Faculty Bibliography

This statutory supplement (fall 2020 edition) is for the Corporations casebooks by Holger Spamann and by Holger Spamann and Guhan Subramanian. It contains excerpts from the Delaware General Corporation Law, the Securities Exchange Act of 1934, Rules & Regulations promulgated by the Securities Exchange Commission pursuant to authority granted under the 1934 Act, as well as short excerpts from the Restatement of the Law Third (Agency) and the Uniform Partnership Act of 1914. It is current as of August 1, 2020.

This essay, to appear in a chapter in Judicial Review: Process, Power and Problems, edited by Shruti Bedi and Lokendra Malik, a festschrift for Upendra Baxi, argues that the pursuit of judicially enforced social welfare and equality rights in the modern world is bound to fail but must be pursued. The contemporary picture of judicial enforcement of social welfare rights in one in which there is a consensus that such enforcement is possible, general agreement that enforcement should be dialogic rather than coercive, and a sense that enforcement is rather less effective than is desirable. As to the last, the essay argues that the predicate for generating resources to finance the provision of social welfare rights – investment from abroad – generates economic and legal limitations that inhibit the government from accumulating those resources. The essay develops a parallel argument about judicial enforcement of substantive equality rights, referring specifically to problems associated with the horizontal effect/state action doctrine. The conclusion here is that courts have the capacity to move outcomes in the direction of substantive equality, and might not face overwhelming constraints from the domestic political system, but their ability to achieve true substantive equality is limited by economics, both domestic and international. Yet, where constitutions are committed to substantive equality and social and economic rights, the lesson of the twentieth century is that judges will – and should – attempt to enforce those commitments. Enforcing the constitution – the entire constitution – is what democratic-minded citizens have come to expect of their courts. What is needed is a realistic understanding of what courts can accomplish – less than one might hope (the noble dream), but more than nothing (the nightmare). The attempt more than the achievement is what matters. The task then might be to develop a judicial rhetoric associated with the enforcement of these rights that effectively communicates why what the courts are doing is worth doing, why what they are doing is not enough, and why it is as much as the courts can do.

This chapter explores recent Fintech innovations through the lens of Ronald Coase’s classic article: The Nature of the Firm. Applying a transaction cost analysis, the chapter argues that developments in computer technology, data processing, and information networks are reshaping the manner in which financial services are produced, unsettling the boundaries separating regulated firms from outside vendors and open market transactions. These changes raise challenging questions as to the appropriate contours of regulatory perimeters as well as the structure of regulation and supervision in the many area of financial regulation. Fintech innovations also have the potential to be harnessed to serve public purposes, including expanding access to financial services and improving supervisory practices. At a minimum, Fintech innovations and most especially machine learning and artificial intelligence complicate the application of legal doctrines based on human intentionality. More broadly, the scale and scope of these technological developments may lead to a fundamentally rethinking of the appropriate goals of regulatory policy for financial firms and the economy more broadly, particularly with respect to privacy and the accumulation of personal information in private and public hands.

The Supreme Court has never simply evaluated laws and arguments in light of permanent and immutable constitutional meanings, and social, moral, and yes, political ideas have always played into Supreme Court justices’ impressions of how they think a case should be decided. Mark Tushnet traces the ways constitutional thought has evolved from the liberalism of the New Deal and Great Society to the Reagan conservatism that has been dominant since the 1980s. Looking at the current crossroads in the constitutional order, Tushnet explores the possibilities of either a Trumpian entrenchment of the most extreme ideas of the Reagan philosophy, or a dramatic and destabilizing move to the left. Wary of either outcome, he offers a passionate and informed argument for replacing judicial supremacy with popular constitutionalism-a move that would restore the other branches of government’s role in deciding constitutional questions.

