Faculty Bibliography

In what he called "the liberal principle of legitimacy," John Rawls proposed that coercive exercises of political power can be justified to free and equal dissenters when "in accordance with a constitution (written or unwritten) the essentials of which all citizens, as reasonable and rational, can endorse . . . ." Does "unwritten constitution" there refer to empirical regularities of political practice (as opposed to normative rules and standards)? To norms that subsist only as custom but not as law? To norms that subsist as common law but not as code law? Which interpretation is best?

Professor Bowie has authored one of two Responses the Forum is running in December inspired by Professor Laurence Tribe and Joshua Matz’s recently published book on impeachment, To End a Presidency. These pieces are being published contemporaneously with Professor Michael Stokes Paulsen’s book review. Bowie offers a theory of the proper scope of the impeachment power that neither Paulsen nor Tribe and Matz embrace — namely, that Congress may only impeach for conduct that violated an extant criminal law. In other words, “high Crimes and Misdemeanors” can only refer to conduct that is in fact a crime or a misdemeanor, and impeachment is best understood as a criminal, rather than civil, process. This was the theory articulated by then-former Supreme Court Justice Benjamin Curtis as he defended President Andrew Johnson from impeachment, and Bowie asserts that Curtis’s theory has been right all along. Among his many arguments, Bowie closes with a practical one: Insisting that impeachment be grounded in positive criminal law is the most effective way to ensure that, both now and in the future, it does not become a mere political weapon.

During the past half-decade, law school student demands for changes in legal education to address issues of diversity and inclusion have both proliferated and grown insistent. Although the demands are somewhat varied, they have sometimes stretched far beyond the admission and hiring of more students and faculty from minority groups. Students have advocated for basic changes in the way that law schools operate in order to make them more inclusive of groups that have been historically marginalized within these institutions.

Stock‐market–driven short‐termism is crippling the American economy, according to legal, judicial, and media analyses. Firms forgo the R&D they need, cut capital spending, and buy back their own stock so feverishly that they starve themselves of cash. The stock market is the primary cause: directors and executives cannot manage for the long term when their shareholders furiously trade their company’s stock, they cannot make long‐term investments when stockholders demand to see profits on this quarter’s financial statements, they cannot even strategize about the long term when shareholder activists demand immediate results, and they cannot keep the cash to invest in their future when stock market pressure drains away that cash in stock buybacks. This doomsday version of the stock‐market–driven short‐termism argument entails economy‐wide predictions that have not been well‐examined for their severity and accuracy. If the scenario is correct and strong, we should first see sharp increases in stock trading in recent decades and more frequent activist interventions, and these increases should be accompanied by (1) sharply declining investment spending in the United States, where large firms depend on stock markets and where activists are important, as compared to advanced economies that do not depend as much on stock markets, (2) buybacks bleeding cash out from the corporate sector, (3) economy‐wide R&D spending declining from what it should be, and (4) a stock market unwilling to support innovative, long‐term, technological firms. These are the central channels from stock‐market–driven short‐termism to overall economic degradation. They justify corporate law policies that seek to prevent these outcomes. But these predicted economy‐wide outcomes are either undemonstrated, implausible, or untrue. Corporate R&D is not declining, corporate cash is not bleeding out, and the world’s developed nations with neither American‐style quarterly oriented stock markets nor aggressive activist investors are investing no more intensely in capital equipment than the United States. The five largest American firms by stock market capitalization are tech‐oriented, R&D intensive, longer‐term operations. The economy‐wide picture is more one of capital markets moving capital from larger, older firms to younger ones; of a postindustrial economy doing more R&D than ever; and of an economy whose investment intensity depends on overall economic activity, not stock market trading nor hedge fund activism. True, the economy‐wide data could hide stock market hits that hold back R&D from increasing more and that weaken American capital spending more than is fitting for a post‐industrial economy. But if so, these effects have not been shown and several seem implausible. Hence, the calamitous form of the stock‐market–driven short‐termist argument needs to be reconsidered, recalibrated, and, quite plausibly, rejected. Then, last, comes the broadest question: why has a view that lacks strong economy‐wide evidentiary support become the rare corporate governance issue that attracts attention from the media, political players, policymakers, and the public—and that is widely accepted as true? I suggest why in this paper’s final part.

