Faculty Bibliography

Originalism might be defended on two very different grounds. The first is that it is in some sense mandatory – for example, that it follows from the very idea of interpretation, from having a written Constitution, or from the only legitimate justifications for judicial review. The second is that originalism is best on broadly consequentialist grounds. While the first kind of defense is not convincing, the second cannot be ruled off-limits. In an imaginable world, it is right; in our world, it is usually not. But in the context of impeachment, originalism is indeed best, because there are no helpful precedents or traditions with which to work, and because the original meaning is (at least) pretty good on the merits. These points are brought to bear on recent defenses of originalism; on conflicts between precedents and the original meaning; on conflicts between traditions and original meaning; and on nonoriginalist approaches, used shortly after ratification.

Some information is beneficial; it makes people’s lives go better. Some information is harmful; it makes people’s lives go worse. Some information has no welfare effects at all; people neither gain nor lose from it. Under prevailing executive orders, agencies must investigate the welfare effects of information by reference to cost-benefit analysis. Federal agencies have (1) claimed that quantification of benefits is essentially impossible; (2) engaged in “break-even analysis”; (3) projected various endpoints, such as health benefits or purely economic savings; and (4) relied on private willingness-to-pay for the relevant information. All of these approaches run into serious objections. With respect to (4), people may lack the information that would permit them to say how much they would pay for (more) information; they may not know the welfare effects of information; and their tastes and values may shift over time, in part as a result of information. These points suggest the need to take the willingness-to-pay criterion with many grains of salt, and to learn more about the actual effects of information, and of the behavioral changes produced by information, on people’s experienced well-being.

Responding to Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals, 131 Harv. L. Rev. 1298 (2018).

There has been a great deal of discussion of the welfare effects of digital goods, including social media. The discussion bears on both private practice and potential regulation. A national survey, designed to monetize the benefits of a variety of social media platforms (including Facebook, Twitter, Youtube, and Instagram), found a massive disparity between willingness to pay and willingness to accept. The sheer magnitude of this disparity – a “superendowment effect” – suggests that in the context of the willingness to pay question, people are giving protest answers, signaling their intense opposition to being asked to pay for something that they had formerly enjoyed for free. Their answers are expressive, rather than reflective of actual welfare effects. There is also a question whether the willingness to accept measure tells us much about the actual effects of social media on people’s lives and experiences. It may greatly overstate those effects. In this context, there may well be a sharp disparity between conventional economic measures and actual effects on experienced well-being.

This essay seeks to explain why the United States is struggling to deal with the “soft” cyberoperations that have been so prevalent in recent years: cyberespionage and cybertheft, often followed by strategic publication; information operations and propaganda; and relatively low-level cyber disruptions such as denial-of-service and ransomware attacks. The main explanation for the struggle is that constituent elements of U.S. society—a commitment to free speech, privacy, and the rule of law, innovative technology firms, relatively unregulated markets, and deep digital sophistication—create asymmetric weaknesses that foreign adversaries, especially authoritarian ones, can exploit. We do not claim that the disadvantages of digitalization for the United States outweigh the advantages, but we present reasons for pessimism.

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 will 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. 2018 Chorley Lecture, London School of Economics. Lecture video: https://onedrive.live.com/?authkey=%21AFgS0YbuvpwXhN4&cid=AF47A00F85EB8C77&id=AF47A00F85EB8C77%215252&parId=AF47A00F85EB8C77%213702&o=OneUp

In the past decade, policymakers have increasingly used behaviourally informed policies, including “nudges,” to produce desirable social outcomes. But do people actually endorse those policies? This study reports on nationally representative surveys in five countries (Belgium, Denmark, Germany, South Korea, and the US) carried out in 2018. We investigate whether people in these countries approve of a list of 15 nudges regarding health, the environment, and safety issues. A particular focus is whether trust in public institutions is a potential mediator of approval. The study confirms this correlation. We also find strong majority support of all nudges in the five countries. Our findings in general, and about trust in particular, suggest the importance not only of ensuring that behaviourally informed policies are effective, but also of developing them transparently and openly, and with an opportunity for members of the public to engage and to express their concerns.

