Faculty Bibliography

Introduction: Some Groundwork Departmentalist constitutional theory asserts that members of each branch have the authority to use their own understandings of the Constitution when they act within their prescribed domain.1 Specifically, departmentalists claim that neither the President nor members of Congress are required to accept the interpretations of the Constitution offered by the courts, either in evaluating possible courses of action beforehand or bowing to a judicial decision after the event as a matter of principle.2 Sometimes departmentalists confine their claims to constitutional interpretation of provisions about each department’s scope of authority.3 So, for example, a departmentalist president might claim that Article II gives her the power to remove at will any principal officer of the government from office even though Congress has purported to limit the removal power in ways that seem consistent with Supreme Court precedent.4 Individual rights cut across all three branches.5 Assume that Congress is exercising one of its enumerated powers. For present purposes, I mean by "legal" rights those that can be enforced in court.7 That a right is associated with a constitutional provision means (a) that it is not something the courts would find required by the Constitution itself,8 (b) that it advances the values underlying the judicially enforced right, and (c) that the associated right falls within a range of reasonable interpretation of some constitutional provision even though the courts have adopted a different interpretation.9 With the notions of "legal rights" "associated with" constitutional rights in hand, what can be said about the President and individual rights? Section B then turns to the case where the President and her appointees agree with the courts about the content of an individual right.13 Administrative constitutionalism in this mode means that executive officials act within their jurisdiction to protect the legal rights the courts would recognize.14 It retrieves an argument made decades ago by Bernard Meltzer, that a world with more remedies for the same rights violations might not be better-from a rights-protective point of view-than a world with fewer such remedies.15 A brief Conclusion summarizes the argument.16 I. The President’s Discretionary Powers One standard example offered in defense of departmentalism is President Thomas Jefferson’s decision to pardon those who had been convicted of violating the Federalist-inspired Sedition Act of1798.17 Jefferson did so because he believed that the Sedition Act was unconstitutional on federalism and freedom-of-expression grounds.18 And he did so in the face of lower court decisions upholding the statute against constitutional challenges.19 Another standard example is President Andrew Jackson’s veto of a bill rechartering the Bank of the United States.20 Jackson’s veto invoked policy and constitutional (federalism) objections to the rechartering.21 Notably, the Supreme Court here had rejected the constitutional challenges.22 Finally, presidents can recommend that Congress enact a statute providing more protection to individual privacy from government surveillance than the Supreme Court has or would hold constitutionally guaranteed.23 These three examples involve exercises of discretionary presidential powers.24 The key point about discretionary decisions is that before, and sometimes even after, they are made they necessarily create no legal rights.25 No one convicted of violating the Sedition Act had a right to a pardon-even in the form of a right to have a President who believes the Act unconstitutional issue a pardon.26 Or consider United States v. Lovettvphantom1 There Congress had directed the President to withhold pay from three named government officials.28 President Franklin Roosevelt signed the bill, stating, "I have been forced to yield, to avoid delaying our conduct of the war. Constitutional rights either trump other non-rights social values, in Dworkin’s terms, or compete against those other values.34 In the first case the contours of the constitutional right are defined with reference to those other values.35 So, for example, the right to free expression trumps the values of social stability, but the right does not encompass (in the United States) utterances that (to oversimplify) are intended to and are likely to incite imminent lawless action.36 In the second case, the values associated with the right are balanced against other social values such as stability or, in the usual example, the ability of people to use streets and parks for their ordinary purposes.37 In either version, a President’s discretionary action that takes into account the values associated with a constitutional right might bump up against other social values.38 In the usual case this simply produces an ordinary policy judgment that, in the policymaker’s view (here, the President’s), public policy is better advanced by the decisionmaker’s preferred course of action.39 Sometimes, though, the other social values are also associated with individual rights.

