Faculty Bibliography

The increasing use of AI rather than human surveillance puts pressure on two long-used cultural and (sometimes) legal distinctions: as between human and machine observers and as between content and metadata. Machines do more and more watching through advancing technology, rendering AI a plausible replacement for humans in surveillance tasks. Further, machines can commit to surveil only certain forms of information in a way that humans cannot, rendering the distinction between content and metadata increasingly relevant too for crafting privacy law and policy. Yet despite the increasing importance of these distinctions, their legal importance remains in four key domains of privacy law: Fourth Amendment law, wiretap law, consumer privacy law, and the privacy torts. Given the failure of privacy law to settle conclusively the import of the human/AI and content/metadata distinctions, this Article proposes looking to empirical measures of the judgments of ordinary people to better understand whether and how such distinctions should be made if law is to be responsive to reasonable expectations of privacy. There is incomplete empirical evidence as to whether the AI/human surveillance and content/metadata distinctions hold weight for ordinary people, and if so, how. To address this empirical gap, this Article presents the results of a vignette study carried out on a large (N = 1000), demographically representative sample of Americans to elicit their judgments of a state surveillance program that collected either content or metadata and in which potential surveillants could be either human or AI. Unsurprisingly, AI surveillance was judged to be more privacy preserving than human surveillance, empirically buttressing the importance of a human/AI distinction. However, the perceived privacy advantage for an AI surveillant was not a dispositive factor in stated preferences regarding technology use. Accuracy—a factor rarely discussed in defenses of state surveillance —was more influential than privacy in determining participants’ preferences for a human or AI surveillant. Further, the scope of information surveilled (content or metadata) strongly influenced accuracy judgments in comparing human and AI systems and shifted surveillance policy preferences as between human and AI surveillants. The empirical data therefore show that the distinction between content and metadata is important to ordinary people, and that this distinction can lead to unexpected outcomes, such as a preference for human rather than AI surveillance when contents of communications are collected.

In an effort to expand the net of liability, mass tort claimants regularly assert concert-of-action and conspiracy claims against businesses that comprise the bulk of a given industry. Most commonly, these suits allege that, because the defendants conspired with one another not to warn of certain hazards associated with a product that each of them sells, they are jointly liable to any plaintiff injured by one such product. To date, these efforts have met with mixed results. In this Article, we consider whether civil conspiracy theories of this sort should succeed in the products liability context, even when the plaintiffs' claims sound in negligence or strict products liability. After considering common objections to the imposition of such liability, we identify two types of agreement-scenarios in which liability should attach: (a) genuine analogues to the classic concert-of-action scenario involving drag-racing; and (b) instances in which plaintiffs' allegations, although framed as negligence or products liability claims, are dependent on assertions that the defendants coordinated to make statements about their products that intentionally misrepresented the products' safety, or misrepresented them with a kind of recklessness that the law regards as equivalent to intentionality.

Does Congress have authority to pass legislation regulating the counting of electoral votes? This is a consequential question for the legal framework governing presidential elections. In 2022, Congress passed the Electoral Count Reform Act ("ECRA"), which overhauled the statutory regime governing the counting of electoral votes. The ECRA's predecessor statute, which had been in place since 1887, had long been criticized as ambiguous and unnecessarily convoluted. Those deficiencies were widely seen as a contributing cause of the attacks on the Capitol of January 6, 2021, and a rare bipartisan majority in Congress passed the ECRA to address the earlier statute's shortcomings. Yet it did so against a backdrop of unresolved questions about Congress's authority to legislate in this area. The scholarly literature, however, lacks a sustained defense of Congress's power to regulate the counting of electoral votes. This Article aims to fill that gap. It does so in two ways. First, it engages with the skeptics of Congress's authority on their traditional terrain, locating ample congressional authority grounded in the text, structure, and history of Article II and the Twelfth Amendment. The Article then seeks to expand the analytic framework by focusing on a constitutional provision that tends to stay out of the limelight: the Twentieth Amendment, which reconfigures the period between Election Day and Inauguration Day. In defending Congress's authority to pass laws regulating the counting of electoral votes, this Article provides the first scholarly treatment of the Twentieth Amendment's significance in this area.