Heyes and Saberian (AEJ-AE 2019) estimate from 2000-2004 data that outdoor temperature reduces U.S. immigration judges’ propensity to grant asylum. This estimate is the result of coding and data errors and of sample selection. Correcting the errors reduces the point estimate by two thirds, with a wide 95% confidence interval straddling zero. Enlarging the sample to 1990-2019 flips the point estimate’s sign and rules out the effect size reported in Heyes and Saberian with very high confidence. An analysis of all criminal sentencing decisions by U.S. federal district judges 1992-2003 yields no evidence of temperature or other weather effects either.

In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand and construction on the other. In cases of interpretation, judges (or agencies) must ascertain the meaning of a statutory term. In cases of construction, judges (or agencies) must develop implementing principles or specify a statutory term. In cases that involve statutory construction, the argument on behalf of Chevron is very powerful; agencies have relevant comparative advantages in developing implementing principles. With respect to statutory interpretation, the argument on behalf of Chevron is more controversial. Those who reject Chevron in the context of interpretation should nonetheless accept it in the context of construction. The distinction between interpretation and construction explains some important cases in the 1940s and also in the post-Chevron era.

This Article analyzes constitutional concerns presented by the use of risk-assessment technology in the criminal justice system, and how courts can best address them. Focusing on due process and equal protection, this Article explores avenues for constitutional challenges to risk-assessment technology at federal and state levels and outlines how instruments might be retooled to increase accuracy and accountability while satisfying constitutional standards.

An important milestone often reached in the life of an activist engagement is the entering into a “settlement” agreement between the activist and the target’s board. Using a comprehensive hand-collected data set, we provide the first systematic analysis of the drivers, nature, and consequences of such settlement agreements. We identify the determinants of settlements, showing that settlements are more likely when the activist has a credible threat to win board seats in a proxy fight. We argue that, due to incomplete contracting, settlements can be expected to contract not directly on the operational or leadership changes that activists seek but rather on board composition changes that can facilitate operational and leadership changes down the road. Consistent with the incomplete contracting hypothesis, we document that settlements focus on boardroom changes and that such changes are subsequently followed by increases in CEO turnover, increased payout to shareholders, and higher likelihood of a sale or a going-private transaction. We find no evidence to support concerns that settlements enable activists to extract significant rents at the expense of other investors by introducing directors not supported by other investors or by facilitating “greenmail.” Finally, we document that stock price reactions to settlement agreements are positive and that the positive reaction is higher for “high-impact” settlements. Our analysis provides a look into the “black box” of activist engagements and contributes to understanding how activism brings about changes in its targets.

Hepatitis C virus (HCV) infection is a communicable disease that affected approximately 3.5 million persons in the United States as of 2017.1 Despite the introduction of new, highly effective treatments in 2011,2 HCV infection rates in the United States tripled from 850 in 2010 to 2436 in 2015.1 This increase was largely a result of the opioid epidemic, with injection drug use the most common method of new HCV transmissions.3 In addition, the lack of enforcement of laws that entitle persons to life-saving, medically necessary care such as HCV treatment is a missed opportunity to reverse this trend. New treatments for HCV infection with direct-acting antiviral (DAA) therapies are curative for patients and eliminate their ability to spread the virus. However, US health systems have not responded to the potential of new treatments by promoting access to them. Instead, because of high initial list prices,4 state Medicaid programs and correctional health facilities have created rationing. They have limited access to HCV treatment by instituting restrictions that are based on disease severity, as measured by damage to the liver (ie, treating only persons with advanced-stage HCV infection) and prescriber specialty. In addition, despite the syndemic between the opioid crisis and increasing use of injection drugs, periods of sobriety from drugs and/or alcohol are required before treatment.5 These restrictions contradict leading medical guidance recommending treatment of virtually all persons with chronic HCV infection and hinder our ability to reduce HCV incidence, let alone end the HCV epidemic.3 Despite the tension created between scarce resources and public health concerns, the initial budgetary fears cited as justifications for restrictions were less severe than anticipated and have diminished over time, in part because increased competition has led to decreased prices.