Before filing suit, a plaintiff can take a financial position in a defendant firm. A short position benefits the plaintiff by transforming a negative expected-value claim into a positive expected-value one and by enhancing the claim's settlement value. If the capital market is less than strong-form efficient, the plaintiff also benefits directly from the decline in the defendant's stock price. When the defendant is privately informed about the case's merits, bargaining failures can arise. While aggressive short-selling benefits the plaintiff at the expense of the defendant, moderate levels of short-selling can benefit the defendant and raise the settlement rate.

Aspects of an entrenched constitution that were essential parts of founding compromises, and justified as necessary when a constitution was first adopted, may become less justifiable over time. Is this the case with respect to the structure of the United States Senate? The US Senate is hardwired in the Constitution to consist of an equal number of Senators from each state—the smallest of which currently has about 585,000 residents, and the largest of which has about 39.29 million. As this essay explains, over time, as population inequalities among states have grown larger, so too has the disproportionate voting power of smaller-population states in the national Senate. As a result of the ‘one-person, one-vote’ decisions of the 1960s that applied to both houses of state legislatures, each state legislature now is arguably more representative of its state population than the US Congress is of the US population. The ‘democratic deficit’ of the Senate, compared to state legislative bodies, also affects presidential (as compared to gubernatorial) elections. When founding compromises deeply entrenched in a constitution develop harder-to-justify consequences, should constitutional interpretation change responsively? Possible implications of the ‘democratic’ difference between the national and the state legislatures for US federalism doctrine are explored, especially with respect to the ‘pre-emption’ doctrine. Finally, the essay briefly considers the possibilities of federalism for addressing longer term issues of representation, polarisation and sustaining a single nation.

The United States legal profession routinely deals with evidence in and out of courtrooms, but the profession is not evidence-based in a scientific sense. Lawyers, judges, and court administrators make decisions determining the lives of individuals and families by relying on gut intuition and instinct, not on rigorous evidence. Achieving access to justice requires employing a new legal empiricism. It starts with sharply defined research questions that are truly empirical. Disinterested investigators deploy established techniques chosen to fit the nature of those research questions, following established rules of research ethics and research integrity. New legal empiricists will follow the evidence where it leads, even when that is to unpopular conclusions challenging conventional legal thinking and practice.

Officers quietly wield a lot of unchecked prosecutorial power.

We propose a fundamental restructuring of the federal civil pretrial process to address its great expense and unreliability in resolving cases on their merits-problems largely attributable to discovery. The proposed reforms establish an affirmative-disclosure mandate that sharply reduces the role of discovery by transferring most of the parties' burden of fully revealing discoverable matter, favorable and unfavorable, to their pleadings. To effectuate the new function for pleadings, the reformed process replaces Rules 12(b)(6), (c), and (f) with pretrial merits review conducted exclusively pursuant to the procedures and standards for summary judgment under Rule 56. Responding parties will be required to fully disclose discoverable matter to which they have exclusive or superior practical access ("asymmetric information"), but only if the initiating party's pleading makes a summary judgment-proof showing on all elements of their claims or defenses that are unaffected by the information asymmetry. Discovery, if any, would generally be deferred to the postpleading stage and restricted to court-approved, targeted use as may be needed for purposes of facilitating resolution of cases by summary judgment, settlement, or trial preparation. Compared to the current regime, the reformed pretrial process should enable courts and parties to resolve more cases on the merits-more cheaply, quickly, and reliably-thus increasing deterrence and other social benefits from the use of civil liability to enforce the law. Courts in this country, including "Mandatory Initial Discovery" pilot projects, launched by the Federal Judicial Center last year, and abroad are testing the benefits of affirmative-disclosure reforms that resemble what we propose in this Article.

In the late twentieth century constitution-designers came to understand that, in addition to the three classic Montesquiean functions of law-making, law-applying, and law-interpreting, constitutional institutions had to perform an additional function, that of protecting the constitution itself. That function is performed by constitutional courts, but also by agencies concerned with elections and with corruption. A case study of an important anti-corruption inquiry in South Africa illustrates the proposition that institutions protecting the constitution must combine independence from other political actors with some degree of accountability to them. Following the case study, the Article examines some general characteristics of these institutions, sketching some of the questions about independence and accountability that constitution-designers must consider. Among those questions are the possibility of too much independence, with the institutions having a greater impact on political outcomes than is appropriate, too much responsiveness to non-political but professional concerns such as legality and the details of accounting conventions, and of course too much accountability to the very political institutions that these agencies are designed to regulate. Throughout the Article emphasizes the role of conflicts of interest both in setting the agenda for these agencies and in posing the risk that the agencies will undermine rather than protect the constitution.

