Faculty Bibliography

The nuclear family ideal is failing to deliver on its promises. Not only are Americans choosing to delay and avoid marriage, but those who do marry and have children increasingly find the nuclear family structure isolating, fragile, and insufficient for caring for children and other dependents. One reason the marriage and nuclear family ideal may have hung on so long is the failure to develop a workable, modern alternative—not a second best to settle for, but a compelling, robust, alternative vision of how people relate that can accomplish what the nuclear family is failing to. This Article articulates such a vision and illustrates how the American legal system can support it. A new paradigm is necessary, one that does not focus so exclusively on one’s nuclear family but recognizes the web of connections every person has, which exist on a gradient of closeness and commitment. We call these connections a person’s parafamily and argue that both American culture and the American legal system should recognize, affirm, and support parafamilial connections that individuals choose to build their lives around. In particular, American law should shift away from assuming a person’s most important relationships are within one’s nuclear family and instead adopt a parafamilial framework, where the core questions are how close one person is to another and in what way, rather than whether one person is related to another by blood, marriage, or adoption. Inspired by extended and blended families, committed platonic friends, and polyamorous people who already live a life defined by parafamilial connections, this Article aims to rewrite the fundamental assumptions about family that underlie American law, replacing the focus on the nuclear family with a more flexible framework—a framework that is broader, more realistic, and more adaptable than the nuclear family ideal. Coupled with this big picture goal, however, is an intense and intentional commitment to practical law reform and a deep respect and appreciation for the value that nuclear families provide. Thus, the Article’s reform suggestions are all targeted toward developing realistic innovations in the law we already have, rather than toward reimagining all legal relationships from the ground up.

The Supreme Court decisions in Meyer v. Nebraska and Pierce v. Society of Sisters left us a mixed legacy, one part blessing and one part curse. Many would agree on this but differ on which part is blessing and which part curse. In my view the blessing is the doctrine of substantive due process protecting personal liberty. The Court did not use this language in these cases, but it did rule that the states’ attempts to interfere with parent rights in those cases violated the 14th Amendment to the U.S. Constitution, and the Court made it clear that in future cases the state would bear a heavy burden to justify any such attempts. In later cases, the Court looked back to Meyer and Pierce as the foundational law when it created important reproductive freedom and relationship rights—the right to contraception and abortion, the rights to sex and marriage for same-sex couples. In my view the curse is the doctrine of parent rights, given the Court’s failure to create any comparable rights for children. More on this later, but first a word on legacy.

This study explores preferences for algorithmic versus human decision-making across six countries using nationally representative samples. Participants evaluated ten decision scenarios, typically involving serious risks of one or another kind, in which they choose between algorithmic or human decision-makers under varying informational conditions: baseline (no additional information), brief information about the expertise of the human decision-maker, brief information about the algorithm's data-driven foundation, and a combination of both. Across all countries, a strong majority preferred human decision-making. A brief account of the expertise of the human decision maker increased that majority percentage only modestly (by three percentage points). A brief account of the data on which the algorithm relies significantly reduced the size of the majority preferring the human decisionmaker (by eleven percentage points). When information about both the human and the algorithm was provided, the size of the majority preferring the human decisionmaker was also significantly reduced (by eight percentage points). Other variables, above all prior experience with algorithms, were correlated with increases or decreases in the size of the majority favouring human decision-maker or the algorithm. Prior experiences were significantly correlated with preferences, with positive interactions reversing the baseline preference for human decisionmakers when algorithmic information was provided. Methodological robustness was ensured through OLS-, Logit-, and Poisson regression, as well as Random Forest analyses. The findings suggest that informational interventions alone have a relatively modest effect on algorithm acceptance.