Using fourteen government censuses and a wide variety of quantitative historical sources, I trace the origins of the Japanese putative outcastes. Sympathetic scholars have long described the group - called the burakumin - as the descendants of a 17th century leather-workers' guild. Members of the group suffer discrimination because their ancestors handled dead animals, they write, and ran afoul of a distinctively Japanese religious obsession with ritual purity. In fact, the burakumin are not descended from leather-workers. They are descended from poor farmers. Eighteenth-century Japanese would not have discriminated against them out of any concern for ritual purity. They would have discriminated against them because they were poor. The burakumin identity as we know it dates instead from the early 20th century. In 1922, self-described Bolsheviks from the buraku upper class lauched a "liberation" movement. To fit their group within Marxist historiography, they created for it a fictive identity as a leather-workers' guild. Within a few years, however, criminal entrepreneurs from the urban slums had hijacked the new movement. They embarked on full-scale identity politics, and generated the public hostility that has plagued the group ever since. The criminal leadership used discrimination claims to shake down local (and eventually the national) governments for ever-increasing transfer payments. Before the 1920s, prosperous member of the buraku had stayed and helped to build its social and economic infrastructure. After the 1920s, those burakumin who hoped to capitalize on the shakedown strategies continued to stay. Given the public hostility that the criminal leadership generated, however, those who preferred mainstream careers increasingly left and merged into the general public.

Governments around the world have implemented measures to manage the transmission of coronavirus disease 2019 (COVID-19). While the majority of these measures are proving effective, they have a high social and economic cost, and response strategies are being adjusted. The World Health Organization (WHO) recommends that communities should have a voice, be informed and engaged, and participate in this transition phase. We propose ten considerations to support this principle: (1) implement a phased approach to a ‘new normal’; (2) balance individual rights with the social good; (3) prioritise people at highest risk of negative consequences; (4) provide special support for healthcare workers and care staff; (5) build, strengthen and maintain trust; (6) enlist existing social norms and foster healthy new norms; (7) increase resilience and self-efficacy; (8) use clear and positive language; (9) anticipate and manage misinformation; and (10) engage with media outlets. The transition phase should also be informed by real-time data according to which governmental responses should be updated.

In February, 2020, the European Commission published a white paper on artificial intelligence (AI) as well as an accompanying communication and report. The paper sets out policy options to facilitate a secure and trustworthy development of AI and considers health to be one of its most important areas of application. We illustrate that the European Commission's approach, as applied to medical AI, presents some challenges that can be detrimental if not addressed. In particular, we discuss the issues of European values and European data, the update problem of AI systems, and the challenges of new trade-offs such as privacy, cyber-security, accuracy, and intellectual property rights. We also outline what we view as the most important next steps in the Commission's iterative process. Although the European Commission has done good work in setting out a European approach for AI, we conclude that this approach will be more difficult to implement in health care. It will require careful balancing of core values, detailed consideration of nuances of health and AI technologies, and a keen eye on the political winds and global competition.

"Thomas Jefferson believed in the covenant between a government and its citizens, in both the government’s responsibilities to its people and also the people’s responsibility to the republic. In this illuminating book, a project of the Thomas Jefferson Foundation at Monticello, the #1 New York Times bestselling author Jon Meacham presents selections from Jefferson’s writing on the subject, with an afterword by Pulitzer Prize–winning historian Annette Gordon-Reed and comments on Jefferson’s ideas from others, including Colin Powell, Madeleine Albright, Frederick Douglass, Carl Sagan, and American presidents. This curated collection revitalizes how to see an individual’s role in the world, as it explores such Jeffersonian concepts as religious freedom, the importance of a free press, public education, participation in government, and others. Meacham writes, “In an hour of twenty-first-century division and partisanship, of declining trust in institutions and of widespread skepticism about the long-term viability of the American experiment, it is instructive to return to first principles. Not, to be sure, as an exercise in nostalgia or as a flight from the reality of our own time, but as an honest effort to see, as Jefferson wrote, what history may be able to tell us about the present and the future.” -- Random House

A central challenge in the regulation of controlled firms is curbing rent extraction by controllers. As independent directors and fiduciary duties are often insufficient, some jurisdictions give minority shareholders veto rights over related-party transactions. To assess these rights’ effectiveness, we exploit a 2011 Israeli reform that gave minority shareholders veto rights over related-party transactions, including the pay of controllers and their relatives (“controller executives”). We find that the reform curbed controller-executive pay and led some controller executives to resign or go with little or no pay in circumstances suggesting their pay would be rejected. These findings suggest that minority veto rights can be an effective corporate governance tool.