Jews in America are in a period of unprecedented status and impact, but for many their identity as Jews--religiously, historically, culturally--is increasingly complicated. Many are becoming Jews without Judaism. It appears success and acceptance will accomplish what even the most virulent anti-Semitism never could---if not the disappearance of Jews themselves, the undermining of what it means to be Jewish. In this thoughtful, personal, deeply-reasoned book, Robert Mnookin explores the conundrums of Jewish identity, faith and community in America by delving deep into Jewish history, law, and custom. He talks to rabbis, scholars, and other Jews of many perspectives to explore the head, heart, and heritage of Judaism and confronts key challenges in the Jewish debate from the issue of intermarriage to the matter of Israeli policies. Mnookin shares provocative stories of the ways American Jews have forged (or disavowed) their Jewish identity over the past half-century, including his own to answer the standing question: How can Jews who have different values, perspectives, and relationships with their faith, keep the community open, vibrant, and thriving?

The “conviction” definition is one of the most misunderstood and odious provisions in our country’s immigration statute. The “conviction” term is a misnomer because it includes criminal dispositions that are often not considered convictions at all. Despite its perplexing definition, “convictions” are frequently used as markers for removal. For example, in FY2017, Immigration and Customs Enforcement (“ICE”) apprehended 143,470 individuals within the interior of the United States and ninety-two percent of those individuals had a criminal conviction, arrest, or an outstanding removal order. In FY2016, ICE’s apprehension totals likewise showed that ninety-two percent of individuals arrested by ICE had a criminal conviction. The purpose of this short article is to explain immigration law’s enigmatic “conviction” definition, its nefarious history, and current efforts to challenge the definition’s interpretation. In so doing, the article draws on my prior scholarship, which — along with a seminal article by immigration scholar Jason Cade — became the blueprint for challenging the “conviction” definition in federal court.

The updated Fourth Edition includes recent cases and developments in biotechnology, including stem cell research and gene patents, and updates to HIPPA coverage, DNA research, and bio-banks.

In this article, Fogg addresses procedural rules through which the IRS effectively dictates whether the Tax Court has jurisdiction over many collection due process cases. He discusses recent litigation of similar jurisdictional issues and recommends changes at the agency level.

Much has been written and discussed in banking circles about recent rollbacks in prudential regulation, with some seeing the rollbacks as unsafe and others seeing them as allowing stronger financial action. Undiscussed is that the basic taxation of the corporation in the United States — and banks are taxed like ordinary corporations — has a profound impact on the level of debt and equity throughout the economy and in the banking system in particular, and that recent changes to the tax code could affect bank safety, stability, and capitalization levels. We analyze here how and why the 2017 tax act will incentivize banks to be better capitalized, albeit modestly so. For those worried about regulatory rollbacks that decrease bank safety, this tax incentive — which has been unremarked upon and not analyzed in the academic literature, as far as we can tell — offsets some recent regulatory rollbacks. And, more important analytically and potentially for policy, we show that this tax change, if properly expanded, would have a major beneficial safety impact on banks. Properly reformed, the taxation of banks (1) can substantially improve bank safety, at a level that may well rival the improvements from post-crisis regulation and (2) can be done in a revenue-neutral way.

https://youtu.be/lVFc5dnz7Cw

Judges sometimes disagree about the best way to resolve a case. But the conventional wisdom is that they should not be too swayed by such disagreement and should do their best to decide the case by their own lights. An emerging critique questions this view, arguing instead for widespread humility. In the face of disagreement, the argument goes, judges should generally concede ambiguity and uncertainty in almost all contested cases. Both positions are wrong. Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue for a different approach: A judge ought to give significant weight to the views of others, but only when those others share the judge’s basic methodology or interpretive outlook—i.e., only when those others are methodological “friends.” Thus textualists should hesitate before disagreeing with other textualists, and pragmatists should hesitate before disagreeing with like-minded pragmatists. Disagreement between the two camps is, by contrast, “old news” and so provides neither camp additional reason for pause. We also suggest that judges should give weight to the views of all of their methodological friends, not just judges. And we suggest, even more tentatively, that our proposal may explain and, to some extent, justify the seemingly ideological clusters of justices on the Supreme Court. The most productive disagreements, we think, are ones that come from arguing with friends.

