Faculty Bibliography

As part of the global effort to combat public corruption, anti-money laundering laws require financial institutions and other entities to conduct enhanced scrutiny on so-called “politically exposed persons” (PEPs)–mainly senior government officials, along with their family members and close associates. Unfortunately, the current system for identifying PEPs–which depends entirely on a combination of self-identification, in-house checks, and external private vendors that rely on searches of publicly available source material–is both inefficient and in some cases inaccurate. We therefore propose the creation of a global PEP database, organized and overseen by an inter-governmental body. This database would be populated with data compiled by national governments, drawing primarily on the data those governments already collect pursuant to existing financial declaration systems for public officials. A global PEP database along the lines we propose has the potential to make PEP identification more accurate and more efficient, reducing overall compliance costs and allowing compliance resources to be used more productively.

Specialized theoretical and empirical research should in principle be embedded in a unified framework that identifies the relevant interactions among different phenomena, enables an appropriate matching of policy instruments to objectives, and grounds normative analysis in individuals’ utilities and a social welfare function. This article advances an approach that both provides integration across many dimensions and contexts and also identifies which tasks may be undertaken separately and how such analysis should be conducted so as to be consistent with the underlying framework. It employs the distribution-neutral methodology and welfare analysis developed in Kaplow (2008a) and related work, offering applications to income taxation, commodity taxation, tax expenditures, externalities, public goods, capital income and wealth taxation, social security and retirement savings, estate and gift taxation, and transfer programs. It also explores welfare criteria and examines how their consideration enables the normative analysis of the taxation of families, heterogeneous preferences, and tax administration and enforcement.

A growing body of normative work explores whether and how deference to people’s choices might be reconciled with behavioral findings about human error. This work has strong implications for economic analysis of law, cost–benefit analysis, and regulatory policy. In light of behavioral findings, regulators should adopt a working presumption in favor of respect for people’s self-regarding choices, but only if those choices are adequately informed and sufficiently free from behavioral biases. The working presumption should itself be rebuttable on welfare grounds, with an understanding that the ends that people choose might make their lives go less well. For example, people might die prematurely or suffer from serious illness, and what they receive in return might not (on any plausible account of welfare) be nearly enough. The underlying reason might involve a lack of information or a behavioral bias, identifiable or not, in which case intervention can fit with the working presumption, but the real problem might involve philosophical questions about the proper understanding of welfare, and about what it means for people to have a good life.

Law students randomly assigned to represent one side in a legal argument in the classroom exhibit substantial role-induced prediction bias for their side within only 40 minutes of their role assignment. Reminding students that prediction requires a more neutral perspective than advocacy does not attenuate the bias. The bias occurs evenly in male and female participants, who also report equal confidence in their predictions.

Beginning in the 1990s, India, Brazil, and China have each developed a distinct corporate legal "ecosystem," comprised of new (or newly repurposed) domestic "corporate" law firms, foreign law firms competing (on the ground or virtually) to serve both foreign and domestic clients, general counsel offices of both domestic and multinational companies, and law schools either designed or retooled to supply lawyers qualified to practice corporate law. In this Article, we utilize data from an unprecedented set of empirical studies to document the rise of this new corporate ecosystem in these three important emerging economies, and to develop grounded theory about the forces that have produced this transformation, and that help to explain differences among the three jurisdictions. Specifically, we argue that differences in what we call the "micro-level gearing" in the relative importance of the three key elements in the corporate legal ecosystems that have developed in India, Brazil, and China – law firms, clients, and legal education – can be explained, in part, by differences in what we will call the "macro-level gearing" in the relative power of the state, the market, and the bar – both between all three countries and the United States, and among the three jurisdictions. This difference has been most pronounced in China, where the dominance of the "state gear" in shaping the corporate legal market contrasts sharply with both the U.S. "market" driven model, and the influence of the "bar" in shaping the micro-level corporate ecosystems in India and Brazil. We conclude by offering some tentative thoughts about the implications of our findings for a rapidly globalizing corporate legal services market in which a growing number of states are beginning to exert greater control at the macro-level.

