Faculty Bibliography

In recent years, the popular press and academic commentators have expressed a concern that controlling shareholders of foreign issuers with a cross-listing in the United States (and especially Chinese issuers) are exploiting U.S. investors by paying unfairly low prices in freezeout transactions. But despite the political and economic significance of these claims, there is no systematic evidence on them. We contribute to filling this gap by comparing the gains of the investors in freezeouts of cross-listed issuers and freezeouts of domestic issuers during the 2000-2021 period. The data show that investors in fact receive approximately 6-11% lower returns in freezeouts of issuers located in “Restrictive Markets” (i.e., jurisdictions that U.S. authorities have flagged as posing a particularly high risk of exploitation) than investors in domestic companies. In addition, we show that this difference is driven by Chinese issuers. These results support the conclusion that minority investors in Chinese-controlled companies do not have the same protections as minority investors in U.S. companies, which may result in greater challenges for Chinese-controlled companies in raising capital (e.g., through a higher cost of capital) and an efficiency loss (as inefficient freezeouts might be facilitated).

In both its legal and economic aspects, the law and economics of property rights has employed a thin notion of property. Stemming from Legal Realism and the needs for tractability of models, ownership is treated as a bundle of rights - the right to farm, the right to cultivate, the right to reside on land, or the rights to use an item of personal property in various ways - thereby downplaying the role of things or rights to exclude from them. New tools associated with the theory of complex systems and networks are beginning to allow us to capture the pattern of interrelationships among resources attributes and legal relations. Things and entitlements over them can be seen as emergent structures. Using these tools, law and economics can offer new accounts of system in the law and how it is more flexible and open-ended than is often thought. Various traditional doctrines also more amendable to a functional explanation, as is property law’s institutional role.

At points in American history, there have been significant, even massive shifts in constitutional understandings, doctrines, and practices. Apparently settled principles, and widely accepted approaches, are discarded as erroneous, even illegitimate, in favor of new principles and approaches. Less momentously, views that were once considered unthinkable do not quite become the law on the ground but instead come to be seen as plausible and part of the mainstream. Relatedly, Americans transform how they talk and think about their Constitution – its core commitments and underlying narratives – and those transformations change our practices. Our goal is to provide a conceptual map of radical constitutional change and to describe how and why such change occurs. First, we ask whether theories of interpretation trigger radical change or whether desires for radical change impel people to generate new (or modify old) theories of interpretation. Second, we explore why so many people are baffled or outraged by constitutional paradigm shifts. Third, we investigate the drivers of radical constitutional change, both the familiar bottom-up pressures from “We the People” and the less-familiar top-down approaches, where legal elites back and impose a new constitutional regime. Given that we might well be in the early innings of a radical constitutional change, it is an apt moment to theorize about the phenomenon writ large.

Though often hailed as an originalist triumph, Dobbs v. Jackson Women’s Health Organization has also been condemned as an originalist betrayal. To some, it abandoned originalism’s principles in favor of a Glucksbergesque history-and-tradition test, or even a “living traditionalism”; to others, its use of originalism was itself the betrayal, yoking modern law to an oppressive past. This essay argues that Dobbs is indeed an originalist opinion: if not distinctively originalist, then originalism-compliant, the sort of opinion an originalist judge could and should have wriCen. Dobbs shows the importance of looking to our original law—to all of it, including lawful doctrines of procedure and practice, and not just to wooden caricatures of original public meaning. As the case was framed, the Court’s focus on history and tradition was the correct approach; on the evidence presented, it reached the correct originalist result. Understanding the Fourteenth Amendment as securing old rights, rather than as leCing judges craft new ones, leaves more rather than fewer choices for today’s voters. In any case, it may be the law we’ve made, both in the 1860s and today

