Faculty Bibliography

Caste: The Origins of Our Discontents By Isabel Wilkerson Random House Late in her book Caste: The Origins of Our Discontents, Isabel Wilkerson recounts a conversation in 2018 with fellow journalist Taylor Branch on the state of race relations in America. The outcome of the 2020 presidential election offers an ambiguous answer. [...]the Trumpist Republican Party gained seats in the House of Representatives and seems likely to hold on to its majority in the Senate. [...]there exists a library of books exposing the centrality of racial slavery, the betrayal of Reconstruction, the depredations of Jim Crow segregation, the resistance to the civil rights movement, and the persistence of the race line. The offense she mines most deeply is slavery, noting that "[t]he vast majority of African-Americans who lived in this land in the first 246 years of what is now the United States lived under the terror of people who had absolute power over their bodies and their very breath, subject to people who faced no sanction for any atrocity they could conjure."

The Constitution specifies only one process for making international agreements. Article II states that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” The treaty process has long been on a path to obsolescence, however, with fewer and fewer treaties being made in each presidential administration. Nevertheless, the United States has not stopped making international agreements. Even as Article II treaties have come to a near halt, the United States has concluded hundreds of binding international agreements each year. These agreements, known as “executive agreements,” are made by the President without submitting them to the Senate, or to Congress, at all. Congress has responded to the rise of executive agreements by imposing a transparency regime — requiring that all the binding executive agreements be reported to Congress and that important agreements be published for the public to see. Until now, however, there has been no systematic assessment of how well the transparency regime has been working. This Article seeks to fill that gap. Through a Freedom of Information Act lawsuit, we obtained thousands of documents relating to the agreements reported to Congress and the legal authority on which the Executive Branch has relied for these agreements. Together with a series of interviews with lawyers directly involved in the process, this new information has given us an unprecedented look inside the system of concluding, publicizing, and reporting executive agreements. For the first time, we can describe how the system for making and scrutinizing executive agreements actually works — and when and how it fails to work. The overall picture that emerges is one of dysfunction and non-accountability. In brief: the Executive Branch does not come close to meeting its reporting duties; the entire process is opaque to everyone involved, including Executive Branch officials and congressional staffers; and Congress is failing in its oversight role. The “system” is badly in need of repair if we are going to preserve the integrity and legality of the United States’ primary means of making international law. This Article proposes a number of reforms, most of which should be normatively uncontroversial.

Corporate purpose is now the focus of a fundamental and heated debate, with rapidly growing support for the proposition that corporations should move from shareholder value maximization to “stakeholder governance” and “stakeholder capitalism.” This Article critically examines the increasingly influential “stakeholderism” view, according to which corporate leaders should give weight not only to the interests of shareholders but also to those of all other corporate constituencies (including employees, customers, suppliers, and the environment). We conduct a conceptual, economic, and empirical analysis of stakeholderism and its expected consequences. We conclude that this view should be rejected, including by those who care deeply about the welfare of stakeholders. Stakeholderism, we demonstrate, would not benefit stakeholders as its supporters claim. To examine the expected consequences of stakeholderism, we analyze the incentives of corporate leaders, empirically investigate whether they have in the past used their discretion to protect stakeholders, and examine whether recent commitments to adopt stakeholderism can be expected to bring about a meaningful change. Our analysis concludes that acceptance of stakeholderism should not be expected to make stakeholders better off. Furthermore, we show that embracing stakeholderism could well impose substantial costs on shareholders, stakeholders, and society at large. Stakeholderism would increase the insulation of corporate leaders from shareholders, reduce their accountability, and hurt economic performance. In addition, by raising illusory hopes that corporate leaders would on their own provide substantial protection to stakeholders, stakeholderism would impede or delay reforms that could bring meaningful protection to stakeholders. Stakeholderism would therefore be contrary to the interests of the stakeholders it purports to serve and should be opposed by those who take stakeholder interests seriously.

Federal courts are courts of limited jurisdiction—but only in part. A federal court’s subject-matter jurisdiction is limited by the Constitution; its territorial, personal jurisdiction is not. Current doctrine notwithstanding, a federal court’s writ may run as far as Congress, within its enumerated powers, would have it go. Today’s doctrine limits federal jurisdiction by borrowing Fourteenth Amendment principles thought to govern state courts. This borrowing blocks recoveries by injured plaintiffs, such as American victims of foreign terrorist attacks; and it’s become a font of confusion for procedure scholars, giving rise to incisive critiques of the Federal Rules. It’s also a mistake. The Fourteenth Amendment didn’t impose new limits on state personal jurisdiction; it enabled federal enforcement of limits that already applied. Current doctrine retroactively forces the Fifth Amendment into the mold of the modern Fourteenth, transforming an expansion of federal power into a strict constraint on federal authority. The federal courts’ territorial jurisdiction depends, in the first instance, on Congress’s powers. It may be that Congress can authorize fully global jurisdiction over any suit within Article III. If not, Congress may have ways to make better use of its jurisdictional powers at home. Either way, the existing mix of statutes and procedural rules seems fully valid. If the Constitution didn’t impose limits on Congress or on the federal courts, modern doctrine shouldn’t either.