The Supreme Court is conspicuously uneasy about its Chevron framework, which requires courts to defer to agency interpretations of law, so long as those interpretations are “reasonable.” One of the principal manifestations of its uneasiness is the “major question” doctrine, which makes Chevron inapplicable to questions of great “economic and political significance.” But the major question doctrine is actually two separate doctrines. The weak version is a kind of “Chevron carve-out,” meant to ensure that courts exercise independent judgment, and so do not defer to agencies, with respect to the meaning of statutes as applied to especially important questions. By contrast, the strong version flatly prohibits agencies from interpreting ambiguous statutes so as to assert broad authority over the private sector. Both versions of the major question doctrine can claim a connection to the nondelegation doctrine. The arguments on behalf of the weak version are very different from the arguments on behalf of the strong version.

Thomas Jefferson: A Modern Prometheus by Wilson Jeremiah Moses is reviewed.

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. The result would not quite be Zombie Chevron, but it would be close to that, and the most reasonable path forward.

Although empirical studies show that common shareholding affects corporate conduct and that common horizontal shareholding lessens competition, critics have argued that the law should not take any action until we have clearer proof on the causal mechanisms. I show that we actually have ample proof on causal mechanisms, but that antitrust enforcement should focus on anticompetitive market structures, rather than on causal mechanisms. I debunk claims that every type of causal mechanism that might produce anticompetitive effects is either empirically untested or implausible. I also show that critics are wrong in claiming that common shareholders lack incentives to influence corporations to increase portfolio value by lessening competition. Finally, I show that preventing anticompetitive horizontal shareholding need not restrict diversification or discourage desirable institutional investor influence on corporate conduct.

How should we think about the most pressing questions of Islamic law and legal history today? We asked leading scholars of Islamic law and history to weigh in on the methods and meaning they notice or favor, at a time when much has changed in the field and the world since Islamic law emerged as a major field of studies in the global academy over the last century, and at a time when access to new sources, historiographical advances, and data science tools promise that more changes are yet to come.

In her essay concluding the Roundtable, Intisar Rabb invites us to conduct a thought experiment— to think of legal canons as memes, that is, as cultural elements in circulation that, like genes, self-replicate and accrue to the benefit of human society. Just as memes spread, so do legal canons—principles that guide legal interpretation—from one scholar to another, from one written record to the other. Describing at length multiple angles from which legal canons can be categorized, Rabb shows that the many and varied types of canons illustrate how deeply embedded canons are in the social, cultural, and also legal culture that produces them. That, in turn, invites close collaboration between legal historians and data scientists to enable a mapping of a “meme pool” for legal canons, which she pursues through developing the Courts & Canons project at Harvard Law School: through digital tools, we will be able to trace the curious textual travels of legal canons (as memes), and through that, the transmission of cultures, practices, and ideas in through all manner of texts (their meme pool) recording the history and practice of law and society in the Muslim world.

We present the first full description of Media Cloud, an open source platform based on crawling hyperlink structure in operation for over 10 years, that for many uses will be the best way to collect data for studying the media ecosystem on the open web. We document the key choices behind what data Media Cloud collects and stores, how it processes and organizes these data, and open API access as well as user-facing tools. We also highlight the strengths and limitations of the Media Cloud collection strategy compared to relevant alternatives. We give an overview two sample datasets generated using Media Cloud and discuss how researchers can use the platform to create their own datasets.

Rarely has a bipartisan commission been so fundamentally pointless.

Imagine that two doctors in the same city give different diagnoses to identical patients — or that two judges in the same courthouse give different sentences to people who have committed the same crime. Suppose that different food inspectors give different ratings to indistinguishable restaurants — or that when a company is handling customer complaints, the resolution depends on who happens to be handling the particular complaint. Now imagine that the same doctor, the same judge, the same inspector, or the same company official makes different decisions, depending on whether it is morning or afternoon, or Monday rather than Wednesday. These are examples of noise: variability in judgments that should be identical. In Noise, Daniel Kahneman, Olivier Sibony, and Cass R. Sunstein show how noise helps produce errors in many fields, including medicine, law, public health, economic forecasting, food safety, forensic science, bail, child protection, strategy, performance reviews and and personnel selection. And although noise can be found wherever people make judgments and decisions, individuals and organizations alike commonly ignore to its role in their judgments and in their actions. They show “noise neglect.” With a few simple remedies, people can reduce both noise and bias, and so make far better decisions. Packed with new ideas, and drawing on the same kind of diligent, insightful research that made Thinking, Fast and Slow and Nudge groundbreaking New York Times bestsellers, Noise explains how and why humans are so susceptible to noise in judgment — and what we can do about it.