There has been considerable recent discussion of the social effects of “liberalism,” which are said to include a growth in out-of-wedlock childbirth, repudiation of traditions (religious and otherwise), a rise in populism, increased reliance on technocracy, inequality, environmental degradation, sexual promiscuity, deterioration of civic associations, a diminution of civic virtue, political correctness on university campuses, and a general sense of alienation. There is good reason for skepticism about these claims. Liberalism is not a person, and it is not an agent in history. Claims about the supposedly adverse social effects of liberalism are best taken not as causal claims at all, but as normative objections that should be defended on their merits. These propositions are elaborated with reference to three subordinate propositions: (1) liberalism, as such, does not lack the resources to defend traditions; (2) liberalism, as such, hardly rejects the idea of “constraint,” though the domains in which liberals accept constraints differ from those of antiliberals, and vary over time; (3) liberalism, as such, does not dishonor the idea of “honor.” There is a general point here about the difficulty of demonstrating, and the potential recklessness of claiming, that one or another “ism” is causally associated with concrete social developments.

This article proposes a scheme of liability that would desirably control accident risks in the coming world in which motor vehicles will be autonomous. In that world, travelers will not be drivers, rendering liability premised on driver fault irrelevant as a means of reducing accident dangers. Moreover, no other conventional principle of individual or of manufacturer liability would serve well to do so. Indeed, strict manufacturer liability, recommended by many commentators, would actually tend to leave accident risks unchanged from their levels in the absence of liability. However, a new form of strict liability – the hallmark of which is that damages would be paid to the state – would be superior to conventional rules of liability in alleviating accident risks and would be easy to implement.

FGM can cause short-term complications such as severe pain, hemorrhage, tetanus infection, and urine retention.2 Long-term consequences include recurrent urinary tract infections, cyst formation, sexual difficulties, and increased risk of childbirth complications and newborn deaths.2 While some claim religious or ethnographic reasons for the practice, others view it as sustained by myths of femininity and virginity, and intended to cure vaginal "uncleanliness," prevent "deviant" premarital sexual activity, preserve "purity," and hinder sexual pleasure.2 FGM is a globally recognized human rights violation rendered unlawful under several international treaties. THE COURT'S DECISION On November 20, 2018, Judge Bernard A. Friedman of the US District Court for the Eastern District of Michigan found in Nagarwala that the statute exceeded the federal government's enumerated powers and thus declared the statute unconstitutional.3 The federal government, the court made clear, has no authority to police local or state criminal activity; such authority should be left to the states.3 The Department of Justice declined to prosecute its appeal and the US Sixth Circuit Court of Appeals refused a request by the House of Representatives to intervene, making Judge Friedman's opinion the final word.4,5 Most criminal laws are passed and enforced by states, as Congress has the power to pass legislation only in areas in which the Constitution grants it authority. "4(p31) It also accords with the interpretation of Congress, which passed the FGM ban after finding that no "single State or local jurisdiction [could] control [FGM]" or protect against the physical, psychological, and civil injury it causes.5 Second, the district court mischaracterized FGM as a noncommercial "form of physical assault" rather than as a paid-for health care service within the national market of licensed medical providers. 3(p22) As federal prosecutors argued, "FGM is usually performed by trained practitioners," and the statute "contemplates criminalizing FGM undertaken by medical practitioners in a commercial healthcare setting, which is in and of itself economic activity.

Many incentives are monetary, and when private or public institutions seek to change behavior, it is natural to change monetary incentives. But many other incentives are a product of social meanings, about which people may not much deliberate, but which can operate as subsidies or as taxes. In some times and places, for example the social meaning of smoking has been positive, increasing the incentive to smoke; in other times and places, it has been negative, and thus served to reduce smoking. With respect to safety and health, social meanings change radically over time, and they can be dramatically different in one place from what they are in another. Often people live in accordance with meanings that they deplore, or at least wish were otherwise. But it is exceptionally difficult for individuals to alter meanings on their own. Alteration of meanings can come from law, which may, through a mandate, transform the meaning of action into a bland, “I comply with law,” or into a less bland, “I am a good citizen.” Alteration of social meanings can also come from large-scale private action, engineered or promoted by “meaning entrepreneurs,” who can turn the meaning of action from, “I am an oddball,” to, “I do my civic duty,” or, “I protect others from harm.” Sometimes subgroups rebel against new or altered meanings, produced by law or meaning entrepreneurs, but often those meanings stick and produce significant change.

