Faculty Bibliography

This is the text of the opening keynote lecture delivered at the conference, “Is Religious Freedom under Threat?,” Christ Church, Oxford, May 23–25, 2018, convened by Oxford University's McDonald Centre for Theology, Ethics and Public Life and Emory University's Center for the Study of Law and Religion. It is truly an honor to deliver the opening lecture for this McDonald Conference titled “Is Religious Liberty under Threat?” Since it was only four years ago that I had given a talk on that subject for the Oxford Journal of Law and Religion’s Summer Academy, which built in turn upon my Harold Berman Lecture at Emory University two years before, I have had to give some serious thought to how I might avoid repeating myself. Yet when I looked back over what I said on those occasions, I wished that I had dwelt less upon the threats and more on the challenge of how to address them. What I would like to do in this lecture, therefore, is to offer some suggestions in the hope of stimulating discussion about how to make the case for religious freedom as a fundamental human right in today's increasingly secular liberal democracies.

The theoretical availability of an infinite number of contract types suggests that there may be an optimal quantity from which contractual parties could make a selection. In this Article, we emphasize the difficulty of identifying that optimal number, given information costs and other transaction costs related to the production of a contract type. We argue that standard market failures might cause markets to produce a suboptimal number of contract types. We then consider whether government should intervene to remedy any market failure. We conclude that government would generally lack the access to information necessary to identify the optimal number of contract types. Moreover, we argue that issues of political economy would impede the ability of government to achieve the optimal number of contract types, even if it were able to identify that number. Government, that is, may tend to either oversupply or undersupply contract types. Perhaps the best that government can do is to provide “soft” interventions that reflect appropriate defaults or safe harbors.

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law — which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed. This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of history. Second, applying that current law may often require deference to historical expertise, but for a more limited inquiry: one that looks specifically at legal doctrines and instruments, interprets those instruments in artificial ways, and makes use of evidentiary principles and default rules when the history is obscure. Third, ordinary legal reasoning already involves the application of old law to new facts, an inquiry that might other-wise seem daunting or anachronistic. Applying yesterday’s “no vehicles in the park” ordinance is no less fraught — and no more so — than applying Founding-era legal doctrines.

The term "judicial restraint," applied to courts engaged in judicial constitutional review, can refer ambiguously to any one or more of three possible postures of such courts, which we here will distinguish as "quiescent," "tolerant" and "weak-form." A quiescent court deploys its powers sparingly, strictly limiting the agenda of social disputes on which it will pronounce in the constitution's name. A tolerant court confirms as valid laws whose constitutional compatibility it finds to be reasonably sustainable, even though it independently would conclude to the contrary. A weak-form court acts on the understanding that its pronouncements on matters constitutional will be duly open to considered rejection by other political agencies. Theory commonly tends to treat the question of judicial restraint as turning on a bedrock political value of democracy. We may also, however, understand debates over judicial restraint in the light of a different bedrock value, that of political legitimacy. Where democracy is the focal concern, debaters may tend toward conflating into one measure the three dimensions of judicial restraint. A focus on legitimacy rather tends toward a dis-bundling of the three dimensions, thus complicating the choices while also clarifying the stakes. The political philosophy of John Rawls helps us to see how and why this occurs.

Although one of the key questions in a federal system is how authority should be allocated between the state and national governments, property law has rarely generated serious controversy on this front. Instead, property entitlements and the rules governing resource use have typically been the province of state and local actors. The Supreme Court has repeatedly emphasized that property rights are created at the state level. And while federal regulations—for example, environmental regulations—certainly limit property rights, state and local land-use laws and state nuisance and trespass rules serve as major constraints on property’s use and enjoyment. This feature of property law means there is potential for interstate variation in property rules. In the private law of property—the body of law that governs disputes and relationships among private parties—there remains some variation among the states in both the forms of property recognized and in the different rules that limit ownership and use. However, in this Essay prepared for a symposium on federalism at the Pepperdine School of Law, I marshal evidence that one portion of the public law of property is on a different trajectory. This Essay identifies two areas of convergence across states in constitutional takings law. First, though the federal Constitution could theoretically protect varied property interests and could measure the constitutionality of regulations affecting property against different background state legal regimes, developments in takings doctrine have enabled some courts to make cross-state comparisons both to create or cap the interests protected and to determine which limitations on title an owner should have expected. Second, despite the potential for variation offered by state constitutional takings provisions, state courts often interpret their constitutional protections for property in similar ways even when presented with different text or other relevant considerations. This Essay identifies how lower courts are applying takings doctrine in ways that may curb the significance of interstate differences in property rules and speculates on the features of takings law that minimize variation in the scope of constitutional takings protection where the potential exists for it. In surfacing the phenomenon of convergence, this Essay builds a foundation for considering the virtues, vices, and normative desirability of uniformity and variation in both takings law and in property law more generally.

