Faculty Bibliography

Adam Smith and Karl Marx recognized that the best way to understand the economy is to study the most advanced practice of production. Today that practice is no longer conventional manufacturing: it is the radically innovative vanguard known as the knowledge economy. In every part of the production system it remains a fringe excluding the vast majority of workers and businesses. This book explores the hidden nature of the knowledge economy and its possible futures. The confinement of the knowledge economy to these insular vanguards has become a driver of economic stagnation and inequality throughout the world. Traditional mass production has stopped working as a shortcut to economic growth. But the alternative—a deepened and socially inclusive form of the knowledge economy—continues to lie beyond reach in even the richest countries. The shape of contemporary politics on both the left and the right reflects a failure to come to terms with this dilemma and to overcome it. Unger explains the knowledge economy in the truncated and confined form that it has today and proposes the way to a knowledge economy for the many: changes not just in economic institutions but also in education, culture, and politics. Just as Smith and Marx did in their time, he uses an understanding of the most advanced practice of production to rethink both economics and the economy as a whole.

We in the West have embraced an odd "narrative." The Japanese army of the 1930s and 1940s, we write, forcibly drafted 200,000 mostly Korean teenage girls into "rape camps" called "comfort stations." Should anyone question the story, we summarily consign the person to "denier" status. This makes for a strange phenomenon. Only a few of the comfort women claim to have been forcibly recruited, and several of them had told a different story before the reparations campaign against Japan began. A strongly leftist affiliate runs their nursing home, controls whom they can see, and vilifies any woman who might say anything else. In fact, no one has ever located any documentary evidence that the Japanese military forcibly recruited any Korean woman into a comfort station. And when Korean academics question the orthodox account, their own government sometimes prosecutes them for criminal defamation -- indeed, sent one heterodox professor last fall to six months in prison.

This paper describes Professor Derrick Bell’s life in the law, assesses his writings, appraises his struggles at Harvard Law School, and recounts his relationship with a colleague, Randall Kennedy, for whom he was a mentor, friend, and adversary.

Does significant market power or the presence of large rents affect optimal income taxation, calling for greater redistribution due to tainted gains? Or perhaps less because of an additional wedge that distorts labor effort? Do concerns about inequality have implications for antitrust, regulation, trade, and other policies that influence market power, which contributes to inequality? This article addresses these questions in a model with heterogeneous abilities and hence a concern for distribution, markups, multiple sectors, ownership that is a function of income, allowance for any share of profits to be recoveries of investments (including rent-seeking efforts), endogenous labor supply, and a nonlinear income tax. In this model, proportional markups with no profit dissipation have no effect on the economy, and a policy that reduces a nonproportional markup raises (lowers) welfare when it is higher (lower) than a weighted average of other markups. With proportional (partial or full) profit dissipation, proportional markups are equivalent to a downward shift of the distribution of abilities, and the welfare effect of correcting nonproportional markups associated with nonproportional profit dissipation now depends also on the degree of dissipation and how that is affected by the policy. In all cases, optimal policies maximize consumer plus producer surplus, without regard to a policy’s distributive effects on consumers and profits or how markups and income taxation distort labor effort.

Based on a popular class taught by a Harvard Business School professor. If you're not a numbers person, then balance sheets and financial jargon can be intimidating and easy to ignore. But if you want to advance in your career, it's crucial that you are able to make smart financial decisions and develop the confidence to clearly communicate those decisions to others. In How Finance Works, Mihir Desai--a professor at Harvard Business School and author of the widely praised book The Wisdom of Finance--guides you into the complex but endlessly fascinating world of finance and demystifies it in the process. Through entertaining stories, interactive exercises, full-color visuals, and a conversational style that belies the topic, Desai tackles a broad range of subjects that will give you the skills and knowledge you need to finally understand how finance works. These include: The ins and outs of balance sheets, and how different financial levers can affect a company's performance How companies fund their operations and investments in different ways Why finance is concerned with cash flow versus profits How value is created, measured, and maximized The importance of capital markets in helping companies grow Whether you're a student or manager, an aspiring CFO or entrepreneur, How Finance Works is the colorful and interactive guide you need to help you start thinking more deeply about the numbers.

