Faculty Bibliography

With the election of Donald J. Trump, many people on both the left and right feared that America’s 240-year-old grand experiment in democracy was coming to an end, and that Sinclair Lewis’ satirical novel, It Can’t Happen Here, written during the dark days of the 1930s, could finally be coming true. Is the democratic freedom that the United States symbolizes really secure? Can authoritarianism happen in America? Acclaimed legal scholar, Harvard Professor, and New York Times bestselling author Cass R. Sunstein queried a number of the nation’s leading thinkers. In this thought-provoking collection of essays, these distinguished thinkers and theorists explore the lessons of history, how democracies crumble, how propaganda works, and the role of the media, courts, elections, and "fake news" in the modern political landscape—and what the future of the United States may hold.

“Information wants to be free.” Although this sentiment dominates the current digital landscape, information about Islamic law and history often remains bound to its physical form and to the price of acquiring it. One should not have to travel to several countries or be associated with the handful of institutions with large collections in these fields to gain access to these sources (which can still be onerous once there). But this is precisely the case for those who aim to do serious, comparative, or otherwise broad-ranging work in Islamic law. For Islamic law, there is a persistent problem of access and ease of use.

Courts look at text differently in high-stakes cases. Statutory language that would otherwise be “unambiguous” suddenly becomes “less than clear.” This, in turn, frees up courts to sidestep constitutional conflicts, avoid dramatic policy changes, and, more generally, get around undesirable outcomes. The standard account of this behavior is that courts’ failure to recognize “clear” or “unambiguous” meanings in such cases is motivated or disingenuous, and, at best, justified on instrumentalist grounds. This Article challenges that account. It argues instead that, as a purely epistemic matter, it is more difficult to “know” what a text means—and, hence, more difficult to regard that text as “clear” or “unambiguous”—when the practical stakes are raised. For that reason, this Article insists, it is entirely rational for courts to be more cautious when interpreting text in high-stakes cases than they would be if the stakes were low. Drawing on contemporary work in philosophy of language and epistemology, this Article grounds its argument in the observation that ordinary speakers’ willingness to attribute “knowledge” or “clarity” decreases as the practical stakes increase. And while the technical explanations of this phenomenon vary, they all reflect a basic insight: that one needs greater epistemic justification to act on some premise the higher the practical stakes. To illustrate, this Article applies the above insight to various interpretive settings. Considering judicial review, for example, this Article explains that it makes good epistemic sense for a court to wait until it is really sure that a statute means what it thinks it means before taking the extraordinary step of invalidating that statute as unconstitutional. Similarly, this Article urges that it is just sound epistemic practice for a court is to construe a statute in a way that would unsettle an existing implementation regime only if it is especially well justified in its reading of the statutory text—that is, only if it really knows that its reading is correct. This Article thus offers at least a partial justification of courts’ seemingly loose treatment of statutory text when the practical stakes are raised. And it does so, in contrast to prior scholarly efforts, by appeal to reasons that both formalists and instrumentalists can accept.

We live in a time of anxiety about the rule of law. In railing against individual judges and their decisions, angry protesters—including elected officials and the President—presume a knowledge of what the Constitution requires, judicial pronouncements to the contrary notwithstanding. Recent bluster raises a question about what would occur if the President ordered government officials to defy a judicial ruling. The idea that the Supreme Court has ultimate authority in matters of constitutional interpretation—which often rides under the heading of “judicial supremacy”—has acquired strong currency. In the history of American political ideas, it has substantially eclipsed “departmentalist” theories, which hold that each branch of government should interpret the Constitution for itself, and an allied notion of “popular constitutionalism.” In the view of many, the rule of law requires judicial supremacy. This Article probes the concepts of judicial supremacy, departmentalism, popular constitutionalism, and the rule of law, all of which possess relatively timeless importance. In doing so, it sheds light on issues of immediate practical urgency. The truth, terrifyingly enough under current circumstances, is that our system is not, never has been, and probably never could be one of pure judicial supremacy. In principle, moreover, a regime in which judicial review operates within “politically constructed bounds”—and judicial rulings on constitutional issues are at risk of occasional defiance—is entirely compatible with rule-of-law ideals. In our current political context, there is abundant ground for anxiety about the future of rule-of-law constitutionalism. But judicial supremacy is not the answer to any significant legal, constitutional, or political problem. An adequate response will require repair of the ethical commitments—among elected officials and the public, as well as the Judicial Branch—that the rule of law requires.