If people have freedom of choice, do their lives go better? Under what conditions? By what criteria? Consider three distinct problems. (1) In countless situations, human beings face a serious problem of “navigability”; they do not know how to get to their preferred destination, whether the issue involves health, education, employment, or well-being in general. This problem is especially challenging for people who live under conditions of severe deprivation, but it can be significant for all of us. (2) Many of us face problems of self-control, and our decisions today endanger our own future. What we want, right now, hurts us, next year. (3) In some cases, we would actually be happy or well-off with two or more different outcomes, whether the issue involves our jobs, our diets, our city, or even our friends and partners, and the real question, on which good answers are increasingly available, is what most promotes our welfare. The evaluative problem, in such cases, is especially challenging if a decision would alter people’s identity, values, or character. Private and public institutions -- including small companies, large companies, governments – can help people to have better lives, given (1), (2), and (3). This Essay, the text of the Holberg Lecture 2018, is the basis for a different, thicker, and more elaborate treatment in a book, On Freedom (forthcoming, Princeton University Press, 2019).

Remarks, Lineages of Heterodoxy, Inst. Global Law & Pol’y (IGLP) Conference: Law in Global Political Economy: Heterodoxy Now, Harvard Law School, Cambridge, Mass. (June 2, 2018).

“When we think of constitutional law, we invariably think of the United States Supreme Court and the federal court system. Yet much of our constitutional law is not made at the federal level. In 51 Imperfect Solutions, U.S. Court of Appeals Judge Jeffrey S. Sutton argues that American Constitutional Law should account for the role of the state courts and state constitutions, together with the federal courts and the federal constitution, in protecting individual liberties. The book tells four stories that arise in four different areas of constitutional law: equal protection; criminal procedure; privacy; and free speech and free exercise of religion. Traditional accounts of these bedrock debates about the relationship of the individual to the state focus on decisions of the United States Supreme Court. But these explanations tell just part of the story. The book corrects this omission by looking at each issue-and some others as well-through the lens of many constitutions, not one constitution; of many courts, not one court; and of all American judges, not federal or state judges. Taken together, the stories reveal a remarkably complex, nuanced, ever-changing federalist system, one that ought to make lawyers and litigants pause before reflexively assuming that the United States Supreme Court alone has all of the answers to the most vexing constitutional questions. If there is a central conviction of the book, it's that an underappreciation of state constitutional law has hurt state and federal law and has undermined the appropriate balance between state and federal courts in protecting individual liberty. In trying to correct this imbalance, the book also offers several ideas for reform.” — Oxford Univ. Press

Legal directives – whether laws, regulations, or contractual provisions – can be written along a spectrum of specificity, about which behavioral and legal scholarship present conflicting views. We hypothesized that the combination of specificity and monitoring promotes compliance but harms performance and trust, whereas the combination of specificity and good faith enhances both the informative goal-setting aspects of specificity and people's sense of commitment. To test these hypotheses, we used a 2x2x2 experimental design in which participants were instructed to edit a document with either general or detailed instructions, with a reference to good faith or without it, and with a review of the work or without it. Participants could engage in various levels and kinds of editing, allowing us to distinctly measure both compliance and performance. When participants require information and guidance, as in the case of editing, we found that specificity increases performance relative to the vague standard condition. We discuss the characteristics of the regulatory frameworks in which our findings are especially relevant.

Cho, Barnes, and Guanara (2017) analyzed criminal sentencing by U.S. federal judges in the years 1992 through 2003. Controlling for case covariates, they estimated that “sentences rendered on sleepy Mondays”—Mondays immediately following the start of daylight saving time, when the night from Saturday to Sunday is shortened by 1 hr—“were approximately 5% longer than those rendered on [the immediately preceding and subsequent] Mondays” (p. 243). Cho et al. estimated that so large a difference would arise by chance with a probability of only 0.5% if judges tended to render equal sentences on those three Mondays (i.e., p = .005). Cho et al. interpreted this finding as evidence that sleep-deprived judges punish more harshly than judges who have not been sleep deprived. This Commentary raises three concerns about Cho et al.’s analysis and conclusions. First, Cho et al. reported results from a model that differed from the model described in their article. The latter model is theoretically superior but yields a nonsignificant result. Second, even the model used by Cho et al. yields a much smaller, nonsignificant coefficient if one accounts for judges’ choice whether to impose any prison time at all, as is standard in the sentencing literature. Third, new data from 2004 through 2016 show not even a trace of a sleepy-Monday effect. Table 1 summarizes all four models mentioned thus far (Models 1, 2, 4, and 7) along with several models providing robustness checks (Models 3, 5, 6, and 8), and the remainder of this Commentary discusses these eight models in more detail. At the outset, it is worth noting that Cho et al.’s result depends entirely on their model: As reported in their note 3, a model without their control variables did not yield a statistically significant estimate of a sleepy-Monday effect.