America may be back, as Joe Biden says, but at the Supreme Court, with its extremely conservative new majority, America is increasingly unrecognizable.

“Private law” embraces the traditional common law subjects (property, contracts, and torts), as well as adjacent more statutory areas such as intellectual property and commercial law. It also includes important areas that have been neglected in the United States but are beginning to make a comeback. These include unjust enrichment, restitution, equity, and remedies more generally. “Private law” can also mean private law as a whole, which invites consideration of issues such as the public-private distinction, the similarities and differences between the various areas of private law, and the institutional framework supporting private law – including courts, arbitrators, and even custom. The New Private Law is an approach to these subjects that aims to reinvigorate the study of private law by moving beyond reductively instrumentalist policy evaluation and narrow, rule-by-rule, doctrine-by-doctrine analysis, so as to consider and capture how private law’s various features fit and work together, as well as the normative underpinnings of these larger structures. This movement has begun resuscitating the notion of private law itself in the United States and has brought an interdisciplinary perspective to the more traditional, doctrinal approach prevalent in Commonwealth countries. The Handbook embraces a broad range of perspectives to private law – including philosophical, economic, historical, psychological, to name a few – yet it offers a unifying theme of seriousness about the structure and content of private law. This Introduction introduces the New Private Law and briefly summarizes the chapters in the volume.

Although Japan has the third largest deposit of geothermal energy in the world, its total installed generation capacity remains paltry. In part, development has been stymied by contractual problems involving promissory credibility. By the common law of property, hot springs hotels in many areas can potentially shut down geothermal projects. Geothermal developers would make the projects worth the hotels’ while if they could, but cannot credibly assure them that they (the developers) will compensate them for any damages ex post. Conversely, by the basic logic of collective action, hot springs hotels cannot credibly promise to negotiate in good faith. Because each hot springs owner may potentially have a right to enjoin the entire geothermal project, the developer faces sequential negotiations, each of them a bilateral monopoly – and no one owner can credibly promise that all subsequent owners will negotiate in good faith. These problems are not necessarily insolvable. And the few geothermal plants that exist are disproportionately those where the hotels and developers created ways to solve these twin contractual problems. Some geothermal developers overcame their credibility problem by piping hot water to the hotels directly. Some hotels overcame their collective action problem by negotiating through their trade association or town government.

In this paper, we provide a new statistical and legal framework to understand the legality and fairness of predictive algorithms under the Equal Protection Clause. We begin by reviewing the main legal concerns regarding the use of protected characteristics such as race and the correlates of protected characteristics such as criminal history. The use of race and nonrace correlates in predictive algorithms generates direct and proxy effects of race, respectively, that can lead to racial disparities that many view as unwarranted and discriminatory. These effects have led to the mainstream legal consensus that the use of race and nonrace correlates in predictive algorithms is both problematic and potentially unconstitutional under the Equal Protection Clause. This mainstream position is also reflected in practice, with all commonly used predictive algorithms excluding race and many excluding nonrace correlates such as employment and education. Next, we challenge the mainstream legal position that the use of a protected characteristic always violates the Equal Protection Clause. We develop a statistical framework that formalizes exactly how the direct and proxy effects of race can lead to algorithmic predictions that disadvantage minorities relative to non-minorities. While an overly formalistic solution requires exclusion of race and all potential nonrace correlates, we show that this type of algorithm is unlikely to work in practice because nearly all algorithmic inputs are correlated with race. We then show that there are two simple statistical solutions that can eliminate the direct and proxy effects of race, and which are implementable even when all inputs are correlated with race. We argue that our proposed algorithms uphold the principles of the equal protection doctrine because they ensure that individuals are not treated differently on the basis of membership in a protected class, in stark contrast to commonly used algorithms that unfairly disadvantage minorities despite the exclusion of race. We conclude by empirically testing our proposed algorithms in the context of the New York City pretrial system. We show that nearly all commonly used algorithms violate certain principles underlying the Equal Protection Clause by including variables that are correlated with race, generating substantial proxy effects that unfairly disadvantage Black individuals relative to white individuals. Both of our proposed algorithms substantially reduce the number of Black defendants detained compared to commonly used algorithms by eliminating these proxy effects. These findings suggest a fundamental rethinking of the equal protection doctrine as it applies to predictive algorithms and the folly of relying on commonly used algorithms.

