Faculty Bibliography

In 2018, Ukraine established a High Anti-Corruption Court (HACC). Ukrainian civil society groups, with the crucial support of the international community, pushed for this specialised court as a way to address the ineffectiveness of Ukraine’s regular courts in addressing high-level corruption. The HACC’s most distinctive institutional feature is the role of international experts in the judicial selection process, intended to safeguard against the capture of the HACC by corrupt elites.

Tort law is badly misunderstood. In the popular imagination, it is “Robin Hood” law. Law professors, meanwhile, mostly dismiss it as an archaic, inefficient way to compensate victims and incentivize safety precautions. In Recognizing Wrongs, John Goldberg and Benjamin Zipursky explain the distinctive and important role that tort law plays in our legal system: it defines injurious wrongs and provides victims with the power to respond to those wrongs civilly. Tort law rests on a basic and powerful ideal: a person who has been mistreated by another in a manner that the law forbids is entitled to an avenue of civil recourse against the wrongdoer. Through tort law, government fulfills its political obligation to provide this law of wrongs and redress. In Recognizing Wrongs, Goldberg and Zipursky systematically explain how their “civil recourse” conception makes sense of tort doctrine and captures the ways in which the law of torts contributes to the maintenance of a just polity. Recognizing Wrongs aims to unseat both the leading philosophical theory of tort law—corrective justice theory—and the approaches favored by the law-and-economics movement. It also sheds new light on central figures of American jurisprudence, including former Supreme Court Justices Oliver Wendell Holmes, Jr., and Benjamin Cardozo. In the process, it addresses hotly contested contemporary issues in the law of damages, defamation, malpractice, mass torts, and products liability.

A former member of the UN Human Rights Committee, Harvard’s Gerald Neuman, analyzes its draft document on peaceful assembly, in this third of a series.

During the Second World War, fraudulent recruiters sometimes promised young Korean women factory jobs but sent them instead to war-zone brothels called "comfort stations." Western historians take it on faith that the Japanese military forced Korean women into brothels as well. Unfortunately, in doing this they do not just ignore the role that politics (Korean, Japanese, and Western academic) have played in the dispute. They also ignore the contracts that the rest of the -- not defrauded -- young women actually concluded. In the article that follows, I examine the employee-level contracts in the market for sexual services within the Japanese empire. The contracts reflect the straightforward logic of "credible commitments" so basic to elementary game theory. Realizing that the brothel owners had an incentive to exaggerate their future earnings, the women demanded a large portion of their pay upfront. Realizing that they were headed to the war zone, they demanded a relatively short maximum term. And realizing that the women had an incentive to shirk, the brothels demanded provisions that gave women incentives to work hard. Ultimately, the women and brothels concluded identure contracts that coupled a large advance with one or two year maximum terms, and an ability for the women to return early if they generated sufficient revenue. Crucial to the current dispute, the Japanese military did not force -- or even recruit -- Korean women into prostitution. Instead, the brothels surrounding the bases began and remained as privately owned and operated enterprises. They employed contracts that reflected these game-theoretic principles of promissory credility. The women were poor, they were young, and they were born into the bad circumstances. But basic principles of market economics apply to poor young people too -- and we would do well to recognize how resourcefully the women used those principles to respond to their plight.

This is a complete but unfinished draft of an article on the history of American family law. The first part describes four stages in the legal conceptualization of the family in the U.S. over the period from the late 18th century to ca. 1960. It is part of a larger intellectual history project depicting the stages of American legal consciousness as a whole. In this part, I treat the socio-economic background and the political struggles that shape and are shaped by consciousness as context for the story of conceptual change. In the second longer part of the piece, I present the interaction of political forces with legal consciousness (as evolved in Part One), along with social, economic and cultural change, in a single narrative of the historic transformation of American family law doctrine, ca. 1950-2015. This part defines family law broadly to include rules about marriage and parenthood along with social welfare law and the law of sex and reproduction, and includes their constitutionalization. It is in the tradition of political economy, starting with conflicting groups led by elites, understood not just as collections of individuals but as loose collectives with goals and strategies that are based on shared material and ideological interests. An important theme is the influence on legal change of tacit pro-sex and neo-puritan attitudes within the law making elites.

