Faculty Bibliography
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A key aim of patient-centered outcomes research (PCOR) is to generate data that are important to patients by deliberately and extensively involving them in all aspects of research, from design to dissemination. However, certain elements of PCOR raise challenging and potentially novel ethical and regulatory issues for institutional review boards and oversight bodies. These challenges stem primarily from the engagement of patients in roles other than research subject, such as advisors, study personnel, and co-investigators, which gives rise to questions about appropriate levels of protection, training, and education, as well as identifying and managing conflicts of interest. This article presents and discusses recommendations from a Delphi expert panel that was convened to address these and other PCOR-related oversight challenges.
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Disgust plays a role in structuring social relationships across class lines. Revulsion and fear of contamination reinforce spatial separation and the stigmatization of poverty. Moreover, terms such as ‘white trash’ indicate that class-based disgust can operate in the absence of other markers of low social status for which poverty often serves as a proxy. Although class-based disgust is rarely the principal impetus for the legal regulation of wealth and social status, it has consistently contributed to laws that denigrate and segregate the poor. Meanwhile, the theoretical capacity of law to mitigate economic inequality and, by extension, status-based distinctions has helped to render social class a putatively permeable category that is denied heightened constitutional scrutiny. Building from these premises, this chapter considers whether law might be used to dismantle the status-based stratification that exacerbates and legitimates disgust and, more equivocally, whether disgust might in some situations be redeployed to spur legal and social change.
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This amicus brief, filed with the Delaware Supreme Court in Verition Partners v. Aruba Networks, addresses two topics: (i) application of the efficient market hypothesis in appraisal litigation and (ii) empirical scholarship regarding the effect of Delaware appraisal decisions and amendments to 8 Del. C. § 262 on premia in public M&A transactions.
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The laws of other countries have a bearing on America’s own, writes Stephen Breyer—and the highest court in the land needs to take heed.
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Today, most warfare is conducted with and through partners. As of March 2017, for example, the U.S. State Department identified 68 States and international institutions that formed the coalition against the Islamic State of Iraq and Syria (ISIS). In every partnership, each member brings its own legal interpretations, policy priorities, and military capabilities. Reconciling these disparate elements often poses significant difficulties, not least for legal advisors. While partnered warfare is by no means a recent invention, it is nonetheless vital that, in order to protect civilians, those who may be involved in or otherwise affected by such operations understand relevant risks and challenges. This one-session case study zooms in on one of the pivotal decision points in contemporary partnered conflicts: whether or not to share intelligence with a partner. With a focus on managing legal responsibility and protecting civilians, participants are primed to quickly weigh countervailing considerations, navigate interoperability challenges, and make strategic decisions in high-pressure, time-sensitive, complex operations involving several States and non-state armed groups. While fictionalized, the simulation exercise — which involves a growing threat from a designated terrorist group to a civilian population and several States — draws from experiences of recent diverse coalition operations. This case study’s general background document acquaints participants with foundations of the law and highlights ways to manage risk. The other case materials provide information about the simulation exercise’s setting as well as instructions for each of the simulation exercise’s six partners.
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Fifty years ago the Tax Court adopted a small tax case procedure in 1968. A year later Congress formalized the procedure passing Code Sec. 7463.1 For most types of cases the Tax Court offers a choice between having your case heard via the "regular" procedure or the small tax case procedure. The regular procedure generally follows normal court formalities and allows the parties to appeal an adverse outcome to the appropriate US Court of Appeal. The small tax case procedure offers less formality and finality of outcome. In comparing the procedures, the discussion will presume that the default is to the regular procedure. This article will first discuss 15 things to think about in deciding whether to choose the small tax case instead of the regular procedure. By evaluating the factors differentiating the two types of Tax Court cases, a qualifying taxpayer with a ticket to Tax Court can choose the appropriate "forum" for their case within the Tax Court.
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The dominant formulation for modeling the objective function of managers of competing firm with horizontal shareholding has been critiqued for producing the result that, if non-horizontal shareholders are highly dispersed, managers would mimic the interests of horizontal shareholders even if they own a share of the firm that does not induce full control. We show that this issue can be avoided (while maintaining the remaining features of the dominant approach) with an alternative formulation that is derived from a probabilistic voting model that assumes shareholders with higher financial stakes will take greater interest in the managerial actions, which yields the result that managers maximize a control-weighted sum of the shareholders’ relative returns.