In 1976, the First National Bank of Boston, Gillette, and three other Massachusetts companies announced their plan to oppose a referendum authorizing a graduated income tax. State officials responded that Massachusetts law prohibited this type of corporate political expenditure. The U.S. Supreme Court intervened, declaring that Massachusetts could not prohibit speech based solely on the “corporate identity of the speaker.” The Court reasoned that shareholders through “corporate democracy” were better positioned than states to regulate companies’ political engagement. In the wake of this decision, the Boston City Council—a municipal corporation—announced its plan to spend its corporate dollars in support of a 1978 tax referendum. That same election, Massachusetts Citizens for Life—a nonprofit corporation—financed newsletters promoting anti-abortion candidates. State and federal officials again blocked these corporate political expenditures. This time, however, the Supreme Court protected only the nonprofit, observing that a “voluntary political association” did not “suddenly present the danger of corruption merely by assuming the corporate form.” These Supreme Court decisions armed business and nonprofit corporations with a powerful new weapon—the First Amendment—that future lawyers wielded against advertising bans, labor contracts, healthcare requirements, and, of course, campaign finance laws. At the same time, the decisions left the City of Boston unable to support referenda that the Bank of Boston was free to oppose. This paper will situate this “First Amendment libertarianism” in the political, legal, and social context of 1970s Boston, a city gripped by racial crisis and dependent on business corporations, especially the Bank of Boston, for financial survival. This context helps explain why courts, lawyers, and executives expected that shareholders could responsibly oversee governments better than governments could oversee shareholders—or themselves.

This chapter examines the scholarship that has dealt with the concept of hisba and the related position of muhtasib. The discussion includes a substantial section on the historical development of the concept of hisba and the position of muhtasib and a shorter section on their contemporary uses and practices. The historical section includes attention to the definitions and origins of the terms and to the position of the muhtasib, including the official’s jurisdiction, sources of law, biographies, and practice in particular historical contexts. The contemporary section focuses on the countries that have received the most scholarly attention regarding the practice of hisba and muhtasib today, notably Saudi Arabia and Egypt.

Effy Vayena and colleagues argue that machine learning in medicine must offer data protection, algorithmic transparency, and accountability to earn the trust of patients and clinicians.

The prohibition against price fixing is competition law's most important and least controversial provision. Yet there is far less consensus than meets the eye on what constitutes price fixing, and prevalent understandings cannot be reconciled with principles of oligopoly theory. This article (1) presents a fundamental reconceptualization of our understanding of horizontal agreements, (2) develops a systematic analysis of price-fixing policy that focuses on its deterrence benefits and chilling costs, and (3) compares this direct approach to commentators’ favored formulations that typically involve some sort of formalistic communications-based prohibition. By targeting a subset of means rather than the illicit ends, conventional formulations tend to impose liability in cases with lower deterrence benefits and greater chilling costs than those reached under a direct approach and to incur greater administrative costs as well.

This paper develops a new test for identifying racial bias in the context of bail decisions – a high-stakes setting with large disparities between white and black defendants. We motivate our analysis using Becker's (1957) model of racial bias, which predicts that rates of pre-trial misconduct will be identical for marginal white and marginal black defendants if bail judges are racially unbiased. In contrast, marginal white defendants will have a higher probability of misconduct than marginal black defendants if bail judges are racially biased against blacks. To test the model, we develop a new estimator that uses the release tendencies of quasi-randomly assigned bail judges to identify the relevant race-specific misconduct rates. Estimates from Miami and Philadelphia show that bail judges are racially biased against black defendants, with substantially more racial bias among both inexperienced and part-time judges. We also find that both black and white judges are biased against black defendants. We argue that these results are consistent with bail judges making racially biased prediction errors, rather than being racially prejudiced per se.

