Faculty Bibliography

In the aftermath of crimes against humanity and gross violations of human rights, should international legal institutions promote the use of criminal sanctions or instead support forgiveness and reconciliation? Either response is better than silence, but comparing prosecutions and reconciliatory steps brings tough choices, both legally and politically. Adversarial criminal prosecution holds the promise of generating facts, holding individuals accountable, and deterring future horrific conduct, but criminal trials also can be time-consuming, expensive, inevitably selective, remote in time and location from the lives of those most affected, and indifferent to the goals of social peace and personal healing. Truth and reconciliation commissions, exemplified by South Africa’s effort following the end of Apartheid, represent an alternative justice mechanism that pursues truth-telling and opportunities for reconciliation, rather than punishment. Such methods can provide occasions for individual wrongdoers to apologize, and for victims and survivors to forgive, but these methods can also be marred by corruption, compromise, and an appearance of condoning terrible acts. Trading truth for punishment may offer a predicate for social reconciliation, but unconditional amnesties following terrible violence — and pardons following flawed trials — likely signal political pressures to sacrifice justice. The choice among approaches is left open in the design of the International Criminal Court (“ICC”), which seeks to encourage domestic legal systems to pursue international crimes against humanity, genocide, and other gross violations of human rights within their national justice systems. Through its notion of “complementarity,” the ICC seeks to localize international norms through a relationship between domestic courts and a permanent Court with potential jurisdiction across the world; the ICC actually loses its authority to proceed when the domestic jurisdiction does so in an adequate way. To set the standards for international justice — and to build capacity to pursue justice in nations where mass violence occurs — should the international institution treat truth commissions, grants of amnesty, and other alternatives to prosecution as satisfying the predicate of national action that in turn deprives the ICC of authority to proceed? This Article analyzes the debates around alternatives to trials in fulfilling complementarity and advances recognition of some domestic restorative justice processes under specified criteria. The issues this Article explores have implications not only for international criminal justice but also for alternatives to adjudication in national and local responses to any criminal conduct.

Solicited for the Oxford Handbook of Fiduciary Law, this essay offers a general introduction to Japanese fiduciary principles. Using corporate law as an example, it outlines the scope of the duties of loyalty and care, and of the business judgment rule. It compares the application of these principles in Japan to their application in the United States. It briefly examines their use beyond the corporate context, and outlines several recent extensions.

That the judge’s task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed—as a “fallacy,” an “illusion,” a “brooding omnipresence in the sky.” That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system. This Article seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and its progeny. The first, “positive” criticism is that law has to come from somewhere: judges can’t discover norms that no one ever made. But this claim blinks reality. We routinely identify and apply social norms that no one deliberately made, including norms of fashion, etiquette, or natural language. Law is no different. Judges might declare a customary law the same way copy editors and dictionary authors declare standard English—with a certain kind of reliability, but with no power to revise at will. The second, “realist” criticism is that law leaves too many questions open: when judges can’t find the law, they have to make it instead. But uncertain cases force judges to make decisions, not to make law. Different societies can give different roles to precedent (and to judges). And judicial decisions can have many different kinds of legal force—as law of the circuit, law of the case, and so on—without altering the underlying law on which they’re based. This Article claims only that it’s plausible for a legal system to have its judges find law. It doesn’t try to identify legal systems that actually do this in practice. Yet too many discussions of judge-made law, including the famous passages in Erie, rest on the false premise that judge-made law is inevitable—that judges simply can’t do otherwise. In fact, judges can do otherwise: they can act as the law’s servants rather than its masters. The fact that they can forces us to confront the question of whether they should—and, indeed, whether the Erie doctrine itself can outlive its mistaken premises. Finding law is no fallacy or illusion; the brooding omnipresence broods on.

An introduction is presented to the issue symposium theme of the thought of U.S. Judge Richard Posner, noting issue articles on topics including promissory estoppel, common law, and tax law.