Sellers are increasingly utilizing big data and sophisticated algorithms to price discriminate among customers. Indeed, we are approaching a world, where each consumer will be charged a personalized price for a personalized product or service. Is this type of price discrimination good or bad? The normative assessment, I argue, depends on the target of discrimination. Sellers are interested in the consumer's willingness-to-pay (WTP) for their goods or services: They maximize profits by charging a price that is as close as possible to the consumer’s WTP. This WTP is a function of consumer preferences on the one hand and consumer (mis)perceptions on the other hand. When algorithmic price discrimination targets preferences, it harms consumers but increases efficiency. When price discrimination targets misperceptions, specifically demand-inflating misperceptions, it hurts consumers even more and might also reduce efficiency. In such cases, legal intervention may be needed. In particular, when sellers use personalized pricing, regulators should fight fire with fire and seriously explore the potential of personalized law.

This article examines the evolution of the field of comparative constitutional law and its relationship to politics and international rights; constitutionalism; constitutional foundings and transformations; constitutional structures; structures of judicial review; generic constitutional law; and national identity. Innumerable comparative studies address the ways in which different constitutions and constitutional systems deal with specific topics, such as privacy, free expression, and gender equality. However valuable such studies have been in bringing information about other constitutional systems to the attention of scholars versed in their own systems, their analytic payoff is sometimes questionable. Scholarship in comparative constitutional law is perhaps too often insufficiently sensitive to national differences that generate differences in domestic constitutional law. Or, put another way, that scholarship may too often rest on an implicit but insufficiently defended preference for the universalist approach to comparative legal study over the particularist one.

Modern comparative lawyers tend to date the foundation of their discipline to the nineteenth century and to the promulgation of the great European codes. This article claims that one could make an argument that comparative law is to be found in the ancient world, with some suggestion of it in the early writings of Aristotle’s Politics; that despite the multiplicity of legal sources it is not often found in the early or high middle ages; that there are hints of it in the commentators of the later middle ages; that in a very real sense it can be found in the ideas of the French legal thinkers of the sixteenth century; and that one can trace a relatively clean line of sources from the sixteenth century to whatever nineteenth-century authors one chooses to focus on as the founders of the discipline that produced the First International Congress of Comparative Law in 1900.

William Eskridge and Lauren Baer’s (96 GEO. L. J. 1083 (2008)) “empirical study of all 1014 Supreme Court cases between Chevron and Hamdan in which an agency interpretation of a statute was at issue” finds that “the Court does not apply the Chevron framework in nearly three-quarters of the cases where it would appear applicable.” Our reexamination of this study finds that the fraction of such cases is far lower, and indeed closer to zero. Our main methodological innovation is to infer Chevron applicability from Supreme Court litigants’ briefs rather than our own evaluation of the cases’ facts, as in Eskridge and Baer’s study. In over half the cases flagged by Eskridge and Baer, neither of the parties (nor, where applicable, the Solicitor General as amicus) cited Chevron, and in almost half of the cases within that subset, no one argued for or against deference of any kind. In most of a sample of the remaining cases, the Supreme Court either did not need to reach the Chevron issue, or actually applied it, at least in an abbreviated form.

There are economically large costs of pretrial detention—and, by extension, the use of cash bail—due to the significant collateral consequences of having a criminal conviction on labor market outcomes as well as the direct costs of pretrial detention. In contrast, there are relatively small benefits to pretrial detention due to the relatively low costs of apprehending defendants who fail to appear in court. The existing evidence also suggests that the current pretrial system contribute to inequalities and inefficiencies in the criminal justice system.

In 2005, the perception that wealthy executives were being rewarded for failure led Congress to ban Chapter 11 firms from paying retention bonuses to senior managers. Under the new law, debtors could still pay bonuses to executives – but only “incentive” bonuses triggered by accomplishing challenging performance goals that go beyond merely remaining employed. In this Article, I use newly collected data to examine how the reform changed bankruptcy practice. While relatively fewer firms use court-approved bonus plans after the reform, the overall level of executive compensation appears to be similar, perhaps because the new regime left large gaps that make it easy for firms to by-pass the 2005 law and pay managers without the judge’s permission. I argue the new law was undermined by institutional weaknesses in Chapter 11, as bankruptcy judges are poorly situated to analyze bonus plans and creditors have limited incentives to police executive compensation themselves.