The title of this essay is an homage to Ronald Coase’s classic work, The Nature of the Firm. For years, Professor Coase’s article has inspired corporate theorists and earned a place in the pantheon of corporate law scholarship. In this essay, I return to The Nature of the Firm to explore the fintech revolution and the supervisory challenges that aspects of this revolution have posed for regulatory authorities. Several of the examples I discuss concern the distinction between activities located within a firm and those arranged through market transactions often supplied through new and specialized fintech entities. Two others explore the changing nature of what it means to exercise managerial discretion in an era of machine learning and artificial intelligence.

This chapter focuses on the right (or rights) to procreate in the United States, with a focus on reproductive technology use. The United States has been too often described as the “wild west” of reproductive technology use. When measured against many of its comparators — Canada, Australia, the UK, Germany, etc. — it is undoubtedly true that more forms of reproductive technology use are permitted in the United States than elsewhere. It is for this reason that the United States has been a frequent destination for “circumvention tourism” or “fertility tourism.” At the same time, it would be wrong to think that reproductive medicine is unregulated in the United States. The chapter argues that it is just that the regulation is more fragmented, both in terms of the locus of control (federal vs. state authority, governmental vs. professional self-regulation, etc.) and also of the legal sources involved (more of a focus on tort law and family law than direct regulation at the statutory or constitutional level).

In this inaugural issue of Harvard Law School’s Journal in Islamic Law, we use the new Forum, designed for scholarly debate on recent developments and scholarship in the field, to feature a Symposium on the passage of a new 'Islamic Criminal Code' in Brunei. This new criminal code has generated extensive international media attention but little close analysis. In this Forum, four scholars offer scholarly essays that examine the contours of this new legislation and the extent to which it intersects with antecedents in Islamic history and with precedents in modern criminal law and procedure, comparatively. With a foreword by Intisar A. Rabb, Mansurah Izzul Mohamed, Dominik M. Müller, and Adnan A. Zulfiqar assess the history, workings, and critiques surrounding Brunei’s new code. Accompanying their essays is the SHARIAsource Online Companion to the Forum on Islamic Criminal Law in Brunei, which provides the text of each law, and of its antecedents, at beta.shariasource.com.

This chapter argues for viewing equity as a second-order system—law about law, or meta law—whose loss through fusion has created a variety of jurisprudential quandaries. On this view, equity serves as a second-order safety valve particularly suited to problems of great variability and uncertainty—including opportunism, conflicting rights, and multipolar conflicts—and although such problems were not the exclusive preserve or the only focus of equity courts, the former jurisdictional divide did much to highlight the second-order equitable function. The flattening out of this second-order equitable function through fusion of law and equity has intensified numerous jurisprudential controversies—including the debate between formalism and contextualism and the distinction between rules and standards—in contrast to the older, less polarized path of hybrid law-equity. Effacing distinctive second-order equity also leads to extreme views about the supposed death of contract and all-consuming tort. Even the relationship of law and morality tends to be more fraught when equity as meta law is taken off the table.

The law of Equity, a latecomer to the field of private law theory, raises fundamental questions about the relationships between law and morality, the nature of rights, and the extent to which we are willing to compromise on the rule of law ideal to achieve social goals. In this volume, leading scholars come together to address these and other questions about underlying principles of Equity and its relationship to the common law: What relationships, if any, are there between the legal, philosophical, and moral senses of 'equity'? Does Equity form a second-order constraint on law? If so, is its operation at odds with the rule of law? Do the various theories of Equity require some kind of separation of law and equity-and, if they do, what kind of separation? The volume further sheds light on some of the most topical questions of jurisprudence that are embedded in the debate around 'fusion'.