At defining points in American history, there have been massive shifts in constitutional understandings, doctrines, and practices. Apparently settled principles, and widely accepted approaches, are discarded as erroneous, even illegitimate, in favor of new principles and approaches. Less momentously, views that were once considered unthinkable do not quite become the law on the ground but instead come to be seen as plausible and part of the mainstream. Relatedly, Americans transform how they talk and think about their Constitution-its core commitments and underlying narratives-and those transformations change our practices. These radical, dizzying changes often trigger what we term a sense of "constitutional vertigo." Our goal is to provide a conceptual map and to describe how and why constitutional vertigo occurs. First, we ask whether theories of interpretation trigger radical change or whether desires for radical change impel people to generate new (or modify old) theories of interpretation. Second, we explore why so many people experience a form of vertigo. Third, we investigate the drivers of radical constitutional change, both the familiar bottom-up pressures from "We the People" and the less-familiar top-down approaches, where legal elites back and impose a new constitutional regime. Given that the Roberts Court's changes have triggered widespread vertigo, it is an apt moment to theorize about the phenomenon writ large.

Many policies take the form of nudges, defined as liberty-preserving approaches that steer people in particular directions, but that also allow them to go their own way Some nudges attempt to correct self-control problems. Some nudges attempt to counteract unrealistic optimism. Some nudges attempt to correct present bias. Some nudges attempt to correct market failures, as when people are nudged not to emit air pollution. For every conventional market failure, there is a potential nudge. For every behavioral bias (optimistic bias, present bias, availability bias, limited attention), there is a responsive nudge. There are many misconceptions about nudges and nudging, and they are a diversion.

Both free markets and government regulators tend to use willingness to pay (WTP) as the measure of value of goods that people do not own, and willingness to accept (WTA) as the measure of value of goods that people do own. The challenge is WTP and WTA are not perfect proxies for the welfare effects of buying or selling goods, especially when people do not have experience with those goods. The reason for use of WTP and WTA is not that they are perfect, but that they seem to be the best and the most administrable method for capturing the relevant welfare effects. At the same time, WTP and WTA might be infected by a lack of information, by behavioral biases, and by hedonic forecasting errors (all of these might be either cured or aggravated by market processes). Challenges also arise when WTP is low because people do not have money and when distributional weights might be necessary to align WTP or WTA with welfare effects. There are questions about how to proceed when WTA is much higher than WTP for the same goods; the WTP-WTA disparity has yet to be fully understood. These questions are especially challenging when valuing environmental amenities, animal welfare, and social media.

Picture a community torn over a proposed zoning law. Some are angry, others defensive, and misunderstandings abound. On social media, they broadcast insults at one another; every nuanced perspective is reduced to a viral soundbite. Yet, when they meet face-to-face and start speaking, something changes: residents begin listening more than speaking, and people begin testing ideas together. Misunderstandings fade, and trust begins to form. By the end of their discussion, they have not only softened their hostility, but discovered actionable plans that benefit everyone. This is the kind of meaningful discourse our society desperately needs. Yet our digital platforms -- designed primarily for maximizing engagement through provocative content -- have pulled us away from these core community endeavours. As a constructive path forward, we introduce the idea of conversation networks as a basis for civic communication infrastructure that combines interoperable digital apps with the thoughtful integration of AI guided by human agency.

People often judge how embarrassing an activity or condition is on the basis of its perceived prevalence. They infer prevalence in part by considering how often they hear other people discussing it. But how often a condition is discussed is a function not only of its prevalence but also of how embarrassing it is. If people fail to take this into account, they will tend to judge embarrassing conditions as being rarer, which will accentuate their embarrassment, and, in turn, further amplify their reluctance to disclose those conditions - a "spiral" of shame and silence. We present results from two studies that support the existence of such a feedback process. The first, a cross-sectional survey study, asked respondents a series of questions about different embarrassing and non-embarrassing conditions. Respondents (1) indicated whether they had the conditions, (2) judged how embarrassing the conditions were, (3) reported whether they had disclosed, or would disclose, having the conditions to others, and (4) estimated what fraction of survey respondents had the conditions. As predicted, reports of disclosure were negatively related to judgments of embarrassment, and when embarrassment was greater, estimates of prevalence were lower, both for conditions that respondents had and for conditions they did not have. The second, an experimental study, manipulated whether people received a high or low estimate of population prevalence for 5 different conditions, and found that receiving a high prevalence estimate reduced embarrassment and increased self-reported willingness to disclose the condition to others, and vice versa.

