades. These activities have at times both exacerbated risks to financial stability and obstructed the missions of federal financial regulators. Behind these undesirable outcomes lies the public/private hybrid nature of the FHLBs. The private ownership and control of the FHLBs provide an incentive to take advantage of the considerable public privileges from which they benefit—including an explicit line of credit from the United States Government and an implied guarantee of all their debt similar to that enjoyed by Fannie Mae and Freddie Mac before the Global Financial Crisis. This article examines past incidence and future potential for the FHLBs to amplify financial stability risks. It offers a framework for regulatory reform by the Federal Housing Finance Agency to contain these risks and avoid harmful interference with the activities of other federal regulators.

This paper proposes a set of guiding principles for responsible quantum innovation. The principles are organized into three functional categories: safeguarding, engaging, and advancing (SEA), and are grounded in the values of responsible research and innovation (RRI). Utilizing a global equity normative framework, we link the Quantum-SEA categories to promise and perils specific to quantum technology. The paper operationalizes the Responsible Quantum Technology framework by proposing ten actionable principles to help address the risks, challenges, and opportunities associated with quantum technology. Our proposal aims to catalyze a much-needed interdisciplinary effort within the quantum community to establish a foundation of quantum-specific and quantum-tailored principles for responsible quantum innovation. The overarching objective of this interdisciplinary effort is to steer the development and use of Quantum Technology (QT) in a direction not only consistent with a values-based society but also a direction that contributes to addressing some of society’s most pressing needs and goals.

Assessing Starbucks CEO's Senate testimonial regarding the company's response to workers union organizing.

Residents of Charleston, South Carolina could be forced to leave their homes. This is how they might do it—and provide a blueprint for other cities.

An unflinching look at the beautiful, endangered, tourist-pummeled, and history-filled port city which now finds itself at the intersection of the twin crises of climate and race. Unknown to the happy, mostly white visitors who hop from one restaurant to another on the charming streets of the Charleston peninsula, or to readers of the glossy magazines in which the city is named a top destination year after year, rapidly rising sea levels and increasingly devastating storms are mere years away from rendering the Holy City uninhabitable. If this precarity is hidden, it is because the city and the state have a strong interest in keeping up appearances. And because the city’s Black and lower-income residents will bear the brunt of the storm. Charleston will show how the city must quickly reimagine its future before rising waters stymie its ability to act at all. Along the way, the city will need to confront and right historic wrongs. Susan Crawford’s evocative and profoundly important book will make us question whether Charleston is a bellwether for other towns and major cities along global coastlines. Charleston will chronicle the tumultuous recent past in the life of the city, from protests to hurricanes. It will show readers the city tourists never see, and lay out the risks now faced by a place that is in the business of marketing ahistorical, glossy luxury. We will hear from Rev. Joseph Darby, a well-regarded Black minister with a powerful voice across the city and region—who has an acute sense of the city’s shortcomings when it comes to matters of race and water. It will introduce Michelle Mapp, one of the city’s most promising Black leaders, who left her nonprofit post to attend law school at the Charleston School of Law and sees clearly how the systems around her must change. We will hear from Quinetha Frasier, a charismatic young Black entrepreneur with Gullah-Geechee roots who fears her people will be displaced by developers if they aren’t first wiped out by chronic flooding. Readers will meet Jacob Lindsey, the young white city planner charged with running the city’s ten-year “comprehensive plan” efforts—who ends up working for a private developer bent on turning what was once part of a river running next to the city into a giant commercial development. Each of these people, and the city in which they live, faces extraordinary risks in the form of coming environmental chaos. This emblematic American city crystallizes human tendencies to value profit and property above all else. At the same time, Charleston, like scores of other global coastal cities, urgently needs to chart a new future for its citizens in light of the changes ahead. Whether it can do so successfully will have crucial implications for cities everywhere. Illuminating and vividly rendered, Charleston is a clarion call and filled with characters who will stay in the reader’s mind long after the final page.

We examine perceived and idea ownership of US patient medical data as governed by HIPPA in a survey of three stakeholder groups: patients, primary care physicians, and medical administrators. Current and ideal unbundled ownership were measured with six questions about the rights to access, control access, profit, modify, destroy and transfer rights. First, we find that there is an underestimation of the patients’ rights in their medical data across all three samples of stakeholders. Second, all stakeholders agree on expanding patients’ rights and curtailing rights afforded to health systems.