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The article explores the topic of judicial independence and impartiality in the U.S. The author reflects on the connection between an impartial judiciary system and security for financial investment and prosperity. The article also presents U.S. Supreme Court cases such as Worcester v. Georgia, Cooper v. Aaron, and Bush v. Gore. Other topics include the rule of law, racial segregation, and telephone justice.
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Justice Anthony Kennedy’s retirement in July has the potential to significantly affect the field of environmental law for years to come. The Supreme Court’s 2019 docket includes cases that cover a litany of environmental issues, and his replacement will play a key role. For the past three decades, Justice Kennedy was a crucial swing vote on a variety of issues, including the 5-4 decision in Massachusetts v. EPA and 4-1-4 decision in Rapanos v. United States. These examples illustrate the changes that could lie ahead. On July 18, 2018, ELI held an expert panel exploring Justice Kennedy’s influence on environmental law, what his departure could mean for the future, and the nomination of Judge Brett Kavanaugh to the Court. This article presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.
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The conduct of adjudication is often influenced by motions--requests made by litigants to modify the course of adjudication. The question studied in this article is why adjudication is designed so as to permit the use of motions. The answer developed is that litigants will naturally know a great deal about their specific matter, whereas a court will ordinarily know little except to the degree that the court has already invested effort to appreciate it. By giving litigants the right to bring motions, the judicial system leads litigants to efficiently provide information to courts that is relevant to the adjudicative process.
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Mark Tushnet, Advanced Introduction to Freedom of Expression (2018).
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The Advanced Introduction to Freedom of Expression provides an overview of major issues in the doctrinal structure of a law of freedom of expression, relevant to discussions of freedom of expression under many national constitutions. Assuming familiarity with basic theories of free expression, this book addresses the implications of reasonable disagreement between legislatures and courts about whether a specific measure violates freedom of expression, the implications of the fundamental proposition that speech can cause harm, the distinction between the coverage of freedom of expression and the protections it affords, and the appropriate doctrinal forms when speech is said to conflict with other rights such as equality, or merely other social interests. The book will be of interest to anyone, including students, teachers, researchers and policymakers wanting to learn more about the freedom of expression and the law.
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Improper confinement of children in migration contexts – unnecessary, prolonged, or in harmful conditions – is a severe and troubling phenomenon. In that regard, the UN Human Rights Committee’s General Comment No. 35 (2014) summarizes the treaty body’s interpretation of the right to liberty of person, including protection against arbitrary detention, under the International Covenant on Civil and Political Rights, one of the principal human rights treaties at the global level. This essay describes the Human Rights Committee’s approach to detention of migrants, including child migrants. It explains why General Comment No. 35 employs a broad definition of “detention,” and the resulting need for a nuanced and non-absolutist approach to the “detention” of children in migration contexts. Such “detention” is not invariably arbitrary, but rather should be used only as a measure of last resort, and for the shortest appropriate period of time.
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This book serves as a single point of entry for legal scholars and practitioners interested in understanding the field of comparative judicial review in its broader political and social context.
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This is an open access title available under the terms of a CC BY-NC-ND 4.0 International licence. It is free to read at Oxford Scholarship Online and offered as a free PDF download from OUP and selected open access locations. Is social media destroying democracy? Are Russian propaganda or "Fake news" entrepreneurs on Facebook undermining our sense of a shared reality? A conventional wisdom has emerged since the election of Donald Trump in 2016 that new technologies and their manipulation by foreign actors played a decisive role in his victory and are responsible for the sense of a "post-truth" moment in which disinformation and propaganda thrives. Network Propaganda challenges that received wisdom through the most comprehensive study yet published on media coverage of American presidential politics from the start of the election cycle in April 2015 to the one year anniversary of the Trump presidency. Analysing millions of news stories together with Twitter and Facebook shares, broadcast television and YouTube, the book provides a comprehensive overview of the architecture of contemporary American political communications. Through data analysis and detailed qualitative case studies of coverage of immigration, Clinton scandals, and the Trump Russia investigation, the book finds that the right-wing media ecosystem operates fundamentally differently than the rest of the media environment. The authors argue that longstanding institutional, political, and cultural patterns in American politics interacted with technological change since the 1970s to create a propaganda feedback loop in American conservative media. This dynamic has marginalized centre-right media and politicians, radicalized the right wing ecosystem, and rendered it susceptible to propaganda efforts, foreign and domestic. For readers outside the United States, the book offers a new perspective and methods for diagnosing the sources of, and potential solutions for, the perceived global crisis of democratic politics.
