Faculty Bibliography

When digital content and technologies are designed in a way that is inaccessible for persons with disabilities, they are locked out of commerce, education, employment, and access to government information. In developing areas of the world, as new technical infrastructures are being built, it is especially important to ensure that accessibility is a key design goal. Unfortunately, nearly all research on Information and Communication Technology (ICT) accessibility and innovation for persons with disabilities-whether from the legal, technical, or development fields-has focused on developed countries, with very little being written about developing world initiatives. Accessible Technology and the Developing World aims to change this, by bringing increased attention to ICT accessibility in developing areas. This book brings together a unique combination of contributors with diverse disciplinary backgrounds, including authors from well-known non-governmental organizations, significant United Nations entities, and universities in both the developing and developed world. Together, they present a unique and much needed review of this critical and growing area of work, and primarily address three core themes - the lack of attention given to innovations taking place in the developing world, the need to ensure that infrastructures in the Global South do not present barriers to people with disabilities, and the need to exercise caution when applying techniques from the Global North to the Global South that won't transfer effectively. This book will be of use to researchers in the fields of civil rights, development studies, disability rights, disability studies, human-computer interaction and accessibility, human rights, international law, political science, and universal design.

On January 3, 2019, U.S. District Judge Theodore D. Chuang of the U.S. District Court of the District of Maryland took a crucial first step in redressing one of the worst human subjects research ethics violations in U.S. history.

Telehealth has the potential to address health disparities, but not without deliberate choices about how to implement it. To support vulnerable patients, health policy leaders must pursue creative solutions such as public-private partnerships, broadband infrastructure, and value-based payment. Without these initiatives or others like them, health disparities are likely to persist despite telehealth’s tantalizing potential.

In law, the process of analogical reasoning appears to work in five simple steps. (1) Some fact pattern A—the “source” case—has certain characteristics; call them x, y, and z. (2) Fact pattern B—the “target” case—has characteristics x, y, and q, or characteristics x, y, z, and q. (3) A is treated a certain way in law. (4) Some principle or rule, announced, created, or discovered in the process of thinking through A, B, and their interrelations, explains why A is treated the way that it is. (5) Because of what it shares in common with A, B should be treated the same way. It is covered by the same principle. It should be clear that the crucial step, and the most difficult, is (4). Often analogical reasoning works through the use of incompletely theorized agreements, making (4) tractable. Some of the disputes about analogical reasoning reflect contests between Burkean and Benthamite conceptions of law.

SB 8 not only stripped Texan women of their rights under Roe v Wade, it made a mockery of the US constitution and the supremacy of the federal courts.

In philosophy, economics, and law, the idea of voluntary agreements plays a central role. It orients contractarian approaches to political legitimacy. It also helps support the claim that outsiders, and especially the state, should not interfere with private contracts. But contractarianism in political philosophy stands (or falls) on altogether different grounds from enthusiasm for contractual ordering in economics and law. When participants in voluntary agreements lack information or suffer from behavioral biases (including adaptive preferences), there is reason to help them, potentially through mandates and bans. In philosophy, the idea of contractarianism can help lead to instructive thought experiments about what justice requires, as with John Rawls’ use of the veil of ignorance and the original position; it should not be taken as a basis for theories of legitimacy that rest on actual agreements among actual groups, in which some people have more information and power than others, and in which malice and self-interest may lead to distortions.

His new book refuses to recognize that the court is political.

Amid a racial uprising and calls for “political revolution,” why pretend that our political disputes turn on the “best” reading of an eighteenth-century text, the Constitution?

The prison time actually served by a convicted criminal depends to a significant degree on decisions made by the state during the course of imprisonment—notably, on whether to grant parole. We study a model of the adjustment of sentences assuming that the state’s objective is the optimal deterrence of crime. In the model, the state can lower or raise a criminal’s initial sentence on the basis of deterrence-relevant information obtained during imprisonment. Our focus on sentence adjustment as a means of promoting deterrence stands in contrast to the usual emphasis in sentence adjustment policy on avoiding recidivism.