In the current era, product differentiation is increasing; it is often fueled by big data and artificial intelligence (AI). Whereas product differentiation is generally welfare enhancing when consumers are informed and fully rational, such differentiation might reduce welfare when consumers suffer from misperceptions, either because of a lack of information or because of behavioral biases. We show that the positive and normative implications of product differentiation depend on whether consumers over or underestimate the benefits from some products. In particular, overestimation of the benefits is a potential source of significant welfare losses. We also study sellers’ incentives to promote, or combat, misperception. Our analysis can inform policymakers who are debating regulation that can make product differentiation more difficult (or easier), especially when the differentiation is instigated by AI algorithms powered by big data.

Nearly one in four Americans lives in a homeowners’ association, particularly in the South and the West, those parts of the United States that are fastest growing. In several decisions this decade, courts have suggested that their state or federal constitutions act as limits on the power of the state to interfere with the regulatory activities of these associations, namely because of the regulation’s impact on subdivision covenants. A handful of other scholars and practitioners have begun considering how those within homeowners’ associations might challenge regulations affecting the enforceability of covenants under the state or federal takings clauses, which require just compensation for certain regulations that “go too far.” But there are early signs that the contract clause may also play a substantial role in the next round of housing-related litigation, and that is my focus in this Essay. In Part I, I offer a brief overview of the contract clause, today one of the less well-known provisions of the federal Constitution, as well as its state analogs. In Part II, I investigate previous contact between the contract clause and covenants, finding conflicting lines of decisions in different states as to the power of a state to void or invalidate preexisting restrictions. In Part III, I turn to a small number of recent decisions that have again brought covenants and the clause into contact, one involving housing-related legislation specifically. I conclude by examining what these recent cases foretell about the battles to come in tackling housing affordability, which are unlikely to end with public law change.

Millions in the United States have criminal records. Many of these records are eligible for some sort of concealment from public view, commonly known as expungement or sealing. In this Article, we analyzed criminal records in four counties in Pennsylvania and several counties in Kansas to determine the number of records eligible for such remedies. In Pennsylvania, the analysis included both expungement, defined here as petition-based suppression of information, and sealing, defined here as suppression that the government (usually the judicial system) undertakes without petitions. Kansas law only allows for petition-based expungement. Our analysis found approximately 100,000 charges eligible for expungement in Kansas and 180,000 charges eligible for expungement in Pennsylvania, supporting prior research that identified a so-called “second chance gap.” Our primary contribution is an analysis of which statutory reforms would render the largest number of cases or charges eligible for a record-clearing remedy. We found that elimination of criteria related to legally imposed financial obligations (“LIFOs”) would render a surprising number of files eligible for information suppression. In addition, our analysis identified approximately 200,000 charges that were eligible for sealing in Pennsylvania but were still available to the public online at the time of the data retrieval. This finding suggests that even when the government undertakes information suppression from its own databases, it finds the task challenging. Finally, we examine why certain records were not eligible for expungement or sealing in each state. This insight will inform legislatures and activists where their efforts can be most effective.

Do people like financial nudges? To answer that question we conducted a pre-registered survey presenting people with 36 hypothetical scenarios describing financial interventions. We varied levels of transparency (i.e., explaining how the interventions worked), framing (interventions framed in terms of spending, or saving), and ‘System’ (interventions could target either System 1 or System 2). Participants were a random sample of 2,100 people drawn from a representative Australian population. All financial interventions were tested across six dependent variables: approval, benefit, ethics, manipulation, the likelihood of use, as well as the likelihood of use if the intervention were to be proposed by a bank. Results indicate that people generally approve of financial interventions, rating them as neutral to positive across all dependent variables (except for manipulation, which was reverse coded). We find effects of framing and System. People have strong and significant preferences for System 2 interventions, and interventions framed in terms of savings. Transparency was not found to have a significant impact on how people rate financial interventions. Financial interventions continue to be rated positive, regardless of the messenger. Looking at demographics, we find that participants who were female, younger, living in metro areas and earning higher incomes were most likely to favor financial interventions, and this effect is especially strong for those aged under 45. We discuss the implications for these results as applied to the financial sector.