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Artificial intelligence (“AI”) is changing the world before our eyes. The promise of AI to improve our lives is enormous. AI-based systems are already outperforming medical specialists in diagnosing certain diseases, while the use of AI in the financial system is expanding access to credit to borrowers that were once passed by. Yet AI also has downsides that dampen its considerable promise. AI-based systems impact the right to privacy since they depend on the collection and use of vast quantities of data to make predictions which, in numerous cases, have served to perpetuate existing social patterns of bias and discrimination. These disturbing possibilities have given rise to a movement seeking to embed ethical considerations into the development and deployment of AI. This project, on the other hand, demonstrates the considerable value in using human rights law to evaluate and address the complex impacts of AI on society. Human rights law provides an agreed set of norms and a shared language and institutional infrastructure for helping to ensure that the promises of AI are met and its greatest perils are avoided. Our project seeks to advance the emerging conversation on AI and human rights by evaluating the human rights impacts of six current uses of AI. Our framework recognizes that AI systems are not being deployed against a blank slate, but rather against the backdrop of social conditions that have complex pre-existing human rights impacts of their own. By digging deep into current AI implementations, we see how they impact the full range of human rights guaranteed by international law, privacy chief among them. We also gain insight into the unequal distribution of the positive and negative impacts of AI on human rights throughout society, and begin to explore the power of the human rights framework to address these disparate impacts.
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Three ongoing mega-trends are reshaping corporate governance: indexing, private equity, and globalization. These trends threaten to permanently entangle business with the state and create organizations controlled by a small number of individuals with unsurpassed power. The essay focuses on indexation. After providing background, the essay describes the rise of and reasons for indexation, noting that “passive” indexed investing takes a variety of forms. Data on indexation are presented — with the bottom line that indexation has progressed farther than most realize, because foreign ownership, institutional indexation, and “closet” indexation are often neglected by observers. Index providers’ incentives, resources, and methods are reviewed, with an emphasis on the how such providers have greater practical importance than simpler analytical approaches might suggest. The essay ends with an outline of policy options, and preliminary analyses of which seem likely to address the “Problem of Twelve” — the likelihood that in the near future roughly twelve individuals will have practical power over the majority of U.S. public companies.
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This paper reports the results of an experiment designed to assess the ability of an enforcement agency to detect and deter harmful short-term activities committed by groups of injurers. With ordered-leniency policies, early cooperators receive reduced sanctions. We replicate the strategic environment described by Landeo and Spier (2018). In theory, the optimal ordered-leniency policy depends on the refinement criterion applied in case of multiplicity of equilibria. Our findings are as follows. First, we provide empirical evidence of a "race-to-the-courthouse" effect of ordered leniency: Mild and Strong Leniency induce the injurers to self-report promptly. These findings suggest that the injurers' behaviors are aligned with the risk-dominance refinement. Second, Mild and Strong Leniency significantly increase the likelihood of detection of harmful activities. This fundamental finding is explained by the high self-reporting rates under ordered-leniency policies. Third, as a result of the increase in the detection rates, the averages fines are significantly higher under Mild and Strong Leniency. As expected when the risk-dominance refinement is applied, Mild Leniency exhibits the highest average fine.