During the period 2005-2014, S&P 500 firms distributed to shareholders more than $3.95 trillion via stock buybacks and $2.45 trillion via dividends — $6.4 trillion in total. These shareholder payouts amounted to over 93% of the firms' net income. Academics, corporate lawyers, asset managers, and politicians point to such shareholder-payout figures as compelling evidence that “short-termism" and “quarterly capitalism" are impairing firms' ability to invest, innovate, and provide good wages. We explain why S&P 500 shareholder-payout figures provide a misleadingly incomplete picture of corporate capital flows and the financial capacity of U.S. public firms. Most importantly, they fail to account for offsetting equity issuances by firms. We show that, taking into account issuances, net shareholder payouts by all U.S. public firms during the period 2005-2014 were in fact only about $2.50 trillion, or 33% of their net income. Moreover, much of these net shareholder payouts were offset by net debt issuances, and thus effectively recapitalizations rather than firm-shrinking distributions. After excluding marginal debt capital inflows, net shareholder payouts by public firms during the period 2005-2014 were only about 22% of their net income. In short, S&P 500 shareholder-payout figures are not indicative of actual capital flows in public firms, and thus cannot provide much basis for the claim that short-termism is starving public firms of needed capital. We also offer three other reasons why corporate capital flows are unlikely to pose a problem for the economy. A prior version of this paper was circulated under the title “Short-Termism and Shareholder Payouts: Getting Corporate Capital Flows Right."

An international consensus on the content of domestic constitutional law has structural ‘rights’-related components. The former requires roughly democratic systems for choosing representatives/executives. The consensus favours some forms of judicialised constitutional review, though the precise form is open to choice. The rights component includes a standard list of ‘core’ civil rights, including in this category equality along a number of dimensions – though not class or income. The rights-component is fundamentally neo-liberal. This is clearest in connection with ‘second generation’ social and economic rights, which – the consensus holds – can be recognised in a constitution but should not be vigorously enforceable (in systems where there is judicial enforcement of constitutional rights). The rights of free expression and political association must be specified in ways that allow political challenges to be mounted against efforts – including legislative programmes of political parties that control governments – to resist the neo-liberal policy agenda. Departures from this consensus are described as departures, not from ‘neo-liberal’ or even ‘liberal’ constitutionalism, but as departures from constitutionalism as such. We could ‘thin down’ the idea of constitutionalism quite a bit without abandoning constitutionalism’s core commitment to avoiding arbitrary government action.

For over two thousand years, conscientious people from Plato to Gandhi have grappled with the dilemma of how to respond when a government orders you to do something you disagree with — say, pay a tax that will fund a war. Perhaps the most famous answer comes from the book of Matthew, when Jesus of Nazareth declared, "Render . . . unto Caesar the things that are Caesar's, and unto God the things that are God's." One way to interpret this declaration contends that you should always comply with fairly imposed civil obligations — at least until you can persuade others to accommodate your views. A second argues that if conscience so dictates, you should disobey the government and accept whatever punishment it doles in return. Recently, a group of constitutional lawyers have offered a third option: Sue the government. Adopting a libertarian interpretation of the First Amendment's protection of free speech and religious exercise, these lawyers argue that it is presumptively unconstitutional for the government ever to put one's moral obligations in conflict with one's civil obligations. As evidence, they draw on cases such as West Virginia v. Barnette, in which the Supreme Court struck down a regulation that compelled objecting school children to recite the pledge of allegiance. In the past few years these lawyers have asked the Court to extend Barnette's logic to petitioners who object to birth control, labor unions, vaccinations, same-sex marriage, and all kinds of politically charged topics. The Supreme Court has been sympathetic to these lawyers, in one case declaring that the First Amendment generally "prevent[s] the government from compelling individuals to express certain views or pay subsidies for speech to which they object." The Court has even acted on this declaration to invalidate laws that tax public-sector employees and donate the revenue to politically active labor unions. But this declaration is wrong. Treating compulsory laws as presumptively invalid not only contradicts historical practice, it's also at odds with the Court's precedent in nearly every other constitutional context. The First Amendment, along with the rest of the Constitution, was adopted to create a functional government out of the embers of a failing state. For any government to function — especially in a politically and religiously pluralistic society like the United States — it must be able to compel residents to do all sorts of things a minority might disagree with, from paying taxes and obeying generally applicable laws to accepting conditions on public benefits. Accordingly, the Supreme Court has rejected claims brought under every clause of the First Amendment (and many other articles of the Constitution) whenever it has realized that "government would not work" were it constitutionally prohibited from compelling citizens to do or pay for things they might not like. Even the author of Barnette recognized the danger of converting the First Amendment into a suicide pact. This Article molds these Supreme Court moments of clarity into a coherent doctrine, which I call the "government could not work" doctrine. Analyzing a wide variety of cases, I conclude that objectionable compulsion, in and of itself, should not make a law presumptively unconstitutional, triggering the so-called strict scrutiny that the Court currently applies when a person objects to subsidizing the political activity of a labor union. As the Court has declared throughout its history — with a brief exception between about 1940 and 1980 — applying such strict scrutiny every time a person challenges a compulsory law would "cripple" the government. In other words, the First Amendment doesn't render American citizens uniquely exempt from the universal dilemma of having to decide whether to abide by a disagreeable law. The authors of the First Amendment wanted a government that tolerated dissent, not a government that would be incapacitated by it.