U.S. states traditionally play a minor role in establishing national security policies, which generally fall within the federal government’s remit. But the return of great power competition with China and Russia and the accompanying proliferation of threats have spurred states to act on national security concerns. With unprecedented speed, breadth, and frequency, U.S. states have taken it upon themselves to address perceived security concerns with TikTok, foreign purchases of real estate, and foreign-made drones, as well as commercial dealings with Russian firms. Drawing on their police powers, they have enacted security-related laws that sometimes parallel and sometimes go beyond the federal government’s actions. We term this phenomenon “entrepreneurial federalism” and explain its unique features. The increasing frequency and breadth of states’ national security-focused actions have set U.S. states and the federal government on a collision course. Private parties have launched a range of legal challenges to state laws, arguing that courts should hold that those laws are preempted based on existing federal statutes or on broader doctrines that disable states from acting in foreign relations. Courts may be tempted to do so, especially because China and Russia are near-peer threats that require careful federal management. But if the courts adopt broad preemption doctrines in this space, they may inadvertently foreclose two constructive phenomena that can arise from acts of entrepreneurial federalism: useful supplementation by the states of federal efforts to address national security threats and the productive friction that states can introduce into policymaking to improve the quality of U.S. national security policies. Even when there are good reasons for courts to hold that state actions that implicate the U.S. relationship with China or Russia are preempted, judicial decisions that reach that result too readily – or that use a broader form of preemption than necessary – may unintentionally impose longer-term costs on U.S. national security. This Article documents the rise of states’ national security actions, distinguishes them from earlier academic models of federalism, and proposes ways that the courts, Congress, the Executive, and the states can foster a positive role for states while minimizing the downsides that could flow from state actions in the national security space.

The past few decades have seen a broad moral reevaluation of the American Founding. Both on the left and on the right, many now regard the Founders’ ideals as less valuable and their failings as more salient. These reckonings are necessary, but they also risk missing something important: a richer and more human understanding of the past, together with a recognition of the great good that the American Founding achieved, here and elsewhere. This Essay discusses how we ought to understand the Founders’ historical legacy—and why we might respect and indeed honor their contributions with open eyes.

In recent years, the authority of the press and universities as knowledge institutions has increasingly come under scrutiny – and not just from rising populists. Critics question the dedication of these institutions to producing knowledge, their commitment to open inquiry and intellectual rigor, the ethical norms they espouse and whether they adhere to them, and their degree of independence from influential funders and other powerful forces. This chapter sketches some tentative responses to these questions. It considers how the press and universities are similar as knowledge institutions and how they differ. It explores the nature of journalistic and academic topics and judgments, their independence in the pursuit of knowledge, the time frames of their work, and their ethics. It draws attention to how these two institutions use overlapping but not identical tools to develop new knowledge and test knowledge claims, and how sustaining the independent competencies necessary towards this goal is challenged by rising polarization and mistrust and by diminishing public and private financial support. It closes with some reflections on the interdependence among knowledge institutions and their longstanding roles in constitutional democracy.

The United States is undergoing a legal realignment, in that salient legal views recently associated with the right are now being espoused by the left, and vice versa. The clearest example involves Chevron deference: a doctrine once championed by conservatives like Justice Antonin Scalia has now been overruled in Loper Bright v. Raimondo—over dissenting votes by all three of the Court’s liberals. Similar points can be made about standing, stare decisis, textualism, positivism, and more. The basic reason for this transformation is straightforward: legal ideologies in power favor discretion, whereas those out of power favor constraint. Conservatives now firmly control the federal judiciary, so they are gradually abandoning their prior posture of constraint, even as liberals adopt it. As a result, the formalism that characterizes today’s legal culture is coming to an end. In the meantime, the left and the right’s mutual repositioning is helping to preserve both a workable legal system and a degree of shared legal culture.

Sometimes legal systems are “noisy”; they show unjustified variability or “scatter,” which means that what emerges is likely to be unpredictable and unfair. Potential examples include assessment of whether a risk is “significant” or “unreasonable,” fines for environmental harms or safety violations, compensatory damage awards for libel, pain and suffering, hedonic losses, and sexual harassment, and punitive damage awards for corporate wrongdoing. To understand why and when law is noisy, it is useful to note that psychologists commonly distinguish between two kinds of scales: category scales and magnitude scales. Category scales are bounded and anchored in verbal descriptions at specified points. By contrast, magnitude scales are unbounded and defined by a meaningful zero point. In some settings, money might operate as a magnitude scale. For purposes of policy and law, here are the two key psychological findings. First, judgments on magnitude scales are often highly variable, or noisy, when there is no “modulus” to define the various points. The variability occurs even when there is no reason to believe that people actually disagree about anything meaningful. Second, distributions of judgments are “positively skewed,” with a long right tail. People involved in law and policy often use magnitude scales, above all money. High levels of noise, and susceptibility to bias (especially from anchors), are likely results. This is the problem of “noisy law,” an insufficiently explored area of behavioral public policy. Theories of optimal deterrence might help to reduce noise, but many policymakers, and many people involved in law and policy, do not accept those theories.