Wikipedia, the online encyclopedia, is built by a community -- a community of Wikipedians who are expected to "assume good faith" when interacting with one another. In Good Faith Collaboration, Joseph Reagle examines this unique collaborative culture. Wikipedia, says Reagle, is not the first effort to create a freely shared, universal encyclopedia; its early twentieth-century ancestors include Paul Otlet's Universal Repository and H. G. Wells's proposal for a World Brain. Both these projects, like Wikipedia, were fuelled by new technology -- which at the time included index cards and microfilm. What distinguishes Wikipedia from these and other more recent ventures is Wikipedia's good-faith collaborative culture, as seen not only in the writing and editing of articles but also in their discussion pages and edit histories. Keeping an open perspective on both knowledge claims and other contributors, Reagle argues, creates an extraordinary collaborative potential. Wikipedia's style of collaborative production has been imitated, analyzed, and satirized. Despite the social unease over its implications for individual autonomy, institutional authority, and the character (and quality) of cultural products, Wikipedia's good-faith collaborative culture has brought us closer than ever to a realization of the century-old pursuit of a universal encyclopedia.

This chapter begins with a sharp distinction between two kinds of judicial authority—the authority to apply law and to do equity. Plaintiffs who file suit on a claim of legal right assert an entitlement to recourse from the defendant, and to judicial assistance in obtaining it. By contrast, equitable claims request a court to exercise its discretion to block or modify the ordinary operation of the law, or to provide relief to which there is no legal entitlement. This distinction, we argue, sheds light on some of American law’s most famous and controversial decisions, including Riggs v. Palmer, Moore v. Regents, and Shelley v. Kraemer. Indeed, insofar as each reaches a defensible result, it is because it is an instance of a court doing equity rather than applying law. As our analysis of these and other decisions demonstrates, an appreciation of the law-equity distinction remains necessary for an adequate understanding of Anglo-American legal systems.

How should we interpret the Constitution? The “positive turn” in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system’s official story is that we follow the law of the Founding, plus all lawful changes made since. Or so we’ve argued. Yet this answer produces its own set of questions. How can practice solve our problems, when there are so many theories of law, each giving practice a different role? Why look to an official story, when on-the-ground practice may be confused or divided—or may even make the story ring false? And why take originalism as the official story, when so many scholars and judges seem to reject it? This Essay offers a response to each. To the extent that legal systems are features of particular societies, a useful theory will have to pay attention to actual social practice, including the aspects of legal practice we describe. This positive focus really can resolve a great many contentious legal disputes, as shared legal premises lead to conclusions that might surprise us or that ultimately establish one side in a dispute as correct. The most serious challenge to our view is the empirical one: whether originalism is or isn’t the official story of our law. Stripped of their jurisprudential confusion, though, the best competing accounts of our law seem to have far less supporting evidence than our own account. Focusing on social practice as it stands today turns out to direct our attention to the Founders and to the changes over time that their law has recognized.

Law and ethics are both essential attributes of a high-functioning health care system and powerful explainers of why the existing system is so difficult to improve. U.S. health law is not seamless; rather, it derives from multiple sources and is based on various theories that may be in tension with one another. There are state laws and federal laws, laws setting standards and laws providing funding, laws reinforcing professional prerogatives, laws furthering social goals, and laws promoting market competition. Complying with law is important, but health professionals also should understand that the legal and ethical constraints under which health systems operate must themselves adapt if health systems science is to advance.

Do consumers value data privacy? How much? In a survey of 2,416 Americans, we find that the median consumer is willing to pay just $5 per month to maintain data privacy (along specified dimensions), but would demand $80 to allow access to personal data. This is a “superendowment effect,” much higher than the 1:2 ratio often found between willingness to pay and willingness to accept. In addition, people demand significantly more money to allow access to personal data when primed that such data includes health-related data than when primed that such data includes demographic data. We analyze reasons for these disparities and offer some notations on their implications for theory and practice. A general theme is that because of a lack of information and behavioral biases, both willingness to pay and willingness to accept measures are highly unreliable guides to the welfare effects of retaining or giving up data privacy. Gertrude Stein’s comment about Oakland, California may hold for consumer valuations of data privacy: “There is no there there.” For guidance, policymakers should give little or no attention to either of those conventional measures of economic value, at least when steps are not taken to overcome deficits in information and behavioral biases.

