Faculty Bibliography
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Governments in rich countries need to show moral courage and political will to redesign global intellectual property rules. A Covid-19 vaccine waiver is just the start, writes Ruth L. Okediji.
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Is it wrong for professors to quote epithets — especially “nigger” and "fag" — in class or other educational settings? This question has often been in the news in recent years, both as to law schools and as to other departments. This article discusses the matter, building on a closely related practice: how judges and lawyers deal with epithets in litigation and opinion writing.
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We conducted a field experiment in which 311 low-income individuals seeking a divorce were randomly assigned to receive access to a pro bono lawyer (versus minimal help) to assist with filing for divorce. Examining court records, we found that assignment to an attorney made a large difference in whether participants filed for and obtained a divorce. Three years after randomization, 46% of the treated group had terminated their marriages in the proper legal venue, compared to 9% of the control group. Among “compliers”—participants who obtained representation only if assigned to receive it—those with lawyers were far more likely to file for and obtain a divorce than those not assigned lawyers. Because divorce implicates fundamental constitutional interests and can be effectuated only by resort to the courts, the US Constitution requires that dissolution of marriage be made achievable regardless of ability to pay. Yet, we observed few low-income individuals who were able to initiate divorce suits on their own. Through interviews and archival research, we identified barriers that low-income litigants faced in navigating the divorce system, including mandatory wait times, limited hours at important facilities, and burdensome paperwork sometimes requiring access to photocopiers and typewriters. This study therefore documents a salient instance in which a civil legal process was inaccessible to those without lawyers, even though their legal issues were straightforward, involving few if any matters for courts to adjudicate.
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This paper focuses on the narrow issue of proof of death to open up a broader discussion of several interrelated themes regarding early common-law development: the fashioning of specialized writs and legal processes to deal with doubtful deaths in criminal and civil cases alike, the cross-fertilization of ideas about proof in canon law and the common law, litigants’ strategies in responding to and taking advantage of problems of proof, and the common law’s reliance on a combination of strict proceduralism and equitable flexibility to reduce the likelihood of false felony convictions or illegitimate outcomes in cases involving the right to possession of land. From the few records I have found thus far in the plea rolls, I tentatively conclude that felony homicide cases were not likely to proceed to trial and conviction where doubt existed as to whether a homicide had actually occurred. Beyond the criminal context, however, doubt about a death underlying a claim to landed property did not preclude adjudication on the merits. Drawing such insights from frequently terse legal records, this paper also highlights the problems of proof faced by medieval historians in making sense of our source materials.
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How has feminism shaped US asylum law? Why and how is the Trump administration trying to undo feminist gains? In this episode of Ask a Feminist, asylum- and refugee-law expert Deborah Anker discusses the history and present of gender in the US asylum system. Anker is the founder and director of the Harvard Law School Immigration and Refugee Law Clinical Program and is one of the most widely known asylum scholars and practitioners in the United States. She speaks to Aziza Ahmed, professor of law at Northeastern University School of Law, and takes us through the key cases and arguments that have led to the current moment, the transformations the system is currently undergoing, and why she is less pessimistic than might be expected.
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There are many ways to describe Justice Ginsburg’s historic achievements. This essay considers one enduring descriptor. When President Bill Clinton nominated her to the Supreme Court, he noted that some called Ginsburg the “Thurgood Marshall” of the women’s movement. Through this essay, I engage with and complicate that comparison. I do so to celebrate Justice Ginsburg’s pathbreaking career as a litigator and contextualize claims that her approach was insufficiently progressive. Properly contextualized, Ginsburg’s career highlights a fact too often overlooked: the civil rights movement inspired a “movement of movements” that reverberated throughout society to the benefit of women and a range of marginalized groups. The loss of Ginsburg—the last civil rights lawyer on the Court—deprives the institution of that historical legacy and the invaluable perspective on law and society that it cultivated within her.