In criminal cases, decision-makers aim to selectively incarcerate defendants with a high risk of future violent crime. If decision-makers have more accurate beliefs about this risk, can they reduce violent crime without simply incarcerating more defendants? We survey 162 prosecutors about how violent re-arrest rates vary across defendants of different ages and with different criminal records. We link prosecutors’ beliefs to their 104,039 cases, which offices assign quasi-randomly. Prosecutors’ beliefs vary widely and predict their sentencing patterns for defendants of different ages and criminal records. Prosecutors with more accurate beliefs (by one standard deviation) reduce violent crime (by 6%) without incarcerating more defendants.

This Article examines the striking parallels between contemporary privacy challenges and past public health crises involving tobacco, processed foods, and opioids. Despite surging state and federal privacy legislation, many of these new privacy law and policy activities follow familiar patterns: an emphasis on individual choice, narrowly defined rights and remedies, and a lack of holistic accounting of how privacy incursions affect society as a whole. We argue instead for a salutary shift in privacy law and advocacy: understanding privacy through the lens of public health.  By tracing systemic factors that allowed industries to repeatedly subvert public welfare—from information asymmetries and regulatory capture to narratives of individual responsibility—we explore a fundamental rethinking of privacy protection. Our analysis of case studies reveals remarkable similarities between public health challenges of the past half-century or so and the ongoing consumer privacy crisis. We explore how public health frameworks emphasizing preventative policies and reshaping social norms around individual choices could inform privacy advocacy. To do so, we examine a spectrum of proposals to align privacy with public health, from adopting public health insights to provocatively reframing privacy violations as an epidemic threatening basic wellbeing. This Article offers a novel framework for addressing the current privacy crisis, drawing on the rich history and strategies of public health. In reframing privacy violations as a societal health issue rather than a matter of consumer choice, we see new avenues for effective regulation and protection. Our proposed approach not only aligns with successful public health interventions of the past but also provides a more holistic and proactive stance towards safeguarding privacy in the digital age.

The author explores the vulnerabilities in our democratic system that AI will affect. He advocates for “protected democratic deliberation,” akin to citizen assemblies, as a strategy to safeguard democracy in an AI-empowered world.

Research on psychedelic medicines is experiencing a revival. Some clinicians, scientists, and ethicists believe that psychedelics are so different from other treatments that they warrant special consideration in how they are researched, regulated, commercialized, and administered. Others argue that psychedelic medicines show clinical potential, but they should be treated like other medical interventions. In other words, identical standards should apply. This article analyzes whether psychedelic medicines warrant special consideration from a regulatory and ethical perspective.

American jurisdictions are considering switching to proportional representation (PR) in volumes unseen for a hundred years. But the forms of PR currently being debated have drawbacks. The most (domestically) prominent of these, proportional ranked-choice voting (P-RCV), is both vulnerable to vote leakage among parties and cognitively challenging for voters. Another salient system, open-list proportional representation (OLPR), risks underrepresenting minority voters. This Article therefore introduces a new form of PR—ranked-list proportional representation (RLPR)—that promises to alleviate these concerns. Under RLPR, voters first vote for a single party. They then rank only this party’s candidates. Voters’ party votes determine each party’s seat share. And voters’ candidate rankings establish which of each party’s candidates win its allotted seats. Like all forms of list PR, RLPR makes it impossible for votes to leak across party lines. RLPR is also cognitively simpler for voters because it asks them to rank only one party’s (not all parties’) candidates. And RLPR’s sequential reallocations of votes typically lead to proportional minority representation (both intraparty and overall). Accordingly, American jurisdictions should add RLPR to their menu of PR options. If they choose to adopt it, they should pair it with P-RCV in the primary election.

This volume introduces the legal philosopher Adolf Reinach and his contributions to speech act theory, as well as his analysis of basic legal concepts and their relationship to positive law. Reinach's thorough analysis has recently garnered growing interest in private law theory, yet his 'phenomenological realist' philosophical approach is not in line with contemporary mainstream approaches. The essays in this volume resuscitate and interrogate Reinach's unique account of the foundations of private law, situating him in contemporary private law theory and broader philosophical currents. The work also makes Reinach's methods more accessible to those unfamiliar with early phenomenology. Together these contributions prove that while Reinach's perspective on private law shares similarities and points of departure with trends in today's legal theory, many of his insights remain singular and illuminating in their own right. This title is also available as Open Access on Cambridge Core.