This Foreword examines the recent degradation of American democracy, seeks explanations for it, and canvasses the Supreme Court’s contribution to it. Section IA examines the “autocrats’ playbook” to establish a baseline against which to evaluate recent American developments. Part IB considers President Trump’s authoritarian bent. Part IC describes the measures that Republicans have enacted in states to entrench themselves in power, including partisan gerrymandering, voter identification laws, purges of the voter rolls, measures to suppress the youth vote, circumvention of inconvenient voter initiatives, and even the delay and cancellation of elections. Part ID considers Republicans’ complicity with Trump, which has escalated over the course of his presidency, to the point that they mostly will not criticize him for obstructing the investigation into Russian interference with the 2016 presidential election, pressuring the president of Ukraine to dig up dirt on Joe Biden, politicizing law enforcement and intelligence, or catastrophically mishandling the federal government’s response to the coronavirus pandemic. Part II offers explanations for the nation’s current political predicament. Groups that fear becoming perpetual political losers may abandon their commitment to democracy, just as white southerners did in the antebellum period. Part IIA, “The Disappearing White Majority,” examines the role of demographic change, immigration, and increasing racial resentment in growing disaffection with democracy. Part IIB, “The Disappearing Christian Majority,” describes how the gradual collapse of the idea of the American “Christian nation” has contributed to such disaffection. Part IIC, “The Rise of the Neo-Ayn Randians,” considers how radical libertarians, never enthusiastic about democracy because of the threat it posed to property rights, gradually gained ideological and political influence since the 1960s and came to dominate the Republican Party. Part IID, “Economic Inequality,” explores how working-class Americans, whose economic position stopped improving about forty years ago, have become disaffected with a democratic political system that no longer works for them. Part IIE explains how these other developments, refracted through American political and media ecosystems, have produced a politics of asymmetric polarization, hardball, and negative partisanship, which created a Republican Party no longer strongly committed to democracy and prepared to defend at all costs a president with a strong authoritarian bent. Part III examines the Supreme Court’s contributions to the degradation of American democracy. The Court’s conservatives abrogated the preclearance provision of the Voting Rights Act, enabling Republican governments in the South to enact voting restrictions enabling the party to maintain political power in rapidly diversifying states such as Florida, Georgia, North Carolina, and Texas. The Court’s Republican Justices have also upheld stringent voter-identification laws and purges of the voter rolls, both of which purport to address the largely non-existent problem of voter fraud, while disfranchising Democratic-leaning constituencies, such as persons of color, the poor, and the young. Most recently, the conservative Justices have declined to intervene against partisan gerrymandering, which has mostly benefitted Republicans in recent years. The Court’s campaign finance decisions, dating back to 1976 but becoming increasingly extreme over the last decade, have created a political system dominated by money, which advantages Republicans who disproportionately benefit from the political spending of the most affluent Americans. In Bush v. Gore (2000), the Court helped to elect a Republican president, who appointed two conservative Justices, without whose participation none of the recent rulings undermining democracy would have been possible. In 2019, the conservative Justices fell one vote short of enabling Republicans to entrench themselves in power for another decade by ensuring that persons of color would be undercounted in the 2020 census. Only a last-minute change of heart by the Chief Justice stymied that effort. The conservative justices have also abjured the Court’s traditional role in protecting vulnerable racial and religious minorities from discrimination by validating the Trump administration’s thinly veiled ban on Muslim travel to the United States. Part III concludes by discussing how constitutional interpretation works in general and why the Republican majority’s rulings on issues of democratic governance nearly always benefit the Republican Party. Part IV briefly considers how to bolster American democracy. The best way to stem the degradation of democracy is to entrench democracy. Yet, this is an uphill battle, both because political actors who benefit from the status quo are incentivized to resist changes to it and because various structural features of the American political system advantage Republicans. To entrench democracy, Democrats would need to overcome simultaneously the disadvantages of partisan gerrymandering and geographic clustering in state legislatures and the House of Representatives, extreme malapportionment in the Senate, the vagaries and malapportionment of the electoral college, and the flood of unregulated political spending that the Court has unleashed. Even then, Republican Justices might invalidate democracy-entrenching measures. Moreover, some such measures, such as campaign-finance reform, may require a constitutional amendment, given the conservative Justices’ strained interpretations of the First Amendment. The Court has a Republican majority today only because Senate Majority Leader Mitch McConnell stole a Supreme Court seat from Democrats in 2016, when he refused to permit President Obama to fill the vacancy left by the death of Justice Antonin Scalia. The entrenchment of democracy will probably require Democrats to undo that theft. A brief Conclusion examines competing reasons to be pessimistic and optimistic regarding prospects for stemming the degradation of American democracy, and reflects on the deeply contingent nature of this story’s outcome.

