Faculty Bibliography

"Drawing upon the experience of faculty from across the country, Integrating Doctrine and Diversity is a collection of essays with practical advice, written by faculty for faculty, on specific ways to integrate diversity, equity and inclusion into the law school curriculum. Chapters will focus on subjects traditionally taught in the first-year curriculum (Civil Procedure, Constitutional Law, Contracts, Legal Writing, Legal Research, Property, Torts) and each chapter will also include a short annotated bibliography curated by a law librarian. With submissions from over 40 scholars, the collection is the first of its kind to offer reflections, advice and specific instruction on how to integrate issues of diversity and inclusions into first-year doctrinal courses"– Provided by the publisher

Property has a complexity problem. Although both “property” and “complexity” are often invoked in property theory, we need more and better notions of both. Much theorizing about property law and institutions suffers from an excessive and misguided reductionism, what I call “Flatland.” The Flatland style of theorizing reduces law to a heap of rules and property to a merely additive bundle of rights. By incorporating complexity based on dense interaction into the picture, we can overcome some false dichotomies in property theory. These include the unstructured collection of “sticks,” the flattening of system, all-or-nothing formalism, misunderstandings of the role of information costs, and the assumption that purposes must be directly reflected in individual rules of property. By contrast, seeing system in property as a method of managing complexity points to the importance of exclusion versus governance; hybrid regimes of private, common, and public property; a spectrum of formalism including law versus equity; degrees of modularity and thing-ness; a combination of spontaneous and directed evolution; and a synergy of common law and legislation. Implementing these aspects of system and overcoming problematic reductionism and false dichotomies will require an encounter with practice. Applications to the law of possession, aerial trespass, nuisance, and the integration of property “bundles” demonstrate how theory can meet practice.

Many firms require consumers, employees, and suppliers to sign class action waivers as a condition of doing business with the firm, and three recent US Supreme Court cases, Concepcion, Italian Colors, and Epic Systems, have endorsed companies’ ability to block class actions through mandatory individual arbitration clauses. Are class action waivers serving the interests of society or are they facilitating socially harmful business practices? This paper synthesizes and extends the existing law and economics literature by analyzing the firms’ incentive to impose class action waivers. While in many settings the firms’ incentive to block class actions may be aligned with maximizing social welfare, in many other settings it is not. We examine conditions in which class action waivers can compromise product safety, facilitate anticompetitive conduct, and support harmful employment practices. Our analysis delivers a more nuanced, policy-based critique of the recent US Supreme Court cases, highlights several new unresolved issues, and identifies future challenges for legal scholarship.

Recent work has argued that a corporate discretion to advance the interests of stakeholders is illusory and undesirable. This article argues that, to the contrary, such discretion is both inevitable and desirable.

The legal principle of offset has played a key role in debt collection by private parties for centuries. In 2021, offset plays an equally essential role in the United States government’s collection of debts owed to it, accounting for billions of dollars in funds taken from outgoing payments. The right of offset arises when two parties owe each other debts. The party asserting offset can subtract what is owed to them from what they owe, allowing the parties to avoid an unnecessary transaction. Offset thus makes intuitive sense, simplifying two payment flows into one. But offset becomes far more complex when one of the parties is the federal government, which is unlike a traditional private creditor in important ways. Offset has perhaps its largest impact in the tax system, where Congress has legislated that the Internal Revenue Service (the “Service”) has the authority (and sometimes, the mandate) to offset tax refunds. Refunds are commonly offset when a taxpayer owes prior year tax liabilities, other agency debts (e.g., student loans), state taxes, or past due child support. Despite its frequent use by the Service, offset is subject to minimal procedural protections, likely due to its origin in longstanding common law doctrine. Unlike other forms of tax collection, offset does not carry a right to prepayment judicial review in Tax Court. Nor does offset require the Service to issue a notice to the taxpayer prior to taking collection action. Courts also treat offset inconsistently when the applicable taxpayer/debtor is protected by a collection stay under Title 26 or Title 11, allowing offset in some scenarios and denying it in others. Finally, Congress and the Service have often failed to use their authority to make offset more equitable, particularly as applied to low-income taxpayers. The Service has a limited administrative remedy available for taxpayers to affirmatively request bypass from the offset of their refund to a tax debt. But the remedy is little-publicized, little-used, and difficult to administer. During the COVID-19 pandemic and recession, Congress legislatively protected advance stimulus payments from some forms of offset. But Congress failed to make that protection expansive or to extend it to conventional tax refunds, both of which would have put needed funds in the hands of millions of taxpayers during an economic crisis. Similarly, the Service declined to exercise its statutory discretion to systemically suspend offset of conventional tax refunds to past tax liabilities. These issues extend to payments of the Earned Income Tax Credit (EITC), which are subject to offset. Both Congress and the Service have failed to acknowledge the EITC’s unique nature as a type of public benefit, treating it instead as a conventional tax refund subject to offset. This disproportionately hurts the low-income taxpayers, and their children, that the EITC was enacted to benefit. We argue that policymakers should pay closer attention to offset and make the necessary changes to apply it in a more equitable and logical manner.