Japanese communities with nuclear reactors have them because they applied for them, and they applied for them for the money. Among Japanese municipalities, they were some of the most dysfunctional before the reactors had even arrived. These were the villages that had long fought for targeted subsidies, but ignored infrastructural investments. Subsidies operate as a regressive tax on out-migration, of course, and the lack of private-sector infrastructure reduces the returns to high-value human capital. As a result, these were the villages from which the most talented young people had probably begun to disappear—even before the reactors arrived. After the communities built the reactors, talented young people continued to leave. Unemployment rose. Divorce rates climbed. And in time, the communities had little other than reactor-revenue on which to rely.

This paper studies the design of enforcement policies to detect and deter harmful short-term activities committed by groups of injurers. With an ordered-leniency policy, the degree of leniency granted to an injurer who self-reports depends on his or her position in the self-reporting queue. By creating a "race to the courthouse," ordered-leniency policies lead to faster detection and stronger deterrence of illegal activities. The socially-optimal level of deterrence can be obtained at zero cost when the externalities associated with the harmful activities are not too high. Without leniency for self-reporting, the enforcement cost is strictly positive and there is underdeterrence of harmful activities relative to the first-best level. Hence, ordered-leniency policies are welfare improving. Our findings for environments with groups of injurers complement Kaplow and Shavell's (1994) results for single-injurer environments. Experimental evidence provides support for our theory.

Readings in Comparative Health Law and Bioethics examines how different countries around the world approach the same challenges in health care law and ethics: how to finance care for as many people as possible; how to ensure quality care; how to best secure patients' rights; how to regulate abortion, end of life decision-making, and assisted reproduction; and how to manage infectious diseases, tobacco use, and human subject research. The new edition considers a broader array of countries, particularly from Asia, Latin America, Africa, and the Middle East.

When members of a minority group can monitor and constrain each other, they can leverage their internal social capital to financial gain. When they live within dense networks of personal contacts, they will more often have the information necessary to learn whether potential trade partners have kept their word and to punish those who have not. When members of a minority group lack that social capital, they not only lose these advantageous transactions but become vulnerable to their own self-appointed leaders as well. Lacking a network of close ties, they can neither monitor nor constrain others in the group. This vacuum creates an opening for opportunists to purport to act on their behalf (perhaps to obtain ethnic subsidies or other group preferences), but actually to divert rents to themselves--and incite hostility toward the group in the process. Arrovian statistical discrimination and selective out-migration follow. The opportunists raise the level of dysfunction within the group. Faced with an outside majority that treats minority members by the observed group mean, those minority members with the highest outside options will now leave and abandon the group to the opportunists. Any ethnic subsidies will offset the discrimination in part, of course. The higher the level of subsidies, the fewer the number of minority members who will find it advantageous to leave; the higher the level of subsidies, the slower the pace at which the dysfunctional minority will merge into the mainstream I illustrate these dynamics with examples from the burakumin outcastes in Japan, the Korean residents in Japan, and the Okinawans.

This article seeks to identify and discuss the impact of Nina Olson, in her role as National Taxpayer Advocate (NTA), on low-income taxpayer clinics (LITCs). The article discusses the background of Ms. Olson including her advocacy that led to grant funding for LITCs and the background of LITCs before she began administering the grant funds as NTA. The accomplishments of Ms. Olson with respect to LITCs are discussed in six separate topic areas: Changes to Clinic Structure; Pushing for Actions and Resources That Aided Clinics; Expanding Taxpayer Advocate Service Oversight of Low-Income Taxpayer Clinics; Changing the Culture of Low-Income Taxpayer Advocacy; Connecting LITCs to the Tax Court; and Creating Research Office That Provided Empirical Data to Support LITC Positions.

