Faculty Bibliography

In our 2025 book, Algorithmic Harm, we contend that the use of algorithms can benefit consumers in many ways (largely because of greater personalization), but that it can also cause harm in the face of information deficits and behavioral biases (again, largely because of greater personalization). Unsophisticated consumers, as we call them, are especially vulnerable to algorithmic harm. In this short response to a set of excellent comments on our book, we explore some of the benefits of personalization; some of the costs of forbidding it; some challenges, in terms of feasibility, to our preferred approaches; and the intriguing question whether and in what sense algorithms might be said to have an unconscious.

Wolford v. Lopez presents the Supreme Court with a novel question: may states require property owners to affirmatively consent before armed persons enter private property that is held open to the public? Hawaii enacted such a default rule after New York State Rifle & Pistol Association v. Bruen instructed courts to assess modern gun regulations by analogy to historical restrictions that are “relevantly similar” in “how and why” they burden the right to armed self-defense. In Wolford, the parties have turned to colonial-era hunting statutes limiting armed entry onto private land, but they disagree fundamentally about what those laws represent. This Essay shows how Wolford crystallizes the level-of-generality problem embedded in Bruen’s historical framework. Outcomes often turn on the frame courts choose for “the relevant tradition”: defined too narrowly, no analogue fits; defined too broadly, almost anything does. Wolford poses that problem on both “why” and “how.” On “why,” the parties and lower courts dispute whether Founding-era hunting laws targeted “poaching” alone or broader concerns about armed trespass. On “how,” they dispute whether bans tied to “enclosed” or “improved” land map onto the modern category of “private property open to the public.” Reexamining the record through property history clarifies what the hunting laws can—and cannot—do in the analogical analysis. Even an “anti-poaching” frame does not resolve whether the laws addressed theft of game or a broader bundle of concerns including trespass, property damage, and violence associated with armed strangers. And “enclosure” and “improvement” functioned as publicly legible property signals—proxies for claim and notice—rather than precursors to contemporary zoning-era distinctions between residential and commercial space. The Essay closes by arguing that when history is genuinely ambiguous and competing constitutional values are in tension, courts should be transparent about the level-of-generality choices that drive outcomes and candid about the extent to which those choices inevitably reintroduce means-ends reasoning under another name.

Long before the federal onslaught, a Twin Cities museum showed what it meant to find a home in America.

Tort law is a dynamic body of doctrine that both shapes, and is shaped by, technological, institutional, and moral change. In their introduction to A Research Agenda for Tort Law, Editors Ellen M. Bublick, Foundation Professor of Law and Civil Justice at the Sandra Day O’Connor College of Law, and John C. P. Goldberg, Morgan and Helen Chu Dean and Professor of Law, Harvard Law School, map the contributions of leading torts scholars to questions concerning future directions for tort law scholarship. The volume’s three parts—Doctrinal Frontiers, Tort Law in Action, and Tort Law and Technological and Theoretical Change—address issues ranging from how courts identify new injuries and new torts, to which types of institutions and actors should address wrongs and harm, to the ways in which legal doctrines and educational institutions should accommodate artificial intelligence. The Editors suggest that, as in times past, tort experts of the future will at once be attentive to longstanding core principles of tort law and attuned to evolving technology and norms.

In an attempt to protect its dominant position in the market for incorporations, Delaware recently relaxed the constraints on public company controllers. This article analyzes how the relaxation of controller constraints is expected to affect public investors and the economy. In particular, we show that this relaxation should be expected to: (i) provide controllers with substantial private benefits through six channels that we identify and discuss; (ii) impose even larger costs on public investors and thereby generate considerable efficiency costs and reductions in corporate value; (iii) transform ownership patterns over time-leading both to an increase in the prevalence of controlled companies and to a decline in the ownership stakes held by controllers; and (iv) lower the quality of investor protection in U.S. controlled companies to a level significantly below that observed in other advanced economies. We also demonstrate that market forces and private ordering cannot be relied on to adequately address the above concerns. The looming risks we identify for both public investors and the broader economy raise serious concerns for anyone interested in investor protection and economic performance.