In 2014, the National Highway Traffic Safety Administration finalized its rear visibility regulation, which requires cameras in all new vehicles, with the goal of allowing drivers to see what is behind them and thus reducing backover accidents. In 2018, the Trump administration embraced the regulation. The rear visibility initiative raises numerous puzzles. First: Congress’ grant of authority was essentially standardless – perhaps the most open-ended in all of federal regulatory law. Second: It is not easy to identify a market failure to justify the regulation. Third: The monetized costs of the regulation greatly exceeded the monetized benefits, and yet on welfare grounds, the regulation can plausibly be counted as a significant success. Rearview cameras produce a set of benefits that are hard to quantify, including increased ease of driving, and those benefits might have been made a part of “breakeven analysis,” accompanying standard cost-benefit analysis. In addition, rearview cameras significantly improve the experience of driving, and it is plausible to think that in deciding whether to demand them, many vehicle purchasers did not sufficiently anticipate that improvement. This is a problem of limited foresight; rearview cameras are “experience goods.” A survey conducted in 2019 strongly supports this proposition, finding that about 56 percent of consumers would demand at least $300 to buy a car without a rearview camera, and that fewer than 6 percent would demand $50 or less. Almost all of that 6 percent consists of people who do not own a car with a rearview camera. (The per-person cost is usually under $50.) These conclusions may have general implications for other domains in which regulation has the potential to improve people’s lives, even if it fails standard cost-benefit analysis; the defining category involves situations in which people lack experience with a good whose provision might have significant welfare effects.

As the information gap between experts and non-experts narrows, it is increasingly important for experts to give advice to non-experts in a way that is both effective and respectful of their autonomy. We surveyed 508 participants using a hypothetical medical scenario in which participants were counselled on the risks and benefits of taking antibiotics for a sore throat in circumstances in which antibiotics were inappropriate. We asked participants whether they preferred (1) to make their own decision based on the information or (2) to make their decision based on the doctor’s opinion, and then randomized participants to receive “information only”, “opinion only”, “information first, then opinion”, or “opinion first, then information.” Participants whose stated preference was to follow the doctor’s opinion had significantly lower rates of antibiotic requests when given “information first, then opinion” compared to “opinion first, then information.” Our evidence suggests that in some important contexts, “information first, then opinion” is the most effective approach. We hypothesize that this is because it is seen by non-experts as more trustworthy and more respectful of their autonomy. Our finding might have general implications for expert communications.

This Response to Andrew Woods makes two points. First, building on one of Woods’s claims, and drawing on the work of Milton Mueller, it shows why the “fragmentation” charge frequently levied against sovereignty-based approaches to internet governance is misplaced. Second, it raises questions about the efficacy of Woods’s normative theory of judicial comity.

Is the Supreme Court’s legitimacy in crisis? Daniel Epps and Ganesh Sitaraman argue that it is. In their Feature, How to Save the Supreme Court, they suggest legally radical reforms to restore a politically moderate Court. Unfortunately, their proposals might destroy the Court’s legitimacy in order to save it. And their case that there is any crisis may fail to persuade a reader with different legal or political priors. If the Supreme Court needs saving, it will be saving from itself, and from too broad a conception of its own legal omnipotence. A Court that seems unbound by legal principle is too powerful a weapon to leave lying around in a democracy; we should start thinking about disarmament.