Akhil Reed Amar celebrates the debates that led to revolt, the Constitution and U.S. law.

There are no spaces or spheres of the personal or the private that are not also fraught with political potential and consequence. That insistent lesson from feminist thought is these days instanced, truly writes Gila Stopler, by the bafflements faced by liberal democracies confronting severe threat from illiberal ideas and incitements gathering steam under shelter of liberal basic-liberties guarantees. My questions here are whether the problem’s root in liberalism runs deeper than any ideology of a “private sphere,” and whether it is aggravated by a turn in John Rawls’s defense of liberal principles from a “comprehensive” to a “political” justificatory strategy.

Psychological research shows that judgment is surprisingly dependent on mood—and that being in a bad one has a silver lining.

If the slur is mentioned in key court decisions, it should not be taboo in law schools.

Financial market turmoil from COVID highlighted continuing risks to financial stability posed by non-bank financial intermediaries. While there are grounds for optimism that the SEC will finally take the macroprudential regulatory role it has been reluctant to play in the past, obstacles remain.

The research staff of the Program on International Financial Systems (“PIFS”) has conducted a three-phase comparative analysis of international equity market structure regulation in the five major global equity trading markets. The five markets include the People’s Republic of China (including both the Mainland market and the Hong Kong Special Administrative Region), the European Union, Japan and the United States, which collectively represent 90% of global equity trading market volume. This report represents the third phase of our international equity market structure review. In Phase I, we reviewed the regulation of equity market structure in each of the five major jurisdictions. The purpose of this phase was to inform the public and policymakers as to key similarities and differences among the regulatory regimes. In Phase II, we set forth a quantitative analysis of equity trading in the five markets, including a summary of market characteristics, as well as an overview of the performance of each market for investors, measured primarily by institutional trading costs. The purpose of this phase was to assess the performance in each of the five major markets. We found that each of these markets performs well for institutional investors and demonstrates a positive five-year trend. We also noted certain cost differences among the markets. In Phase III, we will assess key similarities and differences between the regulatory structures outlined in Phase I and their impact on performance measures quantified in Phase II. Our goal is to provide policymakers with guidance as to best practices for regulating equity market structure. We list our policy recommendations at the end of the Executive Summary. The first part of Phase III describes the equity market regulations common across all five major markets, each of which contribute to their jurisdiction’s strong performance for investors. These regulations include (i) broker-dealer best execution obligations, (ii) regulation of trading venues, including exchange fees, (iii) public reporting requirements for executed trades, and (iv) volatility controls. We then review the performance of each of the five major markets, illustrating the relatively low transaction costs prevalent in each of the markets. In addition, we note the positive trend in each of the markets with respect to these performance measures. This part concludes by recommending that policymakers in other jurisdictions that lack these regulations implement the four core features of equity market regulation that are common across the five major trading markets. The second part of Phase III notes the differences in average transactions costs among the five major jurisdictions and then discusses key regulatory differences between the E.U. and U.S. markets and their counterparts in Mainland China, Hong Kong, and Japan, including: (i) market decentralization and competition among trading venues, (ii) dark trading as a complement to lit trading, and (iii) electronic, algorithmic and high frequency trading activity. Each of these discussions includes a literature review of empirical research on the link between the specific market characteristic and overall market performance. The E.U. and U.S. markets demonstrate that competition among trading venues, an appropriate balance of dark and lit trading and a framework that facilitates electronic, algorithmic and high frequency trading are key components of transparent, resilient and efficient equity markets. We therefore believe that policymakers should consider creating a regulatory framework to foster evolution of such trading activity. As demonstrated throughout PIFS’ series of reports on international equity market structure, regulations in place in the E.U. and U.S. can provide guidance as to the appropriate regulatory structure. Although certain emerging markets have low levels of liquidity and thus may not yet be sufficiently developed to fully benefit from an immediate transition to trading venue competition, dark trading (as a complement to lit trading) or electronic, algorithmic and high frequency trading, we believe that it is incumbent on policymakers in all jurisdictions to evaluate how their markets could benefit from a modernized regulatory framework that can enhance liquidity and investor outcomes.