The number of public firms in the United States has halved since the beginning of the twenty-first century, causing consternation among corporate and securities law regulators. The dominant explanations, often advanced by Securities and Exchange Commissioners, come from over- or under-regulation of the stock market. Private firms are displacing public ones, with legal imperatives largely explaining the sharp decline in the public firm. We challenge the implications of this thinking. While the number of firms has halved, public firms’ economic weight has not halved. To the contrary, the public firm sector has held steady for the past quarter-century by every other measure we examine, growing as fast as, or faster than, the economy: Profits and stock market capitalization have grown faster than the economy, while revenues and investment have kept up with the economy’s growth. We emphasize that, at their peak, public firm profits doubled from 1996 and public firm net income rose to make up more than 6% of the country’s GDP, much more than in 1996. This rise in profit has not been stressed in prior work and has implications about what really is happening in the public firm sector. The overall picture is more one that could upset progressive critics of the large corporation than one that should worry policymakers that the public firm is fading. The second challenge we pose is whether the changing configuration of the public firm sector is primarily due to corporate and securities law’s burdens. To explain the disappearance of 3,500 of the 7,300 firms that were publicly traded in 1996, one must explain not just the disappearance of many small firms, but the disappearance of firms at, near, or larger than, the median-sized firms of 1996. For the disappearance of those larger firms, the legal explanations seem implausible while industrial organization explanations are likely to be primary. We explore real economy changes that could readily explain the reconfiguration of the American public firm sector to one that is more profitable, more valuable, and with bigger but fewer firms. Overall, we build a better baseline for thinking about the public firm sector: There are fewer firms, but the sector is more profitable and bigger, with investment, revenue, and employment growing in line with the economy’s growth since 1996, and with that growth often coming in more concentrated industries. It is stronger, not weaker.

If you're injuring someone, you should stop—and pay for the damage you've caused. Why, this book asks, does this simple proposition, generally accepted, not apply to climate change? In Climate Justice, a bracing challenge to status quo thinking on the ethics of climate change, renowned author and legal scholar Cass Sunstein clearly frames what's at stake and lays out the moral imperative: When it comes to climate change, everyone must be counted equally, regardless of when they live or where they live—which means that wealthy nations, which have disproportionately benefited from greenhouse gas emissions, are obliged to help future generations and people in poor nations that are particularly vulnerable. Invoking principles of corrective justice and distributive justice, Sunstein argues that rich countries should pay for the harms they have caused and that all of us are obliged to take steps to protect future generations from serious climate-related damage. He shows how “choice engines,” informed by artificial intelligence, can enable people to save money and to reduce the harms they produce. The book casts new light on the “social cost of carbon,”—the most important number in climate change debates—and explains how intergenerational neutrality and international neutrality can help all nations, crucially the United States and China, do what must be done.

The magazine has three golden rules: never write about writers, editors, or the magazine. On the occasion of our hundredth anniversary, we’re breaking them all.

This article discusses legal and ethical issues raised by in vitro gametogenesis, including safety, Food and Drug Administration review, embryo destruction, eugenics, enhancement, unauthorized parenthood, inequitable access, and evolving conceptions of parenthood.

Merger review should reflect basic precepts of decision analysis, best practices in industrial organization economics, and teachings from related fields. Unfortunately, the analytical methods in modern merger guidelines fall short. Protocols violate standard prescriptions for information collection and decision-making, rely on a market definition paradigm that deviates significantly from core models of competitive interaction, fail to leverage central advances in understanding the efficiency consequences of mergers, and contravene or ignore fundamental dynamics relating to entry. This article elaborates correct analysis and contrasts it with that embodied in modern merger guidelines generally employed throughout the developed world, including the 2023 Merger Guidelines revision in the United States.