Frank I. Michelman takes up a proposition from John Rawls that a stricter constraint of constitutional fidelity applies to supreme court judges in a constitutional democracy than to citizens acting politically as litigants, voters, organizers, and otherwise as agitators for political causes to determine whether this proposition fits with Rawls’s other political ideas. It is, however, not immediately clear how this proposition can fit with Rawls’s proposed “liberal principle of legitimacy,” according to which a country’s constitution is to figure as a public procedural pact, by appeal to which citizens justify to each other their exertions of the coercive political powers that they hold as citizens in a democracy. Answering requires careful specification of the respects in which the fidelity constraint is to be looser for citizens than for judges, close analysis of the Rawlsian constitution-centered “principle of legitimacy,” and consideration of Rawls’s later writings that modify in some crucial respects the principle of legitimacy.

This essay explores the evolution of my thinking on risky emergency lending to banks and non-banks. The Fed is now, in the Pandemic, engaging in lending with significant credit risk. While it appears these are Fed programs, in fact this lending is controlled by, and may be largely determined, by the Treasury. This is proper but should be clear. Lending with significant credit risk is a fiscal decision and should be made by the elected government not by an independent agency, whether made to banks or non-banks. And it should be the Treasury’s role, as advised by the Fed, to determine when there is significant credit risk. When there is no significant credit risk, the Fed should make the lending decision, without control or approval of the Treasury, again whether to banks or non-banks, as part of their role as liquidity supplier and lender of last resort. If there is disagreement as to whether there is significant credit risk the Treasury’s view should prevail.

As increasing numbers of immigrants face deportation, a major asymmetry in existing immigration procedures requires attention. Individuals who are deported from the United States and attempt to reenter are afforded an opportunity to prove their fears of return to their home countries, whereas those with prior deportation orders who have remained in the United States are not. This difference is based on the false premise that the latter have already had their day in court and do not need an additional layer of screening. This article fills a critical gap in the existing scholarship, which has thus far failed to focus on the asymmetrical application of reasonable fear screening procedures. It proposes a novel solution: adoption of a uniform pre-removal risk screening process to safeguard all immigrants from return to serious harm, torture, or even death. This approach would ensure that the United States fulfills its obligations under domestic and international law to protect refugees and provides all immigrants with due process and a meaningful opportunity to be heard. Other countries already engage in such universal pre-removal risk screenings, and the United States has an obligation to do the same.

This amicus curiae brief is submitted in United States v. Flynn, the criminal prosecution of former National Security Advisor Michael Flynn. It is authored by Professor Andrew Manuel Crespo and attorneys from Protect Democracy, on behalf of former federal prosecutors and high-ranking Department of Justice officials. The brief argues that the court has not only the authority but also the responsibility to review the government's motion to dismiss the case against Flynn with care, and to deny the motion if a dismissal would be contrary to the public interest. The brief analyzes the substantive defects in the government's argument that Flynn's acknowledged lies to the FBI were not "material" within the meaning of 18 USC 1001. And it explains why all of the publicly available evidence to date indicates that the motion to dismiss was motivated by a desire to satisfy the president's personal political interest, and thus contrary to the public interest as a matter of law.

With an anticipated shortage of ventilators for patients with coronavirus disease 2019 (COVID-19), hospitals, physicians, and nurses may have to make an unprecedented decision: should they withdraw or withhold ventilators from some patients and use them for other patients who have a better chance of survival? It is not uncommon for care teams to decide against initiating or continuing mechanical ventilation when such treatment would not achieve a patient’s goals or directives. COVID-19 presents a different case: patients who do not receive a ventilator could benefit, perhaps living for many additional years, if they receive short-term mechanical ventilation. Denying patients such treatment, against their wishes, most likely will result in their death, but it will also make this scarce resource available to other patients who are more likely to survive if they receive ventilator support. Recently developed protocols expressly call for the rationing and reallocation of ventilators, in a manner that aims to save the greatest number of lives.1 These protocols are broadly accepted by medical ethicists.1,2 But ethics aside, there are potential legal ramifications of either withholding or withdrawing a ventilator from a patient who would ordinarily receive such aid in the absence of a public health emergency. In this Viewpoint, we assess the legal risks that physicians, other health care workers, and hospital systems confront in such scenarios and recommend that states explicitly and immediately adopt legal protections for health care workers, modeled on provisions in place in Maryland.