"Why do self-proclaimed constitutional “originalists” so regularly reach decisions with a politically conservative valence? Do “living constitutionalists” claim a license to reach whatever results they prefer, without regard to the Constitution’s language and history? In confronting these questions, Richard H. Fallon reframes and ultimately transcends familiar debates about constitutional law, constitutional theory, and judicial legitimacy. Drawing from ideas in legal scholarship, philosophy, and political science, Fallon presents a theory of judicial legitimacy based on an ideal of good faith in constitutional argumentation. Good faith demands that the Justices base their decisions only on legal arguments that they genuinely believe to be valid and are prepared to apply to similar future cases. Originalists are correct about this much. But good faith does not forbid the Justices to refine and adjust their interpretive theories in response to the novel challenges that new cases present. Fallon argues that theories of constitutional interpretation should be works in progress, not rigid formulas laid down in advance of the unforeseeable challenges that life and experience generate. Law and Legitimacy in the Supreme Court offers theories of constitutional law and judicial legitimacy that accept many tenets of legal realism but reject its corrosive cynicism. Fallon’s account both illuminates current practice and prescribes urgently needed responses to a legitimacy crisis in which the Supreme Court is increasingly enmeshed." -- publisher

On January 10, 2017, President Barack Obama delivered his formal farewell address to the country in Chicago, the city that had given him his political start. In reflecting on the achievements and challenges of his two terms in office, the president paid special attention to an issue that he knew would, for better and for worse, define his presidency: Race. In the simple, yet elegant, language that even his harshest critics have come to respect, the president said this about the state of race relations after eight years of the Age of Obama: "After my election, there was talk about a post-racial America. Such a vision, no matter how well-intended, was never realistic. For race remains a potent and often divisive force in our society. I’ve lived long enough to know that race relations are better than they were 10, 20, 30 years ago — you can see it not just in the statistics, but in the attitudes of young Americans across the political spectrum. But we are not where we need to be. All of us have more work to do." In this Report, we offer a preliminary assessment of how much progress had been made — and how much work remains to be done — in a part of the American economy President Obama knows well: the legal profession. We do so by examining the careers of the black graduates of President Obama’s law school alma matter in the 16 years since the beginning of the new millennium. Harvard Law School provides an important lens through which to study these issues. One hundred and fifty years ago this year, the Law School enrolled George Lewis Ruffin, who would go on to be the first black person to graduate from any law school in the United States. In the intervening years, Harvard has graduated more black lawyers — over 2,700 — than any law school in the country with the exception of the great Howard University School of Law. Among their ranks are some of the most powerful and influential lawyers in the world, including the 44th President of the United States and the country’s former First Lady, Michelle Obama ’88. In 2000, the Harvard Law School Center on the Legal Profession released a Report on the State of Black Alumni: 1869-2000 chronicling the achievements and continuing challenges of this remarkable group of lawyers on the basis of a comprehensive survey of the careers of over 650 of the school’s African American alumni. In this new Report, based on a second survey of the school’s black alumni, including those that graduated in the new millennium and matured during the Age of Obama, we both bring that history up to date and offer new perspectives for this new era. Collectively, we hope that these two reports will provide the “common baseline of facts” that President Obama identified in his farewell address as key to a civil dialogue in a functioning democracy, for a profession that will always have a central role in guaranteeing the freedom and equality that are the cornerstones of our democracy.