Originalism in Austria means examining the historical materials associated with the adoption of the Austrian constitution; originalism in India means examining the historical materials associated with the adoption of the Indian constitution. A striking example is provided in the South African constitution. Many nations limit the time that a person can be held after arrest but before presentation to a judicial officer. Often these provisions state that the person must appear before a judge within a reasonable period. Scholars interested in the constitutional and nature see this as either a crystallization of inchoate ideas rattling around in other constitutional systems, or as foreshadowing a coming general recognition of ecological rights. Interpretations of identical substantive provisions also vary, though the case is complicated by questions of translation and contextual understanding. National political and social cultures determine the weight given to at least some constitutional values.

Interweaving American history, dramatic family chronicle, and searing episodes of memoir, Annette Gordon-Reed, the descendant of enslaved people brought to Texas in the 1850s, recounts the origins of Juneteenth and explores the legacies of the holiday that remain with us. From the earliest presence of black people in Texas—in the 1500s, well before enslaved Africans arrived in Jamestown—to the day in Galveston on June 19, 1865, when General Gordon Granger announced the end of slavery, Gordon-Reed’s insightful and inspiring essays present the saga of a “frontier” peopled by Native Americans, Anglos, Tejanos, and Blacks that became a slaveholder’s republic. Reworking the “Alamo” framework, Gordon-Reed shows that the slave-and race-based economy not only defined this fractious era of Texas independence, but precipitated the Mexican-American War and the resulting Civil War. A commemoration of Juneteenth and the fraught legacies of slavery that still persist, On Juneteenth is stark reminder that the fight for equality is ongoing.

Famously persistent, Senator Warren shares six perspectives that have influenced her life and advocacy, knowing that if we’re willing to fight for it, profound political transformation is possible., "Elizabeth Warren is a beacon for everyone who believes that real change can improve the lives of all Americans. Committed, fearless, and famously persistent, she brings her best game to every battle she wages. In Persist, Warren writes about six perspectives that have influenced her life and advocacy. She’s a mother who learned from wrenching personal experience why child care is so essential. She’s a teacher who has known since grade school the value of a good and affordable education. She’s a planner who understands that every complex problem requires a comprehensive response. She’s a fighter who discovered the hard way that nobody gives up power willingly. She’s a learner who thinks, listens, and works to fight racism in America. And she’s a woman who has proven over and over that women are just as capable as men. Candid and compelling, Persist is both a deeply personal book and a powerful call to action. Elizabeth Warren–one of our nation’s most visionary leaders–will inspire everyone to believe that if we’re willing to fight for it, profound change is well within our reach." – inside front jacket flap.

The Michigan Law Review is honored to have supported Professors Charles and Fuentes-Rohwer's Essay on the subjugated status of Puerto Rico as an "unincorporated territory." This Essay contextualizes Puerto Rico not as an anomalous colonial vestige but as fundamentally a part of the United States' ongoing commitment to racial economic domination. We are thrilled to highlight this work, which indicts our constitutional complacence with the second-class status of Puerto Rican citizens and demands a national commitment to self-determination for Puerto Rico.

The Harvard Law School Human Rights Program convened a Workshop in October 2020, for the purpose of exploring in a comparative and cross-disciplinary manner the concept of indirect discrimination (or practices with discriminatory impact) on the basis of sexual orientation or gender identity. This report presents a summary of the discussion, as well as five individual papers prepared for discussion at the Workshop, preventing divergent views on how arguments regarding indirect discrimination are best understood and best used in the context of sexual orientation or gender identity.