In recent years, there has been a great deal of discussion of the welfare effects of digital goods, including social media. A national survey, designed to monetize the benefits of a variety of social media platforms (including Facebook, Twitter, YouTube, and Instagram), found a massive disparity between willingness to pay (WTP) and willingness to accept (WTA). The sheer magnitude of this disparity reflects a “superendowment effect.” Social media may be Wasting Time Goods (WTG) – goods on which people spend time, but for which they are not, on reflection, willing to pay much (if anything). It is also possible that in the context of the WTP question, people may be giving protest answers, signaling their intense opposition to being asked to pay for something that they had formerly enjoyed for free. Their answers may be expressive, rather than reflective of actual welfare effects. At the same time, the WTA measure may also be expressive, a different form of protest, telling us little about the actual effects of social media on people’s lives and experiences. It may greatly overstate those effects. In this context, there may well be a sharp disparity between conventional economic measures and actual effects on experienced well-being.

Fogg discusses the improvement The Tax Lawyer journal is doing. The Tax Lawyer is improving its publication process to ensure timely publication of all the important material on federal, state, and local taxation. Starting this year, the journal will include state and local tax (SALT) articles along with non-SALT articles in every issue.

Courts generally insist that two criteria be met before imposing strict liability rather than basing liability on the negligence rule. The first--that the injurer’s activity must be dangerous--is sensible because strict liability possesses general advantages over the negligence rule in controlling risk. But the second--that the activity must be uncommon--is ill-advised because it exempts all common activities from strict liability no matter how dangerous they are. Thus, the harm generated by the large swath of common dangerous activities--from hunting, to construction, to the transmission of natural gas--is inadequately regulated by tort law. After developing this theme and criticizing ostensible justifications for the uncommon activity requirement, the article addresses the question of how it arose. The answer is that its legal pedigree is problematic: it appears to have been invented by the authors of the first Restatement of Torts. The conclusion is that the uncommon activity requirement for the imposition of strict liability should be eliminated.

The implications of scientific breakthroughs are rarely faced up to in advance of their realization. Stem cell-derived human gametes, a disruptive technology in waiting, are likely to recapitulate this historic pattern absent active intervention. Herein we call for the conduct of thoughtful ante hoc deliberations on the prospect of stem cell-derived human gametes with an eye toward minimizing potential untoward post hoc regulatory or statutory impositions.

