Faculty Bibliography

The prudent investor rule, now enacted in every state, is the centerpiece of trust investment law. In accordance with modern portfolio theory, the rule directs a trustee to implement an overall investment strategy having risk and return objectives reasonably suited to the trust. This article, recently published in Trusts & Estates magazine, summarizes the results of an earlier empirical study of the effect of the rule on asset allocation and management of market risk by bank trustees. We had two main findings. First, enactment of the rule was associated with increased stockholdings by bank trustees, but not among banks with average trust account sizes below the 25th percentile, a result that is consistent with sensitivity in asset allocation to trust risk tolerance. Second, enactment of the rule was associated with increased portfolio rebalancing by bank trustees, a result that is consistent with increased management of market risk. Given these findings, we concluded that reallocation toward additional stockholdings after enactment of the rule was correlated with trust risk tolerance and that the increased market risk exposure from those additional stockholdings was more actively managed.

A number of steps can be taken to support growth and innovation in rhe food sector. First, food safety agencies can offer a support legislative and regulatory climate, such as by exempting small-scale or low-risk food businesses, “right-sizing” regulations for certain categories of businesses, and even using creative policies to offer additional benefits such as funding, procurement preferences, and contractual supports to businesses of particular import, including socially-beneficial businesses. In Korea in the past few years, this has taken the form of a “regulatory sandbox” model, offering unique support for individual companies, but it could also take the form of blanket exemptions based on size or risk, or sector-wide supports based on anticipated social impact. Next, no matter the regulatory landscape, food businesses are in need of legal support. This support ranges from help with understanding the regulations that are in place, but also with other general business start up tasks, such as business incorporation, contracts, licensure, and real estate. Finding ways to encourage provision of these legal services for free or low cost can help new businesses see a path to success. Lastly, both the development of smart and creative regulations and the provision of legal support to food businesses rely on a robust legal sector with training, knowledge, and capacity in the food system. Augmenting the development of this field of law builds the human capital necessary to ensure this system has the support needed for future challenges. This article fleshes out recommendations for each of the three areas mentioned above, building upon examples from the United States regarding three categories of best practices to support food start ups: providing supportive legislation and regulations; facilitating the provision of transactional legal services for food start ups; and nurturing the field of food law and policy to strengthen future policies and legal support for this area. Many of these recommendations and case studies stem from the experience, client service, and policy research conducted by the Harvard Law School Food Law and Policy Clinic (FLPC), which has worked extensively in providing legal technical assistance and modernizing regulation in the food space. Policy makers and food safety agencies face the challenge of crafting thoughtful regulations that balance consumer safety, cost, and the disparate needs of small, start-up, and novel businesses. This article offers examples and opportunities as to how that can be possible. 식품영역의 성장과 혁신을 지원하기 위해 여러 조치를 취할 수 있다. 첫째, 식품 안전 기관은 소규모 기업 또는 저위험 식품 기업에 대한 규제를 면제하고, 일정한 범주의 기업에 대해 “적절한 규모(right-sizing)” 규정의 적용을 면제하며, 사회적으로 유익한 사업을 포함해 특정 수입 사업에 대한 자금 지원, 조달에서의 우선권 및 계약 지원 등 창의적인 정책을 사용하여 추가 혜택을 제공하는 등의 방법으로 입법 및 규제 환경을 지원할 수 있다. 다음으로, 규제 환경이 무엇이든 식품 사업은 법적 지원이 필요하다. 마지막으로, 현명하고 창의적인 규제를 개발하고 식품 사업을 법적으로 지원하는 것은 모두 식품 시스템에 관한 교육, 지식, 역량을 갖춘 강력한 법률 부문에 의존한다. 이 법 분야의 발전을 강화한다면 이 시스템이 미래의 도전에 필요한 지원을 확보하는 데 필요한 인적 자본이 구축된다. 이 글은 위에서 언급 한 세 가지 영역 각각에 대한 권장 사항을 구체화함으로써 식품 신생기업을 지원하는 세 가지 모범 사례 범주, 즉 이들을 지원하는 법률 및 규제의 제공, 식품 신생기업을 위한 거래 법률 서비스 제공의 촉진, 이 분야를 위한 향후의 정책 및 법률 지원 강화를 위한 식품법 및 정책 분야의 육성과 관련된 미국의 예에 기초한다. 이러한 권장 사항 및 사례 연구 중 많은 것은 식품 영역에서 법적 기술 지원 제공 및 규제 현대화에서 광범위한 노력을 기울인 하버드 로스쿨 식품법 및 정책 클리닉(FLPC)이 수행한 경험, 고객 서비스, 정책 연구에서 유래한다. 정책입안자와 식품안전기관은 소비자 안전, 비용, 그리고 소기업, 신생기업, 새로운 기업들의 이질적인 요구 사이에서 균형잡힌 신중한 규정을 만드는 데 어려움을 겪고 있다. 이 글은 그것을 가능하게 할 수 있는 방법에 관한 사례와 기회를 제공한다.