The Oxford Handbook of the New Private Law reflects exciting developments in scholarship dedicated to reinvigorating the study of the broad field of private law. This field embraces the traditional common law subjects (property, contracts, and torts), as well as adjacent, more statutory areas, such as intellectual property and commercial law. It also includes important areas that have been neglected in the United States but are beginning to make a comeback. These include unjust enrichment, restitution, equity, and remedies more generally. "Private law" can also mean private law as a whole, which invites consideration of issues such as the public-private distinction, the similarities and differences between the various areas of private law, and the institutional framework supporting private law - including courts, arbitrators, and even custom. The New Private Law is an approach to these subjects that aims to bring a new outlook to the study of private law by moving beyond reductively instrumentalist policy evaluation and narrow, rule-by-rule, doctrine-by-doctrine analysis, so as to consider and capture how private law's various features fit and work together, as well as the normative underpinnings of these larger structures. This movement has begun resuscitating the notion of private law itself in the United States and has brought an interdisciplinary perspective to the more traditional, doctrinal approach prevalent in Commonwealth countries. The Handbook embraces a broad range of perspectives to private law - including philosophical, economic, historical, and psychological, to name a few - yet it offers a unifying theme of seriousness about the structure and content of private law. It will be an essential resource for legal scholars interested in the future of this important field.

The prudent investor rule, now enacted in every state, is the centerpiece of trust investment law. In accordance with modern portfolio theory, the rule directs a trustee to implement an overall investment strategy having risk and return objectives reasonably suited to the trust. This article, recently published in Trusts & Estates magazine, summarizes the results of an earlier empirical study of the effect of the rule on asset allocation and management of market risk by bank trustees. We had two main findings. First, enactment of the rule was associated with increased stockholdings by bank trustees, but not among banks with average trust account sizes below the 25th percentile, a result that is consistent with sensitivity in asset allocation to trust risk tolerance. Second, enactment of the rule was associated with increased portfolio rebalancing by bank trustees, a result that is consistent with increased management of market risk. Given these findings, we concluded that reallocation toward additional stockholdings after enactment of the rule was correlated with trust risk tolerance and that the increased market risk exposure from those additional stockholdings was more actively managed.

"This volume of NOMOS--the 63rd in the series--emerged from papers and commentaries given at the annual meeting of the American Society for Political and Legal Philosophy (ASPLP). This meeting marked the first in the Society's modern history not linked to an annual conference of one of the three contributing disciplines--philosophy, political science, and law--and took place at the new institutional home for ASPLP, Boston University School of Law, on September 28, 2018. Our topic, "Democratic Failure," was selected by the Society's membership"--p. ix.

Public opinion is shaped in significant part by online content, spread via social media and curated algorithmically. The current online ecosystem has been designed predominantly to capture user attention rather than to promote deliberate cognition and autonomous choice; information overload, finely tuned personalization and distorted social cues, in turn, pave the way for manipulation and the spread of false information. How can transparency and autonomy be promoted instead, thus fostering the positive potential of the web? Effective web governance informed by behavioural research is critically needed to empower individuals online. We identify technologically available yet largely untapped cues that can be harnessed to indicate the epistemic quality of online content, the factors underlying algorithmic decisions and the degree of consensus in online debates. We then map out two classes of behavioural interventions—nudging and boosting— that enlist these cues to redesign online environments for informed and autonomous choice.

Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., the foundation for much of contemporary administrative law, is under siege. Several members of the Supreme Court have suggested that they would like to overrule it. Under standard principles of stare decisis, doing that would be a serious mistake. Even if Chevron was wrongly decided, overruling it would create an upheaval—a large shock to the legal system, producing a great deal of confusion, more conflicts in the courts of appeals, and far greater politicization of administrative law. For example: What would happen to the countless regulations that have been upheld under the Chevron framework? Would they be newly vulnerable? More fundamentally,, a predictable effect of overruling Chevron would be to ensure a far greater role for judicial policy preferences in statutory interpretation and far more common splits along ideological lines. There is also the question of reliance interests: For decades, Congress has legislated against the background set by Chevron, and the resulting statutes reflect an understanding that the Court’s framework will apply. Though the argument for overruling Chevron is unconvincing, its critics have legitimate concerns. Those concerns should be addressed by (1) insisting on a fully independent judicial role in deciding whether a statute is ambiguous at Step One; (2) invalidating arbitrary or unreasonable agency interpretations at Step Two; and (3) deploying canons of construction, including those that are designed to serve nondelegation functions and thus to cabin executive authority.