DUNWODY DISTINGUISHED LECTURE IN LAW

Research shows, for example, that federal spending on things like safe housing and nutrition assistance for babies makes people healthier and reduces total health costs. [...]because of the rules Congress set, cbo cost estimates for these programs cannot assume taxpayers would save any money on health insurance costs or that taxpayers would spend less on Medicaid. Reforming these economic models would not be easy. cbo cost estimates generally exclude the potential macroeconomic effects of a proposed policy precisely because, as they explain it, they have too few analysts to crunch the numbers. [...]policymakers need to remember that modeling the costs and benefits of major public policies isn't just about numbers-it's also about our values.

This study focusses on the acquisition of Twitter by Elon Musk. Our analysis indicates that when negotiating the sale of their company to Musk, Twitter’s leaders chose to disregard the interests of the company’s stakeholders and to focus exclusively on the interests of shareholders and the corporate leaders themselves. In particular, Twitter’s corporate leaders elected to push under the bus the interests of company employees, as well as the mission statements and core values to which Twitter had pledged allegiance for years. Our analysis can inform the heated debates on corporate stakeholders and their treatment by corporate leaders. Our findings indicate that, contrary to the predictions of the implicit promises and team production theories of Coffee (1986), Shleifer-Summers (1988) and Blair-Stout (1999), corporate leaders selling their company should not be expected to look after the interests of stakeholders. In addition, rather than supporting the stakeholder governance, our findings also support the agency critique of stakeholder governance (Bebchuk and Tallarita (2020)), which stresses that corporate leaders have incentives not to serve stakeholders beyond what would serve shareholder value. Finally, our findings are consistent with the view that corporate mission and purpose statements are mostly for show.

When does the Dormant Commerce Clause preclude states from regulating internet activity--whether through state libel law or invasion of privacy law; through state laws requiring websites to accommodate disabled users (for instance, by providing closed captioning); through state bans on discriminating based on sexual orientation, religion, or criminal record; or through state laws that ban social media platforms from discriminating based on the viewpoint of users' speech? This Article argues that the constitutionality of such state regulation should generally turn on the feasability of geolocation--the extent to which websites or other internet services can determine, reliably and inexpensively, which states users are coming from so that the sites can then apply the proper state law to each user (or, if need be, choose not to allow access to users from certain states). In recent years, geolocation has become feasible and is routinely used by major websites for ordinary business purposes. There is therefore more constitutional room for state regulation of internet services, including social media platforms, than often believed.

The American Law Institute (“ALI”) has devoted much attention to tort law. This attention has come in different forms. This chapter labels these, respectively: “ALI in the Mode of Appellate Court,” “ALI in the Mode of Law Reform Commission,” and “ALI in the Mode of Think Tank.” Each of these can be placed along a spectrum of ambitiousness with respect to law reform. None is unambitious. But Appellate Court Mode is tethered to doctrine, Think Tank Mode is untethered, and Law Reform Commission Mode lies somewhere in between. One might suppose that the ALI’s promise – which enables leading academics, in consultation with members of the bench and bar and others, to undertake long-term, large-scale research projects – resides in work at the more ambitious end of the spectrum. However, based on an admittedly impressionistic survey, I will suggest that, in the domain of tort law, the Institute has had important successes when proceeding in the manner of an appellate court, and has courted trouble when operating in the other modes.

Jack Goldsmith explains the risks associated with pursuing criminal prosecutions against high-profile political figures.

In the midst of the #MeToo movement, California voters recalled a judge for being lenient on sexual assault. As a new documentary argues, that recall campaign had unintended results.

Although Israel will remain a vibrant democracy, it would be a far better democracy if the Supreme Court had the power to check and balance the majority regarding often unpopular basic rights.

In this chapter, Professors Okediji and Hughes discuss ways in which legal academics understand – and sometimes misunderstand – the negotiating environment in Geneva in which international intellectual property legal norms are developed. The chapter recognizes the insights of Professor Rochelle Dreyfuss and agrees with much of her analysis as to the best forum for developing new legal norms and the virtues of diversity and experimentation at the national level.

A federal official wrote a parody of Harvard’s attitude toward Asian Americans and shared it with the dean of admissions. Why did a judge try to hide that from the public?

What the success of federal-sector unions can teach us about private-sector labor law reform.