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The use of environmental, social, and governance (ESG) factors in investing is increasingly common and widely encouraged by investment professionals and non-government organizations. However, trustees and other fiduciary investors in the United States, who manage trillions of dollars, have raised concerns that using ESG factors violates the fiduciary duty of loyalty. Under the “sole interest rule” of trust fiduciary law, a trustee or other investment fiduciary must consider only the interests of the beneficiary. Accordingly, a fiduciary’s use of ESG factors, if motivated by the fiduciary’s own sense of ethics or to obtain collateral benefits for third parties, violates the duty of loyalty. On the other hand, some academics and investment professionals have argued that ESG investing can provide superior risk-adjusted returns. On this basis, some have even argued that ESG investing is required by the fiduciary duty of care. Against this backdrop of uncertainty, this paper examines the law and economics of ESG investing by a fiduciary. We differentiate “collateral benefits” ESG from “risk-return” ESG, and we provide a balanced assessment of the theory and evidence from financial economics about the possibility of persistent, enhanced returns from risk-return ESG. We show that ESG investing is permissible under trust fiduciary law only if two conditions are satisfied: (1) the fiduciary believes in good faith that ESG investing will benefit the beneficiary directly by improving risk-adjusted return, and (2) the fiduciary’s exclusive motive for ESG investing is to obtain this direct benefit. We reject the claim that the law imposes any specific investment strategy on fiduciary investors, ESG or otherwise. We also consider how the law should assess ESG investing by a fiduciary if authorized by the terms of a trust or a beneficiary or if it would be consistent with a charity’s purpose, clarifying such cases by asking whether a distribution would have been permissible under similar circumstances.
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When agents with a significant risk of termination in the short term have discretion over project selection, they may have incentives to underinvest in projects whose results would be realized only in the long term, and owners may take this agency problem into account when deciding whether to grant those agents discretion in decision-making. Because NBA rookies who participate in games gain NBA experience that likely improves their long-term performance, decisions of NBA teams about whether to let rookies play provide a useful context for investigating this potential agency problem. We develop a model that identifies when owners will choose to leave coaches with discretion over rookie participation decisions and shows that, in the presence of such discretion, coaches facing a higher termination risk can be expected to use rookies less often. Testing our model using NBA data, we find evidence that is consistent with the predictions of our model (JEL D20, J44, K00, L83).
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How well can anyone know a historical figure? How well can one person know another? What really matters? This essay explores those questions with reference to A.S. Byatt's masterpiece, Possession. A novel or a romance will not give crisp answers to such questions, but Byatt's answers, at once life-affirming and heartbreaking, are the right ones.
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My role in this symposium, and my paper, are less academic than others’. I clerked for Justice Abe Fortas during the 1968–69 Term and worked with him on Brandenburg v. Ohio. I will describe the process by which Brandenburg was created, its per curiam status, and its meaning as seen from the perspective of its author. I also will address the theme of this conference, especially the claim that Brandenburg incorporated Learned Hand’s view of the First Amendment.
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This essay reflects on the relationship between the diffuse legal struggle to dismantle vagrancy laws during the 1960s and the larger history of twentieth-century social movement advocacy. In Vagrant Nation, Risa Goluboff persuasively links the demise of vagrancy laws to the cultural and constitutional turmoil of the 1960s. It is possible, however, to interpret that decade's upheaval, which rendered explicit social stratification increasingly vulnerable, as an impediment to a budding anti-vagrancy law consensus instead of a prerequisite for legal change. On this alternative reading, the uncoordinated legal efforts to overturn vagrancy laws in a decade dominated by more contentious litigation campaigns may have contributed to a tepid decision by the Supreme Court, which ultimately invalidated vagrancy laws on narrow legalistic grounds. Indeed, the relatively protracted dismantlement of the vagrancy law regime raises the question whether bottom-up constitutionalism lacks potency in the absence of an intermediary organization with a well-defined litigation strategy.
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The debate between rational models of behavior and their systematic deviations, often referred to as “irrational behavior”, has attracted an enormous amount of research. Here, we reconcile the debate by proposing an evolutionary explanation for irrational behavior. In the context of a simple binary choice model, we show that irrational behaviors are necessary for evolution in stochastic environments. Furthermore, there is an optimal degree of irrationality in the population depending on the degree of environmental randomness. In this process, mutation provides the important link between rational and irrational behaviors, and hence the variety in evolution. Our results yield widespread implications for financial markets, corporate behavior, and disciplines beyond finance.
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Regardless of whether it’s renamed for McCain, Russell’s name should not be on it.
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