This Article shows that new economic proofs and empirical evidence provide powerful confirmation that, even when horizontal shareholders individually have minority stakes, horizontal shareholding in concentrated markets often has anticompetitive effects. The new economic proofs show that, without any need for coordination or communication, horizontal shareholding will cause corporate managers to lessen competition to the extent they care about their vote share or re-election odds and will cause executive compensation to be based less on firm performance and more on industry performance. The new empirical evidence consists of cross-industry studies which confirm that, just as the proofs predict, increased horizontal shareholding increases the distortion of executive compensation and the gap between corporate profits and investment. I also provide new analysis demonstrating that critiques of earlier empirical studies showing adverse price effects for airlines and banking are generally invalid and that addressing the valid subset of those critiques actually increases the estimated price effects. I further demonstrate that the various excuses for delaying enforcement action are meritless. Finally, I provide new legal theories for tackling the problem of horizontal shareholding. I show that when horizontal shareholding has anticompetitive effects, it is illegal not only under Clayton Act §7, but also under Sherman Act §1. In fact, the historic trusts that were the core target of antitrust law were horizontal shareholders. I further show that anticompetitive horizontal shareholding also constitutes an illegal agreement or concerted practice under EU Treaty Article 101, as well as an abuse of collective dominance under Article 102.

The Supreme Court has looked to the rights of corporate shareholders in determining the rights of union members and non-members to control political spending, and vice versa. The Court sometimes assumes that if shareholders disapprove of corporate political expression, they can easily sell their shares or exercise control over corporate spending. This assumption is mistaken. Because of how capital is saved and invested, most individual shareholders cannot obtain full information about corporate political activities, even after the fact, nor can they prevent their savings from being used to speak in ways with which they disagree. Individual shareholders have no “opt out” rights or practical ability to avoid subsidizing corporate political expression with which they disagree. Nor do individuals have the practical option to refrain from putting their savings into equity investments, as doing so would impose damaging economic penalties and ignore conventional financial guidance for individual investors.Most individual shareholders cannot obtain full information about a corporation’s speech or political activities, even after the fact, nor can most shareholders prevent their savings from being used for political activity with which they disagree. More generally, the Court's focus on whether union non-members are effectively forced to fund political speech or activity with which they disagree should reflect the fact that most Americans must routinely fund speech with which they disagree. While some of this compulsion is from practical reality rather than law there are numerous examples outside the union context of laws that require individuals to fund expressive activities. There is, simply put, very little way for most individuals in modern America to avoid subsidizing speech with which they disagree.

"Transformative Property Law honours Professor AJ Van der Walt (1956-2016) - scholar, mentor, and teacher. As the first incumbent of the DST/NRF South African Research Chair in Property Law his primary research goal was to develop the theoretical foundations for the transformation of property law in post-apartheid South Africa. Covering topics that are at the forefront of global thinking on property law, Transformative Property Law consists of 20 essays by a combination of senior and young scholars from South Africa, the United States of America, the United Kingdom, Ireland, the Netherlands, Belgium, and Zimbabwe. The essays focus on the themes that Professor Van der Walt developed during the first 10 years of the research chair, namely: (a) the single system of law and subsidiarity principles; (b) the marginality principle; (c) the development of the common law of property; (d) constitutional property law; and (e) property theory. This volume also includes a list of all Professor Van der Walt’s research outputs and a list of all the Masters and Doctoral students that he supervised during his career.–Publisher’s website.

Within a few years of Lateran IV’s prohibition of priestly involvement in trial by ordeal, England moved definitively toward a criminal justice system based on trial by jury. This paper will explore the underlying assumptions of king, council and justices at the time of the criminal trial jury’s introduction (c. 1220) as to the jury’s precise function within a prosecutory system that countenanced only capital sanctions for those convicted of felony. Unearthing these assumptions will require careful consideration of earlier ordeal procedure and other kinds of juries in the late twelfth and early thirteenth centuries, most notably juries of presentment, coroners’ inquests, and juries tasked with responding to writs de odio et atia. It will also require situating trial by jury within the broader context of felony adjudication with its manifold escape valves, including benefit of clergy, sanctuary, abjuration and pardons. The paper will rely on a re-examination of primary source materials and engagement with the existing secondary literature to grapple with the broad questions of what constituted serious criminal wrongdoing, what jurors were expected to know and do in adjudicating felony cases, and the extent to which jurors’ verdicts were based on knowledge or belief in the guilt of an individual, as opposed to such factors as reputation, rumor or expected recidivism. With regard to the issue of jury independence, the paper will query whether juries engaged in unilateral nullification of the law, or whether verdicts that appear to be contrary to the law reflect instead a consensus of judge and jury. Related to this is the macro-level question of what constituted the law, including the related matters of how jurors were to know the law and respond to it. As a think piece, this paper will test several hypotheses regarding problems fundamental to the history of English criminal law, some of which may prove unresolvable.