In 1946, William K. Wimsatt and Monroe C. Beardsley argued, in their classic essay, “The Intentional Fallacy,” that critics interpreting a literary work should cast aside pursuit of the author’s intent. “The poem belongs to the public,” they wrote, because “it is embodied in language, the peculiar possession of the public.” The New Criticism, a movement that dominated the academic study of literature in mid-century, asserted that only close analysis of the words and structure of the text—not external knowledge about the author, politics, morality, or a reader’s feelings—was the key to understanding its meaning. Salvatore Eugene Scalia, a professor of Italian literature at Brooklyn College, was an adherent of this theory. He also advocated for “literalness” in reading and translation, to avoid “yielding to the temptation” to follow one’s own language’s conventions in interpreting the words of the text. The New Criticism fell from prominence in the nineteen-eighties, but its impact became discernible in another field, through Professor Scalia’s only child, who was appointed to the Supreme Court in 1986, the same year that the elder Scalia died. Justice Antonin Scalia became the country’s most important expositor of textualism, the influential method of legal interpretation wherein “the text is the law, and it is the text that must be observed,” regardless of what lawmakers may have intended in passing the law. Since the nineteen-eighties, textualism has been favored by legal conservatives—but, in more recent decades, its focus on the words of a text has become influential with liberal judges, too. Last Monday, under the shadow of Antonin Scalia, who died in 2016, the current conservative Justices aired their strife over his textualist legacy in Bostock v. Clayton County, a landmark gay-and-transgender-rights case.

Explains that favorable treatment of derivatives and financial repurchase agreements under bankruptcy law weakens market discipline during ordinary financial times and exacerbates financial failure during an economic downturn or financial crisis. Safe harbors for such instruments facilitate collateral runs and fire sales and encourage short-term financing, which benefit from such privilege. The purpose of the special treatment, containment of contagion, is not accomplished and the resulting risk is to inefficiently burden other creditors including the United States government, which serves as de jure or de facto guarantor of significant financial institutions.

In this brief essay, I consider how courts have deployed the framework of sliding-scale scrutiny in the time of the pandemic. In particular, three novel issues have arisen in recent cases: (1) how to conceptualize burdens that are attributable to both state action and the pandemic; (2) whether to fault plaintiffs for not having taken precautionary steps before the pandemic hit; and (3) what weight to give to the so-called Purcell principle, which frowns on late-breaking judicial changes to electoral rules. Overall, I think most courts have reached the right answers on these issues. The Supreme Court, however, is the glaring exception to this encouraging trend. This leads me to two conclusions. One is that sliding-scale scrutiny is an impressively flexible doctrine, able to resolve adequately new kinds of claims in the midst of an unprecedented calamity. The other is that the current Court remains what I have called the anti-Carolene Court, implacably hostile to efforts to vindicate democratic values.

Protecting intellectual property (IP) as an investment has important consequences for the emerging landscape of international investment law and for the very nature of IP rights. By recasting IP as an investment ‘asset’ it diminishes the public-oriented aspect of IP and deviates from the competition and social progress norms in which IP law is grounded. This chapter explores the unique characteristics of IP rights which render them unsuitable for classification as traditional investments and discusses the conditions under which IP could be considered an investment for arbitration purposes. It argues that investment arbitration invoked to contest IP laws should be permitted only under a prescribed set of conditions which are designed to preserve the ‘wiggle room’ that is inherent within the international IP system and is critical for preserving national sovereignty, as well as public faith in domestic legislative and judicial processes.