"This volume of NOMOS--the 63rd in the series--emerged from papers and commentaries given at the annual meeting of the American Society for Political and Legal Philosophy (ASPLP). This meeting marked the first in the Society's modern history not linked to an annual conference of one of the three contributing disciplines--philosophy, political science, and law--and took place at the new institutional home for ASPLP, Boston University School of Law, on September 28, 2018. Our topic, "Democratic Failure," was selected by the Society's membership"--p. ix.

Public opinion is shaped in significant part by online content, spread via social media and curated algorithmically. The current online ecosystem has been designed predominantly to capture user attention rather than to promote deliberate cognition and autonomous choice; information overload, finely tuned personalization and distorted social cues, in turn, pave the way for manipulation and the spread of false information. How can transparency and autonomy be promoted instead, thus fostering the positive potential of the web? Effective web governance informed by behavioural research is critically needed to empower individuals online. We identify technologically available yet largely untapped cues that can be harnessed to indicate the epistemic quality of online content, the factors underlying algorithmic decisions and the degree of consensus in online debates. We then map out two classes of behavioural interventions—nudging and boosting— that enlist these cues to redesign online environments for informed and autonomous choice.

Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., the foundation for much of contemporary administrative law, is under siege. Several members of the Supreme Court have suggested that they would like to overrule it. Under standard principles of stare decisis, doing that would be a serious mistake. Even if Chevron was wrongly decided, overruling it would create an upheaval—a large shock to the legal system, producing a great deal of confusion, more conflicts in the courts of appeals, and far greater politicization of administrative law. For example: What would happen to the countless regulations that have been upheld under the Chevron framework? Would they be newly vulnerable? More fundamentally,, a predictable effect of overruling Chevron would be to ensure a far greater role for judicial policy preferences in statutory interpretation and far more common splits along ideological lines. There is also the question of reliance interests: For decades, Congress has legislated against the background set by Chevron, and the resulting statutes reflect an understanding that the Court’s framework will apply. Though the argument for overruling Chevron is unconvincing, its critics have legitimate concerns. Those concerns should be addressed by (1) insisting on a fully independent judicial role in deciding whether a statute is ambiguous at Step One; (2) invalidating arbitrary or unreasonable agency interpretations at Step Two; and (3) deploying canons of construction, including those that are designed to serve nondelegation functions and thus to cabin executive authority.

Public officials often impose eligibility requirements that have two effects: (1) they screen out ineligible people and (2) they screen out eligible people. Consisting of paperwork of administrative burdens, such requirements are sometimes characterized as “sludge,” and for some eligible people, they might prove overwhelming or prohibitive. In these circumstances, there is a pervasive normative issue: what is the optimal tradeoff between (1) and (2)? It is plausible to think that a great deal depends on numbers. If, for example, the number of ineligible people who are screened out is very large, and if the number of eligible people who are screened out is very small, then there would seem little ground for objection. But if the number of eligible people who are screened out is very large, there is a serious problem, and it might be worthwhile to consider an approach that would not screen out eligible people, even if it would simultaneously fail to screen out, or effectively “screen in,” a small number of ineligible people. We identify competing, plausible positions on the normative question, which we label consequentialist and legalist. We also offer the results of a pilot study, which shows that the overwhelming majority of respondents would favor changes that allow ineligible people to receive benefits, if that is the price of ensuring that eligible people do so as well – unless the number of ineligible recipients is very high. The survey results suggest that most people reject the legalist position and embrace a form of consequentialism.