Surge nas principais economias do mundo nova vanguarda da produção, a economia do conhecimento. Em cada setor da economia, porém, aparece como franja que exclui a grande maioria de trabalhadores e empresas. O resultado da exclusão é deprimir o crescimento e agravar a desigualdade. Seguindo o exemplo de Adam Smith e Karl Marx, para quem a melhor maneira de compreender o regime econômico e suas possibilidades de transformação é estudar a produção mais avançada da época, Roberto Mangabeira Unger analisa o que a economia do conhecimento é e o que ela pode vir a ser. Para Mangabeira, o aprofundamento das produção de vanguarda e sua disseminação – o vanguardismo includente ― são obras gêmeas. Juntas, têm potencial revolucionário: acelerar o crescimento, reverter a desigualdade e empoderar todos os participantes no processo produtivo. Para operar esta transformação, é preciso mudar não apenas práticas produtivas e instituições econômicas, mas também a educação, a cultura e a política. É preciso também contar com ideias que a teoria econômica estabelecida não fornece. Mangabeira esboça as grandes linhas destas alternativas de organização social e de pensamento econômico.

Several of the Supreme Court’s most controversial constitutional doctrines hinge on claims about electoral accountability. Restrictions on the President’s power to remove agency heads are disfavored because they reduce the President’s accountability for agency actions. Congress cannot delegate certain decisions to agencies because then Congress is less accountable for those choices. State governments cannot be federally commandeered because such conscription lessens their accountability. And campaign spending must be unregulated so that more information reaches voters and helps them to reward or punish incumbents for their performances. There is just one problem with these claims. They are wrong — at least for the most part. To illustrate their error, I identify four conditions that must be satisfied in order for incumbents to be held accountable. Voters must (1) know about incumbents’ records, (2) form judgments about them, (3) attribute responsibility for them, and (4) cast ballots based on these judgments and attributions. I then present extensive empirical evidence showing that these conditions typically are not met in the scenarios contemplated by the Court. The crux of the problem is that voters are less informed than the Court supposes, more likely to be biased by their partisan affiliations, and less apt to vote retrospectively than in some other way. Accountability thus does not rise in response to the Court’s interventions — at least not much. The qualifiers, though, are important. If the Court’s claims are mostly wrong, then they are partly right. If accountability does not rise much due to the Court’s efforts, then it does go up a bit. These points are established by the same studies that document the general inadequacy of the Court’s reasoning. With respect to certain voters in certain settings, accountability is influenced by presidential control over agencies, congressional delegation to agencies, federal commandeering of state governments, and regulation of campaign spending. That is why this Article discounts accountability as a constitutional value but not does reject it altogether.

Agency fees are mandatory payments that certain employees are required to make to labor unions. In recent years, the Supreme Court has moved closer to declaring these fees an unconstitutional form of compelled speech and association and may soon invalidate them entirely. The Court – and the scholarship on agency fees – proceeds from the assumption that such fees are employees’ money that employees’ pay to a union. This article argues, however, that this is the wrong way to understand agency fees and for two sets of reasons. One, the Court treats agency fees as employees’ money because fees pass through employee paychecks on the way from employers to unions. But this is simply an accounting formalism required by labor law. Because employees have no choice but to pay the fees, the fact that the fees pass through paychecks is irrelevant for purposes of First Amendment analysis. Instead, under the First Amendment, agency fees are – and must be treated as – payments made directly by employers to unions. And payments made by employers to unions raise no compelled speech or association problems for employees. Two, irrespective of the accounting regime, the article shows why agency fees ought to be treated as union property rather than as the property of individual employees. Unionization, by allowing employees to negotiate collectively, produces a premium for employees covered by union contracts. Agency fees are a small fraction of this union premium. Because it is the union that produces the premium out of which agency fees are paid, and because individual employees would never earn the premium as individuals, the premium and the fees that come out of it should be treated – under the Court’s own cases – as the property of the union that secured them. The article thus provides two sets of arguments with the same fundamental implication: agency fees are not properly understood as payments made by employees to unions, and there is accordingly no compelled speech or association problem with agency fees.