This paper examines the impact of defense counsel at first appearance (CAFA) on criminal justice outcomes using randomized control trials in two Texas counties. The study evaluates the influence of CAFA on bond amounts, pretrial release, conditions, and post-magistration outcomes such as recidivism and failure to appear. Results show that while CAFA reduces bond amounts and influences bond types in one jurisdiction, its effects on pretrial release and recidivism are limited. These findings highlight jurisdictional differences and suggest that CAFA’s impact may be more modest than previous studies indicate, underscoring the need for further research in this area.

A workaround is a maneuver that seems, on its face, consistent with the formal rules, but that employs those rules in an unanticipated way to circumvent a legal obstacle. Though some workarounds are tolerated or even celebrated, workarounds (and proposed workarounds) often provoke instinctive skepticism or hostility. When, if ever, is such skepticism justified? Do workarounds raise distinctive legal or public policy concerns? This Article seeks to provide a systematic normative assessment of workarounds in American public law. We argue, first, that from a general public interest perspective, the desirability of a workaround depends primarily on the desirability of the rule that is being worked around. Put simply, workarounds will typically advance the public interest when the legal obstacle being worked around does more harm than good, while workarounds will set back the public interest when the obstacle being worked around serves an important public purpose. Other objections to workarounds—for example, that they will erode government legitimacy, weaken norms of self-restraint, undermine the credibility of government commitments, or sap energy for more substantial reforms—are either empirically implausible or relatively insignificant when compared to the first-order question of whether the obstacle being circumvented is itself in the public interest. Questions concerning the legality of workarounds raise different issues. While adjudicators who emphasize the primacy of legal text should have no intrinsic objections to workarounds as such, adjudicators who place significant weight on fidelity to the purposes or functions of legal rules (or rule systems) should embrace an anti-workaround presumption. But this presumption can and should be overcome in certain cases. Most significantly - and perhaps most controversially—we argue that the anti-workaround presumption should give way when the obstacle that the challenged workaround would sidestep is itself inconsistent with the larger purposes of the rule system. The question should not be whether the alleged workaround, viewed in isolation, is inconsistent with the purposes of the relevant rules, but whether the combination of obstacle and workaround, considered together, is more inconsistent with the purposes of those rules than the obstacle standing alone. Therefore, even strong purposivists might embrace certain workarounds—including workarounds to the Senate filibuster, the statutory debt ceiling, and the Electoral College.

A great deal of work in behavioral science emphasizes that statistical predictions often outperform clinical predictions. Formulas tend to do better than people do, and algorithms tend to outperform human beings, including experts. One reason is that algorithms do not show inconsistency or “noise”; another reason is that they are often free from cognitive biases. These points have broad implications for risk assessment in domains that include health, safety, and the environment. Still, there is evidence that many people distrust algorithms and would prefer a human decisionmaker. We offer a set of preliminary findings about how a tested population chooses between a human being and an algorithm. In a simple choice between the two across diverse settings, people are about equally divided in their preference. We also find that that a significant number of people are willing to shift in favor of algorithms when they learn something about them, but also that a significant number of people are unmoved by the relevant information. These findings have implications for current findings about “algorithm aversion” and “algorithm appreciation.”

This study reports a comprehensive environmental scan of the generative AI (GenAI) infrastructure in the national network for clinical and translational science across 36 institutions supported by the CTSA Program led by the National Center for Advancing Translational Sciences (NCATS) of the National Institutes of Health (NIH) at the United States. Key findings indicate a diverse range of institutional strategies, with most organizations in the experimental phase of GenAI deployment. The results underscore the need for a more coordinated approach to GenAI governance, emphasizing collaboration among senior leaders, clinicians, information technology staff, and researchers. Our analysis reveals that 53% of institutions identified data security as a primary concern, followed by lack of clinician trust (50%) and AI bias (44%), which must be addressed to ensure the ethical and effective implementation of GenAI technologies.