Public officials often impose eligibility requirements that have two effects: (1) they screen out ineligible people and (2) they screen out eligible people. Consisting of paperwork of administrative burdens, such requirements are sometimes characterized as “sludge,” and for some eligible people, they might prove overwhelming or prohibitive. In these circumstances, there is a pervasive normative issue: what is the optimal tradeoff between (1) and (2)? It is plausible to think that a great deal depends on numbers. If, for example, the number of ineligible people who are screened out is very large, and if the number of eligible people who are screened out is very small, then there would seem little ground for objection. But if the number of eligible people who are screened out is very large, there is a serious problem, and it might be worthwhile to consider an approach that would not screen out eligible people, even if it would simultaneously fail to screen out, or effectively “screen in,” a small number of ineligible people. We identify competing, plausible positions on the normative question, which we label consequentialist and legalist. We also offer the results of a pilot study, which shows that the overwhelming majority of respondents would favor changes that allow ineligible people to receive benefits, if that is the price of ensuring that eligible people do so as well – unless the number of ineligible recipients is very high. The survey results suggest that most people reject the legalist position and embrace a form of consequentialism.

Say you’re wealthy and want to influence American politics. How would you do it? Conventional campaign finance — giving or spending money to sway elections — is one option. Lobbying is another. This Article identifies and explores a third possibility: quasi campaign finance, or spending money on non-electoral communications with voters that nevertheless rely on an electoral mechanism to be effective. Little is currently known about quasi campaign finance because no law requires its disclosure. But its use by America’s richest and politically savviest individuals — the Koch brothers, Michael Bloomberg, and the like — appears to be rising. It also seems to skew policy outcomes in the spenders’ preferred direction. After introducing quasi campaign finance, the Article considers its legal status. Is it like ordinary campaign finance, in which case it could be regulated fairly extensively? Or is it like garden-variety political speech, rendering it presumptively unregulable? One argument for pairing quasi and regular campaign finance is that they share several features — who bankrolls them, the tactics they pay for, the reasons they work — and so may serve as substitutes. Another rationale for conflation is that they may both cause the same democratic injuries: corruption, the distortion of public opinion, and the misalignment of public policy. Pitted against these points is the slippery-slope objection: If quasi campaign finance may constitutionally be curbed, what political speech may not be? Lastly, the Article suggests how quasi campaign finance should (assuming it actually may) be regulated. Limits on contributions and expenditures are unwise and probably unadministrable. Disclosure, though, is a necessity. The public should know who is trying to persuade it (and how). Even more promising is the public subsidization of quasi campaign finance. If every voter received a voucher for this purpose, then public funds might crowd out private capital, thus alleviating its harmful effects.

As it approaches its 100th birthday in just a few more years, the Tax Court is undergoing one of its most significant changes since its creation, in large part due to the pandemic’s impact. Born as a national court, the Tax Court long met its mission of nationwide coverage by having judges travel to all corners of the United States. The press release and the videos provide the roadmap for practitioners (and for the 70% of Tax Court petitioners who are pro se) seeking to prepare for an encounter with the new Tax Court.

In this chapter, prepared for The Oxford Handbook of New Private Law, we identify the principal ways in which the common law trust has been used as an instrument of private ordering in American practice. We argue that in both law and function, contemporary American trust law has divided into distinct branches. In our taxonomy, one branch involves donative trusts and the other commercial trusts. The donative branch divides further to include separate sub-branches for revocable and irrevocable donative trusts. We explain the logic of this branching in both practical function and doctrinal form.

A pending rule confuses legal and moral authority.