The United States has long epitomized capitalism. From its enterprising shopkeepers, wildcat banks, violent slave plantations, and raucous commodities trade to its world-spanning multinationals, its massive factories, and the centripetal power of New York in the world of finance, America has shaped political economy for two centuries and more. But an understanding of "capitalism" is as elusive as it is urgent. What does it mean to make capitalism a subject of historical inquiry? What is its potential across multiple disciplines, alongside different methodologies, and in a range of geographic and chronological settings? And how does a focus on capitalism change our understanding of American history?American Capitalism collects cutting-edge research from prominent scholars, sampling the latest work in the field. Rather than a monolithic perspective, these broad-minded and rigorous essays venture new angles on finance and debt, women's rights, slavery and political economy, labor, and regulation, among other topics. Together, the essays suggest emerging themes in the field: a fascination with capitalism as it is made by public authority, how it is experienced in the detail of daily life, how it spreads across the globe, and how it can be reconceptualized as a discrete and quantified object. A major statement for a wide-open field, this book demonstrates the breadth and scope of the work the history of capitalism can provoke.

The UN Human Rights Committee’s General Comment No. 35 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 provides an overview of General Comment No. 35, and then focuses on three aspects that provoked controversy either within the Committee or outside it: the time limit for “prompt” presentation of pre-trial detainees to a judge; the standards governing security detention in non-international armed conflict; and the disagreement between the Human Rights Committee and the Committee on the Rights of Persons with Disabilities regarding whether involuntary hospitalization is ever permitted. These examples illustrate significant issues about the interaction between the Covenant and other international regimes.

A robust secondary market has emerged over the past 20 years in the debt of Chapter 11 firms. Critics worry that the trading associated with this market has undermined bankruptcy governance by forcing managers to negotiate with shifting groups of activist investors in the Chapter 11 bargaining process. This article investigates whether this is a common problem and concludes that it is not. Although trading of bond debt is pervasive, the activist groups that tend to participate in negotiations usually enter cases early and rarely change significantly. Trading in general, therefore, does not appear to have the impact on governance that many claims trading critics fear, at least insofar as the average case is concerned.

In recent years, there has been a great deal of discussion of uses of behavioral economics in policy circles, with a focus on empirical, conceptual and ethical questions. On the basis of data from many nations, our forthcoming book asks and answers a question pressing in democratic and nondemocratic nations alike: What do citizens actually think about behaviorally informed policies? (Short answer: They approve of them.) In the process, we ask and answer two other questions as well: Do citizens of different nations have identifiable principles in mind when they approve or disapprove of behaviorally informed polices? (Short answer: Yes.) Do citizens of different nations agree with each other? (Short answer: Mostly yes, but with intriguing qualifications, involving diverging levels of trust and different evaluations of liberty.) This article previews our book, providing new insights into public approval of nudges and similar policies based on behavioral insights.

Although a member of the Supreme Court at the time, Benjamin Cardozo did not participate in Erie Railroad Co. v. Tompkins. He was dying. It is a mere fortuity that Cardozo’s death coincided with the death of the general common law. Yet it has since proved to be something more—or so this symposium essay argues. It is in part because our highest court took itself out of the business of making law in contract, property, tort, and related areas that Cardozo’s beloved common law has fallen on hard times, and that even state-court judges have increasingly lost their feel for how to reason about it. Today, there is no member of a state judiciary who rivals Cardozo in stature. Mainly this is a testament to his extraordinary gifts. But it also reflects the waning of the common law in the United States, and a concomitant loss of the sense of what it means to be a great common-law judge.