In 1969, the Yale Law School received a $1,000,000 grant from the United States Agency for International Development for a Program in Law and Modernization. Yale promised to study legal impediments to modernization, assess legal needs of modernization projects, train lawyers for research and development work, and disseminate knowledge. The Program was conceived by David Trubek and William Felstiner, former USAID lawyer-administrators, who, along with Richard Abel, ran it. Launched in the shadow of the Cold War, it started with the implicit promise of diffusing US liberal ideas about law and transplanting US legal institutions and culture, and was seemingly aligned with US foreign policy. Flush with USAID resources, the Program mounted innovative courses, brought Visiting Professors and Fellows with Third World expertise to Yale, supported scholars from the Third World and elsewhere seeking advanced degrees, funded research by Yale faculty, students, and Fellows, held workshops and conferences, and published Working Papers and articles. Linked with the nascent Law and Society Association, it sought to create a Comparative Sociology of Law. There were vigorous debates ranging from the nature of law and social science to the role of the US in the Third World, all on a campus roiled by student protests over the War in Vietnam and racism in the US. Gradually, the Program became a locus for critique of liberal ideas about law and social science, a source of doubts about US foreign policy, and an incubator for critical studies in law and legal sociology. By 1976, the founding directors were gone and the Program was soon closed. In 1977, nine law professors convened the first Critical Legal Studies conference: six had been involved with the Program while at Yale and the others had interacted with it.

Under the U.S. Constitution, is the executive branch unitary, and if so, in what sense? For many decades, there has been a sharp dispute between those who believe in a strongly unitary presidency, in accordance with the idea that the president must have unrestricted removal power over high-level officials entrusted with implementation of federal law, and those who believe in a weakly unitary presidency, in accordance with the view that Congress may, under the Necessary and Proper Clause, restrict the president’s removal power, so long as the restriction does not prevent the president from carrying out his constitutionally specified functions. Both positions can claim support from the original understanding of relevant clauses; both can claim to keep faith with constitutional commitments in light of dramatically changed circumstances, above all the rise of the modern administrative state. In Seila Law v. Consumer Financial Protection Bureau, a sharply divided Court enthusiastically embraced the strongly unitary position, in an ambiguous opinion that might be read to preserve the constitutionality of independent multimember commissions, but that also left a great deal of room for constitutional challenges to such commissions in their present form. The Court’s analysis purports to be rooted in the original understanding of the constitution, and not implausibly so; but the Court relies so heavily on abstract principles, such as “liberty” and “accountability,” that its analysis is not easily distinguishable from a dynamic constitutionalism suffused with political morality. The Court’s holding and analysis can thus be seen as a direct outgrowth of modern anxiety, rooted in structural concerns, about the threats posed by a powerful, discretion-wielding administrative apparatus, and a belief that presidential control is an essential safeguard.