Over the past decade, cost-benefit analysis in the field of financial regulation (“financial CBA”) has emerged as a topic of intense public interest. In reviewing rulemakings under the Administrative Procedure Act, courts have demanded greater rigor in the financial CBA that regulators provide in support of new regulations. Industry experts and other analysts have repeatedly questioned the adequacy of agency assessments of costs and benefits. And legal academics have engaged in a robust dialogue over the merits of financial CBA and the value of alternative institutional structures for overseeing financial CBA. This Article adds to the expanding literature on financial CBA by offering a detailed study of how regulatory agencies actually undertake benefit analysis in promulgating new regulations involving matters of consumer finance and other analogous areas of consumer protection. After a brief literature review, the Article proposes a taxonomy for categorizing benefit analysis in the area of consumer financial regulation. This taxonomy reflects traditional market failures, cognitive limitations of consumers, as well as several other beneficial outcomes commonly associated with regulations designed to protect consumers. Taking the taxonomy as a framework, the Article then reports on a detailed survey of seventy-two consumer protection regulations adopted in recent years, and presents an overview of the range and quality of benefit analysis that government officials actually undertook in the surveyed regulations. The Article next provides a more detailed discussion of twenty “exemplars” of benefit analysis drawn from regulations in the sample and focusing on the strengths and weaknesses of what might be considered state-of-the-art benefit analysis in consumer protection regulation in the years immediately following the enactment of the Dodd-Frank Act. The Article concludes with a discussion of potential lines of academic research and institutional reform that might assist financial regulators in conducting more complete benefit analysis for consumer protection regulation in the future.

Fiduciary duties of care are at once familiar and strange. They partake of many of the characteristics of duties of care in other domains of private law, particularly tort law. But they also bear the distinctive marks of the fiduciary context. This chapter identifies two ways in which fiduciary duties of care tend to be distinct from tort duties of care. First, with some important exceptions, they are less demanding and less vigorously enforced. Second, breaches of the fiduciary duty of care can give rise to liability even if no injury results to the beneficiary. These distinctive features, I argue, reflect judicial efforts to harmonize the fiduciary’s duty of care with her duty of loyalty. As such, they are defensible, even if not in all respects justified.

Since long before the settling of the American colonies, property boundaries were described by the “metes and bounds” method, a system of demarcation dependent on localized knowledge of movable stones, impermanent trees, and transient neighbors. Metes and bounds systems have long been the subject of ridicule among scholars, and a recent wave of law-and-economics scholarship has argued that land boundaries must be easily standardized to facilitate market transactions and yield economic development. However, historians have not yet explored the social and legal context surrounding earlier metes and bounds systems—obscuring the important role that nonstandardized property can play in stimulating growth. Using new archival research from the American colonial period, this Article reconstructs the forgotten history of metes and bounds within recording practice. Importantly, the benefits of metes and bounds were greater, and the associated costs lower, than an a historical examination of these records would indicate. The rich descriptions of the metes and bounds of colonial properties were customized to the preferences of American settlers and could be tailored to different types of property interests, permitting simple compliance with recording laws. While standardization is critical for enabling property to be understood by a larger and more distant set of buyers and creditors, customized property practices built upon localized knowledge serve other important social functions that likewise encourage development.

In a book chartered to demonstrate intellectual property in objects, what concrete thing can represent the Internet, a phenomenon that exists only as a well-elaborated idea? Perhaps the best physical representation of the genius of the Internet—and in particular, “Internet Protocol”—is found in an hourglass.

At the Philadelphia convention assembled to draft a new Constitution, Alexander Hamilton argued ‘[e]stablish a weak government and you must at times overleap the bounds. Rome was obliged to create dictators’. Publius then expands upon this argument in several ways in the Federalist. I suggest that Publius identifies a dynamic or mechanism, the ‘Publius Paradox’, that warrants great attention: under particular conditions, excessive weakness of government may become excessive strength. If the bonds of constitutionalism are drawn too tightly, they will be thrown off altogether when circumstances warrant. After illustrating and then analysing this ‘Publius Paradox’, I turn briefly to its implications, the main one being that constitutional law should be cast as a loosely‐fitting garment – particularly the executive component of the constitution and the scope of executive powers.

In its 1972 decision in Eisenstadt v. Baird, the US Supreme Court announced that: “it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” But, in fact, both within and outside the United States, this firm-sounding principle has often been honored in the breach. Both as to coital and assisted reproduction, but particularly the latter, the state has asserted significant control over reproductive decision-making. This chapter details various forms of reproductive regulation prevalent today in a variety of areas including: Sterilization, abstinence education, surrogacy, sperm and egg “donor” anonymity and paternity, insurance funding, cloning, and mitochondrial replacement therapy. More conceptually, it divides state regulation of reproduction along the axes of attempts to influence whether, when, with whom, and how we reproduce and the means by which the state intervenes. Finally, it examines variations on child welfare justifications the state has or might offer for such reproductive regulation, and raises some questions about those justifications.