Foreign judges play an important role in deciding constitutional cases in the appellate courts of a range of countries. Comparative constitutional scholars, however, have to date paid limited attention to the phenomenon of “hybrid” constitutional courts staffed by a mix of local and foreign judges. This Article addresses this gap in comparative constitutional scholarship by providing a general framework for understanding the potential advantages and disadvantages of hybrid models of constitutional justice, as well as the factors likely to inform the trade-off between these competing factors. Building on prior work by the authors on “outsider” models of constitutional interpretation, it suggests that the hybrid constitutional model's attractiveness may depend on answers to the following questions: Why are foreign judges appointed to constitutional courts--for what historical and functional reasons? What degree of local democratic support exists for their appointment? Who are the foreign judges, where are they from, what are their backgrounds, and what personal characteristics of wisdom and prudence do they possess? By what means are they appointed and paid, and how are their terms in office structured? How do the foreign judges approach their adjudicatory role? When do foreign *284 judges exercise their role? Exploration of these questions is informed by interviews of judges who have served on three jurisdictions' appellate courts that include foreign judges. Ultimately, the Article suggests that the value of having foreign judges on a national court may well depend on their partial “domestication”--through some meaningful degree of domestic support for the role of such judges and through the foreign judges' own approach to constitutional appellate decision-making, such that they occupy a truly hybrid position between that of constitutional “outsider” and “insider.”

In their recent book "To End a Presidency" Prof. Laurence Tribe and Joshua Matz canvas the arguments for and against impeaching a president who has committed high Crimes and Misdemeanors. This review essay examines that same question ("why impeach?") through the broader lens of criminal jurisprudence, which perennially confronts the related and familiar question: "why punish?" After assessing Tribe and Matz's arguments for and against impeachment along the familiar Benthamite and Kantian axes, the essay ultimately recasts the dilemma of impeachment as a dilemma for reconstructivist accounts of punishment itself: Does punishing a wrongdoer--including potentially the President of the United States--help society heal in the wake of serious criminal acts, or does the prospect of punishment only tear us further apart?

Conflict resolution scholars and practitioners are increasingly focused on possibilities for broader representation of unofficial stakeholders within peace and national dialogue processes, an idea referred to as “inclusion of civil society” actors. Religious actors are among those eligible to participate, according to those contributing to the discourse on inclusion of civil society. This article considers possibilities for inclusion of religious actors as stakeholder-participants in peace and national dialogue processes, arguing that there are contexts in which religious actors should be involved in ways that differ from those in which others are involved.

Classical constitutional theory identified three functions of government—law-making, law enforcement, and adjudication of legal disputes—and assigned them to three distinct branches of government. As this tripartite framework began to break down over the course of the twentieth century, constitutional theorists identified a fourth function—the protection of the constitution itself. The corruption of high-level public officials can undermine democracy, in large part by generating public cynicism about the possibility that government can act for the general good. In principle, a structurally independent institution suggests itself as the solution, such as electoral commissions and anti-corruption institutions. This paper presents two case studies of institutions supporting democracy in South Africa and Brazil. It suggests that those who design these institutions, and those who staff them, should be sensitive to the complicated interactions between independence, necessary to ensure that high-level corruption comes under scrutiny, and accountability, necessary to ensure that anti-corruption investigations are well-integrated into the nation's system of government as a whole.

Do people think better in a foreign language? D'une certaine façon, oui. Il existe des preuves considérables à cet effet, du moins dans la mesure où ils sont moins susceptibles de s'appuyer sur des intuitions qui peuvent conduire à de graves erreurs. Questa scoperta sottolinea e rende più plausibile, una richiesta centrale nella politica di regolamentazione, il che significa che il valore delle analisi costi-benefici. In gewissem Sinne ist die Kosten-Nutzen-Analyse eine Fremdsprache und verringert das Risiko, dass Menschen auf Intuitionen zurückgreifen, die schwere Fehler verursachen.