This article examines whether and how the circumstances of Colombian ex-combatants with disabilities were recognized in the disarmament, demobilization, and reintegration (DDR) processes in the period following the adoption of the 2016 peace agreement. Our results suggest severe procedural and substantive shortcomings during the drafting of the peace agreement and the implementation of the DDR processes that exacerbated the exclusion of ex-combatants with disabilities from available opportunities for their social, economic, and political reintegration. We conclude that a better understanding of the disabling impact of conflict and the experiences of impairment and disability could have mitigated such neglect.

In this opinion note, we explore ways to understand the contemporary encounters between a growing global counterterrorism architecture and impartial humanitarian activities while critically assessing our own role in shaping responses to those encounters. Humbled by a decade of experience in this area, we aim to explain how counterterrorism concerns have been elevated over the humanitarian imperative and to offer potential avenues to secure greater respect for impartial humanitarian activities.

A new bill curbing presidential powers addresses problems that arise during Republican and Democratic presidencies. Members of Congress in both parties should embrace its reforms.

At the top of the list of those responsible for executive branch accountability in the 21st century are the statutory inspectors general who now populate every major executive branch agency. On Wednesday, Oct. 6, the Senate Committee on Homeland Security and Governmental Affairs will consider three bills—the Securing Inspector General Independence Act of 2021, the IG Testimonial Subpoena Authority Act and the IG Independence and Empowerment Act—that would expand the independence and power of inspectors general in important respects. This post reviews the central reforms, urges the passage of one of them and assesses the others.

Psychedelics have shown great promise in treating mental-health conditions, but their use is severely limited by legal obstacles, which could be overcome.

Textual redundancy is one of the main challenges to ensuring that legal texts remain comprehensible and maintainable. Drawing inspiration from the refactoring literature in software engineering, which has developed methods to expose and eliminate duplicated code, we introduce the duplicated phrase detection problem for legal texts and propose the Dupex algorithm to solve it. Leveraging the Minimum Description Length principle from information theory, Dupex identifies a set of duplicated phrases, called patterns, that together best compress a given input text. Through an extensive set of experiments on the Titles of the United States Code, we confirm that our algorithm works well in practice: Dupex will help you simplify your law.

Progressives are taking Supreme Court reform seriously for the first time in almost a century. Owing to the rise of the political and academic left following the 2008 financial crisis and the hotly contested appointments of Justices Neil Gorsuch and Brett Kavanaugh, progressives increasingly view the Supreme Court as posing a serious challenge to the successful implementation of ambitious legislation. Amy Coney Barrett’s confirmation to take Justice Ruth Bader Ginsburg’s seat after her death in fall 2020 brought these once-marginal concerns to the forefront of American political debate, prompting a promise from now-President Joseph Biden, on the eve of his election, to form a national commission for court reform. Despite this once-in-a-lifetime energy around the idea of court reform, the popular and academic discussion of how to reform the Supreme Court has been unduly constrained. Even if the commission proves to be a ploy to postpone reform, it is crucial to clarify the debate around possible ends and means of reform, for the debate is unlikely to die out. This is the case with regard to the mechanism and the purpose of reform alike. On the left, historical memory has limited debate almost entirely to “court-packing.” Meanwhile, the center has occupied itself with how to restore the Supreme Court’s legitimacy by rescuing the institution from its regrettable slide into partisanship. And now, as the Court appears to moderate itself in an effort to preempt legislative reform of the institution, the concern is that progressives will drop their demands for change, satisfied with a few modest judicial concessions. This Article aims to keep the discussion of court reform alive for more propitious circumstances and, just as importantly, to significantly expand its bounds. It does so, first, by urging progressives to reject the legitimacy frame of the issue, which treats the problem with the Supreme Court as one of politicization, in favor of an openly progressive frame in which the question is how to enable democracy within our constitutional scheme. Second, the Article introduces a distinction between two fundamentally different mechanisms of reform. The first type of reform, which we call personnel reforms, includes both aggressive proposals like court-packing and more modest (or politically moderate) reforms such as partisan balance requirements or panel systems. All of these reforms take for granted the tremendous power the Supreme Court wields. What these proposals do is change the partisan or ideological character of the individuals who wield it. The second type of reform, which we call disempowering reforms, includes proposals like jurisdiction stripping and a supermajority requirement for judicial review. These reforms take power away from the Court and redirect it to the political branches instead. As we argue, personnel reforms are mostly addressed to the legitimacy frame that progressives would do well to reject. More still, to the extent such reforms advance progressive ends, they do so only contingently and threaten to do as much harm as good over time. By contrast, disempowering reforms, we argue, advance progressive values systematically. While such reforms would not guarantee advances in social democracy, they would ensure that the battle for such advances takes place in the democratic arena. For progressives, this is where such reforms have to occur now—and should occur if they take place anywhere.