The governance of online platforms has unfolded across three eras – the era of Rights (which stretched from the early 1990s to about 2010), the era of Public Health (from 2010 through the present), and the era of Process (of which we are now seeing the first stirrings). Rights-era conversations and initiatives amongst regulators and the public at large centered dominantly on protecting nascent spaces for online discourse against external coercion. The values and doctrine developed in the Rights era have been vigorously contested in the Public Health era, during which regulators and advocates have focused (with minimal success) on establishing accountability for concrete harms arising from online content, even where addressing those harms would mean limiting speech. In the era of Process, platforms, regulators, and users must transcend this stalemate between competing values frameworks, not necessarily by uprooting Rights-era cornerstones like CDA 230, but rather by working towards platform governance processes capable of building broad consensus around how policy decisions are made and implemented. Some promising steps in this direction could include delegating certain key policymaking decisions to entities outside of the platforms themselves; making platforms “information” or “content” fiduciaries; and systematically archiving data and metadata about disinformation detected and addressed by platforms.

This review addresses four key issues in the modern (post-1976) era of capital punishment in the United States. First, why has the United States retained the death penalty when all its peer countries (all other developed Western democracies) have abolished it? Second, how should we understand the role of race in shaping the distinctive path of capital punishment in the United States, given our country's history of race-based slavery and slavery's intractable legacy of discrimination? Third, what is the significance of the sudden and profound withering of the practice of capital punishment in the past two decades? And, finally, what would abolition of the death penalty in the United States (should it ever occur) mean for the larger criminal justice system?

In this paper, I explore how international legal scholarship about war, written at a time of war, ought to read. Can — and should — we demand doctrinal rigor and analytical clarity, while also expecting that scholarship makes us feel something, that it connects us to the author, that it captures the intimacy and emotion that human beings experience in relation to war? I use two eras of international legal scholarship on war — namely, the Vietnam era and the War on Terror — to illustrate key moments in the field that were typified by very different kinds of writing and the corresponding differences in thinking and feeling. I argue, in part, that — in contradistinction to passion-filled Vietnam-era scholarship — a particularly influential strand of contemporary scholarship on the United States’ War on Terror adopts a view that is aridly technical, acontextual, and ahistorical. In short, it lacks passion. (I use “passion” as a composite term in an attempt to capture diverse facets of a problem that I am attempting to diagnose.) The Introduction situates this project within broader writing on law and emotions. Part I provides a list of characteristics of what I consider passionate scholarship, using the Vietnam era as an example of that approach. Part II provides a mirrored list of the characteristics of abstract and bloodless scholarship, using the latter part of the War on Terror (2009 onward). The observations compare how scholars of each period contend with the sense of crisis and urgency of their time, the understanding that they (we) were living — and writing — through moments that would be seen as history-changing and law-shifting in the future. Part III examines possible explanations for differences where we ought to see similarities, for absences of scholarly connection where they should be plentiful, and for a seismic shift in the general tone and mood of international legal scholarship on war in less than two generations. Part IV concludes by discussing why we — international lawyers, scholars who feel strongly about war and peace — ought to care about and seek to reverse this shift.

Startup founders, who generally must cede control to obtain VC financing, are widely believed to regain control in the event of IPO, à la Facebook’s Mark Zuckerberg. Indeed, the premise that founders expect to reacquire control if there is an IPO underlies the leading finance theory for why venture capital cannot thrive without a robust stock market: the existence of an IPO market enables VCs to give founders a “call option on control” exercisable if the firm is successful. But little is known about how frequently founders regain control via IPO. Using a sample of over 18,000 VC-backed firms that received their initial round of VC financing during 1990-2012, we show that founders generally do not reacquire control if there is an IPO. In almost 60% of firms that do go public, the founder is no longer CEO at IPO. In firms with a founder-CEO right after IPO, founders generally lack substantial voting power; 50% are no longer CEO of the firm within three years. Zuckerberg is not the norm. We also show that the ex ante likelihood of any given founder reacquiring control via IPO is extremely low, suggesting that the expected value of any call option on control is trivial. As of initial VC financing, the likelihood that a founder takes her firm public and retains the CEO position and voting control for three years is about 0.4%. Our results shed light on how control evolves in U.S. startups, and cast doubt on the plausibility of the “call option on control” theory linking stock and VC markets.