Say you’re wealthy and want to influence American politics. How would you do it? Conventional campaign finance — giving or spending money to sway elections — is one option. Lobbying is another. This Article identifies and explores a third possibility: quasi campaign finance, or spending money on non-electoral communications with voters that nevertheless rely on an electoral mechanism to be effective. Little is currently known about quasi campaign finance because no law requires its disclosure. But its use by America’s richest and politically savviest individuals — the Koch brothers, Michael Bloomberg, and the like — appears to be rising. It also seems to skew policy outcomes in the spenders’ preferred direction. After introducing quasi campaign finance, the Article considers its legal status. Is it like ordinary campaign finance, in which case it could be regulated fairly extensively? Or is it like garden-variety political speech, rendering it presumptively unregulable? One argument for pairing quasi and regular campaign finance is that they share several features — who bankrolls them, the tactics they pay for, the reasons they work — and so may serve as substitutes. Another rationale for conflation is that they may both cause the same democratic injuries: corruption, the distortion of public opinion, and the misalignment of public policy. Pitted against these points is the slippery-slope objection: If quasi campaign finance may constitutionally be curbed, what political speech may not be? Lastly, the Article suggests how quasi campaign finance should (assuming it actually may) be regulated. Limits on contributions and expenditures are unwise and probably unadministrable. Disclosure, though, is a necessity. The public should know who is trying to persuade it (and how). Even more promising is the public subsidization of quasi campaign finance. If every voter received a voucher for this purpose, then public funds might crowd out private capital, thus alleviating its harmful effects.

As it approaches its 100th birthday in just a few more years, the Tax Court is undergoing one of its most significant changes since its creation, in large part due to the pandemic’s impact. Born as a national court, the Tax Court long met its mission of nationwide coverage by having judges travel to all corners of the United States. The press release and the videos provide the roadmap for practitioners (and for the 70% of Tax Court petitioners who are pro se) seeking to prepare for an encounter with the new Tax Court.

In this chapter, prepared for The Oxford Handbook of New Private Law, we identify the principal ways in which the common law trust has been used as an instrument of private ordering in American practice. We argue that in both law and function, contemporary American trust law has divided into distinct branches. In our taxonomy, one branch involves donative trusts and the other commercial trusts. The donative branch divides further to include separate sub-branches for revocable and irrevocable donative trusts. We explain the logic of this branching in both practical function and doctrinal form.

A pending rule confuses legal and moral authority.

By the middle of March, the Democratic primary had effectively ended and the enormity of the Covid-19 pandemic and its human and economic cost began to sink in. The response to the pandemic had already been thoroughly politicized several weeks earlier such that news and information about the pandemic were mediated by political media systems. While the rest of the American media ecosystem focused on describing the pandemic, its economic costs, and criticizing the president for his response, conservative media presented a thoroughly partisan view of events and proactively defended and supported the actions and inactions of the president. For audiences of conservative media, information about the pandemic was communicated not through politically neutral public health authorities but was instead filtered and propagated through media channels shaped by many decades of partisan politics. The mainstream media coverage of the pandemic that got the most attention was highly critical of the president’s response, which may have deepened the politically-rooted differences in perspectives on the pandemic. Compared to conservative media, there was far greater deference among media sources on the center and left to views and perspectives of public health authorities and experts. This report, based on an ecosystem-wide analysis of political media coverage, spans the period of March, April, and May, when the spread and magnitude of the pandemic in the United States became clear, and the response of the government was communicated to the public and debated in the media. In March, coverage of the pandemic dominated political media on both sides of the political spectrum, though significantly less so on the right. The proportion of media attention to the pandemic diminished in April and May on the left. On the right, attention to the pandemic dropped off steeply. In April, conservative media and their audiences devoted substantial attention to coverage of the allegations of sexual harassment by Tara Reade against Joe Biden. In May, there was far more attention in conservative media to relitigating the origins of the Russia investigation under the banner of Obamagate than to the pandemic, which had already exacted a terrible cost and was nowhere near being under control. The collective judgment of the conservative media ecosystem was that this largely unsubstantiated storyline rooted in grievance politics was more deserving of the attention of the American public. For Biden supporters, the drop in attention to Covid-19 was picked up by negative coverage of the Trump administration on other issues. Sanders supporters followed a similar path until the death of George Floyd at the end May took up their attention. This was not replicated in the Biden set. Consistent with our findings in January-February, at the peak of the primaries season, Sanders supporters here too appear more focused on progressive issues, while Biden supporters are largely focused on criticism or rejection of Trump. The basic asymmetric and polarized structure of American political media has changed little over the past several years, and this time period is no exception. The potent role of conservative media in the election victory of Trump in 2016 rested on two distinct factors: first, Trump’s success in securing favorable coverage and strong support in conservative media, and second, the success that conservative media had in influencing media coverage outside of conservative media. The willingness of conservative media and audiences to defend and support Trump is clearly evident during these months. Trump continued to receive strong support in conservative media, which acted to divert, deflect, and reframe negative coverage, despite the rash of negative coverage criticizing the administration’s response to the pandemic. The evidence also points to a further isolation of conservative media in American political discourse and a system less able to shape discourse and coverage outside of its own confines, leaving Americans in more starkly divided epistemic worlds. The administration-friendly narratives about the pandemic and Obamagate got little to no traction outside of conservative media. This finding matches what we found in a prior report in which we describe the inability of conservative media to shape coverage of the Hunter Biden scandal outside of right-wing media during January and February 2020, a pattern that is repeated in October 2020. Neither President Trump nor conservative media have lost their ability to influence the media agenda. For example, in a recent report we describe how Trump was able to create a controversy about mail-in voter fraud that prompted media coverage across the political spectrum. The sexual harassment allegations lodged by Tara Reade against Joe Biden ultimately got a public airing—something conservative media pushed hard on. Despite the fact that the impetus to address this topic came also from the left, the media attention garnered in conservative media was not matched in the center and left. The key difference is that while President Trump and conservative media can still make news, their power to interpret and frame the narrative around key events beyond conservative media is more constrained than in 2016. The asymmetric credibility gap between conservative media and the rest of the media ecosystem appears to have deepened. And professional media seem to succumb less readily to the “bias of balance” problem that had bedeviled much of mainstream coverage of Hillary Clinton’s campaign in 2016. There is plentiful evidence of disinformation in political discourse among partisan media and on social media. The problem is far more acute on the right than the left and considerable attention on the far right is tied to the growing QAnon conspiracy. This development is a troubling symptom of the state of political discourse in the United States and translates into real-world costs. However, the impact of top-down propaganda and disinformation is still a greater problem in the United States, particularly so in relation to Covid-19, as tens of millions of Americans have taken unnecessary risks and helped spread the pandemic because they were misinformed about the dangers of contracting the disease and the value of measures deemed effective by public health authorities in reducing the chance of infection, such as social distancing or mask wearing. Many people, including public health specialists and the general public, have come to the conclusion that compared to the relative successes of other countries in addressing the Covid-19 pandemic, the United States response has been a failure, costing innumerable lives and leaving tens of thousands with long-term health problems, while deepening and extending the economic and social consequences of the pandemic. A large minority of Americans fundamentally disagree with this assessment. These divergent worldviews, the symptom of a larger epistemic crisis in the United States tied to asymmetrically polarized media systems, greatly complicate efforts to effectively meet such collection action challenges, and undermine democratic governance. In this paper, we describe how American media ecosystems are able to sustain such different worldviews and contribute to the mishandling and miscommunication of the pandemic. This report is the second in a series of reports that cover the months running up to the November election.

