Faculty Bibliography

Perhaps the wave of authoritarian populism has begun to recede. Rebuilding liberal constitutionalism in its aftermath now requires some attention, as Andrew Arato and András Sajó suggest. (This intervention addresses some but not all of the questions they raise.)

The Commission on the Supreme Court’s findings may end up helping to set reform in motion, rather than stopping it in its tracks.

The self-governing republic works only if it expresses the will of the majority. But one party is now committed to minoritarian rule by any means.

Power to the People proposes that some forms of populism are inconsistent with constitutionalism, while others aren’t. By providing a series of case studies, some organized by nation, others by topic, the book identifies these populist inconsistencies with constitutionalism-and, importantly, when and how they are not. Opening a dialogue for the possibility of a deeper, populist democracy, the book examines recent challenges to the idea that democracy is a good form of government by exploring possibilities for new institutions that can determine and implement a majority’s views without always threatening constitutionalism.

The work to address misconduct abroad begins at home.

Dobbs v. Jackson Women’s Health Organization is an open challenge to the Court’s authority, and perhaps broadly reflects a spirit of legal self-help that is running through the land.

States spend tens of billions of dollars each year to help implement humanitarian programs in conflicts across the world. Yet, in practice, counterterrorism objectives increasingly prevail over humanitarian concerns, often resulting in devastating effects for civilian populations in need of aid and protection in war. Not least, confusion and misapprehensions about the power and authority of States relative to the United Nations Security Council to set policy preferences and configure legal obligations contribute significantly to this trajectory. In a new guide for States published by the Harvard Law School Program on International Law and Armed Conflict (HLS PILAC), Dustin A. Lewis, Radhika Kapoor, and Naz K. Modirzadeh argue that it is possible — and, they believe, urgently called for — to arrest this trajectory and safeguard principled humanitarian action. In their view, short-term and ad-hoc solutions are less likely to uphold the humanitarian imperative. Instead, the authors present a framework for States to reconfigure the relations between these core commitments by deciding to assess the counterterrorism architecture through the lens of impartial humanitarianism. The authors also identify key questions that States may answer to help formulate and instantiate their values, policy commitments, and legal positions in order to advance the humanitarian imperative and uphold respect for principled humanitarian action in connection with carrying out the Security Council’s counterterrorism decisions.

Legal scholarship has not previously considered the role of advocacy history in Supreme Court advocacy and decision making in any of its iterations. Though well know to expert Supreme Court advocates, hiding in the shadows has been how both Supreme Court advocates and the Justices themselves rely on the advocacy underlying the Court's precedent — both the written briefs and oral argument — in discerning both the meaning of the Court's prior rulings and its precedential weight. The most recently completed Supreme Court Term is emblematic of the relevance to both Supreme Court advocates and the Justices themselves of the advocacy underlying the Court’s prior rulings. It also highlights the role that advocacy history is increasingly playing in the Court's controversial debates concerning whether a prior case should be overruled. This Article seeks to fill that void in existing legal scholarship by bringing out of the shadows the role advocacy history plays at the Court.

The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here legislatures or courts specify whether their enactments or decisions will receive strong- or weak-form treatment. I examine examples of legislative allocations of issues to strong- and weak-form review and identify some practical and conceptual problems with such allocations. Then I examine judicial allocations — of the courts’ own decisions — to Strong- or weak-form categories. Here I consider Thayerian judicial review and what Professor Dan Coenen has called semisubstantive doctrines as examples of judicial choices to give their decisions weak-form effects. My conclusion is that these allocation strategies reproduce within strong- and weakform systems the issues that arise on the level of constitutional design. Weak-form systems and allocation may seem to alleviate some difficultiesassociated with strong-form systems in constitutional democracies. My analysis suggests that those difficulties may persist even when alternatives to strong-form judicial review are adopted.

This symposium explores the role of “fourth branch” institutions, and specifically the role of independent electoral commissions (IECs) in protecting and promoting constitutional democracy. It does so by focusing on the global South, and Asia in particular. It aims to go beyond the “usual suspects” in comparative constitutional law, and put the constitutional experiences of countries such as Indonesia, Kenya, Myanmar, Malaysia, and Sri Lanka at the centre of a decolonized constitutional project and understanding, supplementing them with an examination of more-often-studied systems such as Australia and India.