Coercive, non-pro-rata debt restructurings, driven often by private equity sponsors, have become a major force for fixing distressed companies. The coercive recapitalization is promoted—by stressed companies, their owners, their advisors, and favored creditors—as avoiding bankruptcy and reducing the firm’s financial stress by extending the runway for its operations to recover and take off. If generally true, this would be reason to expect the upward trend in their frequency to persist. But the positive characteristics promoted cannot be pervasively found in the data and post-deal results of these new-style restructurings. First, a majority of the coercively restructured firms end up filing for bankruptcy anyway. For a coercive effort whose justification is largely to avoid bankruptcy, this bankruptcy-anyway trend is not a good sign. Second, the participants typically do not exchange their debt for stabilizing equity but instead take higher-priority debt that further destabilizes the weakened firm’s overly-indebted capital structure. The distressed firm’s unstable capital structure persists. As a consequence, low credit ratings and defaults follow many of the restructurings that do not end up bankrupt. A thinned-out equity layer remains in control, with distorted incentives. Those that go bankrupt anyway face a longer, more complicated than typical bankruptcy. Third, efficiency justifications commonly offered—like avoiding the expense of bankruptcy—are questionable and perhaps untrue. After all, coercive debt restructurings are themselves expensive; the relevant bankruptcy comparison should be to bankruptcy’s “prepackaged” variety, which is short, taking about as long as coercive debt restructuring. And saving bankruptcy expense does not work for most coercive LMEs, because a majority ends up bankrupt anyway. Fourth, while the contracting ecosystem has not instantly reacted and needs time to evolve, anti-coercion elements that undermine or even bar the new style restructurings are emerging. Fifth, underrecognized qualities of the coercive restructurings are as consistent with value grabs as with efficient restructuring. While inefficient rent-seeking deals can persist and repeat for some time, their costs render them less stable and less able to withstand pressure than more efficient structures. If most of these five features are important—we present evidence that all are plausible and potentially important—then the coercive recapitalization induces, in the finance vocabulary, overinvestment, locking capital in less-than-worthwhile investments for longer than is efficient. From a lawyer’s perspective, that could raise troubling fiduciary duty questions. From a market-wide perspective, regular overinvestment and inefficient recapitalizations will tend to favor terms and transactions that diminish the extent of inefficient recapitalizations going forward. It remains to be seen whether frictions in updating contracts and `whether resistance from those who benefit from not updating them will slow or even stop that evolution. But more of a contest seems to be brewing than conventional wisdom suggests.

This Viewpoint discusses new guidance on responsible use of artificial intelligence.

Early in his life, Sanders left the streets of Brooklyn for the woodlands of Vermont. What did the man bring to the state—and what did the state bring to the man?

Whatever the party of the new president, elected in 2028, it would be worthwhile for the incoming administration to consider eight ideas, to be explicitly embodied in executive orders or presidential memoranda: (1) a clear commitment to the independence of the Federal Reserve Board, certainly with respect to monetary policy; (2) a broad commitment to freedom of speech and the press, building on constitutional requirements; (3) a firm commitment not to interfere with the prosecutorial decisions of the Department of Justice; (4) an insistence on the centrality of cost-benefit analysis, designed to work against both overregulation and underregulation; (5) new restrictions on the pardon power, designed to regularize relevant processes; (6) reasonable (not excessive or expressive) restrictions on conflicts of interest and self-dealing, applicable to executive branch officials and the president personally; (7) a presumption against suits brought by the president in his personal capacity (a voluntary presidential disability, meant to parallel and accompany presidential immunity); (8) perhaps most controversially, a presumption (not a rule) against prosecution, by the current administration, of members of the previous administration. All of these ideas would have to be specified, but they are worthy of serious consideration, no matter the political party of the new administration.

Bâli and Dajani's edited collection on federalism and decentralization in North Africa and the Middle East draws needed attention to the importance of the purposes of leading actors in decentralization efforts and the great diversity in motivations to decentralize or federalize state power. Among the editors’ six typologies, an interesting and important one is “Authoritarian Decentralization,” in which apparent decentralization is used to enhance or preserve power at the center. The chapters in this important collection richly reward reading and illustrate both the different valences of the “federalism” idea in different societies and the different structures that may be able to promote rights-respecting and effective governance.