The killings of George Floyd, Michael Brown, Trayvon Martin, and others have occurred under different factual circumstances, in different states, at the hands of both state and private actors, and have engendered different levels of outrage on the basis of their perceived egregiousness. Collectively and cumulatively, they have forced Americans to, once again, wrestle with the visible manifestation of racism and structural inequality. This confrontation is not simply a function of the inability to avert one’s eyes when faced with incontrovertible evidence of evident inhumanity and abject degradation, though it is in part that. After all, how to justify the deployment of state power to literally snuff the breath of another human being who was otherwise harmlessly restrained and presented a threat to no one? Or, how not to be appalled by three white men effectively hunting down and shooting a black man who was simply jogging? These facts are self-evidently heinous, and the only acceptable reaction is outrage. Ours is a moment rife with the possibilities of racial justice. Fundamental change seems possible. The question for the future is about how to harness this moment to make this fundamental change real and lasting. How does a movement translate its demands into actionable policy? In this Essay, we argue for a three-step incremental process, from protest to politics to law. Taking as our example the case of the Voting Rights Act, we illustrate how the Freedom Movement went from its voting rights campaign to the heart of the Democratic Party and ultimately to August 6, 1965, when President Johnson signed the Voting Rights Act into law. Fundamental change, as we show in the pages that follow, requires all three steps.

In August 2021, the Securities and Exchange Commission approved Nasdaq's proposed rules related to diversity. The rules' aim is for most Nasdaq-listed firms to have at least one director self-identifying as female and another self-identifying as an underrepresented minority or LGBTQ+. While Nasdaq claims these rules will benefit investors, the empirical evidence provides little support for the claim that gender or ethnic diversity in the boardroom increases shareholder value. In fact, rigorous scholarship--much of it by leading female economists--suggests that increasing board diversity can actually lead to lower share prices. The implementation of Nasdaq's proposed rules thus may well generate risks for investors.

"Trademark registration is useful in providing a record of when rights were acquired and over what symbols, it also provinces constructive notice of registrant’s rights. Registration presents issues when underlying rights are expanded through assertions in litigation, even when the rights are narrow on paper. A number of reforms to the registration process could address these problems: “use requirements, heightened distinctiveness requirements, and a version of prosecution history estoppel to discourage registrant manipulation of the difference between the rights-granting entity (the PTO) and the rights-enforcing entity (the courts).” The interdependency of rights and remedies necessarily means that any reform to the registration process needs to consider a balance of infringement and counterfeit deterrence with competition and market entry. As it stands, the current registration system focuses heavily on competition and market entry, with less thought given to infringement and counterfeit deterrence. This chapter explores ways to make registration beneficial for both the consumers and producers."

But what does fairness mean when it comes to code? This practical book covers basic concerns related to data security and privacy to help data and AI professionals use code that's fair and free of bias.

In Roman Catholic Diocese of Brooklyn v. Cuomo, the Supreme Court took a highly aggressive approach to restrictions imposed by the state of New York on houses of worship, even though those restrictions were vigorously defended on public health grounds. Because of the serious health effects of the COVID-19 pandemic, and because of the plausibility of a plea for judicial respect for complex choices and tradeoffs by elected officials, Roman Catholic Diocese can reasonably be seen as a kind of anti-Korematsu – that is, as a strong signal of judicial solicitude for constitutional rights, and of judicial willingness to protect against discrimination, even under emergency circumstances in which life is on the line. Roman Catholic Diocese can also and equally be seen as a vindication of Justice Robert Jackson’s argument in Railway Express, in which he called for relatively ready invocation of antidiscrimination principles, as opposed to liberty principles, on the ground that the former, unlike the latter, trigger political safeguards against unjustified actions. Nonetheless, there are two open questions. The first is how to think about claims of discrimination in the context of actual and potentially challenging questions about the appropriate comparator, that is, the institutions that are best seen as comparable to houses of worship, in terms of the health risks that they create. The second is whether Roman Catholic Diocese is genuinely generalizable as an anti-Korematsu, or whether it is best seen as a distinctive product of the contemporary Court’s particular solicitude for religion and religious institutions.

Abuses of constitutional clemency power should be investigated and prosecuted.

Avoiding the reduction of property to a bundle or rights or to the working out of a single master principle, the architectural theory of property sees property as an integrated system or structure anchored in certain unifying principles. Because our world is neither chaotic nor additively simple, property law and institutions must achieve their plural ends in a fashion that manages the inherent complexity of the interaction of valued resource attributes and human actions. In managing complexity, some of the law’s structures receive functional explanations and justifications, which can be different from the explanations and justifications that apply to the system as a whole. In working as a whole, the system exhibits a number of tightly interwoven design principles, including the centrality of things, rights to exclude and possession, hybrids of exclusion and governance, modularity, differential formalism, standardization and the numerus clausus, and “property rule” protection and equity. The architectural approach allows us to revisit some basic questions in property theory and to capture the dyanamic reality of property law and institutions.