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[...]the landscape is changing rapidly so issues that yesterday were only peripheral today are taking on greater importance. [...]a coordinated global disclosure system has great potential benefits, but achieving one will take careful attention to institutional design. [...]companies generally are mandated to make disclosures as needed to prevent other disclosures from being materially misleading. Funding needs to be reliable and adequate, both now and over a reasonable time period into the future, and should not detract from other essential elements of the system for public company disclosures.
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In a recent statement,[1] Acting Chief Accountant Paul Munter highlighted a number of important financial reporting considerations for SPACs.[2] Among other things, that statement highlighted challenges associated with the accounting for complex financial instruments that may be common in SPACs.
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The move to smart disclosure promises to revitalize disclosure mandates and save them from a fate of ignored verbiage. But by making disclosure relevant and effective, this shift to smart disclosure also raises several concerns. Specifically, simple disclosures like genetically modified food disclosures, restaurant hygiene grades, annual percentage rate disclosures, etc., can result in market distortions and inefficiencies as: (1) consumers might draw false inferences from the disclosure; and (2) disclosing one dimension will elevate this dimension relative to other dimensions, and thus distort demand for the product and even alter the product itself. Relatedly, System 1 disclosures, like graphic cigarette labels, might influence behavior by triggering an emotional response rather than through informed deliberation, thus abandoning traditional justifications for disclosure mandates. In light of these concerns, it is more difficult to view disclosure mandates as minimally paternalistic. Government, by tweaking disclosure design, wields substantial power over markets and consumers.
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Over the past six months, the U.S. securities markets have seen an unprecedented surge in the use and popularity of Special Purpose Acquisition Companies (or SPACs).
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We measure the economic costs of the US pretrial system using several complementary approaches and data sources. The pretrial system operates as one of the earliest points of entry in the criminal justice system. It typically represents an individual’s first opportunity to be incarcerated, potentially leading to subsequent long-term damage in the form of family separation, work interruption, loss of housing, and so on. We find that individuals lose almost $30,000 in forgone earnings and social benefits when detained in jail while awaiting the resolution of their criminal cases. These adverse consequences are also present in aggregate measures of economic well-being, with increases in county pretrial detention rates associated with increases in poverty rates and decreases in employment rates. Counties with high levels of pretrial detention also exhibit significantly lower levels of intergenerational mobility among children, consistent with pretrial detention having an adverse impact on young children who may be the dependents of individuals affected by the pretrial system.
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WITH A NEW AFTERWORD ABOUT THE 2020 ELECTION This urgent book offers not only a clear-eyed explanation of the forces that broke our politics, but a thoughtful and, yes, patriotic vision of how we create a government that’s truly by and for the people.”—DAVID DALEY, bestselling author of Ratf**ked and UnriggedIn the vein of On Tyranny and How Democracies Die, the bestselling author of Republic, Lost argues with insight and urgency that our democracy no longer represents us and shows that reform is both necessary and possible. America’s democracy is in crisis. Along many dimensions, a single flaw—unrepresentativeness—has detached our government from the people. And as a people, our fractured partisanship and ignorance on critical issues drive our leaders to stake out ever more extreme positions. In They Don’t Represent Us, Harvard law professor Lawrence Lessig charts the way in which the fundamental institutions of our democracy, including our media, respond to narrow interests rather than to the needs and wishes of the nation’s citizenry. But the blame does not only lie with “them”—Washington’s politicians and power brokers, Lessig argues. The problem is also “us.” “We the people” are increasingly uninformed about the issues, while ubiquitous political polling exacerbates the problem, reflecting and normalizing our ignorance and feeding it back into the system as representative of our will. What we need, Lessig contends, is a series of reforms, from governmental institutions to the public itself, including: A move immediately to public campaign funding, leading to more representative candidates; A reformed Electoral College, that gives the President a reason to represent America as a whole; A federal standard to end partisan gerrymandering in the states; A radically reformed Senate; A federal penalty on states that don’t secure to their people an equal freedom to vote; Institutions that empower the people to speak in an informed and deliberative way; A soul-searching and incisive examination of our failing political culture, this nonpartisan call to arms speaks to every citizen, offering a far-reaching platform for reform that could save our democracy and make it work for all of us.