From the constitutional Founding until Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), federal courts routinely applied a body of “general law” to resolve a wide range of legal issues, including issues relating to commercial law, torts, international law, conflict of laws, equity, and procedure. This general law regime became politically fraught and difficult to administer, and the Supreme Court finally repudiated it in Erie, declaring that “there is no federal general common law” and requiring the federal courts to ground all rules in either federal or state law. Erie and its progeny created what this Article terms the “Erie algorithm,” which requires federal courts to convert pre-Erie rules premised on one understanding of law and federal judicial power into rules premised on different understandings of both, almost always with a different meaning and different legal status than prevailed at the Founding and in the nineteenth century. This algorithm undergirds nearly every corner of contemporary federal courts doctrine. Despite its willingness to rethink other major structural constitutional law precedents, the Supreme Court has accepted—and, indeed, embraced—the Erie algorithm and incorporated it throughout modern public law. By contrast, a number of scholars in recent years—primarily but not exclusively originalists—have sought to revive the pre-Erie general law. “General law revivalism,” this Article argues, overlooks how dysfunctional the general law regime had become before Erie and fails to appreciate the incompatibility of that regime with the post-Erie constitutional order. In addition, those who suggest jettisoning Erie have not made the case for absorbing the massive system costs that such an effort would generate. The Article concludes that many strands of originalism are left with “the problem of 1938”: the necessity of reconciling originalist commitments with a legal system fundamentally shaped by Erie and its transformational algorithm.

Alignment of artificial intelligence (AI) encompasses the normative problem of specifying how AI systems should act and the technical problem of ensuring AI systems comply with those specifications. To date, AI alignment has generally overlooked an important source of knowledge and practice for grappling with these problems: law. In this paper, we aim to fill this gap by exploring how legal rules, principles, and methods can be leveraged to address problems of alignment and inform the design of AI systems that operate safely and ethically. This emerging field -- legal alignment -- focuses on three research directions: (1) designing AI systems to comply with the content of legal rules developed through legitimate institutions and processes, (2) adapting methods from legal interpretation to guide how AI systems reason and make decisions, and (3) harnessing legal concepts as a structural blueprint for confronting challenges of reliability, trust, and cooperation in AI systems. These research directions present new conceptual, empirical, and institutional questions, which include examining the specific set of laws that particular AI systems should follow, creating evaluations to assess their legal compliance in real-world settings, and developing governance frameworks to support the implementation of legal alignment in practice. Tackling these questions requires expertise across law, computer science, and other disciplines, offering these communities the opportunity to collaborate in designing AI for the better.

This article, intended as a contribution to a tribute issue of the Revista critica del diritto privato, offers a detailed reading of an early article by Giovanni Marini. Marini provides a richly historicized account of the similar and different trajectories of Continental European and American critical legal studies as they stood in the early 1980s. his most striking argument is that the American extension of rigorous internal critique to the core of the corpus of private law is something that did not happen on the continent perhaps because of the deep cultural prestige in Europe of private law as theorized in the 19th century and understood as an important accomplishment of “European civilization.

The Hiss-Chambers saga stemmed from a stunning accusation, by Whittaker Chambers, that Alger Hiss, a law clerk to Oliver Wendell Holmes, Jr., and a golden boy of Franklin Delano Roosevelt's New Deal, was a Communist who had engaged in espionage on behalf of the Soviet Union. Initially, Chambers's accusation seemed implausible. But the evidence mounted, and Hiss's firm claims of innocence split the country. The Hiss-Chambers saga helped define, for a long period, the right and the left. In all probability, Chambers told the truth. Still, the Hiss-Chambers saga contains many mysteries, one of which is this: Why did Hiss proclaim his innocence for all of his life? What was in his mind? The Hiss-Chambers saga also casts a bright light on contemporary law and politics. There is no question that the Hiss Case helped to define modern conservatism; Chambers' great book, Witness, is one of its foundations. For decades, many conservatives thought that Hiss's guilt confirmed a large point, or a series of large points, about liberalism, the left, godlessness, disloyalty, otherness, loyalty, and patriotism. One could easily draw a straight line from the right-of-center conception of Alger Hiss, in the 40s, 50s, and 60s, to widespread views about enemies-on-the-left today.