In response to questions that have been raised since the publication of my article.

Foreign direct investment (FDI) flows are at a low point as a result of not only the COVID-19 pandemic but also restrictive FDI policies adopted in recent years. Investment facilitation has gained in importance as a set of practical measures to increase the transparency and predictability of investment frameworks and promote cooperation to advance development. Investment facilitation can help to reduce the transactional and administrative costs faced by foreign investors and contribute to a resilient and sustainable economic recovery. Discussions on a distinct set of investment facilitation policies and measures have gained momentum in recent years. Negotiations are undertaken at the bilateral and regional levels, for example, in the context of the Regional Comprehensive Economic Partnership (RCEP) or the Sustainable Investment Protocol of the African Continental Free Trade Agreement (AfCFTA). Another important initiative is underway among members of the World Trade Organization (WTO) which are negotiating an Investment Facilitation Framework for Development. This article develops a set of key recommendations for policy-makers on how investment facilitation frameworks can be designed to help attract sustainable FDI for sustainable development and recovery in general. These recommendations can be summarized in three guiding principles: contribute directly to sustainable development, focus on conflict prevention and management, and learn from experiences from other processes such as trade facilitation.

Economic analysis of competition regulation is most developed in the domain of horizontal mergers, and modern agency guidelines reflect a substantial consensus on the appropriate template for merger assessment. Nevertheless, official protocols are understood to rest on a problematic market definition exercise, to use HHIs and HHIs in ways that conflict with standard models, and more broadly to diverge with how economic analysis of proposed mergers should be and often is conducted. These gaps, unfortunately, are more consequential than is generally appreciated. Moreover, additional unrecognized errors and omissions are at least as important: analysis of efficiencies, which are thought to justify a permissive approach, fails to draw on the most relevant fields of economics; entry is often a misanalyzed afterthought; official information collection and decision protocols violate basic tenets of decision analysis; and single-sector, partial equilibrium analysis is employed despite the presence of substantial distortions (many due to imperfect competition) in many sectors of the economy. This article elaborates these deficiencies, offers preliminary analysis of how they can best be addressed, and identifies priorities for further research.

In evaluating behaviorally informed interventions, policymakers should consider both their welfare effects (including, for example, their potentially negative effects on subjective well-being) and their effects on distributive justice (including, for example, their potentially negative effects on those at the bottom of the economic ladder). Four specific questions are relevant: (1) What are the aggregate effects on social welfare? For purposes of evaluation, it is tempting to focus on increases in participation rates or on cost-effectiveness. The welfare question is much more important, though it raises serious normative, conceptual, and empirical challenges. (2) Who is likely to be helped and who is likely to be hurt? This is a plea for a distributional analysis of the effects of behaviorally informed interventions. (3) What are the expected effects on the least well-off? It is important to ask whether the relevant interventions help or hurt those who have the least, defined in terms of welfare, a point that is connected with “prioritarianism.” (4) Do the benefits to those who are helped exceed the costs to those who are hurt? If the gainers gain more than the losers lose, we have a strong point in favor of the intervention. But the point might not be decisive if, for example, the gainers are well-off to begin with, and the losers are not. The four questions are meant as an objection to efforts to evaluate behaviorally informed interventions in terms of (for example) effects on participation rates; as a plea for analysis of the distributive effects of such interventions; and as a plea for specification and investigation of their welfare effects.

In her Jorde Lecture, Pam Karlan paints a grim picture of American democracy under siege. Together, the malapportioned Senate, the obsolete Electoral College, rampant voter suppression and gerrymandering, and a Supreme Court happy to greenlight these practices, threaten the very notion of majority rule. I share Karlan’s bleak assessment. I’m also skeptical that conventional tools—judicial decisions and congressional statutes—will solve our current problems. So in this response, I explore a pair of less familiar but possibly more potent alternatives: the authority of each chamber of Congress to judge its members’ elections, and presidential enforcement of the Guarantee Clause. These powers are explicitly delineated by the Constitution. They can’t be stymied by either the Senate’s filibuster or the Court’s hostility. And they hold enormous democratic potential, especially if channeled through the procedures I outline.