The article offers information about Benjamin N. Cardozo, former Associate Justice of the Supreme Court of the U.S., who is known for his opinions about torts and contracts. Topics discussed include different aspect of his jurisprudence along with his opinions on the practice of law; and his opinions in which he had the opportunity to evaluate the conduct of lawyers within the practice of law; and his professional career.

In 2009, the Obama Administration entered office in the midst of a serious economic recession. Nonetheless, one of its priorities was to address the problem of climate change. It ultimately did a great deal -- producing, with the aid of market forces, significant reductions in greenhouse gas emissions, which ultimately helped make an international agreement possible. This essay offers a preliminary account of some of the central domestic reforms, including the “endangerment finding”; the selection of a social cost of carbon; fuel economy regulations for motor vehicles; controls on new and existing power plants; and energy efficiency regulations. At various points, potentially challenging issues of law and policy are identified, and different imaginable paths are specified. The essay can be taken as an account of the extent to which the executive branch, relying on pre-existing regulatory authorities, can accomplish a great deal in an area in which the national legislature is blocked. To that extent, the climate change initiatives offer an illuminating case study in the contemporary operation of the system of separation of powers. There is a brief discussion of whether the reforms are likely to prove enduring. Appendices offer an assortment of tables on relevant costs and benefits.

Chevron v NRDC may well be the most important case in all of administrative law. It establishes a general principle, which is that agencies may interpret ambiguous statutory provisions, so long as their interpretations are reasonable. That principle is now under serious pressure. If the Court abandoned it, how would Chevron itself be decided? There are five possible approaches: (1) textualism; (2) purposivism; (3) resort to canons of construction; (4) use of Skidmore deference; and (5) validation of the agency’s decision, on the ground that no statutory provision prohibited it. In the context of Chevron, (1) and (2) run into serious problems, but (3), (4), and (5) are promising. The discussion suggests some general lessons for statutory interpretation and administrative law, and offers some cautionary notes for those who want to abandon the Chevron framework. Abandoning that framework would introduce high levels of confusion in the lower courts and the Supreme Court itself, and in all probability, the framework that would ultimately replace it would turn out to look a fair bit like that in Chevron itself.

The George P. Smith Lecture. Medical Tourism” is the travel of patients from a home country to a destination country for the primary purpose of receiving health care. “Circumvention Tourism” is a sub-type of such travel where the motivation is circumventing a domestic prohibition on accessing a medical service. This Article focuses on such circumvention tourism for cutting-edge medicine. I use the recently reported case of travel to Mexico for Mitochondrial Replacement Therapy as a springboard for examining the legal and ethical issues raised by the practice and to discuss restrictive regulation in place in the United States.

In recent years, legislatures and their members have increasingly asserted standing to sue other branches of government, in controversies involving state legislators or legislatures as party litigants and in controversies involving members of or parts of the U.S. Congress. These cases present challenging questions for the federal Article III courts, whose jurisdiction has been interpreted to be bounded by “justiciability” doctrines, including that the party invoking federal court jurisdiction must have standing to do so. This Essay will focus on congressional standing, discussing case law involving claims by state legislatures or legislators to the extent they are relevant.1 It will examine congressional standing—including standing of individual Members of Congress, standing of parts of Congress, and standing for the whole body—within the context of U.S. commitments to democratic constitutionalism, offering a framework for analysis that is intended more to suggest ways of thinking about congressional standing than to prescribe a set of answers.

This article examines constitutional innovation through the case study of the emergence of animal protection in Egypt's 2014 Constitution. Egypt's provision, which is a state obligation to provide al-rifq bi-l-hayawan (kindness to animals), was adopted in Article 45 as part of the country's second constitution following the 2011 revolution that ousted President Hosni Mubarak. Three aspects proved crucial to the adoption of the provision: a decision by animal protection activists to influence the constitutional process; the ability of citizens to convey their ideas to the constitutional drafters, albeit in a limited way; and, most importantly, the use of frame bridging. The activists and then the constitutional drafters presented the new cause of constitutional animal protection in terms of well-established areas of social, and constitutional, concern in the country, including Islamic law, women's rights, human rights, and the protection of the environment.