This article describes in some detail the way in which critical legal scholars in the 1980s read, appropriated and then used versions of some of Jacques Derrida’s ideas, particularly the idea of deconstruction. They first of all understood deconstruction as a procedure close in many ways to the sociological jurists’ and legal realists’ critiques of the conceptual apparatus of classical legal thought. They debated and disagreed about the implications of the resulting Franco-American amalgam and applied different versions of it to contemporary debates about legal reasoning and doctrinal indeterminacy, and then extended them to debates about gender, “identity” and law and economics. The article ends with my own existentialist decisionist reading, from within these debates, of some canonical Derridean aphoristic slogans.

Anticorruption agencies (ACAs), and other bodies entrusted with investigating or prosecuting high-level government corruption, face a daunting task: They must faithfully discharge their anticorruption functions in the near term, but at the same time they must protect, entrench, and strengthen their institutions so that they can carry out these anticorruption functions effectively over the longer term. These objectives are sometimes complementary, but there can often be significant tensions between them. This essay considers some of the strategic challenges that ACA leaders must confront, taking the institutional rules and the agency’s structure, resources, and capacity as exogenous constraints. While such leaders face many strategic challenges, we focus on two. The first concerns case selection strategy. How do (or should) ACAs decide which cases to pursue or prioritize? The second issue concerns communications strategy. How do (or should) ACAs engage with various constituencies—such as politicians, media organizations, activists, international bodies, and the general public—about the ACA’s work? This essay explores these questions, drawing on both existing scholarship and on several in-depth interviews with current and former senior officials from ACAs or comparable bodies.

Chief Justice Roberts's metaphor of judges as umpires has been often criticized for being a bad theory of legal adjudication. Critics of Roberts's metaphor argue that judges are not mechanical reporters of clear-cut normative truths, but little attention has been paid to the question whether calling balls and strikes is indeed mechanical. The traditional theory, shared by both Roberts and his critics, is that "truth in baseball is clear-cut." In this Article, I argue that this theory of baseball is mistaken. Calling balls and strikes, despite its apparent simplicity, is an inherently interpretive practice. It is shaped not only by clear-cut rules, but also by shared practices and unwritten principles on how the game ought to be played.

In the early twenty-first century, constitutionalism confronts numerous pressures and critiques. Some prominent critics are concerned that constitutionalism’s modern form, in which high courts play a large role, limits popular self-governance. By committing their nations to detailed social and economic policies—from neoliberal requirements for balanced budgets to constitutionalized social welfare and environmental rights—many modern constitutions might make promises they cannot keep and be unduly rigid in the face of changing social, economic, and environmental conditions. Meanwhile, the rise of proto-authoritarian elected leaders around the world shows that constitutions are vulnerable to, and may even enable, democratic backsliding. Mark Tushnet and Bojan Bugarič argue that addressing each of these serious concerns through constitutional design and innovation is potentially valuable, but paradoxically, every remedy also carries with it the possibility that it will intensify the very conditions it seeks to ameliorate. Instead, Tushnet and Bugarič propose a “thin” idea of constitutionalism and suggest that we should scale back our expectations for what constitutionalism can achieve. Political mobilization, led by people attuned to the economic and cultural causes of democratic backsliding, is a better bet.

Food and agriculture systems play a prominent role in some of the most pressing social, environmental, and economic challenges, including global rates of diet-related disease, the environmental degradation and climate impacts attributed to food production and transportation, and disparities in food access and food security, especially with recent global shocks to the food supply. While the study of food-related topics like food science and nutrition have a long history, the study of food law and policy is relatively new. This article seeks to examine the field of food law and policy within academia, as a proxy for understanding how national governments and educational systems are equipping future leaders with the knowledge and tools to instigate systemic change. Using data from courses and other academic offerings from nearly 500 universities around the globe, a review of relevant legal scholarship over the past thirty years, and interviews with scholars from each continent, the investigation aims to quantify the global extent of academic focus on food law and policy, illuminate distinctions in academic interest across regions, and document the growth of relevant scholarship in this field over time.

