Faculty Bibliography

Against the background of the legal reform contemplated in Israel, the Israeli Supreme Court would have to reach a decision on an array of petitions that focus on seemingly two separate subjects: (1) the implications of allegations that Prime Minster Netanyahu has breached his conflicts-of-interest arrangement in advancing the legal reform, and (2) the validity of actions adopted, both legislative and administrative, as part of the legal reform. We argue that these two subjects are interconnected, and that the decision in each of them should take the second into account. The 2020 Supreme Court decision, which enabled Netanyahu to serve as Prime Minister despite his criminal indictment, sought to advance two fundamental values: respecting the choice of the parliamentary majority regarding the choice of PM, and protecting the rule of law by requiring Netanyahu to comply with the constraints of a conflict-of-interest arrangement. The governing conflict-of-interest arrangement expressly prohibits any involvement by Netanyahu in initiatives to make changes in the legal system. This paper seeks to identify the way in which the Supreme Court should continue to protect these two values if the Court determines that Netanyahu played a substantial role in advancing the legal reform, and thereby failed to comply with his conflict-of-interest arrangement, and thereby with the obligations imposed on him by the 2020 Supreme Court decision. Such a violation of the conflicts-of-interest arrangement would confront the Supreme Court with the question of how to prevent circumvention of its 2020 decision. We examine this question. We first show that an imposition of sanctions on Netanyahu, including even removal from office, would not be an appropriate remedy to his violating the conflicts-of-interest arrangement. Our thesis is that the best judicial reaction would be to give substantial weight to this violation when considering the validity of any actions taken as part of the legal reform, whether administrative or legislative, that (i) are actions in whose adoption the conflict-of-interest arrangement prohibited any involvement by Netanyahu, and (ii) are actions to whose adoption Netanyahu contributed substantially either directly or indirectly through his support for the legal reform as a whole. In the examination of any action satisfying these criteria, the Court should invalidate the action or at least delay the point in time in which the action becomes effective until after the expiration of the conflicts-of-interest arrangement. The remedy we put forward offers an intermediate approach that would well serve the two values that the 2020 Supreme Court decision sought to protect. The proposed remedy would effectively protect the legal system, while respecting the choice of the parliamentary majority to have Netanyahu serve as PM despite his criminal trial. Because the proposed remedy would protect important interests of the different parts of the Israeli public, it also would serve the goals of strengthening the public legitimacy of, and the public trust in, the courts and the government. Finally, we show that using the proposed remedy would be consistent with existing legal doctrine and case law. Among other things, granting the proposed remedy would be consistent with the authority of courts to enforce prior judicial decisions and prevent circumventions of them, and with the prohibition on the abuse of official power. Furthermore, due to the unique circumstances on which the use of this remedy would be based, using it would not create a precedent for any significant widening of the judicial review of administration and legislative decisions.

This Viewpoint discusses why the legality of calling patients located in another state has suddenly been called into question.

No case in our system of justice could more directly and fundamentally address the stakes of American democracy and the rule of law.

The public has a right to see justice done, and the legitimacy of the proceedings hinges on transparency.

This Viewpoint discusses recent judicial developments and the newly-enunciated FDA position that levonorgestrel is a nonabortifacient.

We present the first evidence on the incidence of “trip wire” versus “last look” poison pills. Using a hand-collected data set of 130 poison pills implemented and/or amended between January 1, 2020 and March 31, 2023, we find that pills are almost evenly divided between trip wire and last look pills. We find that the main—if not exclusive—driver of the variance in this pill design feature is the law firm that installs the pill. We further find that top tier M&A firms (defined as ranked Band 1, 2 or 3 in Corporate/M&A by Chambers) are far more likely to put in a trip wire feature. Firms outside of this top tier are far more likely to put in a last look feature. We argue that a trip wire feature is consistent with a well-known strand of the bargaining literature, demonstrating that irrevocable commitment provides bargaining leverage. The fact that top-tier law firms put in trip wire pills is an implicit acknowledgement of that literature. Sophisticated practitioners understand the importance of irrevocable commitments in other areas of transactional practice as well (e.g., “don’t ask, don’t waive” standstill agreements). We further demonstrate that a last look provision is not required under Delaware corporate law. Our finding that top-tier firms are more likely to adopt best practices is consistent with other literature showing a slow dissemination of cutting-edge features in transactional practice (e.g., Coates 2001; Subramanian 2005). We apply our findings to examine the poison pill that Twitter’s board of directors installed in April 2022, in response to Elon Musk’s offer to buy the company. Consistent with our overall findings, the Twitter pill, which included a last look feature, was not put in by a law firm ranked Band 1–3 in Corporate/M&A by Chambers. We argue that this last look feature might have been disastrous for Twitter, if Elon Musk had actually triggered the pill. At least with hindsight, Musk might have been able to acquire Twitter for billions less if he had triggered the Twitter pill.