This paper offers thoughts on the evolving nature and scope of Internet governance in the context of the development of the right to be forgotten. It summarises traditional frameworks for: (a) defining and operationalizing principles of Internet governance; and (b) distinguishing the types of issues that raise transnational governance concerns from the types of issues that are commonly considered the domain of local laws and norms. If an issue falls within the ambit of Internet governance, it may lend itself to a certain set of solutions (with input from a broad cross-section of global public and private stakeholders). Issues outside that domain tend to be subjects of local regulatory mechanisms, in accordance with notions of national sovereignty. Categorizing a set of legal, policy, or technical considerations as one or the other, thus, has consequences in terms of the types of approaches to governance that may best be deployed to address them. The paper provides examples of how recent technical and legal developments have put pressure on narrow conceptions of Internet governance as concerned primarily with Internet architecture and infrastructure. It posits that Internet governance models may be relevant to more and more conduct that occurs above the level of Internet’s metaphorical pipes, including developments that occur at what is traditionally conceived of as the content layer. The paper suggests that various global implementations of the right to be forgotten —and, in particular, implementations that are directed at the activities of search engines— offer a useful case study in examining and assessing this transformation.

Large, multilateral, international negotiations have become a mainstay of modern diplomacy. Given the complexity of these negotiations, it is common that they be facilitated by a Secretariat. Typically, the Secretariat is composed of professional staff that is primarily responsible for administering negotiations and, in certain cases, providing support to monitory treaty implementation. Nonwithstanding this central role in many of the most consequential international negotiations, however, relatively little research has been conducted regarding their optimal structure so as to maximize the chance for success in these negotiations. This Article explores the role of Secretariats by applying general principles drawn from the study of complex adaptive systems. This interdisciplinary perspective suggests a structure that departs from existing debates in the negotiation theory literature regarding the proper role of Secretariats. The lessons from this interdisciplinary perspective are substantiated by an analysis of the negotiations leading up to and during the 21st Conference of the Parties of the UN Framework Convention on Climate Change, which culminated in the Paris Climate Accord. As shared resource issues proliferate in international politics, coordinated action at a global scale will only become more important. It is essential, therefore, that scholars and practitioners alike devote more energy to understanding these often-neglected focal points of the international treaty system.

Eine mächtige Ideologie unserer Zeit besagt," schrieb Viviana Zelizer 1994, "dass Geld das eine tauschbare und absolut unpersönliche Mittel ist." Dieser Anschauung zufolge hat der Charakter des Geldes das moderne Leben verändert. Georg Simmel behauptete in seiner erstmals im Jahr 1900 veröffentlichten Philosophie des Geldes : "Sie [die Geldwirtschaft, Ch. D.] bewirkt von sich aus die Notwendigkeit fortwährender mathematischer Operationen im täglichen Verkehr." Dieses Charakteristikum wirkt sich prägend auf das Leben der Menschen aus--sie verbringen ihre Zeit mit "Bestimmen, Abwägen, Rechnen, Reduzieren qualitativer Werte auf quantitative.

This Essay examines the state of appraisal in Delaware after the Delaware Supreme Court’s decisions in DFC Global (July 2017) and Dell (December 2017). In these two cases, the Supreme Court reversed Chancery Court rulings that “fair value” exceeded the deal price. In doing so the Supreme Court strongly signaled that deal price should receive presumptive weight as long as the deal process is good. The question then becomes how good the deal process must be in order to gain deference to the deal price. In Dell, the Chancery Court found that the deal process was good enough to satisfy fiduciary duties but not good enough to warrant deference to the deal price. The Supreme Court revisited (and in some instances, mischaracterized) key facts from the record to conclude that the Chancery Court’s ruling constituted an “abuse of discretion.” This Essay concludes with implications for practitioners and courts. An earlier version of this Essay is titled Using the Deal Price for Determining "Fair Value" in Appraisal Proceedings.