For nearly a century, debates over corporate purpose have framed the issue as a clash between two contested visions: Should corporations maximize profits, or should they pursue broader social goals? This Article argues that this conventional framing obscures the true nature of the dispute. Using Wesley Hohfeld’s map of rights, duties, privileges, and no-rights, I argue that the corporate purpose debate is fundamentally about the scope and design of managerial privilege, rather than abstract commitments to shareholders or stakeholders. The Article offers a set of “critical questions” that any proposal for corporate purpose reform should address to make itself legible, assessable, and comparable within a Hohfeldian framework, and employs these questions to examine three recent, influential proposals for stakeholderist reform. The analysis reveals that proposals for stakeholder-oriented reform often fail to constrain managerial privilege, while resting on risky empirical bets about corporate actors’ benevolence.

The U.S. penal apparatus is a bundle of wildly divergent practices. Police in some cities use more force than others. Prosecutors in some jurisdictions file charges automatically while others screen carefully. Public defenders in some counties lack zeal while others provide high quality representation. Offices that share the same name and perform the same basic legal functions—“police,” “prosecutor,” “public defender,” “criminal court”—actually operate according to highly disparate legal, professional, and normative standards. These differences give rise to a stratified criminal process in which a minority of defendants and cases are handled lawfully with attention and care, while a much larger group of defendants and cases are treated with legally sloppy inattention, disrespect, and even violence. These variations are a function of, among other things, distinctive institutional choices: the strikingly diverse organizational arrangements, resource allocations, and routine decision-making cultures within each of our major penal institutions. Under the influence of both federalism and localism, we tolerate a highly decentralized and internally inconsistent criminal system which distributes resources, status, and accountability unequally. As a result, American defendants are subject to a broad and often conflicted spectrum of operative criminal practices, principles, and norms, some far more punitive than others. These institutional differences represent a kind of systemic inequality, created and imposed by the workings of the criminal apparatus itself. While they reflect the well-studied inequalities that flow from defendant wealth, race, and neighborhood, they also inflict their own bespoke brand of unequal treatment through the unique processes, consequences, and normative values of criminalization. At the most foundational level, they alter the significance of basic legal principles such as due process, accuracy, and fairness, downgrading them under pressure from divergent institutional thinking and cultures. As a result, our very notions of criminality, justice, and equal treatment are unfairly protean: institutionally changeable and maldistributed throughout the penal system. This Article maps these maldistributions and the myriad ways in which the organization and operation of our basic criminal institutions shake out as powerful drivers of penal inequality.

The prohibition of false and misleading advertising should be the prototypical example of unfair competition law. False and misleading advertising, after all, is generally held to be unequivocally bad, even if punishing every instance would be more costly than it’s worth. But most of modern unfair competition law, at least in the United States, is focused on different things—more in the realm of trademark law (and sometimes antitrust), and I think to its detriment. As trademark’s scope has ballooned, and as the law has tolerated more and more monopoly power, it has also tolerated more and more false advertising. A rebalancing towards false advertising could strengthen the field of unfair competition as a whole.

The basic principles that parents employ in disciplining their children in the household are described in the first part of this article. The description is based on a survey of parents, the major results of which are that parental disciplinary actions are premised on wrongdoing—not on the mere causation of harm; that parental sanctions are usually greater when wrongdoing results in harm than otherwise; that sanctions for intentionally harmful conduct tend to exceed those for negligence; and that sanctions are not increased when the probability that wrongdoing would be discovered is low. A theory is then developed to explain these principles as largely functional for parents. The kernel of the theory is that the rules of discipline foster the utility of parents—assuming that parental utility is reduced by the occurrence of harm and that their utility rises and falls with the well-being of their children.

For a long time, for both Justices and many observers, “legitimacy” was a focal criterion for assessing the Supreme Court’s performance. But what if the Court, or a big enough faction of its Justices, dropped legitimacy as a concern or goal? What if enough Justices felt that there was big enough of a chance to make fundamental transformations in the law that it was not only acceptable but necessary to deteriorate the institution’s standing—or scrap it altogether? Our proposal is that the performance of the contemporary Supreme Court prompts just this question. The current majority’s zeal to validate its longstanding unitary executive theory in collusion with President Trump raises the possibility of a post-legitimacy court most obviously, but the evidence for the abandonment of what had been a traditional goal and metric is far more pervasive. If our descriptive proposal is that the Supreme Court’s majority has relinquished legitimacy as a criterion of its own performance, our evaluative corollary is that we should cease pining for its return, and draw the consequences of living in the aftermath.