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.

At the time he wrote, Wesley Hohfeld seemed to be of the view that longstanding conceptual confusions that had blocked progress in legal thought — particularly confusions about legal rights — would soon be put to rest. If so, rights have proved a tougher nut to crack than he expected. Indeed, the difficulty of providing an adequate account of rights has led many scholars, including scholars who share Hohfeld’s aptitude and aspirations for analytic philosophy, to lose sight of a distinction central to Hohfeld’s project, namely, the distinction between a right (or claim right) and a power. Or so we argue in Part I. Worse, confusions over rights and powers, when combined with a particular understanding of what constitutes clear-eyed analysis of legal issues, has contributed to the now-widely shared but mistaken supposition that common law reasoning must (or should) take the form of instrumental reasoning. We outline this claim in Parts II and III. Ultimately, we suggest that Hohfeld’s juristic legacy contains two profound ironies. His entirely sound insistence on the analytic separation of legal rights and legal powers has helped to obscure their deep substantive connection in certain bodies of law, especially tort and contract law. And his implicit acceptance of the idea that a commitment to conceptual clarity goes hand in hand with instrumentalism in legal analysis has indirectly led prominent courts — including most famously the California Supreme Court in landmark decisions such as Rowland v. Christian — to mangle how rights, duties, and powers are linked within private law.

Over the past fifty years, the death penalty has rapidly declined around the world. In 1965, only twenty-five countries were in the abolitionist camp. By 2018, 106 countries had legally abolished the death penalty for all crimes, and another thirty-six countries were deemed “de facto” abolitionist by Amnesty International (reflected in part by not carrying out any executions over the past ten years). The magnitude of the shift from majority retentionist to majority abolitionist jurisdictions does not capture the depth of the world’s turn away from the death penalty, what is fairly characterized as a true “global movement toward the universal abolition of capital punishment.” During this turn, countries have increasingly viewed the death penalty not as a local issue of criminal justice policy but rather as an issue of fundamental human rights, with an imperative to end the practice through international advocacy and treaties. During this period, the United States came quite close to being on the early side of this global movement, having experienced an informal moratorium on executions for almost ten years (June 1967–January 1977), followed by what many thought at the time was the end of the American death penalty — the Supreme Court’s invalidation of prevailing capital statutes in Furman v. Georgia 1972. But state legislatures reasserted their commitment to the death penalty in response to Furman, the Court affirmed the basic constitutionality of the death penalty in 1976, executions resumed in 1977, and the United States emerged as one of the world’s leading executioners by the mid-1990s. The revitalization of the American death penalty, coinciding as it did with the marked decline of capital punishment in the rest of the world, led many to wonder what accounted for American exceptionalism — its emergence as the sole developed Western democracy with both the death penalty on the books and active execution chambers.

At least since the late eighteenth century, constitutions have been understood as emanations of the will of “the People,” as the ultimate expression of an inherent popular sovereignty. In the form of theories of constituent power, accounts of constitutional foundations blended notional or conceptual “descriptions” of the People, which anchored the political legitimacy of constitutional orders in the idea of hypothetical consent, with empirical claims that the nation’s actual people were represented in constitution-making processes through elected delegates and thereby were the authors of and gave consent to its fundamental law. As part of the third wave of democratization, there was an important shift in what popular participation consisted of—from indirect participation by elected representatives to direct, popular participation in the constitution-making process. As a matter of constitutional process, this led to the growing practice, and expectation, that major constitutional changes should be ratified through referenda.