Modern legal systems are not usually designed to protect Indigenous traditional knowledge or traditional cultural expressions but are, more often, historically complicit in their misuse or suppression. The undefined status of traditional knowledge has left Indigenous communities vulnerable to harms not readily cognizable by either common or civil law systems: exploitation of those communities’ genetic resources and medical knowledge, demeaning of their sacred symbols, and further alienation from their culture and land following colonial dispossession. Indigenous groups have therefore sought greater protection of traditional knowledge through a range of domestic and international legal avenues. This Article examines the experience of Australia as the common law jurisdiction that has likely gone furthest in protecting traditional knowledge. Aboriginal Australian claimants have found varying degrees of success through mechanisms such as copyright law, patent law, consumer protection, fiduciary claims, and privacy rights. Even at their most successful, however, these claimants have not obtained recognition of the unique interests represented by traditional knowledge. Instead, they have been forced to translate their claims into terms close to the conventional utilitarian or personality-based justifications for intellectual property. Australia therefore illustrates the potential of a common law system’s ability to incrementally adapt to novel claims—but also that system’s ultimate inadequacy.

“Race and colonial law” is the theme of a seminar which aimed to stimulate reflection on the concept of “race”, and the way in which the latter would be likely to enrich the understanding of French law, in particular racial discrimination.

We may be witnessing the emergence of a new kind of vote dilution claim. In a barrage of lawsuits about the 2020 election, conservative plaintiffs argued that electoral policies that make it easier to vote are unconstitutionally dilutive. Their logic was that (1) these policies enable fraud through their lack of proper safeguards and (2) the resulting fraudulent votes dilute the ballots cast by law-abiding citizens. In this Article, I examine this novel theory of vote dilution through fraud facilitation. I track its progress in the courts, which have mostly treated it as a viable cause of action. Contra these treatments, I maintain that current doctrine doesn’t recognize the claim that electoral regulations are dilutive because they enable fraud. However, I tentatively continue, the law should acknowledge this form of vote dilution. Fraudulent votes can dilute valid ones—even though, at present, they rarely do so. Under my proposed approach, vote dilution through fraud facilitation would be a cognizable but cabined theory. Standing would be limited to voters whose preferred candidates are targeted by ongoing or imminent fraud. Liability would arise only if a measure is both likely to generate widespread fraud and poorly tailored to achieve an important governmental interest. And relief would take the form of additional precautions against fraud, not the rescission of the challenged policy. In combination, these points would yield a mostly toothless cause of action under modern political conditions. Should there ever be a resurgence of fraud, though, the new vote dilution claim would stand ready to thwart it.

More from Randall Kennedy Among the prominent commentators whose ideas are under attack are Nikole Hannah-Jones, the journalist who was the main figure behind The New York Times’ 1619 Project; Kimberlé Crenshaw, the Columbia University and UCLA law professor who is the most sophisticated and articulate expositor and representative of critical race theory (CRT); and ibram Kendi, director of the Center for Antiracist Research at Boston University. According to Rufo, "critical race theory is the perfect villain." According to Sen. Ted Cruz, the anti-CRT campaign is an uprising by ordinary, patriotic Americans who are learning belatedly that their local schools, infiltrated by CRT thinking, are teaching that "America is fundamentally racist, that all white people are racists... [and] that whites and blacks hate each other and have to hate each other." According to Sen. Josh Hawley, "Critical Race Theory has no business being taught in Missouri [or presumably any other] classrooms."

COVID-19 has prompted debates between bioethicists and disability activists about Crisis Standards of Care plans (CSCs), triage protocols determining the allocation of scarce lifesaving care.