Equity and Tort appear to be strangers. Beyond historically making equitable relief available in some cases, equity did not intervene in tort law to the extent it did in contract and some aspects of property. And yet substantive equity focuses on wrongful conduct and affords persons the opportunity to seek remedies for such conduct through the courts. Are there ‘equitable wrongs’, and, if so, how if at all do they differ from torts? We focus on a particular function loosely associated with historic equity jurisdiction: equity supplements the law where it fails to address problems that are difficult to handle on the same ‘level’ on which they arise. In situations of conflicting rights, party opportunism, and interacting behavior, it is difficult to formulate solutions that do not make reference to the ordinary (primary level) set of rights and rules. Thus, it is often more effective to frame ‘abuse of rights’ in terms of what one can do with rights rather than formulate the right to make it resistant to abuse. We distinguish three scenarios at the intersection of equity and tort: (i) tort law itself contains a second-order element to deal with problems such as coming to the nuisance; (ii) equity solves an inadequacy of tort law, such as by reformulating privity, which is then incorporated into tort law going forward; and (iii) equity maintains a limited but open-ended capacity to counteract inadequacies of tort law, especially involving hard-to-foresee manipulation of rules and conflicts of rights. With the increasing fusion of law and equity, it has been difficult to maintain this second-order equitable function, but nowhere more so than at the equity-tort interface. Many of the interventions of equity, especially into areas of wrongful interference, invite redescription as torts, and have in fact induced courts to recognize new torts, for better and worse. On our account, this reformulation into tort is appropriate only where a problem is amenable to delineation in terms of general rights and fails where a degree of open-endedness is necessary to deal with party opportunism and new types of conflict. We also consider the diffusion of ‘flattened’ equitable notions into primary-level tort law, often in the form of balancing tests, which have in many ways rendered tort less coherent, stable, and law-like than is desirable.

Professor David Kennedy’s 2018 Montesquieu Lecture considers the role of expert legal knowledge in our political and economic life. As politicians, citizens, and experts engage one another on a technocratic terrain of irresolvable argument and uncertain knowledge, a world of astonishing inequality and injustice is born. Kennedy draws on his experience working with international lawyers, human rights advocates, policy professionals, economic development specialists, military lawyers, and humanitarian strategists to describe the conflicts, unexamined assumptions, and assertions of power and entitlement that lie at the center of expert rule. He explores how we can harness expert knowledge to remake an unjust world.

Editor’s note: This article first appeared in the Spring 2008 issue of Insights on Law & Society. The history has not changed since first publication, and it remains an excellent overview of how politics shaped environmental policy over the twentieth century in ways that affect us now in the twenty-first century.

This piece endeavors to provide context for state and local officials considering tasks around development, procurement, implementation, and use of risk assessment tools. It begins with brief case studies of four states that adopted (or attempted to adopt) such tools early on and describes their experiences. It then draws lessons from these case studies and suggests some questions that procurement officials should ask of themselves, their colleagues who call for the acquisition and implementation of tools, and the developers who create them. This paper concludes by examining existing frameworks for technological and algorithmic fairness. The authors offer a framework of four questions that government procurers should be asking at the point of adopting RA tools. That framework draws from the experiences of the states we study and offers a way to think about accuracy (i.e., the RA tool’s ability to accurately predict recidivism), fairness (i.e., the extent to which an RA tool treats all defendants fairly, without exhibiting racial bias or discrimination), interpretability (the extent to which an RA tool can be interpreted by criminal justice officials and stakeholders, including judges, lawyers, and defendants), and operability (the extent to which an RA tool can be administered by officers within police, pretrial services, and corrections).

This chapter for an edited volume on the relationship between law, disgust, and prejudice in social and political life explores the role of disgust in structuring class distinctions. It argues that disgust has often been an unarticulated basis for laws that denigrate and quarantine the poor, ranging historically from vagrancy and “unsightly beggar” laws to compulsory sterilization. It explores whether and how law might be used to dismantle the status-based stratification that exacerbates and legitimates disgust. Finally, it asks whether repudiating disgust is likely to facilitate or impede efforts to mitigate economic inequality. If the visceral force of disgust helps to naturalize social hierarchy, then exposing its effects as illegitimate might serve to spur structural reform. At the same time, the power of disgust to unsettle middle-class complacency has occasionally functioned as an impetus for legal and social change.

This academic presentation is based on the slides we prepared for delivery by one of us at the Federal Trade Commission hearing on Competition and Consumer Protection in the 21st Century on December 6, 2018, which focused on common ownership. The slides discuss the implications of our research work for the common ownership debate. The research work whose implications we consider includes Bebchuk, Cohen, and Hirst, The Agency Problems of Institutional Investors (2017) (https://papers.ssrn.com/abstract=2982617) and Bebchuk and Hirst, Index Funds and the Future of Corporate Governance: Theory, Evidence, and Policy (2018) (https://papers.ssrn.com/abstract=3282794). We argue that the attack on common ownership is misguided.The claims of common ownership critics, we argue, fail to take into account how the agency problems of investment fund managers provide them with incentives to under-invest in stewardship and to be deferential toward the corporate managers of portfolio companies. Given these problems, policymakers should be primarily concerned that investment fund managers engage too little and not that they engage too much. The measures advocated by common ownership critics are not merely unnecessary but would be counterproductive; they could well discourage investment fund managers from stewardship activities that should be encouraged.