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Daniel I. Halperin proposes an innovative way to achieve realization, without any added tax burden at gift, death, or sale: collecting an equivalent tax in present value during the period the asset is held.
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We propose a congruence principle for financial regulation. Application of this principle would enable regulators to use economically similar instruments across multiple domains to manage systemic risk. We present case studies of market malfunctions that occurred when congruence was ignored: nonprime mortgage finance (in 2008 and 2020) and United States Treasury securities (in 2020). In these cases, risk built up in non-bank financial institutions due in part to regulatory arbitrage. Under a congruence principle, regulators could mitigate this risk using a coordinated combination of capital requirements, minimum haircuts on repo transactions, and margining rules on futures exchanges and central clearing parties.
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Without the reforms of H.R. 1, our precariously majoritarian system will become predictably minoritarian.
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This sharp and engaging collection of essays by leading governmental scholar Cass R. Sunstein examines shifting understandings of what’s normal, and how those shifts account for the feminist movement, the civil rights movement, the rise of Adolf Hitler, the founding itself, the rise of gun rights, the response to COVID-19, and changing understandings of liberty. Prevailing norms include the principle of equal dignity, the idea of not treating the press as an enemy of the people, and the social unacceptability of open expressions of racial discrimination. But norms are very different from laws. They arise and change in response to individual and collective action. Exploring Nazism, #MeToo, the work of Alexander Hamilton and James Madison, constitutional amendments, pandemics, and the influence of Ayn Rand, Sunstein reveals how norms ultimately determine the shape of government in the United States, Europe, and elsewhere.
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If he does, he must work with Congress and go well beyond narrowing old permission slips for conflict.
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MC Stephenson, Yale J. on Reg., 2021
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In this essay, I show how developments and achievements in the field of environmental rights and specifically rights of nature can be instructive, intellectually and practically, to the cause of animal protection and animal rights. That instruction includes not only positive examples but also notes of caution, where animal law may face different and more formidable challenges.
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One of Friedrich Hayek's most important arguments pointed to the epistemic advantages of the price system, regarded as an institution. As Hayek showed, the price system incorporates the information held by numerous, dispersed people. Like John Stuart Mill, Hayek also offered an epistemic argument on behalf of freedom of choice. A contemporary challenge to that epistemic argument comes from behavioral economics, which has uncovered an assortment of reasons why choosers err, and also pointed to possible distortions in the price system. But, even if those findings are accepted, what should public institutions do? How should they proceed? A neo-Hayekian approach would seek to reduce the knowledge problem by asking what individual choosers actually do under epistemically favorable conditions. In practice, that question can be disciplined by asking five subsidiary questions: (1) What do consistent choosers, unaffected by self-evidently irrelevant factors, end up choosing? (2) What do informed choosers choose? (3) What do active choosers choose? (4) When people are free of behavioral biases, including (say) present bias or unrealistic optimism, what do they choose? (5) What do people choose when their viewscreen is broad, and they do not suffer from limited attention? These questions are illustrated with reference to the intense controversy over fuel economy standards.
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The fundamental reason for the productivity slowdown in the richest part of the world is that science and technology-intensive production devoted to permanent innovation - which we call the knowledge or innovation economy - remains confined in every sector; from product design and advanced manufacturing to precision agriculture, to fringes that exclude the overwhelming maj ority of workers and businesses. The timehonoured shortcut to economic growth - conventional industry: the mass production of standardised goods and services, on the basis of rigid machines, semi-skilled labour, and extreme job specialisation, as in an oldfashioned automobile plant or steel mill - has stopped working, as one country after another has deindustrialised. Some European countries, especially Germany and Switzerland, retain a large and vital manufacturing base, which they are now struggling to convert into its more advanced knowledge-intensive equivalent. The vast majority of activity in the UK’s service economy, meanwhile, remains confined to personal care, bricks-and-mortar retail, or iqth-century-style professions and trades, such as the plumbing, electrical, and building trades, disconnected from the front line of production.