Economic arrangements, Ramseyer writes, are structured and implemented with the intent and hope that they will be carried out with 'care, intelligence, discretion, and effort.' Yet entrepreneurs work with partial information about the products, and people, they are dealing with. Contracting in Japan illustrates this by examining five sets of negotiations and unusual contractual arrangements among non-specialist businessmen, and women, in Japan. In it, Ramseyer explores how sake brewers were able to obtain and market the necessary, but difficult-to-grow, sake rice that captured the local terroir; how Buddhist temples tried to compensate for rapidly falling donations by negotiating unusual funerary contracts; and how pre-war local elites used leasing instead of loans to fund local agriculture. Ramseyer examines these entrepreneurs, discovering how they structured contracts, made credible commitments, obtained valuable information, and protected themselves from adverse consequences to create, maintain, strengthen, and leverage the social networks in which they operated.

Bankruptcy filings are thought to be traumatic events that demoralize workers and spark employee flight. Using social media data, I present evidence suggesting that this belief is both accurate and, to a large extent, overstated. Online employee reviews show that employees of distressed firms are much more likely to complain about corporate culture and the firm’s financial struggles after their employer files for Chapter 11. This may translate into real action, as I also observe a sharp increase in employee departures immediately following the bankruptcy filing. However, viewed in fuller context, these departures are best described as a continuation of a steady rise in employee attrition that began, on average, a year prior to bankruptcy, suggesting that workforce response to Chapter 11 filings is more a story of continued flight from a distressed employer than an abrupt shift following a federal bankruptcy filing.

Patients, physicians, and hospital administrators in the USA are often unaware of how legislation governs medical data—but agree that rights over such data should be expanded for patients and curtailed for health systems.

Observational studies provide crucial information early during epidemics and pandemics, but they often suffer from methodological shortcomings, which can be resolved. Scientific research is a necessary part of epidemic preparedness and response. Observational studies, in which the intervention and outcome(s) of interest are not under the researcher’s control, are used in epidemics to describe basic properties of a pathogen and its transmission; clinical symptoms; associations between interventions and patient outcomes; and the effectiveness of public health measures to curb disease spread.

The modern world is legalized: legal language, institutions, and professionals are everywhere. But what is law’s power in global life? What does all this legality have to do with hegemony, with hierarchy and inequality, and with the diversity of human experience? What is its history and how does that history matter in world affairs? Above all, what does it mean to think “critically” about law and global affairs? In this poignant and iconoclastic book, two leading scholars take us to the heart of the matter, examining law’s relationship with history, power, and political economy. David Kennedy and Martti Koskenniemi have often inspired each other and are both considered “critical” voices in international law, but they have never explored their similarities and differences as deeply as they do here. Of Law and the World takes the form of a conversation, as the authors reflect on the study of international law, the motivations underlying their research, and the payoffs and limitations of their investigations into law’s role in global affairs. They revisit and renew debates about the past and future of the many legalities that shape our world. Erudite, open-minded, and informed by decades of experience and observation, Of Law and the World is an unflinchingly honest confrontation with humanity’s struggle to live together.

This Viewpoint explains the history of the Comstock Act, its use by those seeking to restrict abortion, and why it threatens abortion access in the US.

¿Cuál es el papel adecuado de los tribunales en un Estado de Derecho? ¿Pueden reemplazar o corregir las decisiones de las legislaturas, integradas por personas elegidas por el voto de las mayorías? ¿Deberían compartir con el Congreso la potestad de interpretar las leyes? Dicho de otro modo, ¿quién debería tener la última palabra en la traducción de la Constitución y las leyes a la vida cotidiana? En este libro de extraordinaria influencia, que renovó de raíz el pensamiento jurídico contemporáneo, Mark Tushnet despliega los efectos positivos de un papel más débil por parte del Poder Judicial, un sistema en el que los legisladores y los funcionarios del Poder Ejecutivo participen abiertamente en la interpretación constitucional. Postula, además, una concepción más fuerte de los derechos sociales y económicos, que deberían quedar bajo la custodia activa de todas las ramas de gobierno (en primer lugar, las ramas políticas). Fundador de la corriente de los estudios críticos del derecho en los años setenta, rara avis en el derecho norteamericano como jurista de izquierda que ocupa un lugar central en la discusión constitucional contemporánea, Tushnet pone a prueba su propuesta comparando el derecho de los Estados Unidos con los de Australia, Canadá o el Reino Unido, y demuestra que un control de constitucionalidad débil, como el que aplican esos países, puede ser compatible con el autogobierno democrático y la garantía del cumplimiento efectivo de los derechos para todas las personas. Mientras en la región se multiplican los conflictos entre poderes ejecutivos y judiciales y su solvencia y legitimidad para tomar decisiones, Siglo XXI acerca a los lectores de lengua castellana una obra clave para enriquecer y matizar esas discusiones, que en el fondo hablan de la fortaleza o debilidad de nuestras democracias.