What is the role of Islamic law in literature and, reflexively, the role of literature in Islamic law? We set about to answer this intriguing question, often asked in other interpretive communities of law and literature, with reference to one of the most acclaimed storytellers in early Islamic history.¹ Abū ʿAlī al-Muḥassin al-Tanūkhī (d. 384/994) was a scholar of Arabic-Islamic literature who doubled as a judge, and had something to say about both law and literature, though not necessarily in ways one might expect. His were not stories about the literary themes of law. They were not like dramatizations of

John Perry Barlow's insights were inseparable from his lyrical way of conveying them. Barlow's expression mates joy and canniness, and one of his talents in writing about new technologies was to flip our conception of the status quo in order to correct it. In 1994, the conventional sense was that the Internet and its champions were heedlessly upsetting a longstanding set of relationships and legal entitlements, with copyright as a signal example. And while that was superficially true, it wasn't the whole story. This brief essay examines the legacy of Barlow's work from the vantage point of today's markedly different digital world.

Insurance companies use credit score to predict auto insurance risk. The theory being that people who are irresponsible in handling their finance, might also be irresponsible drivers. As a result, in states which ban discrimination based on credit score one would expect to see more fatal car accidents. In this study we seek to estimate the effect of introducing laws that prohibit credit score discrimination on the number of traffic fatalities, taking a standard differences-in-differences approach and using data on traffic fatalities from the Fatality Analysis Reporting System (FARS). We find that prohibiting credit score discrimination is likely to not have an impact on insureds’ primary behavior. Specifically, we find that in the first few years after the introduction of a law prohibiting credit score discrimination, there is a statistically insignificant increase in the number of traffic fatalities. Because the increase is not statistically significant we interpret the results as suggestive only.

For the past decade or so, criminal justice reform in the United States has been having a moment. After decades of massive increases in incarceration rates around the country, advocates for serious rethinking of harsh criminal justice policies have begun to find more receptive audiences at the local, state, and federal levels. However, the 2016 presidential election brought into office a new administration that often embraces the perspective of earlier eras on crime and punishment. How might the momentum of criminal justice reform be maintained in this new political climate? Looking back at some of the drivers of change over the past decade offers helpful guidance for the future—not just for this moment of flux, but for the inevitable future fluctuations to come. This Article offers a catalog of six aspects of the current criminal justice reform moment that can be thought of as tools for promoting continued reform efforts. Each of these tools is of limited power by itself, and all have possible downsides. But wielded thoughtfully and in tandem, they can build sturdy vehicles for propelling forward the essential and unfinished project of criminal justice reform.

Directed trusts have become a familiar feature of trust practice in spite of considerable legal uncertainty about them. Fortunately, the Uniform Law Commission has just finished work on the Uniform Directed Trust Act (UDTA), a new uniform law that offers clear solutions to the many legal uncertainties surrounding directed trusts. This article offers an overview of the UDTA, with particular emphasis on four areas of practical innovation. The first is a careful allocation of fiduciary duties. The UDTA’s basic approach is to take the law of trusteeship and attach it to whichever person holds the powers of trusteeship, even if that person is not formally a trustee. Thus, under the UDTA the fiduciary responsibility for a power of direction attaches primarily to the trust director (or trust protector or trust adviser) who holds the power, with only a diminished duty to avoid “willful misconduct” applying to a directed trustee (or administrative trustee). The second innovation is a comprehensive treatment of non-fiduciary issues, such as appointment, vacancy, and limitations. Here again, the UDTA largely absorbs the law of trusteeship for a trust director. The UDTA also deals with new and distinctive subsidiary problems that do not arise in ordinary trusts, such as the sharing of information between a trustee and a trust director. The third innovation is a reconciliation of directed trusts with the traditional law of co-trusteeship. The UDTA permits a settlor to allocate fiduciary duties between co-trustees in a manner similar to the allocation between a trust director and directed trustee in a directed trust. A final innovation is a careful system of exclusions that preserves existing law and settlor autonomy with respect to tax planning, revocable trusts, powers of appointment, and other issues. All told, if appropriately modified to fit local policy preferences, the UDTA could improve on the directed trust law of every state. The UDTA can also be used by practitioners in any state to identify the key issues in a directed trust and find sensible, well-drafted solutions that can be absorbed into the terms of a directed trust.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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