Accounts of private law in general and property in particular have downplayed traditional notions of system in favor of a sum-of-the-parts reductionism. Recent developments in complex systems theory allows a reassessment of this picture. A system is a collection of elements and the connections between and among them; complex systems are ones in which the properties of the system as a whole are difficult to infer from the properties of the parts. Private law is a complex system. Taking the bundle of rights in property law as a starting point, the chapter shows that conventional analysis is overly reductive in that it assumes that the attributes of the whole bundle are the additive sum of the attributes of the “sticks” in the bundle taken individually. Theoretically and empirically, this aggregative approach is not as accurate as one based on “organized complexity,” points in the direction of the New Private Law: systems theory leads to a better and more unified account of the bundle of rights, standardization in property, possession, title, and equity. Systems theory also promises to mitigate some of the dichotomies in private law, such as holism versus reductionism, homogeneity versus specialization, formalism versus contextualism, and public versus private law.

In the United States and elsewhere, the Law and Economics movement has fundamentally reshaped how judges, lawyers, and law students understand tort law. And yet economic interpretations of tort law – as opposed to prescriptive analyses of tort problems that deploy economic methodologies – face insuperable difficulties. Why, then, do the endure? The answer is that some of the leading economic accounts actually manage to identify, albeit in a distorted way, many of tort law’s core features. In keeping with the emphasis of the New Private Law on analysis that is down-to-earth without being reductionist, this Chapter explains why these same features can be captured without distortion though an understanding of tort as a law of wrongs and redress.

Many proponents of traditional knowledge (TK) seek legal protection comparable to the bundle of exclusive rights afforded creators of knowledge goods in the conventional intellectual property (IP) system. This chapter argues that the nature of the harm caused by such misuse differs meaningfully from the interests with which standard intellectual property law is occupied. It maps how private law claims have been applied, notably in Australia, to address TK misuse and highlights formal adherence by courts to the boundaries of private law subjects. Important aspects of the problem, such as how TK misuse disables cultural mechanisms designed to foster the production of knowledge goods for sustainable growth in Indigenous communities, while also posing a risk to cross-border scientific research important for pressing public health and environmental challenges, however remain beyond private law’s reach.The chapter identifies three types of harm that flow from the misuse of TK: relational harm, communal harm, and developmental harm. For such harms, individual private property—and common property for that matter—offers limited recourse. The chapter reflects on other private law tools that could extend to TK and that offer protection well beyond IP rights, but all are without the classic welfare limits attendant to knowledge goods under the IP system. The misalignment of harms, claims and remedies point to sui generis regimes as a more meaningful prospect for regulating TK.