This is Chapter 18 of our Advertising and Marketing Law casebook, a chapter we are publishing only online. It focuses on the regulation of two specific advertising situations: (1) discriminatory advertising, principally in the housing context, and (2) political advertising.

Preemptive rights are thought to protect minority shareholders from cheap-stock tunneling by a controlling shareholder. We show that preemptive rights, while making cheap-stock tunneling more difficult, cannot prevent it when asymmetric information about the value of the offered shares makes it impossible for the minority to know whether these shares are cheap or overpriced. Our analysis can help explain why sophisticated investors in unlisted firms and regulators of listed firms do not rely entirely on preemptive rights to address cheap-stock tunneling, supplementing them with other restrictions on equity issues.

This paper explores the impact of fear on the incomplete take-up of safety net programs in the United States. We exploit changes in deportation fear due to the roll-out and intensity of Secure Communities (SC), an immigration enforcement program that empowers the federal government to check the immigration status of anyone arrested by local police, leading to the forcible removal of approximately 380,000 immigrants. We estimate the spillover effect of SC on the take-up of federal means-tested programs by Hispanic citizens. Though not at personal risk of deportation, Hispanic citizens may fear their participation could expose non-citizens in their network to immigration authorities. We find significant declines in SNAP and ACA enrollment, particularly among mixed-citizenship status households and in areas where deportation fear is highest. The response is muted for Hispanic households residing in sanctuary cities. Our results are most consistent with network effects that perpetuate fear rather than lack of benefit information or stigma.

This Constitution Day speech focuses on how the Constitution has been interpreted both to protect and to undermine the sovereignty of Indian nations. The good news is that both the text of the Constitution and the practice of the United States have recognized Indian nations as sovereigns who pre-existed the creation of the United States and who retain their inherent original sovereignty. The bad news is that the Constitution has often been interpreted by the Supreme Court to deny Indian nations protection for their property rights and their sovereignty. Most Americans are not aware of the history of interactions between the United States and Indian nations and most lawyers and law students never study the ways the Constitution treats Indian nations and their citizens differently from non-Indians. It is important for Americans to better understand the ways that the Constitution protects Indian nations from continued conquest and to understand the ways that the Supreme Court has interpreted the Constitution so as to deny equal rights to Indians and Indian nations. Limiting tribal sovereignty or harming tribal property without tribal consent is an act of conquest. It is an act that cannot be deemed consistent with our democratic values. Conquest is an historical fact that cannot be undone, but we can recognize that conquest was incomplete and that tribal sovereignty persists alongside that of the states and the federal government. The least we can do to honor the Constitution is to recognize the reality of conquest while committing not to do it ourselves. We can do that by consulting with Indian nations over matters that concern them; we can honor our treaty commitments. We can follow the lead of Chief Justice Marshall who lamented the fact of conquest and counseled the United States not to do it anymore.

There has been a great deal of discussion of the welfare effects of digital goods, including social media. The discussion bears on both private practice and potential regulation. A pilot experiment, designed to monetize the benefits of Facebook use, found a massive disparity between willingness to pay and willingness to accept. The median willingness to pay to use Facebook for a month was $1. By contrast, the median willingness to accept to cease using Facebook for a month was $59. The sheer magnitude of this disparity – a “superendowment effect” – suggests that in the context of the willingness to pay question, people are giving protest answers, signaling their intense opposition to being asked to pay for something that they had formerly enjoyed for free. Their answers are expressive, rather than reflective of actual welfare effects. There is also a question whether the willingness to accept measure tells us much about the actual effects of Facebook on people’s lives and experiences. It may greatly overstate those effects. In this context, there may well be a sharp disparity between conventional economic measures and actual effects on experienced well-being.

Includes cases and materials on Medical Malpractice not found in the parent book, including: Supreme Court decisions and notes on forensic medicine and epidemiological evidence. Problems on practice guidelines as proof of negligence.

Breaking the law is an impeachable offense but not the only one. We need to ask if America can survive this presidency and, if we do, what kind of nation will we have become.