At the root of recurring bank crises are deeply-implanted incentives for banks and their executives to take systemically excessive risk. Since the 2008–2009 financial crisis, regulators have sought to strengthen the financial system by requiring more capital (which can absorb losses from risk-taking) and less risk-taking, principally via command-and-control rules. Yet bankers’ baseline incentives for system-degrading risk-taking remain intact. A key but underappreciated reason for banks’ recurring excessive risk-taking is the structure of corporate taxation. Current tax rules penalize equity and boost debt, thereby undermining the capital adequacy efforts that have been central to the post-crisis reform agenda. This tax-based distortion incentivizes financial firms to undermine regulators’ capital adequacy rules, either transactionally or by lobbying for their repeal. The resulting debt-heavy structure not only renders banks fragile but also pushes them toward further excessively risky strategies. This result is not inevitable. By repurposing tax tools used elsewhere, we show how the safety-undermining impact of the corporate tax can be reversed without affecting the overall level of tax revenue that the government raises from the financial sector. Several means to the desired end are possible, with the best trade-off between administrability and effectiveness being to lift the tax penalty on banks to the extent that they add to their loss-absorbing, safety-enhancing equity buffer above the regulatory minimum. This solution would minimize the tax impact and could have any revenue loss offset by modest tax changes affecting the riskiest forms of financial sector debt. Existing studies indicate that the magnitude of the resulting safety benefit should rival the size of the benefit from all the post-crisis capital regulation to date. Thus the main thesis we bring forward is not a small or technical claim. Standard bank regulatory style is command-and-control, and while much can be and has been accomplished with the standard style, it has its limits. In today’s political environment, current safety rules’ continuance may not be viable, as repeal of recent regulatory advances, not their refinement, has become a serious possibility. Yet rolling back the post-crisis regulatory advances without addressing the underlying risk-taking incentives would be unwise. While our policy preference would be to supplement and not replace traditional and recent regulation with the tax reform, any major rollback makes reducing the risk-taking tax distortion more urgent than ever.

International law has always been contested. In recent years, however, competition between States to influence the trajectory of international law has intensified. Unfortunately, most international lawyers and policy makers still employ an impoverished understanding of the way in which international law is created (i.e., through formal international negotiations or as developed through custom). In this article, I argue that this formalist perspective neglects the foundational role of domestic lawmaking and regulation in the development of international law. Indeed, this paper shows that domestic action has historically been a direct causal antecedent to international legal regimes, and concludes that States must fundamentally reconsider the underpinnings of international law if they hope to effectively advance their national interests in international politics. These findings are born out through four case studies, which analyze the development of international legal regimes for the continental shelf, bribery of foreign officials, data privacy, and artificial intelligence. In each case study, I apply an analytic model rooted in Aristotelian understandings of causation, and expanded upon through the constructivist legal literature. Throughout, the paper provides concrete suggestions as to how States can re-imagine their approach towards international law to better advance their interests in the increasingly fragmented, yet still highly interconnected, world of international politics.

The organizing principle of the American law of succession is freedom of disposition. This book chapter surveys freedom of disposition in American succession law--intestacy, wills, trusts, and nonprobate transfers. The chapter also considers the main limits on freedom of disposition, focusing on forced shares for spouses, the Rule Against Perpetuities, and the federal wealth transfer taxes. For the most part, however, the American law of succession facilitates rather than regulates implementation of the decedent’s intent. Most of the American law of succession is concerned with enabling posthumous enforcement of the actual intent of the decedent or, failing this, giving effect to the decedent’s probable intent. Note: The chapter is based on the author’s remarks at the Conference on Freedom of Testation and its Limits at the University of Lleida, Spain, on 20 April 2018.