This spring, the coronavirus pandemic has upended college and university life, as campus classes, dormitories, and social activities have been abruptly displaced by online instruction. As exams and graduation ceremonies proceed virtually this month, some schools are announcing plans to cancel or delay the fall semester or to run it partly or entirely online. On May 6th, amid this chaos and uncertainty, Betsy DeVos’s Department of Education issued its regulations on Title IX, which impose new legal requirements on how schools must conduct their discipline processes for sexual harassment and assault. Immediately, prominent civil-rights attorneys expressed outrage. Catherine Lhamon, the chair of the U.S. Commission on Civil Rights and the assistant secretary for civil rights in Obama’s Education Department, tweeted that DeVos is “taking us back to the bad old days . . . when it was permissible to rape and sexually harass students with impunity.” Fatima Goss Graves, the president and C.E.O. of the National Women’s Law Center, wrote, “We refuse to go back to the days when rape and harassment in schools were ignored and swept under the rug.” In a statement, Nancy Pelosi called the new regulations “callous, cruel and dangerous, threatening to silence survivors and endanger vulnerable students in the middle of a public health crisis.” It was unclear, however, precisely what aspects of the regulations were so extreme and alarming.

In the fight against COVID-19, weighing costs and benefits is indispensable for moral clarity. At the same time, we must not forget its limits.

The Arab Spring promised to end dictatorship and bring self-government to people across the Middle East. Yet everywhere except Tunisia it led to either renewed dictatorship, civil war, extremist terror, or all three. In The Arab Winter, Noah Feldman argues that the Arab Spring was nevertheless not an unmitigated failure, much less an inevitable one. Rather, it was a noble, tragic series of events in which, for the first time in recent Middle Eastern history, Arabic-speaking peoples took free, collective political action as they sought to achieve self-determination. Focusing on the Egyptian revolution and counterrevolution, the Syrian civil war, the rise and fall of ISIS in Syria and Iraq, and the Tunisian struggle toward Islamic constitutionalism, Feldman provides an original account of the political consequences of the Arab Spring, including the reaffirmation of pan-Arab identity, the devastation of Arab nationalisms, and the death of political Islam with the collapse of ISIS. He also challenges commentators who say that the Arab Spring was never truly transformative, that Arab popular self-determination was a mirage, and even that Arabs or Muslims are less capable of democracy than other peoples. Above all, The Arab Winter shows that we must not let the tragic outcome of the Arab Spring disguise its inherent human worth. People whose political lives had been determined from the outside tried, and for a time succeeded, in making politics for themselves. That this did not result in constitutional democracy or a better life for most of those affected doesn’t mean the effort didn’t matter. To the contrary, it matters for history—and it matters for the future.

A truth that burst into public view with #MeToo in 2017 was that sexual exploitation in its many forms has been ubiquitous and experienced largely by women. So anyone following the story of #MeToo could hardly find it shocking that, after a promising primary season with a record number of excellent female candidates, the first Presidential election since the movement’s rise has come down to a race between two men who have both been accused of sexual assault. Tara Reade has accused Joe Biden of sexually assaulting her twenty-seven years ago, and several women have accused him of unwanted touching. More than a dozen women have accused Donald Trump of sexual assault and misconduct, and he has bragged on tape about grabbing women’s genitals. It is unlikely that the Democratic Party will abandon their only candidate who remains in the race, and who leads Trump in polls. So many liberals, who are justifiably desperate to turn the page on the horrors of Trump’s Presidency, are grasping at the world of difference between Trump and Biden—and viewing Reade’s sexual-assault allegation more skeptically than #MeToo has allowed in recent times. This moment may prove to be a pivotal chapter of #MeToo, which marks its more mature reckoning with its deeper goals. And, in fact, there is a no more fitting person to embody that development than Biden, whose long career has repeatedly positioned him at the levers of power in the government’s responses to sexual violence.