Silicon Valley founders are known for selling a vision to investors and prospective customers, and then laboring to turn it into a reality. Black entrepreneurs are rarely afforded the same benefit of the doubt. Instead, their efforts are deemed unethical and even criminal.

This Viewpoint discusses how regulators across the world should approach the legal and ethical challenges, including privacy, device regulation, competition, intellectual property rights, cybersecurity, and liability, raised by the medical use of large language models.

In the last several months, several major disciplines have started their initial reckoning with what ChatGPT and other Large Language Models (LLMs) mean for them – law, medicine, business among other professions. With a heavy dose of humility, given how fast the technology is moving and how uncertain its social implications are, this article attempts to give some early tentative thoughts on what ChatGPT might mean for bioethics. I will first argue that many bioethics issues raised by ChatGPT are similar to those raised by current medical AI – built into devices, decision support tools, data analytics, etc. These include issues of data ownership, consent for data use, data representativeness and bias, and privacy. I describe how these familiar issues appear somewhat differently in the ChatGPT context, but much of the existing bioethical thinking on these issues provides a strong starting point. There are, however, a few “new-ish” issues I highlight – by new-ish I mean issues that while perhaps not truly new seem much more important for it than other forms of medical AI. These include issues about informed consent and the right to know we are dealing with an AI, the problem of medical deepfakes, the risk of oligopoly and inequitable access related to foundational models, environmental effects, and on the positive side opportunities for the democratization of knowledge and empowering patients. I also discuss how races towards dominance (between large companies and between the U.S. and geopolitical rivals like China) risk sidelining ethics.

U.S. banking regulators have considerable discretion in developing and enforcing prudential rules. Regulators have also enjoyed wide discretion in exercising supervisory authority over banks, in order to guard against potential safety and soundness risks that are not covered by the rules. However, recent developments in U.S. administrative law may create some conflict with that broad discretion. Whether or not this conflict comes to pass, a form of judicial review that focuses less on individual supervisory actions, and more on the overall framework within which the supervisory function is carried out, is a more promising way to achieve the administrative law aims of fairness and consistency.

In “Ultra-Processed People,” Chris van Tulleken takes a close look at the franken-snacks that barely resemble what they’re imitating.

Do affirmative action programs violate the Equal Protection Clause? To answer that question, Students For Fair Admissions v. President and Fellows of Harvard College offers a simple narrative with three chapters: (1) in 1868, the Fourteenth Amendment flatly prohibited all racial classifications; (2) from the late 1870s until 1954, the nation and the Court inexplicably departed from that clear constitutional command, which somehow got lost; and (3) from 1954 to the present, Brown v. Board of Education and its successors recovered the Fourteenth Amendment’s “core purpose,” which was colorblindness. The narrative is a concoction; it slides over intense constitutional struggles, social movements, and multiple forms of judicial creativity between 1868 and 1954, and also between 1954 and the present. At the same time, it is both important and difficult to identify the theory of constitutional interpretation at work in Students For Fair Admissions. It is clearly not textualist. Nor is it originalist; Justice Thomas, joined by no one, was the only member of the Court to offer an originalist argument in favor of the result. The operating theory of the Court’s opinion is best described as Dworkinian, as the Court sought both to “fit” and to “justify” the existing legal materials. But in terms of fit, Students For Fair Admissions runs into serious objections; the ruling is flatly inconsistent with both Bakke and Gratz (and essentially overrules them). In terms of justification, Students For Fair Admissions also runs into serious objections; the colorblindness principle is exceedingly difficult to defend as a matter of principle.

The 2020 Holding Foreign Companies Accountable (HFCA) Act will force China-based firms to delist from U.S. exchanges if China fails to permit audit inspections during a two-year period. The Act also requires such firms, as soon as China blocks such inspections, to disclose ties to the Chinese party-state. We first explain why the delisting provisions, while well-intentioned, may well harm U.S. investors. We then turn to the disclosure provisions, explaining that they appear to be motivated by a desire to name-shame Chinese firms rather than to protect investors. While China-based firms do pose unique risks to U.S. investors, the Act fails to mitigate--and may well exacerbate--these risks.