In this article, we review a growing empirical literature on the effectiveness and fairness of the US pretrial system and discuss its policy implications. Despite the importance of this stage of the criminal legal process, researchers have only recently begun to explore how the pretrial system balances individual rights and public interests. We describe the empirical challenges that have prevented progress in this area and how recent work has made use of new data sources and quasiexperimental approaches to credibly estimate both the individual harms (such as loss of employment or government assistance) and public benefits (such as preventing non-appearance at court and new crimes) of cash bail and pretrial detention. These new data and approaches show that the current pretrial system imposes substantial short- and long-term economic harms on detained defendants in terms of lost earnings and government assistance, while providing little in the way of decreased criminal activity for the public interest. Non-appearances at court do significantly decrease for detained defendants, but the magnitudes cannot justify the economic harms to individuals observed in the data. A second set of studies shows that these costs of cash bail and pretrial detention are disproportionately borne by Black and Hispanic individuals, giving rise to large and unfair racial differences in cash bail and detention that cannot be explained by underlying differences in pretrial misconduct risk. We then turn to policy implications and describe areas of future work that would enable a deeper understanding of what drives these undesirable outcomes.

Corporate personality entails the separation between the legal spheres of the entity and its shareholders. This chapter highlights the critical economic role of what I call regulatory partitioning, which is the distinction between the entity and its members for purposes of the imputation of legal rights and duties. By enabling the corporation to operate as a “nexus for regulation,” regulatory partitioning produces significant benefits as well as costs. While regulatory partitioning is essential to the proper functioning of multi-member firms, it also supports legal arbitrage in tax and regulatory matters as a major driving force of incorporations around the world. The chapter also distinguishes between the frequently invoked notion of veil piercing as an exception to asset partitioning and a much more pervasive process I call veil peeking as an exception to regulatory partitioning.

New psychological research suggests that trigger warnings do not reduce negative reactions to disturbing material—and may even increase them.

Congress needs to act and the executive branch needs to step up.

In “You Bet Your Life,” Paul A. Offit looks at advances that have prolonged life, from chemotherapy to the Covid vaccine, and the difficult, even deadly, paths to arrive at them.

To mitigate climate change, food systems must reduce their greenhouse gas emissions. For consumers, this means switching to more plant-based diets and wasting less food. A behaviorally informed policy employing nudges—educative and architectural—can be a cornerstone. Plant-based defaults promise large reduction effects while maintaining freedom of choice.

Almost one year later, survivors of these horrific abuses are still in precarious situations and require immigration relief.

With respect to the views of dead thinkers, answers to many particular questions are often interpretive in Ronald Dworkin’s sense: such answers must attempt (1) to fit the materials to be interpreted and (2) to justify them, that is, to put them in the best constructive light. What looks like (1), or what purports to be (1), is often (2). That is, when a follower of Kant urges that “Kant would say x,” or that “Kantianism entails y,” the goal is to make the best constructive sense of Kant and Kantianism, not merely to follow something that Kant actually said. An approach to behavioral economics cannot claim to be Hayekian if it is rooted in enthusiasm for the abilities of planners to set prices and quantities, or if it sees the price system as a jumble of mistakes and errors. But within a not-so-narrow range, a variety of freedom-preserving approaches, alert to the epistemic limits of planners, can fairly claim to be Hayekian. Hayekian behavioral economics, I suggest, is an approach that (1) recognizes the importance and pervasiveness of individual errors, (2) emphasizes the epistemic limits of planners, (3) builds on individual choices rather than planner preferences, and (4) gives authority to choices made under epistemically favorable conditions, in which informational deficits and behavioral biases are least likely to be at work. The key step, of course, is (4). If it is properly elaborated, the resulting approach deserves respect, even if some of us, including the present author, would not entirely embrace it. In defending that proposition, the present essay responds to some critical remarks by Robert Sugden, including his resort to “explainawaytions” (Matthew Rabin’s term) for behavioral findings.

Americans increasingly believe the Supreme Court is a political body in disguise. But Justice Stephen Breyer disagrees. Arguing that judges are committed to their oath to do impartial justice, Breyer aims to restore trust in the Court. In the absence of that trust, he warns, the Court will lose its authority, imperiling our constitutional system.