Although there has been a proliferation of research and policy work into how nudges shape people’s behaviour, most studies stop far short of welfare analysis. In the current work, we critically reflect on recent efforts to proxy the welfare impact of nudges using willingness to pay and subjective wellbeing reports and explore an alternative unobtrusive approach: automatic facial expression coding. In an exploratory lab study, we use facial expression coding to assess the short-run emotional impacts of being presented with calorie information about a popcorn snack in the context of a stylized ‘Cinema experience’. The results of the study indicate that calorie information has heterogeneous impacts on people’s likelihood of choosing the snack and on the emotions they experience during the moment of choice which varies based on their level of health consciousness. The information does not, however, affect the emotions people go on to experience while viewing movie clips, suggesting that the emotional effects of the information are short-lived. We conclude by emphasising the potential of automatic facial expression coding to provide new insights into the short-run welfare effects of nudges and calling for further research into this promising technique.

Book review of The Purpose of Power: How We Come Together When We Fall Apart by Alicia Garza.

A year-end evaluation offers an invitation for growth going into the new year, which starts with the associate opening up the review as to how he feels he did for the year.

I want to press a bit on the question of what the unwritten aspects of our constitutional structure establish. Rather than a fixed legal order constructed by conventions, I want to suggest that this unwrittenness points to the ♦provisionality♦ of the constitutional order itself—that is, to its essentially unsettled character. This perspective raises three problems or puzzles that a Constitution-by-Convention poses for public law: a duality at the crux of the presidential office; the unsettled nature of the separation of powers itself; and the role of courts in an unstable constitutional order. In particular, I will argue that our unwritten Constitution provides a challenge not just to Textualism but to the very idea of the separation of powers as a legalistic concept that courts can and should robustly enforce. At the same time, our unsettled presidency raises crucial questions about how courts should respond when litigation implicates presidential norms—or norm breaches—that pertain not just to the legitimacy of executive action, but to the legitimacy of the courts as well.

In the two decades following the 1955 Asian African Conference in Bandung, Asian and African jurists sought to reshape international law to better incorporate the aspirations of formerly colonised peoples. The Asian-African Legal Consultative Committee (AALCC), founded one year after the Bandung Conference, helped formulate a common Afro-Asian and Third World international legal agenda by bringing together jurists and ideologically diverse Asian and African governments while collaborating with UN institutions working to codify and develop international law. The AALCC’s work and the contemporaneous writings of African and Asian jurists reveal a shared ambition to weaken the international protection of foreign-owned property by pursuing a legal agenda anchored in the structure and principles of the post-World War II international legal system. The Afro-Asian international legal agenda combined efforts to eliminate pre-war rules incompatible with the foundational principles of the UN Charter while elaborating the content of these principles through UN institutions.

Pre-exposure prophylaxis (PrEP) is only effective in preventing new HIV infections when taken consistently. In clinical practice, asking a patient about their adherence (self-report) is the predominant method of assessing adherence to PrEP. Although inexpensive and noninvasive, self-report is subject to social desirability and recall biases. Several clinical trials demonstrate a discrepancy between self-reported adherence and biomarker-based recent adherence. Less is known about the accuracy of self-report in real-world clinical settings. This brief report addresses this knowledge gap and describes the concordance between self-reported adherence and biomarker-based adherence in real-world clinical settings.

To tackle the challenge of how to distribute organs, vaccines, and other kinds of health care, organizations are relying on AI and analytics. But many of them treat ethical considerations as an afterthought. This is a mistake. Such factors should be taken into the account at the outset of the effort to create the AI algorithm or analytics model.

What role do courts play in peace processes? Relying on case studies of South Africa and Colombia, we identify two functions. First, by invalidating some peripheral provisions constitutional courts can enhance the legitimacy of those agreements by adding the imprimatur of legalism to the political support the agreements already have. Second, the international law of impunity can be an obstacle to reaching a peace agreement, but domestic courts can weaken that impediment by deferring a confrontation with that law by creative interpretation of both the peace agreement and international law, thereby postponing to the indefinite future any actual confrontation between the agreement and international law.