The theory of insurance is considered here when an insured individual may be able to sue another party for the losses that the insured suffered—and thus when an insured has a potential source of compensation in addition to insurance coverage. Insurance policies reflect this possibility through so-called subrogation provisions that give insurers the right to step into the shoes of insureds and to bring suits against injurers. In a basic case, the optimal subrogation provisions involve full retention by the insurer of the proceeds from a successful suit and the pursuit of all positive expected value suits. This eliminates litigation risks for insureds and results in lower premiums—financed by the litigation income of insurers, including from suits that insureds would not otherwise have brought. Moreover, optimal subrogation provisions are characterized in the presence of moral hazard, administrative costs, and non-monetary losses, and it is demonstrated that optimal provisions entail sharing litigation proceeds with insureds in the first two cases but not when losses are non-monetary.

Dell Technologies Inc. (“Dell”) is planning a “backdoor-IPO” transaction that would bring it back to the public market with a multiclass structure. Dell’s return to the public market is expected to make it one of the ten largest multiclass companies with an aggregate capitalization substantially exceeding $50 billion. Building on our earlier work on multiclass structures, this Article identifies and analyzes three governance risks and costs that Dell’s IPO structure would create for public investors holding Dell’s low-voting stock: • Lifetime entrenchment of Michael Dell (“MD”): He would be able to retain control indefinitely even after he ceases to be a fitting leader and even if he becomes disabled or incompetent. • Small-minority controller: Although MD would initially hold a majority of the equity capital, Dell’s structure would enable him to unload most of his shares and still retain control even with a small equity stake, and his status as small-minority controller would be expected to produce substantial governance risks and costs. • Midstream changes: Dell’s governance structure would enable MD to adopt subsequent changes in governance arrangements, without any support from public investors, which would increase Dell's governance risks beyond the risks associated with a small-minority controller. Each of these governance risks can be expected to both (i) decrease the expected future value of Dell by increasing agency costs and distortions, and (ii) increase the discount to a per-share value of Dell at which low-voting shares of Dell can be expected to trade. Both types of effects would operate to reduce the value at which the low-voting shares of public investors would trade and therefore should be taken into account in assessing the risks to such investors posed by Dell’s planned structure.

This paper contends that the proper role of law in managing uses of traditional knowledge is highly contextual. In some settings, distributive justice, cultural diversity and group identity formation would be promoted by according Indigenous groups more power to control or to benefit from uses of knowledge developed and sustained by their members, while in other settings, respect for individual autonomy and the promotion of semiotic democracy counsel against providing the groups that power. The paper then outlines two alternative legal frameworks, either of which could accommodate this complex combination of competing values. The first would incorporate, in a multilateral treaty, a set of provisions that, by increasing the risk that the unauthorized use of traditional knowledge would result in forfeiture of intellectual property rights, would put pressure on private firms to accede to reasonable requests made by the governments of developing countries and by representatives of Indigenous groups. The second would augment and harness public discourse concerning the morality of particular uses of traditional knowledge by creating a disclosure obligation, disconnected from intellectual property law, analogous to the labelling requirements commonly imposed on the producers of food, clothing and drugs.

Policy-makers show an increasing interest in “nudges” – behaviorally motivated interventions that steer people in certain directions but maintain freedom of consumer choice. Despite this interest, little evidence has surfaced about which population groups support nudges and nudging. We report the results of nationally representative surveys in Denmark, Hungary, Italy, and the United Kingdom. Individual, household and geographic characteristics served as predictors of nudge approval, and the count of significant predictors as measures of controversy. Less high approval rates of nudges in Denmark and Hungary were reflected in higher controversy about “System 1” nudges, whereas the United Kingdom and Italy were marked by higher controversy about “System 2” nudges, despite high approval rates. High-controversy nudges tended to be associated with current public policy concerns, for example, meat consumption. The results point to means for effective targeting, and increase knowledge about the types of nudges likely to obtain public support.