On November 3, 2020, voters in the state of Alabama approved the opaquely named “Authorize Legislature to Recompile the State Constitution Measure.” As described by the state’s Fair Ballot Commission, the ballot measure would permit the Alabama legislature to “(1) remove racist language” and “(2) remove language that is repeated or no longer applies,” among other things. The racist language in question? In one portion, the constitution still prescribed that “separate schools shall be provided for white and colored children.” Another section, though technically repealed by another amendment in 2000, remained in place memorializing that the “legislature shall never pass any law to authorize or legalize any marriage between any white person and a negro, or descendant of a negro.” Though both these provisions were deemed unenforceable under the federal Constitution following blockbuster Supreme Court decisions, the provisions remained on the books. And even in 2020, the measure to eliminate this language passed only by a margin of 67% to 33%. Proposals to remove the language had twice failed since the year 2000—although the vocal opponents of those proposals objected allegedly not to preserve the language itself, but rather on the grounds that revising the language would have various unintended consequences for taxation or school funding. Alabama’s language may have lasted longest, but many other state constitutions contained similar provisions well into recent history. Today’s state constitutions remain full of sections that can be characterized as “zombie provisions”—clearly or arguably unenforceable clauses and amendments that stick with us, toward sometimes unclear effect and with potentially harmful consequences. The “zombie” phenomenon is becoming more well known in an adjacent context, although zombie-ism appears with (perhaps alarming) frequency in different strands of legal scholarship. Pertinent for our purposes, both judges and scholars have used the term “zombie laws” or “zombie statutes” to describe legislation rendered unenforceable by a constitutional decision or other laws, but that nevertheless “remain[s] on the books.” Even more recently, several scholars have identified judicial opinions as another area pervaded by the undead. Despite widespread rejection of disturbing precedents on topics ranging from slavery to women’s rights, these “artifacts from morally unrecognizable eras” persist and resurface in modern case law, raising questions about whether they should ever have precedential value, the harms continued invocation of these decisions may perpetuate, and how and whether courts should repudiate them. This Essay canvasses the zombie phenomenon in modern state constitutions. Although there are strong parallels to zombie legislation, state constitutions deserve their own treatment. To be sure, in many cases, subject matter addressed in one state’s code can be found in a different state’s constitution, like the multitude of amendments in Alabama’s constitution governing the playing of bingo games in various counties. And like statutes, direct democratic participation shapes the content of many state constitutional provisions. But as sources of law, state constitutions exist somewhere on a spectrum, with statutes at one pole and the federal Constitution on the other. As constitutions, these state documents are meant to apply for long durations and are subject to particular amendment procedures, making them more resistant to change than the average statute (though certainly not as fixed as the federal Constitution). These similarities and differences merit separate discussion of the zombie provisions of state constitutions and what, if anything, should be done about them. This Essay proceeds in three parts. First, it uses the state constitutions to examine the ambiguities in what counts as a “zombie,” identifying both core and more peripheral cases, as well as some constitutional provisions that do not quite qualify as zombies but nonetheless seem potentially worrisome. Next, it considers the harms that zombie provisions may cause, exploring these harms alongside those identified in related contexts ranging from covenants running with land to unenforceable or unenforced statutes. The final Part considers in detail both the arguments for and against removal and the different methods by which zombie provisions might be rejected or removed. Since 2020, there have been several efforts in individual states to remove currently unenforceable state constitutional provisions. This Essay is thus a timely exploration of what makes these provisions problematic as well as some of the nuanced and difficult questions involved in any decision to neutralize them.

A legal decision once prevented a church from vetoing a Harvard Square restaurant’s liquor license. Now it could prevent other private parties from wielding government power.

Johan van der Walt finds the essence of the concept of liberal democratic law to lie in an uprootedness of law “from life.” He connects that finding to a modern experience of life fundamentally divided. Division of life occurs both at the societal level, as a fact of visionary pluralism, and at the personal level, as an experience of deep-set inner conflicts of passions and motivations. The path to law-from-life uprooting from the experience of external social division may be the more obvious; the path there from the experience of internal conflict may be the more interesting. The two paths join at a crucial place reserved by Van der Walt for indispensable moments of “sacrifice” – or, better, “gift;” or, still better, “graciousness” – in the liberal democratic experience of law. We ask here whether that is also the place of “civility” (in the lexicon of John Rawls), where the conception of liberal democratic law put forth by Rawls in his philosophy of political liberalism may be seen to meet up with the thought of Van der Walt.