The law forbids discrimination. But the ambiguity of human decision-making often makes it extraordinarily hard for the legal system to know whether anyone has actually discriminated. To understand how algorithms affect discrimination, we must therefore also understand how they affect the problem of detecting discrimination. By one measure, algorithms are fundamentally opaque, not just cognitively but even mathematically. Yet for the task of proving discrimination, processes involving algorithms can provide crucial forms of transparency that are otherwise unavailable. These benefits do not happen automatically. But with appropriate requirements in place, the use of algorithms will make it possible to more easily examine and interrogate the entire decision process, thereby making it far easier to know whether discrimination has occurred. By forcing a new level of specificity, the use of algorithms also highlights, and makes transparent, central tradeoffs among competing values. Algorithms are not only a threat to be regulated; with the right safeguards in place, they have the potential to be a positive force for equity.

In this pathbreaking book, New York Times bestselling author Cass Sunstein asks us to rethink freedom. He shows that freedom of choice isn’t nearly enough. To be free, we must also be able to navigate life. People often need something like a GPS device to help them get where they want to go—whether the issue involves health, money, jobs, children, or relationships. In both rich and poor countries, citizens often have no idea how to get to their desired destination. That is why they are unfree. People also face serious problems of self-control, as many of them make decisions today that can make their lives worse tomorrow. And in some cases, we would be just as happy with other choices, whether a different partner, career, or place to live—which raises the difficult question of which outcome best promotes our well-being. Accessible and lively, and drawing on perspectives from the humanities, religion, and the arts, as well as social science and the law, On Freedom explores a crucial dimension of the human condition that philosophers and economists have long missed—and shows what it would take to make freedom real.

From the start, the Trump Administration seized on Title IX as an area in which to reverse the Obama Administration’s positions. Under Betsy DeVos, the Department of Education has rescinded more than twenty Obama-era policy guidelines on anti-discrimination laws, including ones that protected transgender students from discrimination and allowed them to use gender-segregated facilities of their choice. It has also cancelled policies that supported schools’ use of affirmative action, outlined disabled students’ rights, and attempted to curb racial disparities in elementary and secondary schools, based on research showing that minority students are punished for misconduct at higher rates than their behavior warrants. These revocations have rightly provoked concern that DeVos is turning her back on vulnerable students.

The common consequence effect and preference reversals are two of the foundational violations of the standard model of rational choice (i.e. von Neumann–Morgenstern expected utility theory) and, as such, played an important role in the development of empirical behavioural economics. One can hypothesise, however, that due to varying degrees of risk aversion when faced with outcomes of different magnitude, the rate of both of these violations may vary with outcome size. Using various types of outcome, this article reports tests of these violations using different outcome magnitudes in within-respondent designs. The results observed are broadly consistent across outcome type: the common consequence effect, while rarely being substantially observed in any of the tests undertaken, was often found to be somewhat susceptible to outcome size while preference reversals, which were everywhere substantially observed, were not. In and of itself, the observation of systematic preference reversals implies that preferences are often constructed according to the way in which questions are asked, and is sufficient to question the usefulness of stated preference techniques for informing public policy.

A decade after the darkest moments of the financial crisis, both the US financial system and the legal framework for its regulation are still in flux. The post-crisis regulatory framework has made systemically important banks much more resilient. They are substantially better capitalized and less dependent on runnable short-term funding. But the current regulatory framework does not deal effectively with threats to financial stability outside the perimeter of regulated banking organizations, notably from forms of shadow banking. Moreover, with the political tide having for the moment turned decisively toward deregulation, there is some question whether the resiliency improvements of the largest banks will be preserved. This article assesses the accomplishments, unfinished business, and outstanding issues in the post-crisis approach to prudential regulation.

How does social change happen? When do social movements take off? Sexual harassment was once something that women had to endure; now a movement has risen up against it. White nationalist sentiments, on the other hand, were largely kept out of mainstream discourse; now there is no shortage of media outlets for them. In this book, with the help of behavioral economics, psychology, and other fields, Cass Sunstein casts a bright new light on how change happens. Sunstein focuses on the crucial role of social norms—and on their frequent collapse. When norms lead people to silence themselves, even an unpopular status quo can persist. Then one day, someone challenges the norm—a child who exclaims that the emperor has no clothes; a woman who says “me too.” Sometimes suppressed outrage is unleashed, and long-standing practices fall. Sometimes change is more gradual, as “nudges” help produce new and different decisions—apps that count calories; texted reminders of deadlines; automatic enrollment in green energy or pension plans. Sunstein explores what kinds of nudges are effective and shows why nudges sometimes give way to bans and mandates. Finally, he considers social divisions, social cascades, and “partyism,” when identification with a political party creates a strong bias against all members of an opposing party—which can both fuel and block social change.