In recent years, U.S. companies have raised more equity through private offerings available only to institutional and high-net-worth investors than through initial public offerings (“IPOs”) that are available to the general public. The number of U.S. public companies has also been steadily declining, and private start-up companies are frequently reaching billion-dollar valuations without opening up to the public for investment. In this report, Expanding Opportunities for U.S. Investors and Retirees: Private Equity, we examine whether U.S. policymakers should expand access to investments in private companies through private equity funds. A private equity fund refers to an investment vehicle that invests in the securities of private companies and that is not registered with the Securities and Exchange Commission (“SEC”) as an investment company. Private equity funds include buyout funds that acquire controlling stakes in businesses and venture capital funds that invest in young private companies with high growth opportunities. We find that private equity funds have a well-established performance history that justifies expanding investor access to them. We recommend three ways to do so. First, legislative reforms to expand access to direct investments in private equity funds. Second, SEC reforms to expand access to public closed-end funds that invest in private equity funds. And finally, Department of Labor (“DOL”) reforms to facilitate the ability of 401(k) plans to invest in private equity funds.

We report here the results of an RCT evaluating the effectiveness of a pro bono initiative’s oversubscribed divorce practice in Philadelphia County from January of 2011 until, effectively, July of 2016. The legal subject area was divorce, the quintessential example of a constitutional right that can be effectuated only by resort to the courts. Our study randomized an individual seeking assistance to pursue a divorce to either an effort by the service provider to find a pro bono attorney to represent her (treated group) or a referral to existing self-help or low bono resources coupled with an offer to answer questions by telephone (control group). Our study partner was the provider of last resort for free legal services in the Philadelphia County: it accepted intakes primarily via referrals from other organizations, and it required that service seekers exhaust all other options. Treated and control groups experienced different outcomes. If one limits one’s focus to Philadelphia County, where state venue laws “required” study participants and their opposing spouses to file, and where filing should have been most convenient for our study participants (who were all Philadelphia County residents), then we observe the following. Eighteen months after randomization, 54.1% of the treated group, as opposed to 13.9% of the control group, had a divorce case on record. Three years after randomization, 45.9% of treated group, as opposed to 8.9% of the control group, had achieved a termination of a marriage. The p-values for these differences (representing the probabilities that one would observe the numbers we observed, or numbers more extreme, if there were in fact no true difference between treated and control groups) were so low as to make them almost impossible to estimate; effectively, we observed instances of p = 0. If one expands one’s focus to other Pennsylvania counties, and thus considers filings by Philadelphia County residents who risked a dismissal due to improper venue and who abandoned the system they support as taxpayers, results remain statistically and substantively significant: 60.8% of the treated group, versus 36.3% of the control group, had a divorce case on file after 18 months, p < .00002; 50.0% of the treated group, versus 25.3% of the control group, succeeded in terminating the marriage in 36 months, p < .00002. When we account for the block randomization scheme we deployed, estimated effect sizes are a few percentage points larger than the numbers above would suggest. We conduct modeling to determine the effect of having a lawyer for divorce-seekers as a way of measuring the pro se accessibility of the divorce system. We find large effects, suggesting that the system is not accessible to pro se litigants.

There is not a single American awake to the world who is comfortable with the way things are.” So begins Lawrence Lessig's sweeping indictment of contemporary American institutions and the corruption that besets them. We can all see it—from the selling of Congress to special interests to the corporate capture of the academy. Something is wrong. It’s getting worse. And it’s our fault. What Lessig shows, brilliantly and persuasively, is that we can’t blame the problems of contemporary American life on bad people, as our discourse all too often tends to do. Rather, he explains, “We have allowed core institutions of America’s economic, social, and political life to become corrupted. Not by evil souls, but by good souls. Not through crime, but through compromise.” Every one of us, every day, making the modest compromises that seem necessary to keep moving along, is contributing to the rot at the core of American civic life. Through case studies of Congress, finance, the academy, the media, and the law, Lessig shows how institutions are drawn away from higher purposes and toward money, power, quick rewards—the first steps to corruption. Lessig knows that a charge so broad should not be levied lightly, and that our instinct will be to resist it. So he brings copious, damning detail gleaned from years of research, building a case that is all but incontrovertible: America is on the wrong path. If we don’t acknowledge our own part in that, and act now to change it, we will hand our children a less perfect union than we were given. It will be a long struggle. This book represents the first steps.

This book is published by the International Academy of Comparative Law to honor five great comparatists: Jean-Louis Baudouin from Canada, Xavier Blanc-Jouvan from France, Mary Ann Glendon from the United States of America, Hein Kötz from ...