The field of artificial intelligence (AI) has entered a new cycle of intense opportunity, fueled by advances in deep learning, including generative AI. Applications of recent advances affect many aspects of everyday life, yet nowhere is it more important to use this technology safely, effectively, and equitably than in health and health care. Here, as part of the National Academy of Medicine’s Vital Directions for Health and Health Care: Priorities for 2025 initiative, which is designed to provide guidance on pressing health care issues for the incoming presidential administration, we describe the steps needed to achieve these goals. We focus on four strategic areas: ensuring safe, effective, and trustworthy use of AI; promotion and development of an AI-competent health care workforce; investing in AI research to support the science, practice, and delivery of health and health care; and promotion of policies and procedures to clarify AI liability and responsibilities.

In this response to a recent symposium on Common Good Constitutionalism in the American Journal of Jurisprudence, I principally take up themes related to democracy, disagreement, pluralism, and authority. I emphasize that the classical legal tradition is teleological, oriented to performance standards rather than design standards. Thus it does not attempt to prescribe an identical set of constitutional and institutional arrangements for all polities everywhere, but asks whether constitutional arrangements are ordered to the common good and (thus) compatible with natural and divine law. Subject to those conditions, political authority is natural, inevitable, inescapable, and good. The possibility of social and political disagreement is just a precondition for all law, not an objection to the classical legal framework. None of this entails judicial supremacism in any form, which the classical legal tradition squarely rejects.

In recent years, the United States has expanded its border externalisation efforts to prevent migrants from making their way north through Central America and Mexico. The resources the United States has funneled to the region to outsource migration control include funding and use of new technologies. These efforts reflect a pattern of exclusion and securitization of the border, often in tension with the right to seek asylum and non-refoulement obligations under both US and international law. This article will explore the main drivers behind funding for border externalisation and the competing protections in US and international law intended to safeguard asylum seekers. The article highlights how funding decisions focused on preventing migrants from reaching the United States—without adequate consideration of obligations to protect refugees—raise serious questions under international law.

Bankruptcy reformers advocate substituting relative priority for the prevailing absolute priority standard to promote a more consensual restructuring process. In deciding who does and does not get paid when there is not enough value to pay all creditors, bankruptcy’s prevailing absolute priority rule lines creditors up in rank-order, compensating highest ranking creditors in full before lower-ranking creditors get anything. By contrast, relative priority would account for the possibility that the firm could recover and become more valuable after the bankruptcy. Relative priority would compensate lower-ranking creditors for that chance of the debtor turning around, thereby reducing both their incentive to delay and seniors’ incentive to rush. Relative priority has these and other potential advantages, but we here show that it would also introduce valuation difficulties. Valuation difficulties are important because under either priority rule, the parties always have some Coasean incentive to come to a deal that maximizes the total value of the firm, and then assess how the rule would split that value; indeed, we show that the absolute priority conflict structure that relative priority seeks to mitigate could readily re-emerge under relative priority. Absolute priority requires point-estimate valuations of the enterprise, like valuing equity of a non-indebted enterprise. But relative priority would require judges, parties, and outside investors to make complex valuations needing additional information, because relative priority valuation requires that decisionmakers assess the chances of multiple future outcomes with substantial precision. Worse, the increased valuation uncertainty from relative priority’s added complexity would discourage quick settlement and full-firm sales. Indeed, in many instances relative priority would recreate the bargaining problems afflicting absolute priority. Relative priority would, moreover, work poorly with today’s population of large business bankruptcies, which increasingly are private firms, for which we show relative priority valuation would be particularly difficult. Today, financial professionals generally do not trade and offer for sale similar financial instruments: stock options requiring substantially similar valuation analyses exist for stable public firms, but rarely for distressed firms. True, relative priority has other advantages over absolute priority. These advantages, however, must outweigh the costs we identify here: namely that relative priority entails greater valuation uncertainty for the parties, the courts, and outside investors, leads to more valuation conflict than absolute priority, and, in this dimension, would increase bankruptcy’s cost.