This article discusses the opportunities and costs of AI in behavioural science. We argue that because of pattern detection capabilities, modern AI will be able to identify (1) new biases in human behaviour and (2) known biases in novel situations. AI will also allow behavioural interventions to be personalised and contextualised, and thus produce significant benefits. Finally, AI can help behavioural scientists to 'see the system,' by enabling the creation of more complex and dynamic models of human behaviour. While these opportunities will significantly advance behavioural science and offer great promise to improve the lives of citizens and consumers, we highlight several costs of using AI. We focus on some important environmental, social, and economic costs that are relevant to behavioural science and its application. Some of those costs involve privacy; others involve manipulation.

This paper seeks to contribute to the long-standing debate on the extent to which the ideology of federal circuit court judges, as proxied by the party of the president nominating them, can help to predict case outcomes. To this end, I combine and analyze a novel dataset containing about 670,000 circuit court cases from 1985 to 2020. I show that the political affiliation of judges is associated with outcomes, and thus can help to predict them, throughout the vast universe of circuit court cases – and not only in the ideologically contested cases on which prior empirical research has focused. In particular, I find an association between political affiliation and outcomes in each of six categories of cases in which the two litigating parties could be perceived by judges to have unequal power. In each of these six case categories, which together add up to more than 550,000 cases, the more Democratic judges a panel has, the higher the odds of the panel siding with the seemingly weaker party. Furthermore, I identify evidence of polarization over time in circuit court decisions. Consistent with such growing polarization, in the important subset of published cases, the identified patterns are more pronounced in the last two decades of the examined period than earlier. Going beyond the very large sample of cases with parties of seemingly of unequal power, I identify how political affiliation can help to predict outcomes in most of the cases outside this sample. In particular, I show that panels with more Democratic judges are less likely than panels with less Democratic judges to defer to the lower-court decision in civil cases between private parties that seem to be of equal power. Altogether, my analysis shows that political affiliation can help to predict outcomes in over 90% of circuit court cases. Overall, my results highlight the pervasiveness with which – and the array of ways through which – the political affiliation of judges can help to predict the outcome of circuit court cases.

The court’s decision demeans our nation’s aspirations to equality and inclusion and thereby diminishes us all.

A conservative Court holds that student-body diversity is not a “compelling interest.”

This Viewpoint lists the top 3 pediatric drugs and product shortages, considers the federal government’s and manufacturers’ ethical duty to protect children, reviews the causes for the shortages, and suggests policy changes that could help fill in the gap.

The next big question for school admissions will likely be the legality of “race-neutral” methods that are designed with the continuing goal of producing diverse student bodies.

This article discusses the opportunities and costs of AI in behavioural science. We argue that because of pattern detection capabilities, modern AI will be able to identify (1) new biases in human behaviour and (2) known biases in novel situations. AI will also allow behavioural interventions to be personalised and contextualised, and thus produce significant benefits. Finally, AI can help behavioural scientists to 'see the system,' by enabling the creation of more complex and dynamic models of human behaviour. While these opportunities will significantly advance behavioural science and offer great promise to improve the lives of citizens and consumers, we highlight several costs of using AI. We focus on some important environmental, social, and economic costs that are relevant to behavioural science and its application. Some of those costs involve privacy; others involve manipulation.

This essay, to appear in a revised version in the Elgar Research Handbook on Constitutionalism and Legal Theory, deals with two broad varieties of constitutionalism: political versus legal/judicial constitutionalism, and procedural (liberal) and programmatic (substantive) constitutionalism. The varieties are continuums rather than sharply defined categories, of course. It examines the arguments political constitutionalists use to reject challenges that the rules of ruling must be entrenched against majoritarian revision and enforced as law by courts, and their defense of political constitutionalism as a sufficiently stable method of resolving disagreements about the rules of ruling. It then examines the arguments legal/judicial constitutionalists make for a two-fold proceduralization to deal with reasonable disagreements about substantive policy, the first into a constitution and the second into judicial resolution of disagreement through the use of modes of reasoning that do not reproduce the underlying disagreements (and notes the challenge that such reasoning actually reproduces such disagreements but obfuscates that fact). Merely procedural constitutions must deal with, among other things, the constitutional version of the liberal paradox of tolerance, which some do through doctrines of militant democracy. Substantive constitutions here are divided into three subcategories: identitarian (ascribing a specific vision of nationhood, often ethnonationalist, into the constitution); constitutions incorporating second- and later generation rights (economic and environmental); and transformative constitutions. The essay examines various difficulties associated with each of these forms.