This book provides a new way to learn about the topic of conflicts of law through experiential learning. Most books describe the approaches that have been adopted over time to decide conflicts of laws. This book describes those approaches and includes the emerging Third Restatement. To promote experiential learning, it does more: First, it explains patterns of cases so that students can fit new cases into established frames of reference. Second, it distinguishes between easy cases and hard cases so students can determine when a case cannot be easily resolved. Third, it provides detailed arguments that are typically made on both sides of hard cases that fit the typical patterns. Fourth, it concludes with moot court exercises that students could perform in class to practice advocacy in this field and judging. With new requirements to provide students with experiential learning opportunities, this text enables any teacher to give students the tools they need to understand the issues in the field, the reasons why cases are hard, the arguments that are available on both sides, and justifications that judges can give for resolving cases one way or the other.

This Essay (the “Essay”) estimates the U.S. bankruptcy system’s ability to absorb an anticipated surge of financial distress among American consumers, businesses, and municipalities as a result of COVID-19. An increase in the unemployment rate has historically been a leading indicator of the volume of bankruptcy filings that occur months later. If prior trends repeat this time, the May 2020 unemployment rate of 13.3 percent will lead to a substantial increase in all types of bankruptcy filings. Mitigation, governmental assistance, the unique features of the COVID-19 pandemic, and judicial triage should reduce the potential volume of bankruptcies to some extent, or make it less difficult to handle, and it is plausible that the predictive power of the recent unemployment spike will be smaller than history would otherwise predict. We hope this will be so. Yet, even assuming that the worst-case scenario could be averted, our analysis suggests substantial, temporary investments in the bankruptcy system may be needed. Our model assumes that Congress would like to have enough bankruptcy judges to maintain the average bankruptcy judge’s caseload at no more than it was during the last bankruptcy peak in 2010, when the bankruptcy system was pressured and the public caseload figures indicate that judges worked 50 hour weeks on average. To keep the judiciary’s workload at 2010 levels, we project that, in the worst-case scenario, the bankruptcy system could need as many as 246 temporary judges—a very large number. But even in our most optimistic model, the bankruptcy system will still need 50 additional temporary bankruptcy judgeships, as well as the continuation of all current temporary judgeships. The optimistic model begins with the observation that an unusually large number of the unemployed believe that they are only temporarily furloughed and will be back at work soon. Accordingly, we (optimistically) removed the excess-from-baseline number of unemployed who believe they will be back at work shortly—as if they will be back at work shortly with no adverse impact on the economy’s channel to bankruptcies. That reduction yielded a projected need of between 50 and 69 fewer judges to maintain a judicial workload no greater than the one bankruptcy courts faced in the 2009 financial crisis. In other circumstances, the enormous uncertainty of what the bankruptcy caseload will be would warrant waiting to see what develops. And strong action probably will not occur until we see a major across-the-board rise in filings. (Large business filings are rising sharply now, but consumer filings are not rising.) The downside of a wait-and-see strategy is that full-scale bankruptcy court appointments need about a year to complete. The dilemma in what action to take now is that if bankruptcies do in fact rise by several-fold---a plausible but uncertain prospect, then waiting for the rise will lead to a large gap that will put the system one year behind where it ought to be if the filings had been anticipated as certain and acted upon. Hence, we recommend that the relevant players act on the optimistic estimation and re-assess bankruptcy needs as the economy evolves and more information develops. Judicial appointments need not be for the full term of a bankruptcy judge. Capacity can be added via temporary judges (of which there already are some in the bankruptcy court system) and by recalling recent retirees who are willing to serve.