From March 2020 to May 2023, millions of noncitizens were expelled from the United States without a hearing under the so-called "Title 42" process. The government claimed that an obscure public health law ousted all the substantive and procedural rights that normally constrain immigration enforcement, and used it as a pretext to rapidly eject refugees at the southern border. The CDC's "Title 42" orders have now expired, but the regulation that authorized them remains in force and could be reactivated at any time. Instead of treating this episode as closed, this Article closely examines the hasty rise and slow demise of the "Title 42" regime, and the litigation it spawned, in search of lessons for the future. The "Title 42" regulation invites abuse, and would distort even a well-intentioned response to the next major pandemic. The regulation must be repealed or rewritten, and the Article discusses how it should be reformed.

Under both the Court's current Buckley test and under any plausible version of originalism, contributions to independent political action committees are regulable. SuperPACs are, therefore, not constitutionally required - 14 years of mistaken lower court rulings not with standing.

Over the past generation, conflicting trends have reshaped the ownership of corporate equity on the one hand and corporate debt on the other. In equity, the two great trends have been the shift from public markets to private ownership and the consolidation of American companies’ stock in the hands of powerful investment funds. In debt, by contrast, the great trends have been a shift from private loans to quasi-public markets and dispersed ownership. In this Article, we chronicle the recent and dramatic reversal of these trends in the debt markets. Private investment funds executing a “private credit” strategy have become increasingly important corporate lenders, bringing into corporate debt the same forces of privatization, concentration, and illiquidity that have been reshaping the equity markets. We offer new data that illustrate the meteoric rise of the now $1.5 trillion private credit industry, and we explore the allure and implications of private credit. For many corporate borrowers, private credit offers a faster, more efficient, and more accessible source of financing than either banks or the public (and quasi-public) debt markets. Yet the transition from bank-intermediated finance to private credit will transform not only corporate finance, but also firm behavior and economic activity more generally. First, as the corporate debt markets follow the equity markets in going dark, information about many large firms will be lost to the investing public. For better or worse, these firms will act with unprecedented discretion—having been shielded from the discipline and scrutiny of regulators, the trading markets, and the general public. Second, corporate debt—like corporate equity—will become the dominion of investment funds, some of which are already unimaginably large. These funds will influence everything from firm operations and strategy to corporate distress, with uncertain consequences.

The founding of the United States of America is often said to have been the product of Enlightenment ideals that emphasized reason, individual liberty, and notions of progress. During this same era, however, racially based slavery, which confounded reason, denied individual liberty to millions, and challenged ideas about progress, existed in all of the colonies of North America. The third president of the United States, Thomas Jefferson, embodied this seeming contradiction at the heart of the American founding. The principal author of the American Declaration of Independence enslaved hundreds of people over the course of his long life. This Article argues that a bedrock verity of the Enlightenment influenced Jefferson’s thinking on these matters, specifically the tendency to emphasize the importance of categories. In the world of Enlightened science, everything had a place—scientific phenomena, plants, ideas, even people. In this view, human beings of African descent were placed at the bottom of what was seen as inevitable hierarchy, justifying treating them as an exception to the rules about the natural liberty of mankind. Whether this circumstance would continue indefinitely was an open question, though Jefferson posited that time might ameliorate the situation. As scholars have noted, there was a dark side to Enlightenment thinking.

The U.S. has one of the highest incarceration rates in the world, with over seven million admissions to jails each year. Incarcerated individuals are the only group in the U.S. that have a constitutional right to receiving "reasonably adequate" health care. Yet, there is little oversight and funding for health care accreditation to 44 jails across the U.S. Surveys of staff indicate that accreditation improves coordination between health and custody staff. We also find that accreditation improves quality standards and reduces mortality among the incarcerated, which is three times higher among control facilities than official estimates suggest. These health gains are realized alongside suggestive reductions in six-month-recidivism, such that accreditation is highly cost effective.