Whether the Equal Rights Amendment is—right now—part of the Constitution is a matter of serious dispute. Thirty-eight states have sought to ratify the ERA, several of them only after the seven-year deadline in its proposing resolution. After President Biden’s statement disregarding the deadline and describing the ERA as the Twenty-Eighth Amendment, its doubtful validity may provoke a minor constitutional crisis. But there may be a legal answer. Not only in the resolution proposing the Bill of Rights, but also in those proposing the Twelfth and Seventeenth Amendments, Congress included operative language that modified the legal force of the newly proposed text. This language was deliberately chosen, was repeated by state ratifications, and seems to have been accepted as legally effective. This historical practice suggests that under Article V, the resolution is the amendment—the constitutional change proposed by the resolution as a whole, not just by the particular language it proposes to append. This understanding means that certain parts of the 1788 Constitution have been repealed, not just superseded. It also means that the ERA’s deadline rendered it incapable, even with thirty-eight states’ assent, of making any valid change to the Constitution’s text. The recent lobbying efforts on its behalf, including President Biden’s statements, are therefore seriously misguided. In a divided society, losing consensus on the Constitution’s text carries an especially high cost. The National Archives is the wrong place to play with fire.

Although much has been written about why Donald Trump's Executive Order purporting to abolish birthright citizenship for children of unlawfully present or temporarily present parents violates the Citizenship Clause of the Fourteenth Amendment, there is a prior issue that has received less discussion: the Executive Order also violates the Immigration and Nationality Act. This article examines that statutory issue through the lens of one particular but revealing aspect of the voluminous evidence, the law and practice of suspension of deportation for noncitizen parents of children born as citizens while their parents were unlawfully or temporarily present in the United States. The dense interaction of Congress and the executive from 1940 into the 1950s on suspension of deportation shows repeated confirmation of the shared interpretation of both branches on the scope of birthright citizenship, as embodied in the 1940 Nationality Act and then the 1952 INA. This article discusses both published sources and previously unpublished documentation obtained from INS files in the archives. Appendices to this article make available examples of previously unpublished suspension decisions, in order to further demonstrate that the Executive Order violates the INA. The actual practice totally contradicts revisionist theories that claim to support the Executive Order.

In this Viewpoint, a California artificial intelligence law is described, including its positive contributions to making these companion chatbots safer for minor and adult users and the limits of the law, and recommends further steps California and other states can adopt to improve protections for mental health and chatbot safety, especially for minors.

This Viewpoint explores the US Food and Drug Administration’s plan to approve leucovorin for patients with autism and the potential implications for evidentiary standards.

This chapter situates the Global South in current debates on comparative corporate governance, with a special focus on the “BICS” (Brazil, India, China, and South Africa). The BICS now boast higher levels of stock market capitalization as a percentage to GDP than the four largest Global North economies, and their firms are also increasingly integrated into Global North markets. However, traditional views on corporate governance in the Global South have either assimilated the South into Global North categories (such as legal families) or have had a narrow focus on failures in legal transplantation or in ensuring investor protection. New ways of thinking about the Global South are emerging, however. Those have identified institutional innovations and adaptations in corporate laws in the Global South that account for local realities, especially in incorporating concerns about stakeholder protections and inequality. Global South legal systems are also increasingly a prominent driver of corporate law and governance trends around the world. While in earlier decades Global South jurisdictions sought to mobilize the United Nations (UN) to regulate multinational corporations, more recently the UN has sought to mobilize corporations to mitigate regulatory gaps in the Global South. Concerns about regulatory gaps in the Global South with respect to human rights and environmental protection have helped inspire global trends in corporate governance such as the ESG movement and human rights due diligence, thus contributing to the resurgence of stakeholderist proposals and reforms in the Global North. Interestingly, the growing interest in stakeholder-oriented approaches in the Global North can also be interpreted as a form of “reverse convergence” in comparative corporate governance, with various institutions of the Global North coming to resemble their Global South counterparts.