Failure to address food shortages provoked the French and Russian revolutions and a host of other revolts.

Beginning with Justice Ginsburg’s 2011 opinion in the Goodyear case – and echoed in Justice Thomas’s 2014 opinion in Walden v. Fiore and Justice Alito’s 2017 opinion in Bristol-Myers Squibb v. Superior Court – the Supreme Court has suggested that the distinctiveness of specific personal jurisdiction (in contrast to general jurisdiction) resides in its being “case-linked.” However, to date, the Justices have not spelled out what it takes for a defendant’s contacts with a forum to be case-linked, although they now have an opportunity to do so in a pair of personal injury cases brought against Ford Motor Company. This essay aims to provide the missing account of case-linkage, explaining along the way how it applies to the Court’s pending cases. Our method is constructive and interpretive: we take as our starting point the Court’s precedents and its reasoning about two pillars of personal jurisdiction: state sovereignty and defendant’s due process rights. After Part I’s introduction, Part II re-examines the Court’s personal jurisdiction decisions from International Shoe to the present with the goal of understanding the concept of case-linkage as it has played out in the cases. Part III describes the Ford litigations presently before the Court, explaining why they invite consideration of an aspect of specific jurisdiction that the Court has yet to address adequately. We put forward our theory of case-linked jurisdiction in Part IV. Case-linkage, we argue, can only be understood within a framework that isolates the key concepts that matter for due process. Two are crucial: (1) a concept of the scope of the defendant’s submission to state authority, and (2) a concept of the scope of the forum state’s legitimate interests. We explain the latter in terms of the principle that a state’s courts ought not meddle in affairs beyond the state’s legitimate reach (labeled “the Anti-Busybody Principle”). By explaining case-linkage both in terms of the scope of a defendant’s submission to state power and of a state’s legitimate interests, we offer a way to bring together the process and sovereignty concerns that underlie the law of personal jurisdiction. With our own affirmative account in place, Part V shows why the “causation” approach to case-linkage advocated Ford and by some lower courts are indefensible, even if the more expansive “relatedness” tests of other courts are also not up to the task at hand. We also show that the intuitively right answer to the Ford cases—that a state court has jurisdiction to hear tort claims brought by state residents injured in-state by the defendant’s product (when the defendant has extensively sold the product-line in that state)—not only meshes with all relevant Supreme Court precedents, but also points to the best path forward for understanding, defining, and demarcating case-linked jurisdiction.