This academic presentation, based on our joint work on dual-class structures, was delivered by Lucian Bebchuk as his keynote address to the December 2018 ECGI-BIU conference on differential voting structures. The presentation focuses on the lifecycle theory of dual-class structure introduced in Bebchuk and Kastiel, The Untenable Case for Perpetual Dual-Class Stock, 2017 (https://ssrn.com/abstract=2954630). The presentation begins with discussion of precursor works to, and the motivation for developing, the lifecycle theory. The presentation then proceeds to describing the elements of the theory. In particular, it explains the reasons for expecting the efficiency benefits of dual-class structures to decline over time; for the efficiency costs to increase over time; and for controllers to choose to retain a dual-class structure even when it ceases to be efficient. The presentation also discusses a number of cases that vividly illustrate arguments advanced by the lifecycle theory. Among cases discussed are dual-class companies Viacom, CBS, and Facebook, as well as single-class companies Amazon, Microsoft and Yahoo!. We also explain that time-based sunsets can address the identified problems, and we discuss the design of, and objections to, such sunsets. Finally, we discuss the influence that our lifecycle theory has had on subsequent policy discourse and on empirical work testing the theory’s predictions. The presentation concludes that the lifecycle theory has solid theoretical foundations and is confirmed by recent empirical testing. We hope that the lifecycle theory that we introduced will continue to prove useful for researchers and policymakers and to contribute to the adoption of dual-class sunsets.

In the world according to Professor Michael Stokes Paulsen, impeachment turns out to be a remarkably simple subject. So simple, in fact, that it’s unclear why it would merit a book, let alone a spate of studies. Here’s the scoop: A few sources from the late 1780s decisively show that “the impeachment judgment is properly concerned... solely with the question whether the wrongs committed are themselves sufficiently serious wrongs as to warrant exercise of the impeachment power.” Nothing else can ever be relevant. If a legislator concludes that the President’s wrongs are “sufficiently serious,” he or she is obliged to vote for the President’s removal from office. And in assessing seriousness, legislators can look only to neutral factors derived from “original objective public meaning.” This approach shields us from “considerations of strategy, practicality, and partisan politics.” It also reveals that the impeachment power has been drastically under-utilized in American history: Andrew Johnson and Bill Clinton, and potentially James Buchanan and Woodrow Wilson (among quite a few others), should never have completed their terms in office. Only a partisan hack — with dodgy motives and even dodgier methods — could support any other view of impeachment. That’s where we come in: we’re the hacks. Professor Paulsen is explicit on this point. In his telling, we engaged in a devious “partisan gerrymander,” deliberately reverse-engineering an impeachment standard to ensnare as many Republicans as possible while letting Democrats off the hook. We were able to do so, Paulsen adds, only because we didn’t stick to originalist methods. By falsely asserting that originalism doesn’t provide a clear and determinate framework for impeachment analysis, we invented judgment calls vulnerable to partisan manipulation. And then we engaged in precisely such skullduggery, making up new standards and invoking irrelevant considerations. But, alas, we did a bad job. Having written a whole book to oust President Donald J. Trump while saving Clinton’s legacy, we stumbled at the finish line — first by offering “contradictory warnings” about the strategic risks of impeachment, and then by failing to demand Trump’s removal. Professor Paulsen blends accusations of willful bad faith with insinuations of scholarly and strategic incompetence. These aren’t minor charges. You might therefore expect that Paulsen would have engaged seriously with our arguments. If so, you’d be disappointed. As one of our colleagues candidly remarked, “It’s almost like he didn’t read the book.” In accusing us of a partisan gerrymander and methodological dishonesty, Paulsen repeatedly and egregiously mis-describes our thesis, reasoning, and conclusions. He then ignores entire sections of the book that refute core premises of his “naïve” view. Throughout, he rips text out of context to complain about contradiction. In short, he has reviewed a book that we didn’t (and wouldn’t) write. And he has accompanied that “review” with a supposedly originalist theory of impeachment that is neither originalist nor persuasive.