Suppose that one has a choice between two otherwise identical restaurants: one is close and the other is far. Closer is often better; it is rational to care about what is proximate and hence to choose the closer restaurant. Now suppose that one has a choice between two different medical facilities: one is close but average, and the other is far but superb. On plausible assumptions about the welfare effects, it is not rational to choose the closer medical facility. Proximity bias can be found when people are willing to suffer serious welfare losses in terms of (say) health or wealth in return for modest welfare gains in terms of proximity. In extreme cases, proximity bias leads people to stay where they are. Proximity bias can be seen as a form of present bias, or even as the thing itself, though it often has distinctive characteristics (including overestimation of the intrapersonal welfare costs of getting from one place to another). Some extreme forms of proximity bias can be counted as pathological ("hodophobia"). There is clear evidence of the importance of proximity, and suggestive evidence of proximity bias, in the contexts of medical care; vaccination; eviction; voting; and public assistance. Policy implications include the potentially large effects of increasing (or reducing) proximity or making it less (or more) salient, perhaps through the use of online alternatives or other forms of choice architecture.

The law of redistricting is built on the assumption that tradeoffs among line-drawing criteria are pervasive. This view helps explain crucial elements of partisan gerrymandering, racial vote dilution, and racial gerrymandering doctrine. This Article is the first to rigorously analyze the existence and extent of redistricting tradeoffs. The Article relies on ensembles of billions of district maps generated randomly by cutting-edge computer algorithms. These ensembles cover all electoral levels for seven priority states as well as congressional maps for all states with two or more U.S. House districts. The Article finds that, contrary to the conventional wisdom of courts and scholars, redistricting tradeoffs are generally weak to nonexistent. In most cases, progress along one dimension (like compactness, partisan fairness, or minority representation) requires no regression along another axis. This conclusion has sweeping implications for redistricting law and policy. Legally, it bolsters plaintiffs alleging partisan gerrymandering or racial vote dilution, because their objectives can typically be achieved without sacrificing other goals. In policy terms, the usual absence of tradeoffs means that line-drawers can often have it all—maps that simultaneously comply with traditional criteria, treat the major parties fairly, lead to competitive elections, and properly represent minority voters.

A new Section 1557 rule bans discrimination by AI-based clinical decision tools, with compliance required by May 2025. This paper explores challenges in identifying and mitigating algorithmic bias, especially where outcome disparities exist. We emphasize the need to audit high-risk tools, address proxy discrimination, and provide standardized guidance. Political uncertainty around enforcement complicates long-term planning, making expanded regulatory support essential for health systems and developers alike.

Corporate debt financing and the restructuring of large corporations are now governed by what this Article calls the “global law of debt,” a transnational system shaped more by law firms, investment banks, and investors in New York and London than by national laws or court decisions. Large companies can now optimize governing law on a transaction-by-transaction basis, for example by borrowing in New York and then restructuring that debt in the United Kingdom, or by borrowing in London through English-law governed contracts with New York-law interpretation for select provisions. This Article provides the first account of this development, tracing its origins to the 1960s, when New York and London debt professionals expanded into each other’s markets, creating an entangled system that fostered mutual learning and competition. In 1978, Congress enacted a new bankruptcy law that gave American lawyers and investors corporate restructuring expertise that they later exported abroad. In the post-pandemic era, London emerged as a global restructuring hub rivaling the United States. These developments have produced a robust global debt market, but they have also unsettled long-standing assumptions about the rights of creditors as Chapter 11’s primacy fades and controversial American innovations that erode creditor protections proliferate globally.

This chapter offers some reflections that aim to help us arrive at a more analytic understanding or classificatory system of constitutionalism’s varieties. It explores different avenues to arrive at such an understanding, suggesting that it may be instructive to consider differences in what is constitutionally entrenched and how strong such entrenchment is as well as the role of courts. The chapter also considers regional constitutionalism and argues that it is difficult to identify distinct regional institutions, rights and ideas that cannot also be found, in some form, outside the region in question. It concludes that scholars attach adjectives to the word “constitutionalism” because they believe that doing so illuminates the specific topic with which they are concerned. The adjective ties that form of constitutionalism to other nouns to which the adjective is attached, such as values, politics and culture. Seen in this way, we can classify varieties of constitutionalism no better than we can classify those other nouns.