Racial and gender disparities are prevalent in the criminal justice system, but the sources of these disparities remain largely unknown. This paper investigates whether judge political affiliation contributes to these disparities using data on over 500,000 federal defendants linked to sentencing judge. Exploiting random case assignment, we find that Republican appointed judges sentence black defendants to 3.0 more months than similar non-blacks and female defendants to 2.1 fewer months than similar males, compared to Democratic appointed judges. Disparities by judge political affiliation cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.

This paper experimentally investigates the effect of gender-based affirmative action (AA) on performance in the lab, focusing on a tournament environment. The tournament is based on GRE math questions commonly used in graduate school admission, and at which women are known to perform worse on average than men. We find heterogeneous effect of AA on female participants: AA lowers the performance of high-ability women and increases the performance of low-ability women. Our results are consistent with two possible mechanisms—one is that AA changes incentives differentially for low- and high-ability women, and the second is that AA triggers stereotype threat.Bracha

Jeannie Suk Gersen, Nancy Gertner, and Janet Halley, professors at Harvard Law School, have issued a Comment on the Department of Education’s Proposed Rule on Title IX enforcement. The authors write: “We strongly support vigorous enforcement of Title IX to ensure that students enjoy educational programs and activities unburdened by sexual harassment.” They argue that “sanctions for sexual harassment should apply only under a clear definition of wrongful conduct and after a process that is fair to all parties.” With these dual objectives in mind, the Comment reviews the Department of Education’s Proposed Rule and agrees with some aspects and disagrees with others. The authors agree (with some suggested amendments) with the Rule’s treatment of the burden of proof, the rejection of the single-investigator model, and the requirement of a live hearing process. They argue that the rules they endorse do not undermine the critical goal of enforcing Title IX. They express serious concerns about the provisions on cross examination and the definition of sexual harassment, and propose revisions that will be more protective of complainants. The Comment strongly objects to provisions encouraging schools to file complaints when they have multiple allegations against a single potential respondent but no formal complainant: the inquiry there should be refocused on the threat of harm and take into account the complainants’ as well as the respondents’ interests. The three professors say that they “strongly object to the deliberate indifference standard for schools’ ultimate responsibility to respond to sexual harassment.” Gersen, Gertner and Halley have researched, taught, and written on Title IX, sexual harassment, sexual assault, and feminist legal reform. They were three of the signatories to the statement of twenty-eight Harvard Law School professors, published in the Boston Globe on October 15, 2014, that criticized Harvard University’s newly adopted sexual harassment policy as “overwhelmingly stacked against the accused” and “in no way required by Title IX law or regulation.”

The International Criminal Court (ICC) makes headlines around the world when it issues its occasional judgments. But most of the work of fighting impunity for severe crimes condemned by international law depends on national enforcement. Two separate efforts are currently underway to strengthen international cooperation in ensuring national prosecution: 1) a multi-year project of the International Law Commission (ILC) to draft articles for a future convention on the prevention and punishment of crimes against humanity, comparable to the existing Genocide Convention and Convention Against Torture; and 2) an episodic state-led initiative to draft a mutual legal assistance treaty for the most serious international crimes. The Human Rights Program at HLS recently convened a private workshop to discuss the vitally important ILC project.

Many "nudges" aim to make life simpler, safer, or easier for people to navigate, but what do members of the public really think about these policies? Drawing on surveys from numerous nations around the world, Sunstein and Reisch explore whether citizens approve of nudge policies. Their most important finding is simple and striking. In diverse countries, both democratic and nondemocratic, strong majorities approve of nudges designed to promote health, safety, and environmental protection—and their approval cuts across political divisions. In recent years, many governments have implemented behaviorally informed policies, focusing on nudges—understood as interventions that preserve freedom of choice, but that also steer people in certain directions. In some circles, nudges have become controversial, with questions raised about whether they amount to forms of manipulation. This fascinating book carefully considers these criticisms and answers important questions. What do citizens actually think about behaviorally informed policies? Do citizens have identifiable principles in mind when they approve or disapprove of the policies? Do citizens of different nations agree with each other? From the answers to these questions, the authors identify six principles of legitimacy—a "bill of rights" for nudging that build on strong public support for nudging policies around the world, while also recognizing what citizens disapprove of. Their bill of rights is designed to capture citizens’ central concerns, reflecting widespread commitments to freedom and welfare that transcend national boundaries.