By the middle of March, the Democratic primary had effectively ended and the enormity of the Covid-19 pandemic and its human and economic cost began to sink in. The response to the pandemic had already been thoroughly politicized several weeks earlier such that news and information about the pandemic were mediated by political media systems. While the rest of the American media ecosystem focused on describing the pandemic, its economic costs, and criticizing the president for his response, conservative media presented a thoroughly partisan view of events and proactively defended and supported the actions and inactions of the president. For audiences of conservative media, information about the pandemic was communicated not through politically neutral public health authorities but was instead filtered and propagated through media channels shaped by many decades of partisan politics. The mainstream media coverage of the pandemic that got the most attention was highly critical of the president’s response, which may have deepened the politically-rooted differences in perspectives on the pandemic. Compared to conservative media, there was far greater deference among media sources on the center and left to views and perspectives of public health authorities and experts. This report, based on an ecosystem-wide analysis of political media coverage, spans the period of March, April, and May, when the spread and magnitude of the pandemic in the United States became clear, and the response of the government was communicated to the public and debated in the media. In March, coverage of the pandemic dominated political media on both sides of the political spectrum, though significantly less so on the right. The proportion of media attention to the pandemic diminished in April and May on the left. On the right, attention to the pandemic dropped off steeply. In April, conservative media and their audiences devoted substantial attention to coverage of the allegations of sexual harassment by Tara Reade against Joe Biden. In May, there was far more attention in conservative media to relitigating the origins of the Russia investigation under the banner of Obamagate than to the pandemic, which had already exacted a terrible cost and was nowhere near being under control. The collective judgment of the conservative media ecosystem was that this largely unsubstantiated storyline rooted in grievance politics was more deserving of the attention of the American public. For Biden supporters, the drop in attention to Covid-19 was picked up by negative coverage of the Trump administration on other issues. Sanders supporters followed a similar path until the death of George Floyd at the end May took up their attention. This was not replicated in the Biden set. Consistent with our findings in January-February, at the peak of the primaries season, Sanders supporters here too appear more focused on progressive issues, while Biden supporters are largely focused on criticism or rejection of Trump. The basic asymmetric and polarized structure of American political media has changed little over the past several years, and this time period is no exception. The potent role of conservative media in the election victory of Trump in 2016 rested on two distinct factors: first, Trump’s success in securing favorable coverage and strong support in conservative media, and second, the success that conservative media had in influencing media coverage outside of conservative media. The willingness of conservative media and audiences to defend and support Trump is clearly evident during these months. Trump continued to receive strong support in conservative media, which acted to divert, deflect, and reframe negative coverage, despite the rash of negative coverage criticizing the administration’s response to the pandemic. The evidence also points to a further isolation of conservative media in American political discourse and a system less able to shape discourse and coverage outside of its own confines, leaving Americans in more starkly divided epistemic worlds. The administration-friendly narratives about the pandemic and Obamagate got little to no traction outside of conservative media. This finding matches what we found in a prior report in which we describe the inability of conservative media to shape coverage of the Hunter Biden scandal outside of right-wing media during January and February 2020, a pattern that is repeated in October 2020. Neither President Trump nor conservative media have lost their ability to influence the media agenda. For example, in a recent report we describe how Trump was able to create a controversy about mail-in voter fraud that prompted media coverage across the political spectrum. The sexual harassment allegations lodged by Tara Reade against Joe Biden ultimately got a public airing—something conservative media pushed hard on. Despite the fact that the impetus to address this topic came also from the left, the media attention garnered in conservative media was not matched in the center and left. The key difference is that while President Trump and conservative media can still make news, their power to interpret and frame the narrative around key events beyond conservative media is more constrained than in 2016. The asymmetric credibility gap between conservative media and the rest of the media ecosystem appears to have deepened. And professional media seem to succumb less readily to the “bias of balance” problem that had bedeviled much of mainstream coverage of Hillary Clinton’s campaign in 2016. There is plentiful evidence of disinformation in political discourse among partisan media and on social media. The problem is far more acute on the right than the left and considerable attention on the far right is tied to the growing QAnon conspiracy. This development is a troubling symptom of the state of political discourse in the United States and translates into real-world costs. However, the impact of top-down propaganda and disinformation is still a greater problem in the United States, particularly so in relation to Covid-19, as tens of millions of Americans have taken unnecessary risks and helped spread the pandemic because they were misinformed about the dangers of contracting the disease and the value of measures deemed effective by public health authorities in reducing the chance of infection, such as social distancing or mask wearing. Many people, including public health specialists and the general public, have come to the conclusion that compared to the relative successes of other countries in addressing the Covid-19 pandemic, the United States response has been a failure, costing innumerable lives and leaving tens of thousands with long-term health problems, while deepening and extending the economic and social consequences of the pandemic. A large minority of Americans fundamentally disagree with this assessment. These divergent worldviews, the symptom of a larger epistemic crisis in the United States tied to asymmetrically polarized media systems, greatly complicate efforts to effectively meet such collection action challenges, and undermine democratic governance. In this paper, we describe how American media ecosystems are able to sustain such different worldviews and contribute to the mishandling and miscommunication of the pandemic. This report is the second in a series of reports that cover the months running up to the November election.

Accounts of private law in general and property in particular have downplayed traditional notions of system in favor of a sum-of-the-parts reductionism. Recent developments in complex systems theory allows a reassessment of this picture. A system is a collection of elements and the connections between and among them; complex systems are ones in which the properties of the system as a whole are difficult to infer from the properties of the parts. Private law is a complex system. Taking the bundle of rights in property law as a starting point, the chapter shows that conventional analysis is overly reductive in that it assumes that the attributes of the whole bundle are the additive sum of the attributes of the “sticks” in the bundle taken individually. Theoretically and empirically, this aggregative approach is not as accurate as one based on “organized complexity,” points in the direction of the New Private Law: systems theory leads to a better and more unified account of the bundle of rights, standardization in property, possession, title, and equity. Systems theory also promises to mitigate some of the dichotomies in private law, such as holism versus reductionism, homogeneity versus specialization, formalism versus contextualism, and public versus private law.