Wesley Hohfeld’s scheme of jural relations possesses two fundamental strengths. First, the legal relations tend to correspond closely to potential legal results availing between individual persons – who can sue whom for what. Second, the system of “fundamental” relations possesses a symmetry and generality that made it attractive to the Realists as a springboard to their approach to law. In this paper we argue that Hohfeld’s scheme is incomplete: without more, the legal relations identified by Hohfeld do not scale up properly. Instead of being mere aggregates of more basic relations, complex relations and legal doctrines are structured and interact as a system. Activities that belong at the mid-level between the individual and large populations are most difficult to capture. What is required is a formulation of the legal relations that connects the micro of parties and the macro of the legal system at the level of society. The adoption by the Legal Realists of Hohfeld’s incomplete scheme built a gap between the micro and the macro into most subsequent American theorizing about private law. By contrast, other pre- and non-Realist versions of the broadly “Hohfeldian” program, and in particular that of Albert Kocourek, pay more attention to realistic, “economical” methods of delineating legal relations. These analytical but less reductionist formulations “scale up” better than the conventional picture, and can inspire new theories that explain more of the emergent properties of the legal system.

This article, which draws upon material from my book, "The Framers’ Coup: The Making of the United States Constitution" (Oxford University Press 2016), investigates how and why the Philadelphia Convention of 1787 wrote a constitution that was far more nationalizing and antipopulist than most Americans probably anticipated or desired. The article also seeks to shed light on how the Federalists managed to convince the nation, through a reasonably democratic ratifying process, to approve a constitution that was, in significant part, designed to reduce popular influence upon the federal government.

This Article seeks to contribute to the heated debate on the disclosure of political spending by public companies. A rulemaking petition urging SEC rules requiring such disclosure has attracted over 1.2 million comments since its submission seven years ago, but the SEC has not yet made a decision on the petition. The petition has sparked a debate among academics, members of the investor and issuer communities, current and former SEC commissioners, and members of Congress. In the course of this debate, opponents of mandatory disclosure have put forward a wide range of objections to such SEC mandates. This Article provides a comprehensive and detailed analysis of these objections, and it shows that they fail to support an opposition to transparency in this area. Among other things, we examine claims that disclosure of political spending would be counterproductive or at least unnecessary; that any beneficial provision of information would best be provided through voluntary disclosures of companies; and that the adoption of a disclosure rule by the SEC would violate the First Amendment or at least be institutionally inappropriate. We demonstrate that all of these objections do not provide, either individually or collectively, a good basis for opposing a disclosure rule. The case for keeping political spending under the radar of investors, we conclude, is untenable.

The knowledge economy is today’s road to greater and more inclusive prosperity.

The United States Supreme Court closed the courthouse door to federal litigation to narrow educational funding and opportunity gaps in schools when it ruled in San Antonio Independent School District v. Rodriguez in 1973 that the Constitution does not guarantee a right to education. Rodriguez pushed reformers back to the state courts where they have had some success in securing reforms to school funding systems through education and equal protection clauses in state constitutions, but far less success in changing the basic structure of school funding in ways that would ensure access to equitable and adequate funding for schools. Given the limitations of state school funding litigation, education reformers continue to seek new avenues to remedy inequitable disparities in educational opportunity and achievement, including recently returning to federal court. This book is the first comprehensive examination of three issues regarding a federal right to education: why federal intervention is needed to close educational opportunity and achievement gaps; the constitutional and statutory legal avenues that could be employed to guarantee a federal right to education; and, the scope of what a federal right to education should guarantee. A Federal Right to Education provides a timely and thoughtful analysis of how the United States could fulfill its unmet promise to provide equal educational opportunity and the American Dream to every child, regardless of race, class, language proficiency, or neighborhood.

A popular research design identifies the effects of corporate governance by (changes in) state laws, clustering standard errors by state of incorporation. Using Monte-Carlo simulations, this paper shows that conventional statistical tests based on these standard errors dramatically overreject: in a typical design, randomly generated “placebo laws” are “significant” at the 1/5/10% level 9/21/30% of the time. This poor coverage is due to the extremely unequal cluster sizes, especially Delaware's concentration of half of all incorporations. Fixes recommended in the literature fail, including degrees-of-freedom corrections and the cluster wild bootstrap. The paper proposes a permutation test for valid inference.