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Having left the EU, the United Kingdom must embark on a national programme of self-renewal.
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Changes to the funding of congressional races could shake up the two-party monopoly.
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The Limits of International Law received a great deal of criticism when it was published in 2005 but it has aged well. The skeptical, social-scientific methodology that it recommended has become a normal mode of international law scholarship. And the dominant idealistic view of international law that the book criticized is today in shambles, unable to explain the turmoil in international politics. This essay reflects on the book’s reception and corrects common misperceptions of its arguments.
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The Enlightenment was a time of monetary turmoil and transformation in Europe. Change began with a riot of experimentation, including novel ideas about human agency and capacity to promote economic progress, efforts to reframe divinity in terms (like the providential) compatible with market exchange, new instruments of credit, and innovative institutions such as national banks and capital markets. Europeans, including the settler societies in North America, improvised frantically: people faced the task of everyday exchange in changing media; governments took up the project of creating currencies that supported their political power; artists and writers raced to represent new forms of wealth and interpret the issues they raised; and intellectuals struggled to conceptualize, and tame, patterns of monetary transformation. The result was a rich debate, still unsettled, about the sources of value, the morality of the market, and the very nature of money. Drawing upon a wealth of visual and textual sources, A Cultural History of Money in the Age of Enlightenment presents essays that examine key cultural case studies of the period on the themes of technologies, ideas, ritual and religion, the everyday, art and representation, interpretation, and the issues of the age.
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Increasing the uptake of green energy use by households and businesses is a key step toward reducing environmental harm and combating climate change. In a new paper, Liebe et al.show that a non-monetary intervention can have massive effects on green energy consumption, leading to substantial reductions in carbon emissions.
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Christine A. Desan, Introduction in, A Cultural History of Money in the Age of Enlightenment (Bill Maurer & Christine A. Desan eds., (Bloomsbury 2021).
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The Enlightenment was a time of monetary turmoil and transformation in Europe. Change began with a riot of experimentation, including novel ideas about human ag…
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The Facebook Oversight Board should be mindful that Facebook is not a government—and that the platform’s decisions denying active accounts or taking down posts pose no threat of loss of liberty to any person.
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The gender gap in corporate America is increasingly well documented, but the literature has not yet examined how a CEO’s political preferences might be associated with gender equality in the executive suite. Focusing on the US, this column compares the fraction of a CEO’s political contributions that went to Republican, rather than Democratic, candidates and the gender balance among top executives (excluding the CEO). Companies run by a CEO who only donates to Democrats employ a 15–25% higher fraction of women in the executive suite than those run by CEOs who only donate to Republicans.
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In 1969-70 or thereabouts several Yale Law School students set up a “commune” in the courtyard between what were then residential halls. At roughly the same time David Trubek and Rick Abel were holding a reading group on law and development with a heavy dose of social theory, a harbinger of what became critical legal studies. The two events can be taken as representative of alternative paths to social transformation – roughly, the cultural path and the path to change through self-consciously directed political action. In this short paper, originally prepared for a conference on the intellectual history of critical legal studies at Princeton University in February 2020, I read two works as dialogues about those paths, Tom Stoppard’s play “Rock ‘n’ Roll,” which looks at Czechoslovakia from 1968 through 1989 – from the Prague Spring through the Soviet occupation to the collapse of the Soviet empire – and “Roll Over Beethoven,” a discussion between “Peter Gabel” and “Duncan Kennedy” about some controversies in the early years of critical legal studies.
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