Our country is wracked by two urgent crises – the COVID-19 pandemic and the plague of systemic racism. COVID-19 presents grave challenges to all of us, but it poses particular – and, in many cases, life-threatening – challenges to working people. Moreover, the costs of the pandemic are being borne disproportionately by low-wage workers, a population made up primarily of women and workers of color. As they work to keep the economy moving despite the pandemic, these workers are being asked to put their lives on the line in ways that are both unacceptable and unnecessary. ‍ Indeed, as the economy reopens, more and more workers will be put in harm’s way. Unless, that is, something fundamental changes about the way we approach worker voice and power. In this issue brief, we offer a set of recommendations designed to empower workers so that they are better positioned to cope with the ravages of COVID-19, keep themselves and their families safe, and build a more equitable economy than the one the pandemic shut down. ‍ There is strong bipartisan support for the recommendations we are suggesting. A large majority of likely voters support giving workers a formal voice in setting health and safety standards. Only 19% of likely voters said they opposed these reforms. View the full polling results here. ‍ As with the original Clean Slate report, the recommendations here are designed so that they apply to all workers regardless of whether the law classifies them as employees, independent contractors, or otherwise outside of traditional labor law’s protection. And a central premise of the Clean Slate for Worker Power project is that any attempt to empower workers must begin with the effort to make labor law, and the labor movement, fully inclusive of workers of color – workers who have faced exclusion from the start. ‍ When law empowers all workers to demand equitable treatment – including safe and healthy working conditions – workers can build the kind of nation we all deserve

This chapter will map the ethical and legal challenges posed by artificial intelligence (AI) in health care and suggest directions for resolving them. Section 1 will briefly clarify what AI is and Section 2 will give an idea of the trends and strategies in the United States (U.S.) and Europe, thereby tailoring the discussion to the ethical and legal debate of AI-driven health care. This will be followed in Section 3 by a discussion of four primary ethical challenges, namely (1) informed consent to use, (2) safety and transparency, (3) algorithmic fairness and biases, and (4) data privacy. Section 4 will then analyze five legal challenges in the U.S. and Europe: (1) safety and effectiveness, (2) liability, (3) data protection and privacy, (4) cybersecurity, and (5) intellectual property law. Finally, Section 5 will summarize the major conclusions and especially emphasize the importance of building an AI-driven health care system that is successful and promotes trust and the motto “Health AIs for All of Us”.

This Article responds to comments on my book Law and Legitimacy in the Supreme Court by Professors Gillian Metzger, Scott Soames, Lawrence Solum, and Keith Whittington. It defends the main theses that my book develops and engages further questions that Professors Metzger, Soames, Solum, and Whittington either raise or provoke.

For regulation, some people argue in favor of the maximin rule, by which public officials seek to eliminate the worst worst-cases. The maximin rule has not played a formal role in regulatory policy in the Unites States, but in the context of climate change or new and emerging technologies, regulators who are unable to conduct standard cost-benefit analysis might be drawn to it. In general, the maximin rule is a terrible idea for regulatory policy, because it is likely to reduce rather than to increase well-being. But under four imaginable conditions, that rule is attractive. (1) The worst-cases are very bad, and not improbable, so that it may make sense to eliminate them under conventional cost-benefit analysis. (2) The worst-case outcomes are highly improbable, but they are so bad that even in terms of expected value, it may make sense to eliminate them under conventional cost-benefit analysis. (3) The probability distributions may include “fat tails,” in which very bad outcomes are more probable than merely bad outcomes; it may make sense to eliminate those outcomes for that reason. (4) In circumstances of Knightian uncertainty, where observers (including regulators) cannot assign probabilities to imaginable outcomes, the maximin rule may make sense. (It may be possible to combine (3) and (4).) With respect to (3) and (4), the challenges arise when eliminating dangers also threatens to impose very high costs or to eliminate very large gains. There are also reasons to be cautious about imposing regulation when technology offers the promise of “moonshots,” or “miracles,” offering a low probability or an uncertain probability of extraordinarily high payoffs. Miracles may present a mirror-image of worst-case scenarios.

The rise of big data and sophisticated, machine learning algorithms is increasing the prevalence of price discrimination and even personalized pricing. In traditional models, where consumers’ willingness-to-pay (WTP) is a function of preferences (and budget constraints), price discrimination is often celebrated for increasing efficiency albeit while reducing consumer surplus. This favourable view of price discrimination should be re-evaluated when WTP is a function of both preferences and misperceptions. With demand-inflating misperceptions, price discrimination is even more harmful to consumers and might reduce efficiency. These results are derived using a simple, linear demand model with different levels of price discrimination (or segmentation). In the many consumer markets where misperception is common, more careful scrutiny of price discrimination is warranted.