Individuals living with disabilities are underrepresented in the physician workforce, despite benefits of inclusion. This article describes how both ableism in admissions processes and expectations set by technical standards can perpetuate harm. The authors advocate for active attention to disability diversity and equity in medical school admissions.

Following several years of study, the Oxford International Tax Group recently proposed a fundamental reform: the traditional corporate income tax would be replaced by taxation of a corporation’s domestic cash flows. One, perhaps surprising, argument for this proposal is that its incidence would fall primarily on a country’s residents who own shares in domestic and foreign companies. For example, equilibrating changes in floating exchange rates would transform a U.S. tax on U.S. sales by U.S. and foreign corporations into a tax on U.S. shareholders of U.S. and foreign corporations, wherever their sales occurred. The Oxford Group indicates that resulting tax burden is very likely to be progressive. If, however, a progressive tax borne by individual owners of corporate stock is desirable, why not tax shareholders directly? The purpose of this comment is to illustrate the equivalence of the two taxes with a simple numerical example and to stimulate their comparison.

The stock market generates less wealth than it appears. We show that total shareholder return (TSR), the standard measure of stock investor performance, substantially exaggerates returns earned by these investors in aggregate, and thus by most investors. The main reason: from investors’ collective perspective, dividends cannot be reinvested in public equity, as TSR assumes, but only in other lower-yielding assets. In addition, TSR is inflated by well-timed repurchases and equity issuances that merely transfer value among investors. We put forward another measure–"all-shareholder return" (ASR)–which better captures the wealth generated by the stock market for investors. We estimate that the ASR equity premium is 17 to 73% lower than the TSR-implied equity premium, depending on the investment alternative. We also estimate that the wedge between ASR and TSR is primarily driven by the reinvestment effect. However, over time, the reinvestment effect declines while the timing effect of cash flows increases, consistent with rising stock issuances and buybacks.

In this Essay in remembrance, Professors Larisa G Bowman, Esme Caramello, and Nicole Summers grieve the loss of Chief Justice Ralph D. Gants: a past, present, and future champion for housing justice. Housing as an area of unmet civil legal need occupied his final thoughts; he called it "the greatest access to justice challenge of our lifetime." This Essay charts Chief Justice Gants's evolution in becoming a champion for housing justice. Part I discusses his early housing-related judicial opinions as well as the exposure to housing issues he gained as Co-Chair of the Massachusetts Access to Justice Commission. Part II covers his time as the Chief Justice, reviewing some of his seminal opinions related to housing issues and his advocacy for broad changes across the entire Massachusetts court system, such as expansion of the Housing Court, that would increase access to justice for low-income litigants. Finally, in Part III, this Essay ends with Chief Justice Gants's leadership during the COVID-19 crisis. He paid close attention and threw his full weight behind the cause because he believed that the legal system, with reform and ingenuity, could deliver justice in housing.

Patterns of population health are keen reflections of structural inequities in societies, yet they are rarely subject to the requirements of democratic justification that other systemic inequalities provoke. Nor are health systems generally subject to societal scrutiny regarding fidelity to normative commitments of dignity and equality. Increased recognition of social determinants of health has challenged the narrow biomedical view of health as a stochastic phenomenon. More recently the sweeping devastation of the COVID-19 pandemic has laid bare structural injustices across many democracies, which contributed to widely disparate rates of infection and mortality.