For at least a decade, States, humanitarian bodies, and civil-society actors have raised concerns about how certain counterterrorism measures can prevent or impede humanitarian and medical activities in armed conflicts. In 2019, the issue drew the attention of the world’s preeminent body charged with maintaining or restoring international peace and security: the United Nations Security Council. In two resolutions — Resolution 2462 (2019) and Resolution 2482 (2019) — adopted that year, the Security Council urged States to take into account the potential effects of certain counterterrorism measures on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with international humanitarian law (IHL). By implicitly recognizing that measures adopted to achieve one policy objective (countering terrorism) can impair or prevent another policy objective (safeguarding humanitarian and medical activities), the Security Council elevated taking into account the potential effects of certain counterterrorism measures on exclusively humanitarian activities to an issue implicating international peace and security. In this legal briefing, we aim to support the development of an analytical framework through which a State may seek to devise and administer a system to take into account the potential effects of counterterrorism measures on humanitarian and medical activities. Our primary intended audience includes the people involved in creating or administering a “take into account” system and in developing relevant laws and policies. Our analysis zooms in on Resolution 2462 (2019) and Resolution 2482 (2019) and focuses on grounding the framework in respect for international law, notably the U.N. Charter and IHL. In section 1, we introduce the impetus, objectives, and structure of the briefing. In our view, a thorough legal analysis of the relevant resolutions in their wider context is a crucial element to laying the conditions conducive to the development and administration of an effective “take into account” system. Further, the stakes and timeliness of the issue, the Security Council’s implicit recognition of a potential tension between measures adopted to achieve different policy objectives, and the relatively scant salient direct practice and scholarship on elements pertinent to “take into account” systems also compelled us to engage in original legal analysis, with a focus on public international law and IHL. In section 2, as a primer for readers unfamiliar with the core issues, we briefly outline humanitarian and medical activities and counterterrorism measures. Then we highlight a range of possible effects of the latter on the former. Concerning armed conflict, humanitarian activities aim primarily to provide relief to and protection for people affected by the conflict whose needs are unmet, whereas medical activities aim primarily to provide care for wounded and sick persons, including the enemy. Meanwhile, for at least several decades, States have sought to prevent and suppress acts of terrorism and punish those who commit, attempt to commit, or otherwise support acts of terrorism. Under the rubric of countering terrorism, States have taken an increasingly broad and diverse array of actions at the global, regional, and national levels. A growing body of qualitative and quantitative evidence documents how certain measures designed and applied to counter terrorism can impede or prevent humanitarian and medical activities in armed conflicts. In a nutshell, counterterrorism measures may lead to diminished or complete lack of access by humanitarian and medical actors to the persons affected by an armed conflict that is also characterized as a counterterrorism context, or those measures may adversely affect the scope, amount, or quality of humanitarian and medical services provided to such persons. The diverse array of detrimental effects of certain counterterrorism measures on humanitarian and medical activities may be grouped into several cross-cutting categories, including operational, financial, security, legal, and reputational effects. In section 3, we explain some of the key legal aspects of humanitarian and medical activities and counterterrorism measures. States have developed IHL as the primary body of international law applicable to acts and omissions connected with an armed conflict. IHL lays down several rights and obligations relating to a broad spectrum of humanitarian and medical activities pertaining to armed conflicts. A violation of an applicable IHL provision related to humanitarian or medical activities may engage the international legal responsibility of a State or an individual. Meanwhile, at the international level, there is no single, comprehensive body of counterterrorism laws. However, States have developed a collection of treaties to pursue specific anti-terrorism objectives. Further, for its part, the Security Council has assumed an increasingly prominent role in countering terrorism, including by adopting decisions that U.N. Member States must accept and carry out under the U.N. Charter. Some counterterrorism measures are designed and applied in a manner that implicitly or expressly “carves out” particular safeguards — typically in the form of limited exceptions or exemptions — for certain humanitarian or medical activities or actors. Yet most counterterrorism measures do not include such safeguards. In section 4, which constitutes the bulk of our original legal analysis, we closely evaluate the two resolutions in which the Security Council urged States to take into account the effects of (certain) counterterrorism measures on humanitarian and medical activities. We set the stage by summarizing some aspects of the legal relations between Security Council acts and IHL provisions pertaining to humanitarian and medical activities. We then analyze the status, consequences, and content of several substantive elements of the resolutions and what they may entail for States seeking to counter terrorism and safeguard humanitarian and medical activities. Among the elements that we evaluate are: the Security Council’s new notion of a prohibited financial “benefit” for terrorists as it may relate to humanitarian and medical activities; the Council’s demand that States comply with IHL obligations while countering terrorism; and the constituent parts of the Council’s notion of a “take into account” system. In section 5, we set out some potential elements of an analytical framework through which a State may seek to develop and administer its “take into account” system in line with Resolution 2462 (2019) and Resolution 2482 (2019). In terms of its object and purpose, a “take into account” system may aim to secure respect for international law, notably the U.N. Charter and IHL pertaining to humanitarian and medical activities. In addition, the system may seek to safeguard humanitarian and medical activities in armed conflicts that also qualify as counterterrorism contexts. We also identify two sets of preconditions arguably necessary for a State to anticipate and address relevant potential effects through the development and execution of its “take into account” system. Finally, we suggest three sets of attributes that a “take into account” system may need to embody to achieve its aims: utilizing a State-wide approach, focusing on potential effects, and including default principles and rules to help guide implementation. In section 6, we briefly conclude. In our view, jointly pursuing the policy objectives of countering terrorism and safeguarding humanitarian and medical activities presents several opportunities, challenges, and complexities. International law does not necessarily provide ready-made answers to all of the difficult questions in this area. Yet devising and executing a “take into account” system provides a State significant opportunities to safeguard humanitarian and medical activities and counter terrorism while securing greater respect for international law.