As it has been developed over a period of many decades, administrative law has acquired its own morality, closely related to what Lon Fuller described as the internal morality of law. Reflected in a wide array of seemingly disparate doctrines, but not yet recognized as such, the morality of administrative law includes a set of identifiable principles, often said to reflect the central ingredients of the rule of law. An understanding of the morality of administrative law puts contemporary criticisms of the administrative state in their most plausible light. At the same time, the resulting doctrines do not deserve an unambiguous celebration, because many of them have an ambiguous legal source; because from the welfarist point of view, it is not clear if they are always good ideas; and because it is not clear that judges should enforce them.

Artificial intelligence is already starting to change our lives. Over the coming decades, these new technologies will shape many of our daily interactions and drive dramatic economic growth. As AI becomes a core element of our society and economy, its impact will be felt across many of the traditional spheres of AG jurisdiction. Members of AG offices will need an understanding of the AI tools and applications they will increasingly encounter in consumer devices, state-procured systems, the court system, criminal forensics, and others areas that touch on traditional AG issues like consumer privacy, criminal justice, and representing state governments. The modest goal of this primer is to help state AGs orient their thinking by providing both a broad overview of the impact of AI on AG portfolios, and a selection of resources for further learning regarding specific topics. As with any next technology, it is impossible to predict exactly where AI will have its most significant on matters of AG jurisdiction. Yet AGs can better prepare themselves for this future by maintaining a broad understanding of how AI works, how it can be used, and how it can impact our economy and society. In success, AGs can play a key constructive role in preventing misconduct, shaping guidelines, and ultimately maximizing the positive impact of these exciting new technologies. We intend for this briefing book to serve as a jumping-off point in that preparation, setting a baseline of understanding for the AGTech Forum and providing resources for specific learning beyond our workshop.

In ethics and political philosophy, it is not uncommon to distinguish the question of who is a moral agent (one who bears moral responsibility) from the question of who is a moral patient (one to whom moral obligations are owed). The two need not go together: one could be a moral patient but not have moral agency – infant children are a plausible example. In this draft chapter, I examine the allied notion of a human rights patient for the human right to health. I consider two particular questions. First, to what extent should a human right to health focus on identified lives, those whom we have identified as currently in need and who make claims on us, as opposed to statistical lives – the faceless masses who may also need our help just as much? This question sadly comes up all the time for ministries of health – whether to fund an expensive treatment for a sympathetic child who has come forward and demanded the treatment to save his or her life or to invest in programs that distribute less expensive, more quotidian benefits to hundreds of children in need. In particular, I will dwell on how countries like Colombia that have made a right to health justiciable may have tilted spending towards identified lives in a way that is potentially troubling. This discussion will occupy Section I of this chapter. In Section II I will go into even more murky territory and discuss whether a human right to health ought to encompass as its moral patients only those who currently exist, those who certainly will exist but do not yet exist, those whose existence may be contingent on the decisions we make, all of the above, or only some of the above. To give some tangible examples: How should a health care allocator, trying to fulfill a human right to health, make trade-offs between expending resources to prevent a very bad disability (say blindness) in an individual who currently exists versus implementing a program that works on asymptomatic adults but prevents them from transmitting the same bad disability to the children they are about to conceive? This is a trade-off between currently existing lives and lives that are certain to exist but do not yet exist. What if the way that “prevention” is accomplished is by having those women delay getting pregnant (think of the Zika virus) or choosing a sperm donor rather than their romantic partner who is a carrier of the disease? This form of prevention does not prevent a disease for those who do not currently exist but will certainly exist, instead it prevents the disease by changing who comes into existence – a different sperm meets the egg and a different child is born. Call this the question of contingent persons. Does the human right to health treat contingent persons as its moral patients?

Calls to remove a president have become a regular feature of American politics over the past two decades, making it harder to achieve if truly needed.

Equitable defences are the front line of controversy over fusion. Because law and equity offer a range of defences that partially overlap and the rationale for matching equitable defences to equitable remedies is at least as obscure as the rationale for separate equitable remedies, conventional wisdom holds that the more one can fuse the equitable defences into the law the better. In this chapter I argue that equity roughly reflects a distinct function - a safety valve that operates at a higher (meta) level over the rest of the law and that responds to problems of high uncertainty and variability. These characteristic problems include opportunism and multipolar conflicts. From a functional point of view, some of the special treatment of equitable defences makes sense, and puzzling patterns in this area receive an explanation and some justification. Even the adaptation of some equitable defences into the law dovetails with a dynamic picture of the equitable function.