The large American corporation faces ever-rising pressure to pursue a purpose that’s more than just for shareholder profit. This rising pressure interacts with sharp changes in industrial organization in a way that has not been comprehensively analyzed and is generally ignored. Firms’ capacity to accommodate pressure for a wider purpose is rising as well. Three changes are most relevant: the possibility of declining competition, the counter-possibility that what seems to be a competitive decline is really increasing winner-take-all competition, and the possibility that the ownership of the big firms has concentrated (even if the firms themselves have not) and thereby diluted competitive zeal. Consider competitive decline: In robustly competitive economies, firms cannot deviate much from profit maximization for expensive corporate purpose programs unless expanded purpose bolsters profitability (by branding the firm positively for consumers or by better motivating employees, for example). In economies with slack competition, in contrast, monopolistic and oligopolistic firms can accommodate purpose pressure, sometimes even expensive purpose pressure, from the profits they garner above what a competitive firm requires. In simplistic form, purpose can pressure such firms to redirect their excess profit from shareholders to stakeholders—to customers, employees, or the public good—in ways that firms in strongly competitive industries cannot. By most accounts, competition has been declining in the United States. By some accounts, it has declined precipitously. That decline suggests three possibilities: One—the central thesis of this Article— purpose pressure has greater potential to succeed if competition has declined or rents have otherwise grown; in competitive markets, the profit-oriented purpose-pressured firm has no choice but to refuse the purpose pressure (or to give it only lip service), while in monopolistically-organized industries, the purpose-pressured firm has more room to maneuver. Two, the normative bases undergirding shareholder primacy, although still strong, are less powerful in monopolistic markets. Three, declining corporate competition and rising corporate profits create a lush field for social conflict inside the firm and the polity for shareholders and stakeholders to seek a share of those profits. The result can infuse basic corporate governance with social conflict. This new, or expanded, field for conflict can contribute to and exacerbate our rising political and social instability. Expanding purpose pressure is one manifestation of this conflict.

O texto é a parte de um conteúdo conferência Conferência ministrada em 7 de dezembro de 2016 no IV Fórum Nacional de Direito e Infraestrutura, realizado pelo Instituto Brasileiro de Estudos Jurídicos da Infraestrutura (IBEJI), em parceria com o Conselho Regional de Engenharia e Agronomia do Estado de São Paulo (CREA-SP). Examinam-se as estratégias de desenvolvimento ocorridas na história do nosso país para mostrar que precisamos organizar uma nova estratégia, condição vital para resolver a questão da infraestrutura. Assim, delineia-se um método para esta nova estratégia, juntamente com a descrição das condições sociais, políticas e intelectuais para a sua criação. São propostas várias ideias, como a criação de uma “produtividade inclusiva” e a qualificação e democratização da economia em relação à produção e à oferta, aliada a uma revolução na natureza da educação. Além disso, explicam-se as qualidades necessárias a uma política de infraestrutura: agnosticismo em relação aos setores da economia, capilaridade social e fortalecimento da federação. Por fim, mas não menos importante, delineiam-se os componentes necessários para o encaminhamento de uma estratégia nacional de desenvolvimento: forte investimento público, cooperação e coordenação entre os estados e o setor privado, e o papel fundamental dos juízes para fazer o detalhamento jurídico dos modelos necessários à organização. esta nova política de infraestrutura (imaginação institucional).

Book review of Until I Am Free: Fannie Lou Hamer’s Enduring Message to America by Keisha N. Blain.

This article proposes that the U.S. Senate adopt a “popular-majoritarian cloture rule,” under which a motion to close debate and proceed to a final vote would carry if but only if supported by a majority of Senators who collectively represent a larger share of the population than those Senators in opposition. This rule, which would be a constitutional exercise of the Senate’s power to set the rules of its proceedings, would make the body more democratic and more functional, and would be preferable both to the current filibuster rule and to simple majority rule.

Would the outcome in Dobbs put originalism in doubt?

To compare post-operative vocal outcomes of a voice rest regimen versus no voice restrictions following micro-laryngeal surgery for benign glottic lesions.

We live in a period in which liberalism is under considerable pressure.Can poems be liberal? Baudelaire’s Enivrez-Vous captures something essential about the most appealing forms of liberalism, and about its underlying spirit (captured, in different ways, by John Stuart Mill, Walt Whitman, and Bob Dylan as well): its insistence on freedom of choice, on the diversity of tastes and preferences, and on human agency. The poem is liberal in its exuberance – its pleasure in its own edginess, its defiance, its sheer rebelliousness, its sense of mischief, its implicit laughter, its love of life and what it has to offer. It is the opposite of dutiful. It is far more exuberant than Mill’s On Liberty, but it is exuberant in the same way.