The Assembly Clause is the ugly duckling of the First Amendment. Brooding in the shadow of the heralded Free Speech Clause and the venerated Religion Clauses, the Assembly Clause has been described even by its advocates as “forgotten,” a “historical footnote in American political theory and law.” The clause protects “the right of the people peaceably to assemble”—a phrase the Supreme Court has interpreted only once over the past fifty years despite issuing hundreds of opinions interpreting its First Amendment siblings. From the moment it was included in the proposed federal bill of rights, observers have questioned who would bother turning to the Assembly Clause for assistance given the First Amendment’s other protections of free expression. This paper offers a surprising answer. After describing the historical context in which the “right to assemble” was first expressed, it argues that the right could be interpreted not as a narrow right of self-expression but rather as a broad right of self-government. In the decade preceding the American Revolution, advocates of “the right to assemble” used the phrase in response to attempts by royal and parliamentary officials to subordinate their town meetings and colonial legislatures—or, in the language of the day, to subordinate their local and general “assemblies.” This subordination came in various forms: Parliament passed laws disempowering New York’s general assembly until it enacted certain legislation; Parliament censured and then banned town meetings in Massachusetts from debating international affairs; and governors up and down the continent dissolved, changed the location of, and otherwise coerced general and local assemblies into repealing legislation they regarded as seditious. In response, town officials and colonial representatives complained that all people have an inherent right to participate in assembled governments, which in turn have the power to consult their constituents and seek a redress of their grievances—whether by enacting laws with their constituents’ consent or by petitioning other governments for their assistance. The historical context of the assembly clause’s origins suggest that the clause has been interpreted far too narrowly. Once the clause is understood as protecting not only the informal expressions of conventions, marches, and gatherings but also a right to meaningfully participate in effective government, the state and federal assembly clauses look like an important, “forgotten” limit on disenfranchisement and local disempowerment.