Property rights in a free and democratic society are built on - and limited by - the values of liberty, equality, and democracy (among other norms). Those values define the types of property relationships that can be legally recognized, outlawing relationships of servitude, class distinctions, and caste assignments typical of nondemocratic societies. Property law defines things we should not have to bargain for. Property rights are partly defined by judges in common law rules and partly by elected representatives. Regulatory rules chosen by legislatures reflect the collective choices of citizens in setting minimum standards for social and economic relationships compatible with the norms of a society of free and equal human beings. While values like liberty and equality are essentially contested and open to interpretation, they place real limits on property law, ensuring a foundation for market relationships, while framing debate about contested issues. Contract law can rest on a norm of freedom to contract (and not to contract) only because property law and property law norms create a foundation that protects rights we should not have to bargain for when we enter the marketplace. And free and democratic societies cannot function with extreme inequality that undermines social relationships and warps political institutions.

In the modern era, the statements and actions of public figures are scrutinized with great care, and it often emerges that they have said or done things that many people consider objectionable, hurtful, offensive, or despicable. A persistent question is whether public figures should apologize for those statements or actions. Suppose that an apology has a purely strategic motivation: helping a politician to be elected or reelected, helping an executive to keep his job, helping a nominee to be confirmed by the U.S. Senate. Empirical work presented here suggests that an apology might well turn out to be futile or even counterproductive. One reason is Bayesian; an apology produces updating that can be unfavorable to the apologizer (by, for example, resolving doubts about whether the apologizer actually said or did the objectionable thing, and about whether what the apologizer did was actually objectionable). Another reason is behavioral; an apology triggers the public’s attention, makes the public figure’s wrongdoing more salient, and can help define him or her. But many open questions remain about the reasons why apologies by public figures fail, and about the circumstances in which they might turn out to be effective.

Caste: The Origins of Our Discontents By Isabel Wilkerson Random House Late in her book Caste: The Origins of Our Discontents, Isabel Wilkerson recounts a conversation in 2018 with fellow journalist Taylor Branch on the state of race relations in America. The outcome of the 2020 presidential election offers an ambiguous answer. [...]the Trumpist Republican Party gained seats in the House of Representatives and seems likely to hold on to its majority in the Senate. [...]there exists a library of books exposing the centrality of racial slavery, the betrayal of Reconstruction, the depredations of Jim Crow segregation, the resistance to the civil rights movement, and the persistence of the race line. The offense she mines most deeply is slavery, noting that "[t]he vast majority of African-Americans who lived in this land in the first 246 years of what is now the United States lived under the terror of people who had absolute power over their bodies and their very breath, subject to people who faced no sanction for any atrocity they could conjure."

The Constitution specifies only one process for making international agreements. Article II states that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” The treaty process has long been on a path to obsolescence, however, with fewer and fewer treaties being made in each presidential administration. Nevertheless, the United States has not stopped making international agreements. Even as Article II treaties have come to a near halt, the United States has concluded hundreds of binding international agreements each year. These agreements, known as “executive agreements,” are made by the President without submitting them to the Senate, or to Congress, at all. Congress has responded to the rise of executive agreements by imposing a transparency regime — requiring that all the binding executive agreements be reported to Congress and that important agreements be published for the public to see. Until now, however, there has been no systematic assessment of how well the transparency regime has been working. This Article seeks to fill that gap. Through a Freedom of Information Act lawsuit, we obtained thousands of documents relating to the agreements reported to Congress and the legal authority on which the Executive Branch has relied for these agreements. Together with a series of interviews with lawyers directly involved in the process, this new information has given us an unprecedented look inside the system of concluding, publicizing, and reporting executive agreements. For the first time, we can describe how the system for making and scrutinizing executive agreements actually works — and when and how it fails to work. The overall picture that emerges is one of dysfunction and non-accountability. In brief: the Executive Branch does not come close to meeting its reporting duties; the entire process is opaque to everyone involved, including Executive Branch officials and congressional staffers; and Congress is failing in its oversight role. The “system” is badly in need of repair if we are going to preserve the integrity and legality of the United States’ primary means of making international law. This Article proposes a number of reforms, most of which should be normatively uncontroversial.