This chapter, prepared for the 2021 Annual Heckerling Institute on Estate Planning, examines the law and economics of environmental, social, and governance (ESG) investing by a trustee. Trustees of pensions, charities, and personal trusts invest tens of trillions of dollars of other people’s money subject to a sacred trust known in the law as fiduciary duty. Recently, these trustees have come under increasing pressure to use ESG factors in making investment decisions. ESG investing is common among investors of all stripes, but many trustees have resisted its use on the grounds that doing so may violate the fiduciary duty of loyalty. Under the “sole interest rule” of trust fiduciary law, a trustee must consider only the interests of the beneficiary. Accordingly, a trustee’s use of ESG factors, if motivated by the trustee’s own sense of ethics or to obtain collateral benefits for third parties, violates the duty of loyalty. On the other hand, some academics and investment professionals have argued that ESG investing can provide superior risk-adjusted returns. On this basis, some have even argued that ESG investing is required by the fiduciary duty of prudence. Against this backdrop of uncertainty, this chapter examines the law and economics of ESG investing by a trustee. We differentiate “collateral benefits” ESG from “risk-return” ESG, and we provide a balanced assessment of the theory and evidence about the possibility of persistent, enhanced returns from risk-return ESG.We show that ESG investing is permissible under American trust fiduciary law if two conditions are satisfied: (1) the trustee reasonably concludes that ESG investing will benefit the beneficiary directly by improving risk-adjusted return; and (2) the trustee’s exclusive motive for ESG investing is to obtain this direct benefit. In light of the current theory and evidence on ESG investing, we accept that these conditions could be satisfied under the right circumstances, but we reject the claim that the duty of prudence either does or should require trustees to use ESG factors. We also consider how the duty of loyalty should apply to ESG investing by a trustee if such investing is authorized by the terms of a trust or the beneficiaries, or is consistent with a charity’s purpose, clarifying with an analogy to whether a distribution would be permissible under similar circumstances. We conclude that applying the sole interest rule (as tempered by authorization and charitable purpose) to ESG investing is normatively sound.The chapter is based on Max M. Schanzenbach and Robert H. Sitkoff, Reconciling Fiduciary Duty and Social Conscience: The Law and Economics of ESG Investing by a Trustee, 72 Stanford Law Review 381 (2020), available at https://ssrn-com.ezp-prod1.hul.harvard.edu/abstract=3244665.

Although there has been a proliferation of research and policy work into how nudges shape people's behaviour, most studies stop far short of consumer welfare analysis. In the current work, we critically reflect on recent efforts to provide insights into the consumer welfare impact of nudges using willingness to pay and subjective well-being reports and explore an unobtrusive approach that can speak to the immediate emotional impacts of a nudge: automatic facial expression coding. In an exploratory lab study, we use facial expression coding to assess the short-run emotional impact of being presented with calorie information about a popcorn snack in the context of a stylised ‘Cinema experience’. The results of the study indicate that calorie information has heterogeneous impacts on people's likelihood of choosing the snack and on the emotions they experience during the moment of choice which varies based on their level of health-consciousness. The information does not, however, affect the emotions people go on to experience while viewing movie clips, suggesting that the emotional effects of the information are short-lived. We conclude by emphasising the potential of automatic facial expression coding to provide new insights into the immediate emotional impacts of nudges and calling for further research into this promising technique.

I begin by defining democracy and antidemocracy. I then describe the farmworkers’ difficulty in cultivating democracy, the antidemocratic potential of Cedar Point, and the longstanding sources of antidemocracy that protect the Supreme Court’s discretion. I then draw a lesson from the farmworkers’ story for how this antidemocracy can be overcome. In short, for democracy to exist anywhere, it must exist everywhere: in our workplaces, our communities, our courts, and our constitutions.

Returning to the rule of law and fortifying democracy in the U.S. will best be accomplished by reemphasizing the country’s own democratic and egalitarian values, and by vindicating truthfulness after four years of Trumpian fraud.

A review of Justice On the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court by Linda Greenhouse

Nudges are tools to achieve behavioural change. To evaluate nudges, it is essential to consider not only their overall welfare effects but also their distributional effects. Some nudges will not help, and might hurt, identifiable groups. More targeted, personalized nudging may be needed to maximize social welfare and promote distributive justice.