The rise of international criminal law (ICL) has undoubtedly contributed to the development and enforcement of international humanitarian law (IHL). Yet, there are also important and oft-overlooked ways in which it has done the opposite. By labeling certain violations of the laws of war as “criminal” and setting up dedicated mechanisms for prosecution and punishment of offenders, the content, practice, and logic of ICL are displacing those of IHL. With its doctrinal precision, elaborate institutions, and the seemingly irresistible claim of political and moral priority, ICL is overshadowing the more diffuse, less institutionalized, and more difficult to enforce IHL.But if ICL becomes the dominant lens through which battlefield activity is measured, it is not merely intellectually unsatisfying; it poses a serious risk to the attainment of the very same humanitarian values that ICL seeks to protect. Consider the fact that in many wars fought today, the majority of civilian deaths and injuries does not result from acts that could be classified as war crimes, but from the more “mundane” choices of means and methods of warfare that at most would lend themselves to IHL scrutiny.Rather than diminishing the importance of ICL, this essay calls for more attention to the ways in which ICL is impacting IHL as well as for a stronger commitment by states to the application and enforcement of IHL for its own sake.

This paper explores the converging roots of mobilization for World War I in China and French West Africa. It traces mobilization in both regions to growing state and elite support for labor emigration starting in the late 1870s. For more than a century, southern China and the Senegal River Basin had provided contract laborers for Western enterprises. As Western powers sought to exploit resources across the Americas, Asia, Africa and the Pacific in the late nineteenth century, they turned once again to Chinese and West African migrant labor. Although state officials and elites in both regions had opposed foreign labor recruitment due to reports of abuses, starting in the late 1870s and 1880s, they increasingly supported foreign recruitment and labor colonization schemes. Both Chinese and West African elites began touting the achievements of Chinese and West African laborers who built infrastructure and cultivated reclaimed land overseas as contributing to a global “civilizing mission.” These elites—including merchants, intellectuals, officials and leaders of migrant communities—claimed the achievements of migrant laborers as those of Chinese and French West African society, thereby defending the status of their home regions in a global “civilizational” hierarchy. The Qing and French imperial states thus assumed growing responsibility for laborers, treating them as instruments of state policy. This shift in the relationship between migrant laborers and their home nations lay the ground for China and French West Africa to support the Allied war effort by sending laborers to Europe during World War I.

In this chapter, the authors consider Professor Rochelle Dreyfuss’ thoughtful observations on the multilateral intellectual property system in light of their own experience in Geneva negotiations. The chapter discusses the structural advantages of WIPO over WTO for the negotiation of intellectual property issues, the practical differences in capacity among different national delegations, and the importance of recognizing that developing countries may make trade-offs between intellectual property norms and other market access issues that are difficult for legal scholars to judge from a distance.

Daniel Tarullo explores several proposed modifications to capital regulation (specifically, the eSLR and G-SIB capital surcharge) that could ease constraints on banks holding and trading Treasuries without endangering the foundations of the post-Global Financial Crisis reforms.

At the heart of Silicon Valley Bank’s failure are uninsured depositors — specifically startup companies who held far more than the insured limit of $250,000 and who couldn’t make payroll without access to their accounts. It’s tempting in light of SVB’s failure to assume that the insured deposit limit needs to be raised, but that solution creates new problems. A better approach would be for the U.S. to follow the example of other countries and create “payment banks” that take little-to-no risk, are highly regulated, and have access to the payment network. They would be a place where companies could park funds — like VC investment earmarked for payroll — without exposing themselves to the risks that normal banks create.

On 28th February, William Baude of the University of Chicago Law School delivered the annual Scalia Lecture at Harvard Law School,[2] titled “Beyond Textualism?”—with startling results. Startling but also welcome, as we will explain.