On April 26, 2024, the Office for Civil Rights (OCR) of the U.S. Department of Health and Human Services (HHS) issued a Final Rule titled “HIPAA Privacy Rule to Support Reproductive Health Care Privacy.” As per the attendant Federal Register, the Final Rule was to become effective on June 25, 2024. In so doing, HHS was complying with President Biden’s Executive Order 14076 the sole focus of which was “Securing Access to Reproductive and Other Healthcare Services.” The newly (announced Final Rule bolsters the Health Insurance Portability and Accountability Act of 1996 [HIPAA; Public Law No: 104–191) which “provides penalties” for “wrongful disclosure of individually identifiable health information.” Among its leading objectives, the Final Rule seeks to protect women who cross state lines in search of an abortion. Data reported by the Guttmacher Institute suggest that nearly one in five abortion patients sought out-of-state care during the first 6 months of 2023, a two-fold increase when compared with the same period in 2020. The Final Rule also protects those who provide or facilitate lawful reproductive health care who might otherwise be targeted by state prosecutors with criminal probes or lawsuits in mind. The administration and enforcement of the newly issued Final Rule will be the designated responsibility of the OCR. In a clear reference to Dobbs v. Jackson Women’s Health Organization, HHS Secretary Xavier Becerra made note of the reality that “with reproductive health under attack by some lawmakers, these protections are more important than ever.” It is the objective of this Commentary to review the multiple facets of the reproductive privacy imperative and the projected oversight thereof.

Legal scholarship and regulatory proposals for artificial intelligence (AI) have primarily focused on detecting or preventing AI misbehavior or mistakes. The proliferation of high-performance generative AI, such as ChatGPT and DALL-E, has quite saliently demonstrated that legal problems and policy challenges can also emerge when AI applications perform their assigned tasks too well rather than too poorly, as when humans improperly or unethically rely on AI to undertake tasks they are expected to do themselves or when ready access to high performance AI undermines demand for human services and thereby causes economic disruption. Beyond potential legal or policy challenges, this Article makes a stronger claim, arguing that the increasingly common phenomenon of too accurate AI could imminently create substantial particularized harms to individuals as well as widely dispersed costs to society. Recognizing high AI performance as a potential source of harm is an essential step towards better design and regulation of AI, particularly in horizontal regulatory initiatives such as the EU's AI Act and recent U.S. initiatives and proposals. The Article proceeds in four parts. Part I provides a motivating example of how accuracy is associated with both the problems and also the proposed solutions for a contested but common algorithmic practice: content recommendation. Part II shows how AI accuracy can undercut widely shared normative values, relating this observation to findings from digital ethics, economics, and computer science. Part III examines two recent federal legislative proposals and a recent executive action aimed at taming perceived threats from AI to demonstrate a persistent conceptual lacuna in proposed AI regulation: ignored accuracy harms. Part IV proposes a taxonomy of the mechanisms that bring about accuracy harms, empowering scholars and policymakers to systematically recognize and address accuracy harms from diverse sources. AI regulation will achieve better (and better-defined) outcomes when lawmakers recognize that high accuracy is one of many AI attributes that can shape society for better or for worse.

This chapter honors Cheryl Saunders’ insights into the importance of federalism and the allocation of fiscal powers in understanding how constitutional systems work and how they protect rights. Drawing on caselaw from three common law jurisdictions – Canada, Australia, and the United States – it argues that rights and structures, like federalism or the separation of powers or democratic voting systems, are interdependent. Structures may be understood necessarily to imply certain rights necessary to make the structure effective. Rights may require structures to secure their effective protection. At times, the chapter suggests, texts relating specifically to rights may be less effective in securing their protection than reasoning from more general structural provisions. Federalism, in particular, is a structure that may require certain rights; as a form of government, federalism can both protect rights and undermine their protection. And interdependencies may exist among different structural provisions. As a positive matter, rights and structures may find mutual grounding in basic constitutional norms of unity, liberty, and equality. Whether particular provisions are understood as rights or as structures, or even whether particular rights should be understood to exist, may vary over time and among judges. As a normative matter, the chapter suggests that errors may result from failing to consider the overall constitutional context in which a claim of right, or a very specific structural claim, is situated.