Do the gendered phenomena highlighted in the preceding article by Professor Lobel amount to discrimination? In this Commentary, I argue that although these phenomena may well contribute to social inequality and deserve attention as such, on the whole, they do not constitute discrimination as it is ordinarily understood.

In March 2020, the Securities and Exchange Commission asked for public comment on the names rule (rule 35d-1) for mutual funds in light of developments since the rule's adoption in 2001. Among such developments, the request for comment identifies burgeoning investor interest in environmental, social, and governance (“ESG”) investing and the corresponding proliferation of funds that purport to make use of ESG factors. This response to the SEC’s request for comment has two purposes: First, we provide clarifying context for the ESG investing phenomenon and a summary of the current state of theoretical and empirical literature in financial economics on it. Second, we discuss how this context informs the critical relationship between ESG disclosure by a mutual fund, both in the fund’s name and in its prospectus, and the rules (e.g., state trust law or ERISA) that govern the extent to which a trustee or other fiduciary may use ESG factors in fiduciary investment. We organize this response in four parts: (1) we provide a clarifying taxonomy on the meaning of ESG investing and the methods for implementing it; (2) we discuss the inherent subjectivity in identifying and applying ESG factors; (3) we assess the current theory and evidence on whether ESG investing can improve risk-adjusted returns; and (4) we identify four interrelated questions of regulatory policy stemming from growing investor interest in ESG investing, situating the request for comment toward potential revision of the names rule within that four-part framework. This response is largely but not entirely based on “Reconciling Fiduciary Duty and Social Conscience: The Law and Economics of ESG Investing by a Trustee,” 72 Stanford Law Review 381 (2020), https://ssrn.com/abstract=3244665.

People across America and the world remain under strong advisories or outright orders to shelter in place, and economies largely shut down, as part of an ongoing effort to flatten the curve of the most virulent pandemic since 1918. The economic effects have been predictably staggering, with no clear end in sight. Until a vaccine or other transformative medical intervention is developed, the broad consensus of experts is that the only way out of mass sheltering in place, if hospital occupancy curves are to remain flattened, entails waiting for most of the current cases to resolve, and then cautiously and incrementally reopening. That would mean a sequence of allowing people out; promptly testing anyone showing symptoms — and even some who are not; identifying recent proximate contacts of those who test positive; and then getting in touch with those contacts and, if circumstances dictate, asking or demanding that they individually shelter until the disease either manifests or not. The idea is to promptly prune branches of further disease transmission in order to keep its reproductive factor non-exponential.

In 1958 and 1960, the Supreme Court took two tries to decide Flora v. United States and then only by the thinnest of margins with the thinnest of reasons. In the second opinion, the Court concluded that under section 1346(a) a taxpayer must fully pay any asserted tax deficiency prior to bringing a refund suit in federal court. The majority of justices acknowledged, however, that neither the statute nor the legislative history of the statute controlled the outcome. Instead, the majority relied upon the harmony of the carefully structured system of tax litigation involving the district courts and the Tax Court. A decade and a half later, the Solicitor General of the United States argued before the Supreme Court that Flora stood only for the narrow proposition that a taxpayer who had received a statutory notice of deficiency and failed to petition the Tax Court could not sue for a refund in district court by paying only a portion of the liability. Yet today, and for the last few decades, the United States has argued vigorously, and successfully, for a broader interpretation of the decision in Flora, an interpretation that prevents taxpayers in situations quite different from that of Mr. Flora from successfully pursuing a tax refund suit without full payment of the tax or penalty at issue. Importantly, since the Court’s decision on its rehearing of Flora in 1960, Congress has enacted over 50 assessable penalties that do not offer the taxpayer an opportunity to appear before the Tax Court prior to assessment and collection. Consequently, the legal landscape has changed dramatically. The current situation effectively denies many taxpayers the right to judicial review of the taxes or penalties assessed against them. This stark reality played out in Larson v. United States, in which the district court and the Second Circuit denied Mr. Larson the right to bring a refund suit after partial payment of a $163 million assessable penalty. This Article examines the history of how we arrived at the current situation and suggests a solution that would provide taxpayers with the right to litigate in district court any taxes or penalties assessed against them without making full payment under the Flora rule if they did not have the prior opportunity to challenge the assessment in a judicial proceeding.