Over the past 25 years, Congress and the FDA have determined the safest and most beneficial way to regulate the use of mifepristone (Mifeprex), the medication that accounts for the majority of abortions in the United States. The Dobbs decision has renewed the importance of those scientific determinations, especially FDA's decisions implementing the Risk Evaluation and Mitigation Strategy (REMS) provisions of the Federal Food Drug and Cosmetic Act (FDCA), that mifepristone may be taken by patients outside the presence of any healthcare provider (often through telemedicine prescription and shipment across state lines). Now that Dobbs has been decided, state officials have indicated that they will seek to enforce state statutes which conflict with FDA's regimen for the proper use of mifepristone, by banning its use entirely, prohibiting telemedicine prescription, or imposing other requirements which FDA has specifically considered and now rejected as contrary to the congressional mandate that FDA-approved drugs be as accessible as safety considerations allow. Litigation has already been filed to invalidate such statutes on the grounds that they are preempted by the doctrine that state law which conflicts with, or undermines the purposes of, FDA actions with respect to approved drugs are preempted under the Supremacy Clause of the Constitution. This article examines the Supreme Court caselaw and FDA actions which will dictate the outcome of that litigation. Part I details the statutory basis for FDA preemption of conflicting state law and the four decisions by the Supreme Court over the last 13 years (Levine, Mensing, Bartlett and Albrecht) which enunciate the governing legal standards for FDA preemption. We pay particular attention to the opinions of Justice Alito and the other conservative justices, which hold that such FDA preemption should be robust to ensure that there is one consistent, national policy for the distribution and regulation of drugs, under the science-based decisions of the FDA, rather than the 'parochialism' of differing state standards. Part II details FDA's comprehensive program for the balanced, though appropriately restricted, use of mifepristone, and the 22 years of FDA actions that brought that about. It then catalogs the state statutes limiting the use of the drug which, in material ways, conflict with those FDA determinations. Part III outlines the arguments made in one early lawsuit seeking preemption of the statutes of one state (Mississippi)–a law suit which previews the wider litigation to come. It then sets forth the strong arguments for FDA preemption of each type of state restriction and responses to the 'defenses' of those statutes that have been offered in an effort to avoid FDA preemption under the Supremacy Clause. That review shows that a straight-forward application of the FDCA and the Supreme Court caselaw should result in the preemption of the state restrictions that squarely conflict with the relatively free access to abortion medications which FDA has mandated.

Lucian Bebchuk and Oliver Hart explain why Israel’s proposed legal transformation would undermine not only its democracy but also its economy.

In West Virginia vs. EPA, a conservative majority within the Supreme Court announced this past June a sweeping ruling, traceable to the opinions of former Justice Scalia, that seriously threatens environmental law’s ability to safeguard public health and welfare. In sustaining former President Trump’s repeal of the Clean Power Plan — an ambitious Obama administration rulemaking that regulated greenhouse gas emissions from existing fossil fuel-fired power plants — the West Virginia Court insisted that there must be “clear congressional authorization” to support any significant and important rule like the Clean Power Plan. Our nation’s environmental protection laws have been enormously successfully over the past 50 years. That half century of extraordinary success has depended on a partnership between the federal legislative and executive branches, long upheld by the courts, in which Congress enacts broad, capacious statutory language that authorizes agencies such as the Environmental Protection Agency to enact pollution controls that reflects the complexities presented by evolving environmental science, the nation’s economy and constant technological innovation. Congress deliberately chose to delegate lawmaking authority to expert agencies in appreciation of Congress’s own inability to anticipate and address all those complexities in the real-time basis.The West Virginia Court, however, has called into question the legal viability of that legislative and executive branch partnership by insisting that such a deliberate congressional decision to use capacious statutory language is no longer sufficient to support any significant and important rule like the Clean Power Plan. Congress must instead pass a second piece of legislation that meets the Court’s newly-coined “clear congressional authorization” standard, despite the obvious practical reality that the current Congress is incapable of doing so. The threatened upshot is the unraveling of the national government’s ability to safeguard the public health and welfare just as the United States, and all nations, faces the greatest environmental challenge of all: climate change. Under the ironic guise of promoting democracy, the branch of government least accountable to the voters has invented a sweeping doctrine of statutory interpretation — the “Major Questions Doctrine” —to place the equivalent of a constitutional straightjacket on the ability of Congress and the Executive Branch — both of which are more accountable to voters than courts — to enact laws necessary to address the nation’s most pressing public health and environmental problems. This article is divided into three parts. First the article describes the background of the West Virginia case and the Court’s ruling. Second, the article explains that, with the West Virginia ruling, Justice Scalia has achieved, six years after his passing, a degree of influence on the Court’s environmental law precedent that he never enjoyed during his three decades as a Justice on the Court. With Donald Trump’s three new appointees to the Court, the Court has finally become Scalia’s Court. Finally, the article focuses on the adverse implications of the West Virginia ruling on our nation’s ability to enact laws that can effectively address the kinds of serious threats to public health and the environment from pollution and natural resource destruction.