The article examines that in the U.S. people of all backgrounds, but especially people of color, are menaced by police violence. Topics include reports that the circumstances of George Floyd's death have been effectively covered up and buried even with the evidence at hand, securing a conviction and appropriate punishment is by no means guaranteed; and considered that several people are on streets associated with the pandemic and law enforcement.

Contact investigations have been a vital public health strategy, most recently in controlling tuberculosis and sexually transmitted infections including HIV. Yet, the sheer scale of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) infections poses major challenges to contact investigations. Strategies in China, Singapore, South Korea, and Taiwan have supplemented traditional manual approaches with digital surveillance through smartphone applications. The US has not used digital surveillance as a tool, but Google, Apple, the Massachusetts Institute of Technology (MIT), as well as 2 pan-European consortia and a variety of independent efforts are developing Bluetooth smartphone technology to enable rapid notification of users that they have had a close exposure to individuals diagnosed with medically verified coronavirus disease 2019 (COVID-19). How does digital tracking differ from manual tracing? Although digital surveillance has the distinct advantages of scale and speed, does it confer sufficient public health benefit to justify adoption given privacy concerns? How do the design choices of digital contact tracing systems affect public health and privacy?

The First Amendment was a dead letter for much of American history. Unfortunately, there is reason to fear it is entering a new period of political irrelevance. We live in a golden age of efforts by governments and other actors to control speech, discredit and harass the press, and manipulate public debate. Yet as these efforts mount, and the expressive environment deteriorates, the First Amendment has been confined to a narrow and frequently irrelevant role. Hence the question—when it comes to political speech in the twenty-first century, is the First Amendment obsolete?

As a professor for half a century, Dershowitz never told students what values to accept or which candidates to support, but helped guide them to conclusions based on their own sets of values. He does the same in this book.

Corruption is widely believed to be a self-reinforcing phenomenon, in the sense that the incentive to engage in corrupt acts increases as corruption becomes more widespread. Some argue that corruption's self-reinforcing property necessarily implies that incremental anticorruption reforms cannot be effective, and that the only way to escape a high-corruption equilibrium “trap” is through a so-called “big bang” or “big push.” However, corruption's self-reinforcing property does not logically entail the necessity of a big bang approach to reform. Indeed, corruption's self-reinforcing property may strengthen the case for pursuing sustained, cumulative incremental reforms. While there may be other reasons to prefer a big bang approach to an incremental approach, this conclusion cannot be grounded solely or primarily on corruption's self-reinforcing character.

The COVID-19 financial response brought a seismic shift in the allocation of authority between Congress, the Treasury, and the Federal Reserve. According to the classic division of labor, Congress claims the “power of the purse” or the constitutional authority to appropriate public funds; the Treasury holds responsibility over the spending and taxing that puts those orders into effect; and the Federal Reserve engages in money creation as part of its role making monetary policy and acting as lender of last resort. Drawing on that theory of separated powers, the essay reconstructs the traditional ways of thinking that distinguished money creation by the Fed from the congressional power of the purse. Most notably, approaches to the Fed have downplayed the distributive implications of its money creation powers by casting them as merely a stabilizing force, either backstopping private lending in times of panic or maintaining the health of credit markets more generally. We then analyze the COVID-19 liquidity facilities at the heart of the Federal government’s response to the current crisis. Established by the Fed, these facilities are shaped in non-transparent ways by the Treasury’s authority to protect the Fed from losses. With only $450 billion in congressional appropriations, the facilities are anticipated to lend $4.5 trillion, an amount the size of the 2019 federal budget. In our view, the facilities collapse the traditional narrative that distinguished Fed money creation from congressional appropriations. We conclude that that traditional narrative was problematic from the start. Congress’s inability to take responsibility over Fed credit support calls for a more structural reform in our financial system- one compatible with democratic governance and distributive justice.