Artificial intelligence surveillance can be used to diagnose individual cases, track the spread of Covid-19, and help provide care. The use of AI for surveillance purposes (such as detecting new Covid-19 cases and gathering data from healthy and ill individuals) in a pandemic raises multiple concerns ranging from privacy to discrimination to access to care. Luckily, there exist several frameworks that can help guide stakeholders, especially physicians but also AI developers and public health officials, as they navigate these treacherous shoals. While these frameworks were not explicitly designed for AI surveillance during a pandemic, they can be adapted to help address concerns regarding privacy, human rights, and due process and equality. In a time where the rapid implementation of all tools available is critical to ending a pandemic, physicians, public health officials, and technology companies should understand the criteria for the ethical implementation of AI surveillance.

Democratic institutions aggregate voters’ preferences about policy options and thereby help determine which policies are implemented. Previous research has, however, suggested that such institutions can also have a direct, positive effect on cooperative and efficient behavior. In a laboratory experiment, we test this suggestion by comparing the effect of recommendations on how to play that are generated through a group vote to expert-generated recommendations, on play in a minimum effort game. We find no difference between the two: both expert recommendations and democratically generated recommendations increase the efficiency of choices. In addition, we find that merely considering potential recommendations, and knowing that others have done so as well, can help enhance efficient coordination.

Imagine you are a patient who has been diagnosed with prostate cancer. The two main approaches to treating it in the United States are active surveillance versus the surgical option of radical prostatectomy. Your physician recommends the surgical option, and spends considerable time explaining the steps in the surgery, the benefits of (among other things) eliminating the tumor and the risks of (among other things) erectile dysfunction and urinary incontinence after the surgery. What your physician does not tell you is that she has arrived at her recommendation of prostatectomy over active surveillance based on the analysis of an Artificial Intelligence (AI)/Machine Learning (ML) system, which recommended this treatment plan based on analysis of your age, tumor size, and other personal characteristics found in your electronic health record. Has the doctor secured informed consent from a legal perspective? From an ethical perspective? If the doctor actually chose to “overrule” the AI system, and the doctor fails to tell you that, has she violated your legal or ethical right to informed consent? If you were to find out that the AI/ML system was used to make recommendations on your care and no one told you, how would you feel? Well, come to think of it, do you know whether an AI/ML system was used the last time you saw a physician? This Article, part of a Symposium in the Georgetown Law Journal, is the first to examine in depth how medical AI/ML interfaces with our concept of informed consent. Part I provides a brief primer on medical Artificial Intelligence and Machine Learning. Part II sets out the core and penumbra of U.S. informed consent law and then seeks to determine to what extent AI/ML involvement in a patient’s health should be disclosed under the current doctrine. Part III examines whether the current doctrine “has it right,” examining more openly empirical and normative approaches to the question. To forefront my conclusions: while there is some play in the joints, my best reading of the existing legal doctrine is that in general, liability will not lie for failing to inform patients about the use of medical AI/ML to help formulate treatment recommendations. There are a few situations where the doctrine may be more capacious, which I try to draw out (such as when patients inquire, when the medical AI/ML is more opaque, when it is given an outsized role in the final decision-making, or when the AI/ML is used to reduce costs rather than improve patient health), though extending it even here is not certain. I also offer some thoughts on the question: if there is room in the doctrine (either via common law or legislative action), what would it be desirable for the doctrine to look like when it comes to medical AI/ML? I also briefly touch on the question of how the doctrine of informed consent should interact with concerns about biased training data for AI/ML.