Generative Artificial Intelligence (“AI”) is already beginning to alter legal practice. If optimistic forecasts prove warranted, how might this technology transform judicial opinions—a genre often viewed as central to the law? This Symposium Essay attempts to answer that predictive question, which sheds light on present realities. In brief, the provision of opinions will become cheaper and, relatedly, more widely and evenly supplied. Judicial writings will often be zestier, more diverse, and less deliberative. And as the legal system’s economy of persuasive ability is disrupted, courts will engage in a sort of arms race with the public: judges will use artificially enhanced rhetoric to promote their own legitimacy, and the public will become more cynical to avoid being fooled. Paradoxically, a surfeit of persuasive rhetoric could render legal reasoning itself obsolete. In response to these developments, some courts may disallow AI writing tools so that they can continue to claim the authority that flows from authorship. Potential stakes thus include both the fate of legal reason and the future of human participation in the legal system.

My topic is the perennial debate over universalism and nationalism, from the standpoint of classical law, political theory and political theology. I approach the topic through the lens of the concept of Empire, which I will equate to a “true world political authority” in the sense Benedict XVI and Francis have urged, and which I will argue is thesis or first-best, a regulative ideal. The classical understanding of Empire provides general principles that can be revived, translated and adapted to new circumstances, preserving the essence of those principles while their application changes. However, I also reject certain critiques of nationalism that I believe are simplistic. In particular, nationalism rightly ordered and understood is an understandable non-ideal or second-best response to badly ordered forms of universalism; nationalism is a temporarily valid hypothesis, relative to certain conditions. Proponents of universalism and nationalism often talk past one another, creating a mere illusion of disagreement — especially when and because one party defends universalism as ideal thesis, and the other defends nationalism as nonideal hypothesis.

The Supremacy Clause is clear. Local officials pledging to resist his policy will lose in court.

Suppose that historians establish that the original public meaning of the First Amendment leads to a much less protective system of free speech than the one to which we have become accustomed, or that the due process clause does not protect much at all. Or suppose, far more dramatically and consistent with the work of Stanford's Jonathan Gienapp, that historians establish that contemporary lawyers and judges have mangled the founding, in the sense that they have fundamentally misunderstood what the founding generation established. What then? Nonoriginalists need not much struggle with that question, but originalists might have to bite some hard bullets. They might have to call for a system of constitutional law that contemporary judges, lawyers, politicians, and citizens would not recognize or might even deplore. Alternatively, they might defend public meaning originalism on the ground that it protects the rule of law and related values, even if it does not really channel the founding, and even if it produces a constitutional order that the founding generation would not recognize and would in fact deplore. But most originalists are unlikely to want to defend their approach on that ground; for better or for worse, they seek to maintain continuity with the founding era. The affective pull of originalism lies in a claim of continuity, even though the strongest arguments on behalf of originalism have exactly nothing to do with that affective pull. In the end, any theory of constitutional interpretation must be justified, not on the ground that it will preserve some kind of continuity with the distant past, but on the ground that it will produce a constitutional order that deserves general support.

Could AI predict the outcome of a coin flip? Could AI have predicted in (say) 2006 that Barack Hussein Obama would be elected president of the United States in 2008? Could AI have predicted in (say) 2014 that Donald Trump would be elected president of the United States in both 2016 and 2024? Could AI have predicted in (say) 2005 that Taylor Swift would become a worldwide sensation? The answer to all of these questions is "No." AI could not have predicted those things (and no human being could have predicted those things, either). There are some prediction problems on which AI will not do well; the reason lies not in randomness, but in an absence of adequate data. There are disparate challenges here, but all of them are closely connected to the knowledge problem, and in particular to the unfathomably large number of factors that account for some kinds of outcomes and the critical importance of social interactions. In important respects, the Socialist Calculation Debate and the AI Calculation Debate are the same thing.

The current method used by the United States Government to calculate benefits and costs substantially underestimates the monetary value of some regulations. The problem is that the method does not recognize the possibility that individual valuations, reflecting judgments in an isolated, uncoordinated situation, might be significantly lower than individual valuations in a situation of coordination. For example, people might be willing to pay $X to protect members of an endangered species in their individual capacity, but far more than $X for the same purpose, assuming that many others are paying as well; one reason may be that an individual expenditure seems futile. So too, people might be willing to pay $X for a good, supposing that other people have that good, but might be willing to pay $Y to abolish that good, supposing that no one will have that good. We sketch, identify, and explain this unmeasured value, which we define as coordination value, meant as an umbrella concept to cover several categories of cases in which individual valuation might be inadequate. Changing the methodology of benefit-cost analysis to include coordination value, where it is relevant, would present serious empirical challenges, but would eliminate the undervaluation.