For many decades, administrative law has been clouded, or perhaps haunted, by a Grand Narrative. According to that narrative, the Supreme Court has abdicated. It has allowed the modern administrative state to breach the safeguards established by Article I, Article II, and Article III. The Court permitted the breach of Article I by authorizing Congress to delegate broad discretionary authority to agencies (and thus to become legislators). The Court permitted the breach of Article II by authorizing Congress to create independent agencies immunized from presidential control. The Court permitted the breach of Article III in two ways: (1) by giving Congress broad authority to allow administrative agencies to engage in adjudication, unprotected by the Constitution's tenure and salary provisions and (2) by granting interpretive authority to such agencies. In recent years, the Court has acted as if the Grand Narrative is essentially right. It has sharply cabined Congress' power to create independent agencies; imposed new constraints on Congress' power to allow agencies to adjudicate; signaled the vitality of the nondelegation doctrine; insisted on independent judicial interpretation of law; and invoked the separation of powers, through the major questions doctrine, to limit the exercise of discretionary power by agencies. The Grand Narrative also affects other areas of administrative law, including "arbitrary or capricious" review. There are other grand narratives about administrative law (originalist, Burkean, Thayerian, and pragmatic), and they might well be more compelling. But in the current era, they are not nearly as grand, or as influential, as the Grand Narrative. A broader point is that law has multiple equilibria in which different narratives turn out to be grand. The current equilibrium, if it can be called that, is one in which the Grand Narrative is ascendent. "The rise of administrative bodies probably has been the most significant legal trend of the last century and perhaps more values today are affected by their decisions than by those of all the courts, review of administrative decisions apart. They also have begun to have important consequences on personal rights...They have become a veritable fourth branch of the Government, which has deranged our three-branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking. "[T]he dissent who would permit Congress to concentrate the roles of prosecutor, judge, and jury in the hands of the Executive Branch. That is the very opposite of the separation of powers that the Constitution demands." Who controls the past controls the future: who controls the present controls the past. -- George Orwell

In Federalist No. 78, Alexander Hamilton argued for locating interpretive authority over law separately from those institutions tasked with formulating it. Hamilton’s vision, never accurate as a description of American practice, has not been credible for a long time. To the extent massive power is still allocated to judges, our legal institutions have been out of step with our legal theory, which has long regarded them as political actors and policymakers. More practically, every Term it is clearer and clearer that the role of the Supreme Court in statutory cases (including checking administrative rule-making and other processes) is, if anything, more menacing than its role in the rare instances when it deploys its heaviest weaponry of constitutional invalidation. Against progressive calls to reclaim the judiciary, this Article completes our proposal to disempower courts exercising lawmaking authority—including when they are interpreting statutes alone. Indeed, the same considerations that counsel the constitutional disempowerment of courts counsel their statutory disempowerment, and the allocation or reallocation of their authority over law to politically accountable agents. The heart of our Article offers a survey of court disempowerment strategies and tools, which are comparable to though not identical with the disempowerment mechanisms that have been proposed in the arena of constitutional reform. Such strategies and tools are appealing in the short term; but in the long term, a fuller rethinking our desirable institutional plan of legal interpretation beckons. Available and existing disempowerment strategies for courts are best conceived as early and partial versions of full-scale allocation of interpretive authority over law to “political” branches and openly political control.