Corporate purpose is now the focus of a fundamental and heated debate, with rapidly growing support for the proposition that corporations should move from shareholder value maximization to “stakeholder governance” and “stakeholder capitalism.” This Article critically examines the increasingly influential “stakeholderism” view, according to which corporate leaders should give weight not only to the interests of shareholders but also to those of all other corporate constituencies (including employees, customers, suppliers, and the environment). We conduct a conceptual, economic, and empirical analysis of stakeholderism and its expected consequences. We conclude that this view should be rejected, including by those who care deeply about the welfare of stakeholders. Stakeholderism, we demonstrate, would not benefit stakeholders as its supporters claim. To examine the expected consequences of stakeholderism, we analyze the incentives of corporate leaders, empirically investigate whether they have in the past used their discretion to protect stakeholders, and examine whether recent commitments to adopt stakeholderism can be expected to bring about a meaningful change. Our analysis concludes that acceptance of stakeholderism should not be expected to make stakeholders better off. Furthermore, we show that embracing stakeholderism could well impose substantial costs on shareholders, stakeholders, and society at large. Stakeholderism would increase the insulation of corporate leaders from shareholders, reduce their accountability, and hurt economic performance. In addition, by raising illusory hopes that corporate leaders would on their own provide substantial protection to stakeholders, stakeholderism would impede or delay reforms that could bring meaningful protection to stakeholders. Stakeholderism would therefore be contrary to the interests of the stakeholders it purports to serve and should be opposed by those who take stakeholder interests seriously.

Federal courts are courts of limited jurisdiction—but only in part. A federal court’s subject-matter jurisdiction is limited by the Constitution; its territorial, personal jurisdiction is not. Current doctrine notwithstanding, a federal court’s writ may run as far as Congress, within its enumerated powers, would have it go. Today’s doctrine limits federal jurisdiction by borrowing Fourteenth Amendment principles thought to govern state courts. This borrowing blocks recoveries by injured plaintiffs, such as American victims of foreign terrorist attacks; and it’s become a font of confusion for procedure scholars, giving rise to incisive critiques of the Federal Rules. It’s also a mistake. The Fourteenth Amendment didn’t impose new limits on state personal jurisdiction; it enabled federal enforcement of limits that already applied. Current doctrine retroactively forces the Fifth Amendment into the mold of the modern Fourteenth, transforming an expansion of federal power into a strict constraint on federal authority. The federal courts’ territorial jurisdiction depends, in the first instance, on Congress’s powers. It may be that Congress can authorize fully global jurisdiction over any suit within Article III. If not, Congress may have ways to make better use of its jurisdictional powers at home. Either way, the existing mix of statutes and procedural rules seems fully valid. If the Constitution didn’t impose limits on Congress or on the federal courts, modern doctrine shouldn’t either.

America may be back, as Joe Biden says, but at the Supreme Court, with its extremely conservative new majority, America is increasingly unrecognizable.

“Private law” embraces the traditional common law subjects (property, contracts, and torts), as well as adjacent more statutory areas such as intellectual property and commercial law. It also includes important areas that have been neglected in the United States but are beginning to make a comeback. These include unjust enrichment, restitution, equity, and remedies more generally. “Private law” can also mean private law as a whole, which invites consideration of issues such as the public-private distinction, the similarities and differences between the various areas of private law, and the institutional framework supporting private law – including courts, arbitrators, and even custom. The New Private Law is an approach to these subjects that aims to reinvigorate the study of private law by moving beyond reductively instrumentalist policy evaluation and narrow, rule-by-rule, doctrine-by-doctrine analysis, so as to consider and capture how private law’s various features fit and work together, as well as the normative underpinnings of these larger structures. This movement has begun resuscitating the notion of private law itself in the United States and has brought an interdisciplinary perspective to the more traditional, doctrinal approach prevalent in Commonwealth countries. The Handbook embraces a broad range of perspectives to private law – including philosophical, economic, historical, psychological, to name a few – yet it offers a unifying theme of seriousness about the structure and content of private law. This Introduction introduces the New Private Law and briefly summarizes the chapters in the volume.