The decisions voters will make at the ballot box on November 3, 2020 will be influenced in no small part by the media coverage of the candidates and issues, including the reporting by journalists, the media personalities and pundits on radio and television, text messages and campaign phone calls, podcasts, political ads, and for many, the incessant flow of social media posts of friends and family. In this report, the first of a series of reports that cover the months running up to the November election, we track political discourse in the United States for January and February of 2020, the period of time just before (Covid-19) began to dominate political discourse. We also describe the longer-term structure of political media ecosystems in the United States that shape public discourse by curating, amplifying, and propagating political stories and narratives to distinct political audiences. The agenda of political media in January and February 2020 centered on the impeachment of the president, the Democratic primaries, and the killing of Qasem Soleimani. This agenda was picked up throughout the media ecosystem, but there were stark differences across the media camps in the framing and narrative contours applied to these topics, presenting radically different depictions of the underlying evidence, facts, and interpretation of events. These differences between media spheres that often extend beyond spin and emphasis reflect and reinforce the depth and strength of the divide in American politics. Mainstream media described in great detail the rationale for impeaching the president, while in right-wing media the ‘call was perfect’ and the impetus for impeachment was a concocted charade, a witch hunt, to illegitimately overturn the 2016 election. Mainstream media described a rash decision by President Trump to order a missile strike on General Soleimani that was then sold to the American public on the false pretenses of a clear and imminent threat of attack against United States embassies. Conservative media hailed the killing as a decisive strike against adversaries that has unquestionably increased American security and standing in the world. While mainstream media coverage devoted similar levels of attention to the Democratic primaries and the impeachment of the president in January, and a majority of their attention to the primary race in February, politically engaged users on social media were more focused on partisan one-upmanship. For Democrats, attention was directed at the impeachment and the missteps of Trump and his administration, and in February, the intervention of Attorney General Barr and the Department of Justice in the sentencing of Roger Stone. Republicans, in turn, focused their attention on time-honored political foes: Nancy Pelosi and the Democratic leadership, Hillary Clinton, and the hostile and biased mainstream media. The patterns of attention on both sides are consistent with a view that negative partisanship plays a dominant role in American politics. Trump supporters on Facebook provided an exception to the pattern of negative coverage where celebratory videos of appearances and events of Trump were popular. Negative polarization spilled over into the Democratic primary race, which came down to a battle between progressives pursuing a platform of aggressive action on healthcare, climate change, and social and economic justice versus those that put regaining the White House above all else and saw a moderate candidate as a better bet. The media coverage promoted by Sanders supporters placed major focus on the candidate and his policy positions. In contrast, Biden supporters were oriented towards negative coverage of Trump. The outcome of the Democratic race is in keeping with the tenet that negative partisanship dominates American politics. Conservatives in America appear to have survived the barrage of negative coverage from mainstream media with their partisan perspectives and belief systems intact. This is not because conservative media erected an impermeable barrier against negative coverage from the center and left. Politically engaged conservatives were informed of the damaging coverage, but were unfailingly offered a reinterpretation and reframing of events and a plausible alternative narrative designed to preempt any second thoughts about allegiance to party and president. In deflecting and reframing negative coverage, the tactics employed by conservative media follow a well-developed pattern: downplay the validity of the story; deflect attention to the other side; attack the integrity and motives of sources; reinforce distrust in media outside of the right wing; and invoke a strong partisan framing to activate political identity. The formidable narrative crafting power of conservative media is employed not as a mechanism for accountability among its participants and leaders and not to police against disinformation and substandard reporting. Instead, it is wielded as a buffer against external influence and against deviance from the party line. This leaves the system vulnerable to misleading and false reporting and to those propagating conspiracies, such as the Gateway Pundit and True Pundit. Hyperpartisan media sources, which thrive on outrage and frequently misinform their audiences, play a prominent role in conservative media. On the left, partisan and hyperpartisan outlets play a much smaller role and less frequently propagate stories unconfirmed by mainstream media. The biggest change we observe in these first two months of 2020 compared to the election cycle of four years ago is the degree to which conservative media activists have shaped mainstream media coverage. In 2016, right-wing media activists succeeded in influencing mainstream coverage of Hillary Clinton, particularly on the unsubstantiated allegations of wrongdoing associated with the Clinton Foundation, which exacerbated and fed upon coverage of her emails and fueled suspicions of corruption and dishonesty. In the current election cycle, conservative media activists rolled out the same playbook that was so successful in 2016. This time, the corruption allegations were focused on Joe Biden, his son Hunter, and their dealings with Ukraine and China. This story was picked up by mainstream media in 2019, but the core allegation—that Joe Biden pressured Ukraine to remove a prosecutor in order to protect his son—fell apart under scrutiny. By January 2020, while conservative media continued to push out exaggerated and false claims, the dominant mainstream framing of this story had shifted to Donald Trump’s abuse of his presidential power for his own political gain, which overshadowed the well-established and misguided actions of Hunter Biden to cash in on his father’s name. The discredited allegations of corrupt dealings by Joe Biden were getting no play in mainstream media. While conservative media continues to exhibit a remarkable capacity for reframing news coverage to align with the beliefs and perceptions of its core audiences, in January and February of 2020, its power to shape mainstream media coverage was diminished compared to 2016. This is the most notable change we observe and has the potential to alter the electoral calculus in the November election.

Same-sex couples, not unlike their heterosexual counterparts, would prefer having a genetically related child.However, assisted same-sex human reproduction has heretofore been deemed infeasible absent haploid cellularanalogs of human gametes. Recent developments, however, may have overcome this limitation through thederivation of haploid embryonic stem cells (hapESCs). Undifferentiated, pluripotent, self-renewing, and stablyhaploid, hESCs have also displayed germline competence. It is in this capacity that murine hESCs, doubling upas de facto gametes, gave rise to bimaternal and bipaternal progeny. Herein we argue that assisted same-sexhuman reproduction, although potentially attainable at this time, is still years away from the clinic. In support ofthis perspective, we note the significant technical, regulatory, statutory, and societal hurdles that stand in theway of near-term implementation.