In the United States and elsewhere, the Law and Economics movement has fundamentally reshaped how judges, lawyers, and law students understand tort law. And yet economic interpretations of tort law – as opposed to prescriptive analyses of tort problems that deploy economic methodologies – face insuperable difficulties. Why, then, do the endure? The answer is that some of the leading economic accounts actually manage to identify, albeit in a distorted way, many of tort law’s core features. In keeping with the emphasis of the New Private Law on analysis that is down-to-earth without being reductionist, this Chapter explains why these same features can be captured without distortion though an understanding of tort as a law of wrongs and redress.

Many proponents of traditional knowledge (TK) seek legal protection comparable to the bundle of exclusive rights afforded creators of knowledge goods in the conventional intellectual property (IP) system. This chapter argues that the nature of the harm caused by such misuse differs meaningfully from the interests with which standard intellectual property law is occupied. It maps how private law claims have been applied, notably in Australia, to address TK misuse and highlights formal adherence by courts to the boundaries of private law subjects. Important aspects of the problem, such as how TK misuse disables cultural mechanisms designed to foster the production of knowledge goods for sustainable growth in Indigenous communities, while also posing a risk to cross-border scientific research important for pressing public health and environmental challenges, however remain beyond private law’s reach.The chapter identifies three types of harm that flow from the misuse of TK: relational harm, communal harm, and developmental harm. For such harms, individual private property—and common property for that matter—offers limited recourse. The chapter reflects on other private law tools that could extend to TK and that offer protection well beyond IP rights, but all are without the classic welfare limits attendant to knowledge goods under the IP system. The misalignment of harms, claims and remedies point to sui generis regimes as a more meaningful prospect for regulating TK.

Failure to address food shortages provoked the French and Russian revolutions and a host of other revolts.

Beginning with Justice Ginsburg’s 2011 opinion in the Goodyear case – and echoed in Justice Thomas’s 2014 opinion in Walden v. Fiore and Justice Alito’s 2017 opinion in Bristol-Myers Squibb v. Superior Court – the Supreme Court has suggested that the distinctiveness of specific personal jurisdiction (in contrast to general jurisdiction) resides in its being “case-linked.” However, to date, the Justices have not spelled out what it takes for a defendant’s contacts with a forum to be case-linked, although they now have an opportunity to do so in a pair of personal injury cases brought against Ford Motor Company. This essay aims to provide the missing account of case-linkage, explaining along the way how it applies to the Court’s pending cases. Our method is constructive and interpretive: we take as our starting point the Court’s precedents and its reasoning about two pillars of personal jurisdiction: state sovereignty and defendant’s due process rights. After Part I’s introduction, Part II re-examines the Court’s personal jurisdiction decisions from International Shoe to the present with the goal of understanding the concept of case-linkage as it has played out in the cases. Part III describes the Ford litigations presently before the Court, explaining why they invite consideration of an aspect of specific jurisdiction that the Court has yet to address adequately. We put forward our theory of case-linked jurisdiction in Part IV. Case-linkage, we argue, can only be understood within a framework that isolates the key concepts that matter for due process. Two are crucial: (1) a concept of the scope of the defendant’s submission to state authority, and (2) a concept of the scope of the forum state’s legitimate interests. We explain the latter in terms of the principle that a state’s courts ought not meddle in affairs beyond the state’s legitimate reach (labeled “the Anti-Busybody Principle”). By explaining case-linkage both in terms of the scope of a defendant’s submission to state power and of a state’s legitimate interests, we offer a way to bring together the process and sovereignty concerns that underlie the law of personal jurisdiction. With our own affirmative account in place, Part V shows why the “causation” approach to case-linkage advocated Ford and by some lower courts are indefensible, even if the more expansive “relatedness” tests of other courts are also not up to the task at hand. We also show that the intuitively right answer to the Ford cases—that a state court has jurisdiction to hear tort claims brought by state residents injured in-state by the defendant’s product (when the defendant has extensively sold the product-line in that state)—not only meshes with all relevant Supreme Court precedents, but also points to the best path forward for understanding, defining, and demarcating case-linked jurisdiction.