This is a print edition of Professor Jeremy Sheff's 2019 build of Open Source Property, a free online casebook for the first-year Property Law course at American law schools. A free digital edition of this text is available for download from www.opensourceproperty.org. Open Source Property is copyright 2015-16 by Stephen Clowney, James Grimmelmann, Michael Grynberg, Jeremy Sheff, and Rebecca Tushnet. It may be reused under the terms of the Creative Commons Attribution NonCommercial 4.0 International license, https://creativecommons.org/licenses/by-nc/4.0/.

Important doctrines in diverse areas of law employ structured decision procedures requiring, in rough terms, that the plaintiff first make some demonstration of harm; if but only if that is done, the defendant must make some showing of benefit; and if but only if that occurs, balancing is performed. This Article compares such protocols to unconstrained balancing and finds them to be inferior with respect to the quality of final decisions: they sometimes fail to impose liability even though the harm is greater than the benefit, and they sometimes impose liability even though the benefit exceeds the harm. The Article also develops the principles of optimal information (evidence) collection and shows how structured decision procedures violate every core lesson and presuppose distinctions that often are incoherent or impractical to implement. The analysis addresses concerns about balancing that may motivate structured protocols, how less restrictive alternatives should be assessed, and the extent to which legal proceedings are conducted in conformity with either approach, as well as how they might be reformed.

The world of fiber optic connections reaching neighborhoods, homes, and businesses will represent as great a change from what came before as the advent of electricity. The virtually unlimited amounts of data we’ll be able to send and receive through fiber optic connections will enable a degree of virtual presence that will radically transform health care, education, urban administration and services, agriculture, retail sales, and offices. Yet all of those transformations will pale compared with the innovations and new industries that we can’t even imagine today. In a fascinating account combining policy expertise and compelling on-the-ground reporting, Susan Crawford reveals how the giant corporations that control cable and internet access in the United States use their tremendous lobbying power to tilt the playing field against competition, holding back the infrastructure improvements necessary for the country to move forward. And she shows how a few cities and towns are fighting monopoly power to bring the next technological revolution to their communities.

Equality and nondiscrimination norms within Islam are illustrated by episodes that display how decision makers interpret conscience claims made on the basis of or within contexts of Islamic law. This chapter centers primarily on ways in which Islamic law decision makers consider such claims from transsexual and transgender communities in the Muslim world. In 1986, the leader of Iran’s Revolution issued a fatwā authorizing sexual reassignment surgery. The government subsequently set up a “sex-change bureaucracy” to simultaneously accommodate and regulate the procedure. Yet norms of gender — rather than equality — animated the accommodation. The failure to address equality norms exemplifies typical (though not essential) approaches to Islamic law in Muslim majoritarian contexts. By contrast is a Muslim minoritarian context: Muhammad Ali’s conscience claim by which he sought exemption from the military draft for the Vietnam War based on his Islamic convictions. The U.S. Supreme Court eventually granted the exemption on a technicality that also sidestepped the question of equality. Nevertheless, this episode positively shaped equality norms in the U.S., over time, and gender-based litigation in the majoritarian Muslim world has the potential to do likewise — through reasoned consideration and interpretation of conscience claims. This chapter explores the interpretation behind such claims.

This is a casebook on advertising and marketing law. Due to the length of the book, we have broken the book into 2 volumes. This is the order page for Volume 2.

This is Chapter 13 from the 2018 edition of Advertising & Marketing Law: Cases and Materials, a casebook by Rebecca Tushnet and Eric Goldman. This chapter examines the legal issues arising from featuring people in advertisements, including publicity rights and endorsement/testimonial guidelines.