The Roberts Court has sought to clarify the constitutional norms governing personal jurisdiction so as to give defendants greater certainty in arranging their business affairs. The Court’s effort has been guided by the implicit assumption that every personal jurisdiction case necessarily rises to the level of constitutional concern. But the only reason that most personal jurisdiction decisions raise constitutional concerns is because the vast majority of states maintain content-less long-arm statutes: in the complete absence of statutory norms, every instance of service of process poses a mini constitutional crisis. With no underlying statutory norms at issue, the Court’s constitutional decisions have long been legislating personal jurisdiction rules instead of adjudicating the constitutionality of legislatively enacted rules. The Court should fix this longstanding separation of powers problem by issuing a simple ruling: the Due Process Clause renders content-less long-arm statutes void for vagueness. That ruling would require state legislatures to enact laws specifying the situations in which service of process over non-residents was authorized. Personal jurisdiction litigation would then turn on statutory questions, with the Constitution held in reserve for particularly egregious power grabs. This approach would lead to differing outcomes in the two Ford Motor Company cases before the Court in the 2020-2021 Term: the Minnesota statute would fail for vagueness, while application of the Montana statute to Ford in the circumstances of that action would obviously not be so egregious as to rise to the level of a constitutional violation. One need not go so far as to say that the Due Process Clause has no role to play in the field of personal jurisdiction to appreciate that it should be cast in a supporting role far narrower than the leading part the Court has handed it for too long.

The Bush v. Gore fight has become the template of a disputed election, but many of the worst-case scenarios could end up before Congress, not the Court.

The role of a reckoning is to get beyond politics.

Cancel Culture is a defense of due process, free speech, and even-handedness in the application of judgment. It makes the case for restraint and care in decisions about whom and what to cancel, boycott, deplatform, and bar from public life, and offers recommendations for when, why, and to what degree these steps may be appropriate, as long as objective, fair-minded criteria can be determined and met. While Dershowitz argues against the worst excesses of cancel culture—the rush to judgment and the devastating results it can have on those who may be innocent, the power of social media to effect punishment without a thorough examination of evidence, the idea that historical events can be viewed through the same lens as actions in the present day—he also acknowledges that its defenders ostensibly try to use it to create meaningful, positive change, and notes that cancelling may itself be a constitutionally protected form of free speech. In the end, Cancel Culture represents an icon in the defense of free speech and due process reckoning with the greatest challenge and threat to these rights since the rise of McCarthyism. It is essential reading for anyone interested in or concerned about cancel culture, its effects on our society, and its significance in a greater historical and political context.

In July 2020, the European Commission published the “Study on directors’ duties and sustainable corporate governance” by EY. The Report purports to find evidence of debilitating short-termism in EU corporate governance and recommends many changes to support sustainable corporate governance. In this paper, we point out deep flaws in the Report’s evidence and analysis. We recently submitted the content of this paper in response to the European Commission’s call for feedback. First, the Report defines the corporate governance problem as one of pernicious short-termism that damages the environment, the climate, and stakeholders. But the Report mistakenly conflates time-horizon problems with externalities and distributional concerns. Cures for one are not cures for the others and a cure for one may well exacerbate the others. Second, the Report’s main ostensible evidence for an increase in corporate short-termism is rising gross payouts to shareholders (dividends and stock repurchases). However, the more relevant payout measure to assess corporations’ ability to fund long-term investment is net payouts (gross payouts minus equity issuances), which is much lower and has left plenty of funds available for long-term and short-term investment. Third, when the Report turns to other evidence for short-termism, it selectively picks academic studies that support its views on short-termism, while failing to engage substantial contrary literature. Significant studies fail to detect short-termism and some substantial studies show excessive long-termism. Conceptually, some short-termism is an unfortunate but an inevitable side effect of effective corporate governance and may not be a first-order problem warranting wholesale reform. Finally, the Report touts cures whose effectiveness has little evidentiary support and, for some, there is real evidence that the cures could be counterproductive and costly.

Confirming Justice—Or Injustice? is an analysis of every aspect of the possible confirmation of Judge Amy Coney Barrett to fill the vacant seat left by the death of Ruth Bader Ginsburg. It includes timely commentary on the history and process of confirming justices to the Supreme Court, notes about what might happen if the process is changed—such as by court packing or instituting age or term limits for justices—and discussion of the roles of the various people and groups who might have input on the confirmation, from the president to the senate to the judiciary committee to the Constitution itself. In the end, Confirming Justice—Or Injustice? represents an icon in American law and politics reckoning with an increasingly politicized and polarized nomination-and-confirmation process for judges and what those shifts might mean for the country, both now and in days to come. It is essential reading for anyone interested in or concerned about Trump's nomination of Amy Coney Barrett and the process of her possible confirmation, the legacy of Ruth Bader Ginsburg, and the future and fate of the Supreme Court—and American democracy itself.