The idea that we should respond more severely to repeated wrongdoing than we do to first-time misconduct is one of our most deeply held moral principles, and one of the most deeply entrenched principles in the criminal law and sentencing policy. Prior convictions trigger, on average, a six-fold increase in the length of punishment in states that use sentencing guidelines. And most of the people we lock up in the U.S. have at least one previous conviction.This article shows that given the current law and policy of collateral consequences, and the social conditions they engender, judges and sentencing commissions should do exactly the opposite of what they currently do: impose a recidivist sentencing discount, rather than a premium. This thesis is counterintuitive and politically unpalatable. It goes against the grain of criminal law and policy dating back as far as we know it, virtually the entire scholarly literature, and millennia of social tradition. But this article shows that it follows logically from fairly ordinary moral premises.

The Internet, and the Web built on top of it, were intended to support an “entropic” physical and logical network map (Zittrain, 2013). That is, they have been designed to allow servers to be spread anywhere in the world in an ad hoc and evolving fashion, rather than a centralized one. Arbitrary distance among, and number of, servers causes no particular architectural problems and indeed ensures that problems experienced by one data source remain unlinked to others. A Web page can be assembled from any number of upstream sources, through the use of various URLs, each pointing to a different location. To a user, the page looks unified. Over time, however, there are signs that the hosting and finding of Internet services has become more centralized. We explore and document one possible dimension of this centralization. We analyze the extent to which the Internet’s global domain name resolution (DNS) system has preserved its distributed resilience given the rise of cloud-based hosting and infrastructure. We offer evidence of the dramatic concentration of the DNS hosting market in the hands of a small number of cloud service providers over a period spanning from 2011-2018. In addition, we examine changes in domains’ tendency to “diversify” their pool of nameservers – how frequently domains employ DNS management services from multiple providers rather than just one provider. Throughout the paper, we use the catastrophic October 2016 attack on Dyn, a major DNS hosting provider, to illustrate the cybersecurity consequences of our analysis.

This essay discusses the new report, Heritable Human Genome Editing, by the National Academy of Medicine, the National Academy of Sciences, and the Royal Society. After summarizing the report, we argue that the report takes four quite bold steps away from prior reports, namely (1) rejecting an omnibus approach to heritable human genome editing (HHGE) in favor of a case-by-case analysis of possible uses of HHGE, accepting that HHGE is acceptable in some cases; (2) recognizing that the interest in having children who are genetically related to both would-be rearing parents is one that the regulation of HHGE should honor; (3) patterning a regulatory model for HHGE on the United Kingdom's approach to regulating mitochondrial replacement techniques; and (4) conveying skepticism that international regulation is possible while showing a strong preference for a default into national regulatory regimes for HHGE.

Around the world governments characterized by observers as populist have taken power. Many of their actions have been incompatible with tenets of modern liberalism. This has generated commentary suggesting that populism is itself incompatible with constitutionalism. This Essay challenges that commentary. We agree that some variants of populism are incompatible with modern liberal constitutionalism but argue that the tension between populism as such and constitutionalism as such, though real, is significantly narrower than much commentary suggests. We begin in Section II by offering “barebones” definitions of populism and constitutionalism so that we can tease out precisely what the tension between them is. Section III turns to case studies of challenges to judicial independence, of the use of referendums, and of innovative methods of determining the public’s views. As with our discussion of defining populism and constitutionalism, here we attempt to identify whether (or the degree to which) the case studies demonstrate a tension between populism and constitutionalism. Our conclusion is that sometimes we can see such a tension and sometimes we cannot, and that the analysis of specific populisms and their policies in relation to constitutionalism must be highly sensitive to context. Section IV applies the argument to two developments in the United Kingdom: the Brexit referendum and the attempt by Boris Johnson to prorogue Parliament and the ensuing decision by the UK Supreme Court finding the prorogation unlawful. Here our conclusion once again that analysis of populism’s relation to constitutionalism must be sensitive to context: The referendum was flawed but not in ways that cast a bad light on populism as such, and the prorogation, while perhaps unlawful, was not clearly anti-constitutional. Overall we argue against generalized claims about populism as such and constitutionalism as such. There are many populisms and at least a few constitutionalisms, and scholars and observers should direct their attention to the questions posed by specific actions taken by individual populist governments. Sometimes populist governments will act in anti-constitutional ways, and sometimes they will not. We believe that this conclusion is appropriately deflationary.