People are said to show “algorithm aversion” when they prefer human forecasters or decision-makers to algorithms, even though algorithms generally outperform people (in forecasting accuracy and/or optimal decision-making in furtherance of a specified goal). Algorithm aversion also has “softer” forms, as when people prefer human forecasters or decision-makers to algorithms in the abstract, without having clear evidence about comparative performance. Algorithm aversion has strong implications for policy and law; it suggests that those who seek to use algorithms, such as officials in federal agencies, might face serious public resistance. Algorithm aversion is a product of diverse mechanisms, including (1) a desire for agency; (2) a negative moral or emotional reaction to judgment by algorithms; (3) a belief that certain human experts have unique knowledge, unlikely to be held or used by algorithms; (4) ignorance about why algorithms perform well; and (5) asymmetrical forgiveness, or a larger negative reaction to algorithmic error than to human error. An understanding of the various mechanisms provides some clues about how to overcome algorithm aversion, and also of its boundary conditions. These clues bear on the numerous decisions in law and policy, including those of federal agencies (such as the Department of Homeland Security and the Internal Revenue Service) and those involved in the criminal justice system (such as those thinking about using algorithms for bail decisions).

Chapter 11 was widely viewed as a failure in the first decade of the Bankruptcy Code’s operation, the 1980s. Large firms were mired in bankruptcy for years; the process was seen as expensive, inaccurate, and subject to abuse. While basic bankruptcy still has its critics and few would say it works perfectly, the contrast with bankruptcy today is stark: bankruptcies that took years in the 1980s take months in the 2020s. Multiple changes explain bankruptcy’s success—creditor learning, statutory reform, better judging and lawyering, new techniques, fuller integration of the improved mechanisms that the 1978 Code added—and we do not challenge their relevance. But in our analysis, one major change is missing from the current understanding of bankruptcy’s success: bankruptcy courts and practice in the 1980s rejected market value; today bankruptcy courts and practice accept and use market value. This shift is a major explanation for bankruptcy’s success. It reduces opportunities for conflict in bankruptcy. It speeds up proceedings. It allows firms to be repositioned in market transactions. Deals among claimants and interests are more readily reached and the firm can ride through bankruptcy without the bankruptcy process materially scarring the enterprise. This switch to market values has multiple channels: more whole-firm sales, wider and deeper access to financing for bidders and bankrupts, growing judicial deference to market valuations, and a bigger and more sophisticated private equity and distressed debt industry that buys bankrupt companies and their securities. We argue that valuation improvements explain much of the increased speed and efficiency of Chapter 11 practice over the decades. We provide evidence that valuation conflicts narrowed and that the corporate reorganization process accelerated. This market-based-valuation result has implications for bankruptcy law reform around the world. Several European and Asian nations have looked to Chapter 11 to model their own restructuring laws. We urge caution. Chapter 11 works best in conjunction with institutions that facilitate market valuation and market transactions. The United States developed such institutions only in recent decades; many nations have not developed them yet. Chapter 11 went from being viewed by many as a deficient legal structure in the 1980s to a substantial success story by the twenty-first century. The switch to market thinking across the bankruptcy spectrum—in bankruptcy transactions, in judging, and in lawyering—goes far in explaining why.

In criminal cases, prosecutors have the discretion to adjust arresting officers’ charges — and so can offset racial disparities introduced by the police. Yet prior research suggests that prosecutors simply compound earlier racial disparities with their own biases. We investigate prosecutors’ impacts on racial disparities using discontinuities in North Carolina’s sentencing laws. For defendants with criminal histories that are slightly longer and so fall above certain thresholds, the law mandates a prison sentence. However, prosecutors can often sidestep mandatory prison for qualifying defendants by reducing their charge. We ask who benefits from these charging responses to the mandatory-prison discontinuities. Between 1995 and 2019, Black defendants were initially less likely — but ultimately became more likely — to benefit from charge reductions that avoid mandatory prison. The reversal is driven entirely by arrests typically initiated by police stops and is absent from arrests typically initiated by victims, suggesting that prosecutors have increasingly questioned disparities introduced by police.