The decisions voters will make at the ballot box on November 3, 2020 will be influenced in no small part by the media coverage of the candidates and issues, including the reporting by journalists, the media personalities and pundits on radio and television, text messages and campaign phone calls, podcasts, political ads, and for many, the incessant flow of social media posts of friends and family. In this report, the first of a series of reports that cover the months running up to the November election, we track political discourse in the United States for January and February of 2020, the period of time just before (Covid-19) began to dominate political discourse. We also describe the longer-term structure of political media ecosystems in the United States that shape public discourse by curating, amplifying, and propagating political stories and narratives to distinct political audiences. The agenda of political media in January and February 2020 centered on the impeachment of the president, the Democratic primaries, and the killing of Qasem Soleimani. This agenda was picked up throughout the media ecosystem, but there were stark differences across the media camps in the framing and narrative contours applied to these topics, presenting radically different depictions of the underlying evidence, facts, and interpretation of events. These differences between media spheres that often extend beyond spin and emphasis reflect and reinforce the depth and strength of the divide in American politics. Mainstream media described in great detail the rationale for impeaching the president, while in right-wing media the ‘call was perfect’ and the impetus for impeachment was a concocted charade, a witch hunt, to illegitimately overturn the 2016 election. Mainstream media described a rash decision by President Trump to order a missile strike on General Soleimani that was then sold to the American public on the false pretenses of a clear and imminent threat of attack against United States embassies. Conservative media hailed the killing as a decisive strike against adversaries that has unquestionably increased American security and standing in the world. While mainstream media coverage devoted similar levels of attention to the Democratic primaries and the impeachment of the president in January, and a majority of their attention to the primary race in February, politically engaged users on social media were more focused on partisan one-upmanship. For Democrats, attention was directed at the impeachment and the missteps of Trump and his administration, and in February, the intervention of Attorney General Barr and the Department of Justice in the sentencing of Roger Stone. Republicans, in turn, focused their attention on time-honored political foes: Nancy Pelosi and the Democratic leadership, Hillary Clinton, and the hostile and biased mainstream media. The patterns of attention on both sides are consistent with a view that negative partisanship plays a dominant role in American politics. Trump supporters on Facebook provided an exception to the pattern of negative coverage where celebratory videos of appearances and events of Trump were popular. Negative polarization spilled over into the Democratic primary race, which came down to a battle between progressives pursuing a platform of aggressive action on healthcare, climate change, and social and economic justice versus those that put regaining the White House above all else and saw a moderate candidate as a better bet. The media coverage promoted by Sanders supporters placed major focus on the candidate and his policy positions. In contrast, Biden supporters were oriented towards negative coverage of Trump. The outcome of the Democratic race is in keeping with the tenet that negative partisanship dominates American politics. Conservatives in America appear to have survived the barrage of negative coverage from mainstream media with their partisan perspectives and belief systems intact. This is not because conservative media erected an impermeable barrier against negative coverage from the center and left. Politically engaged conservatives were informed of the damaging coverage, but were unfailingly offered a reinterpretation and reframing of events and a plausible alternative narrative designed to preempt any second thoughts about allegiance to party and president. In deflecting and reframing negative coverage, the tactics employed by conservative media follow a well-developed pattern: downplay the validity of the story; deflect attention to the other side; attack the integrity and motives of sources; reinforce distrust in media outside of the right wing; and invoke a strong partisan framing to activate political identity. The formidable narrative crafting power of conservative media is employed not as a mechanism for accountability among its participants and leaders and not to police against disinformation and substandard reporting. Instead, it is wielded as a buffer against external influence and against deviance from the party line. This leaves the system vulnerable to misleading and false reporting and to those propagating conspiracies, such as the Gateway Pundit and True Pundit. Hyperpartisan media sources, which thrive on outrage and frequently misinform their audiences, play a prominent role in conservative media. On the left, partisan and hyperpartisan outlets play a much smaller role and less frequently propagate stories unconfirmed by mainstream media. The biggest change we observe in these first two months of 2020 compared to the election cycle of four years ago is the degree to which conservative media activists have shaped mainstream media coverage. In 2016, right-wing media activists succeeded in influencing mainstream coverage of Hillary Clinton, particularly on the unsubstantiated allegations of wrongdoing associated with the Clinton Foundation, which exacerbated and fed upon coverage of her emails and fueled suspicions of corruption and dishonesty. In the current election cycle, conservative media activists rolled out the same playbook that was so successful in 2016. This time, the corruption allegations were focused on Joe Biden, his son Hunter, and their dealings with Ukraine and China. This story was picked up by mainstream media in 2019, but the core allegation—that Joe Biden pressured Ukraine to remove a prosecutor in order to protect his son—fell apart under scrutiny. By January 2020, while conservative media continued to push out exaggerated and false claims, the dominant mainstream framing of this story had shifted to Donald Trump’s abuse of his presidential power for his own political gain, which overshadowed the well-established and misguided actions of Hunter Biden to cash in on his father’s name. The discredited allegations of corrupt dealings by Joe Biden were getting no play in mainstream media. While conservative media continues to exhibit a remarkable capacity for reframing news coverage to align with the beliefs and perceptions of its core audiences, in January and February of 2020, its power to shape mainstream media coverage was diminished compared to 2016. This is the most notable change we observe and has the potential to alter the electoral calculus in the November election.