Beyond packing schemes, we need to diminish the high court’s power.

Investor-driven "short-termism'" is said to harm EU public firms' ability to invest for the long term, prompting calls for the EU to better insulate managers from shareholder pressure. But the evidence offered---in the form of rising levels of repurchases and dividends---is incomplete and misleading, as it ignores large offsetting equity issuances that move capital from investors to EU firms. We show that net shareholder payouts have been moderate, that both investment levels and investment intensity have been rising, and that cash balances have increased. In sum, the data provide little basis for the view that short-termism in the EU warrants corporate governance reforms.

The chapter examines the trade of live animals for slaughter, focusing on export from Australia to the Muslim-majority countries that are the main customers. Here, animals are shipped across boundaries of religion, culture, and norms of animal welfare. While the typical rules of international trade in goods apply, they do not really fit. In addition, the current legal regime governing live exports is insufficient to provide animals with an adequate standard of welfare, from the point of entering the ships in the country of origin to the moment of slaughter in the importing country. Stilt argues, however, that with the due involvement of religious authorities, the Islamic tradition of animal welfare could be harnessed to develop more widely accepted international transportation and slaughtering standards.

The claim that election fraud is a major concern with mail-in ballots has become the central threat to election participation during the COVID-19 pandemic and to the legitimacy of the outcome of the election across the political spectrum. President Trump has repeatedly cited his concerns over voter fraud associated with mail-in ballots as a reason that he may not abide by an adverse electoral outcome. Polling conducted in September 2020 suggests that nearly half of Republicans agree with the president that election fraud is a major concern associated with expanded mail-in voting during the pandemic. Few Democrats share that belief. Despite the consensus among independent academic and journalistic investigations that voter fraud is rare and extremely unlikely to determine a national election, tens of millions of Americans believe the opposite. This is a study of the disinformation campaign that led to widespread acceptance of this apparently false belief and to its partisan distribution pattern. Contrary to the focus of most contemporary work on disinformation, our findings suggest that this highly effective disinformation campaign, with potentially profound effects for both participation in and the legitimacy of the 2020 election, was an elite-driven, mass-media led process. Social media played only a secondary and supportive role. Our results are based on analyzing over fifty-five thousand online media stories, five million tweets, and seventy-five thousand posts on public Facebook pages garnering millions of engagements. They are consistent with our findings about the American political media ecosystem from 2015-2018, published in Network Propaganda , in which we found that Fox News and Donald Trump’s own campaign were far more influential in spreading false beliefs than Russian trolls or Facebook clickbait artists. This dynamic appears to be even more pronounced in this election cycle, likely because Donald Trump’s position as president and his leadership of the Republican Party allow him to operate directly through political and media elites, rather than relying on online media as he did when he sought to advance his then-still-insurgent positions in 2015 and the first half of 2016. Our findings here suggest that Donald Trump has perfected the art of harnessing mass media to disseminate and at times reinforce his disinformation campaign by using three core standard practices of professional journalism. These three are: elite institutional focus (if the President says it, it’s news); headline seeking (if it bleeds, it leads); and balance , neutrality, or the avoidance of the appearance of taking a side. He uses the first two in combination to summon coverage at will, and has used them continuously to set the agenda surrounding mail-in voting through a combination of tweets, press conferences, and television interviews on Fox News. He relies on the latter professional practice to keep audiences that are not politically pre-committed and have relatively low political knowledge confused, because it limits the degree to which professional journalists in mass media organizations are willing or able to directly call the voter fraud frame disinformation. The president is, however, not acting alone. Throughout the first six months of the disinformation campaign, the Republican National Committee (RNC) and staff from the Trump campaign appear repeatedly and consistently on message at the same moments, suggesting an institutionalized rather than individual disinformation campaign. The efforts of the president and the Republican Party are supported by the right-wing media ecosystem, primarily Fox News and talk radio functioning in effect as a party press. These reinforce the message, provide the president a platform, and marginalize or attack those Republican leaders or any conservative media personalities who insist that there is no evidence of widespread voter fraud associated with mail-in voting. The primary cure for the elite-driven, mass media communicated information disorder we observe here is unlikely to be more fact checking on Facebook. Instead, it is likely to require more aggressive policing by traditional professional media, the Associated Press, the television networks, and local TV news editors of whether and how they cover Trump’s propaganda efforts, and how they educate their audiences about the disinformation campaign the president and the Republican Party have waged.