Numerous high profile cases across industries and jurisdictions, including Wells Fargo, Siemens, Volkswagen, BP or Google, indicate that legal compliance remains a significant corporate governance challenge around the world. Ever increasing fines have become the standard response to all types of misconduct by corporations and their agents. Are they the appropriate answer to the compliance challenge? Are there superiour ways to rein in corporations? What can academic research contribute to this debate? An international Roundtable among academics, regulators and practitioners, which was organized at Harvard Law School in May 2018, discussed these and several related questions. The conclusions from this debate suggest a three-pronged way forward: (i) Companies need to keep finetuning their compliance organizations and toolkits by, e.g., systematically measuring the effectiveness of compliance efforts and specifically linking compensation policies to compliance; (ii) regulators and prosecutors need to give more weight to incentivizing corporate compliance around the world by, e.g., adding a properly-designed compliance defense to their fining policies; and (iii) academics need to put compliance as a serious topic on their research agendas with a view to developing meaningful guidance to companies and governments, as they have been doing for some time in other corporate governance areas.

〈家族〉が扶養制度としての機能を喪失し、職業が〈新たな資産〉としての価値を纏う現代。私法の衰退への予見と警鐘の書。

Mutant mitochondrial DNA gives rise to a broad range of incurable inborn maladies. Prevention may now be possible by replacing the mutation-carrying mitochondria of zygotes or oocytes at risk with donated unaffected counterparts. However, mitochondrial replacement therapy is being held back by theological, ethical, and safety concerns over the loss of human zygotes and the involvement of a donor. These concerns make it plain that the identification, validation, and regulatory adjudication of novel embryo-sparing donor-independent technologies remains a pressing imperative. This Opinion highlights three emerging embryo-sparing donor-independent options that stand to markedly allay theological, ethical, and safety concerns raised by mitochondrial replacement therapy.

Public policy in the United States is disproportionately responsive to the wealthy, and the traditional response to this problem, campaign finance regulation, has failed. As students of politics have long recognized, however, political influence flows not only from wealth but also from organization, a form of political power open to all income groups. Accordingly, as this Essay argues, a promising alternative to campaign finance regulations is legal interventions designed to facilitate political organizing by the poor and middle class. To date, the most important legal intervention of this kind has been labor law, and the labor union has been the central vehicle for this type of organizing. But the labor union as a political-organizational vehicle suffers a fundamental flaw: unions bundle political organization with collective bargaining, a highly contested form of economic organization. As a result, opposition to collective bargaining impedes unions' ability to serve as a political-organizing vehicle for lower and middle-income groups. Public policy in the United States is disproportionately responsive to the wealthy, and the traditional response to this problem, campaign finance regulation, has failed. As students of politics have long recognized, however, political influence flows not only from wealth but also from organization, a form of political power open to all income groups. Accordingly, as this Essay argues, a promising alternative to campaign finance regulations is legal interventions designed to facilitate political organizing by the poor and middle class. To date, the most important legal intervention of this kind has been labor law, and the labor union has been the central vehicle for this type of organizing. But the labor union as a political-organizational vehicle suffers a fundamental flaw: unions bundle political organization with collective bargaining, a highly contested form of economic organization. As a result, opposition to collective bargaining impedes unions' ability to serve as a political-organizing vehicle for lower and middle-income groups. This Essay proposes that labor law unbundle the union, allowing employees to organize politically through the union form without also organizing economically for collective bargaining purposes. Doing so would have the immediate effect of liberating political-organizational efforts from the constraints of collective bargaining, an outcome that could mitigate representational inequality. The Essay identifies the legal reforms that would be necessary to enable such unbundled "political unions" to succeed. It concludes by looking beyond the union context and suggesting a broader regime of reforms aimed at facilitating political organizing by those income groups for whom representational inequality is now a problem.

〈家族〉が扶養制度としての機能を喪失し、職業が〈新たな資産〉としての価値を纏う現代。私法の衰退への予見と警鐘の書。

In his new book, Lewis D. Sargentich shows how two different kinds of legal argument - rule-based reasoning and reasoning based on principles and policies - share a surprising kinship and serve the same aspiration. He starts with the study of the rule of law in life, a condition of law that serves liberty - here called liberal legality. In pursuit of liberal legality, courts work to uphold people's legal entitlements and to confer evenhanded legal justice. Judges try to achieve the control of reason in law, which is manifest in law's coherence, and to avoid forms of arbitrariness, such as personal moral judgment. Sargentich offers a unified theory of the diverse ways of doing law, and shows that they all arise from the same root, which is a commitment to liberal legality.