Yabancı hukuka yargısal atıf yapılmasına ilişkin tartışmalarda hâkimler değerleri tartışmaktadır. Ancak çoğu zaman tartıştıkları değerleri kabul etmemektedirler veya çoğunluk ve muhalif görüşlerde neden bir değeri diğerine tercih ettiklerine dair özel gerekçeler sunmamaktadırlar, bunun yerine genel bir iddiada bulunmak için olumsuz yabancı hukuk modellerini benimsemeyi tercih ediyorlar. Bu fenomenin bir örneği, keyfiliğe atıfta bulunmak için "kadijustiz" kelimesinin (Max Weber tarafından ortaya atılan ve Yargıç Felix Frankfurter tarafından 1949'da alınan bir kararla yaygınlaştırılan bir terim) Amerikan yargısal atfıdır. Ancak bu uygulama iki nedenden dolayı yanlıştır. Birincisi, İslam hukuk tarihçilerinin Orta Çağ'dan erken modern dönemlere kadar Memlük, Osmanlı ve diğer mahkemelerdeki İslami yargı prosedürlerini ayrıntılı olarak incelerken uzun zamandır işaret ettiği gibi, bu doğru değildir. İkincisi, kadijustiz'e yargısal atıf, tartışmalı yargısal karar alma süreçlerinde belirli değerlerin diğerlerine göre benimsenmesinin nedenlerini gizlemekte ve böylece, buna atıf yapan hakimlerin argümanlarını genel olarak zayıflatmaktadır.

In this Article, we argue that animal rights and rights of nature can and should find synergistic connections to tackle some of the most significant planetary threats today, notably, industrial animal agriculture. Until a landmark 2022 decision of the Supreme Constitutional Court of Ecuador, no court or legislation had concluded that animal rights could exist within rights of nature, and scholarship on rights of nature and animal rights has mostly ignored each other. Tackling industrial animal agriculture fits both movements’ goals as this industry is a major driver of climate change, deforestation, land and water use, and soil erosion, and is responsible for the suffering of billions of animals. However, the animal rights movement has had no significant practical strategy or success against industrial animal agriculture, and the rights of nature movement has taken on many issues adjacent to industrial animal agriculture but not the key issues themselves. We examine each movement, identify its history, aims, past practices, strengths, advantages, weaknesses, and disadvantages, and piece together a path forward that is inspired by the Ecuadorean decision and draws upon the strengths of each movement. We propose an approach that can produce an effect greater than the sum of the parts and call the movements together to advance the strategy we launch here. This Article presents an argument and an invitation.

Many consumers suffer from inadequate information and behavioral biases, which can produce internalities, understood as costs that people impose on their future selves. In these circumstances, “Choice Engines,” powered by Artificial Intelligence (AI), might produce significant savings in terms of money, health, safety, or time. Consider, for example, choices among motor vehicles or appliances. AI-powered Choice Engines might also take account of externalities, and they might nudge or require consumers to do so as well. Different consumers care about different things, of course, which is a reason to insist on a high degree of freedom of choice, even in the presence of internalities and (to some extent) externalities. But it is important to emphasize that AI might be enlisted by insufficiently informed or self-interested actors, who might exploit inadequate information or behavioral biases, and thus reduce consumer welfare. AI might increase internalities or externalities. It is also important to emphasize that AI might show behavioral biases, perhaps the same ones that human beings are known to show, perhaps others that have not been named yet, or perhaps new ones, not shown by human beings, that cannot be anticipated.

In a Time interview, Trump tells us how law, order and freedom are at stake in November.

The Constitution gives the president no “duties” over presidential elections; his actions are therefore personal, and not immune.

We ask whether increased public scrutiny leads to the more effective use of predictive algorithms. We focus on the context of bail, where judges face heightened public scrutiny during competitive partisan elections. We find that judges up for reelection are much more likely to follow the algorithmic recommendation to detain high-risk defendants just before an election. However, release decisions return to normal shortly after the election, and there is little change in pretrial misconduct rates, indicating that heightened public scrutiny, at least through competitive partisan elections, will not lead to the more effective use of predictive algorithms in bail.

We investigate whether removing a previously-obtained criminal record improves employment outcomes. We estimate the causal impact of criminal record remediation laws that have been widely enacted with the goal of improving employment opportunities for millions of individuals with records. We find consistent evidence that removing an existing record does not improve labor market outcomes, on average. A notable exception is participation in gig work through online platforms, which often screen workers based on their records but not their employment histories. The evidence is consistent with records initially scarring labor market trajectories in a way that is difficult to undo later.

The editors of the Harvard Law Review respectfully dedicate this issue to Justice Sandra Day O’Connor.

The use of annual stress tests to set minimum capital requirements for large banks was among the most important innovations in prudential regulation following the Global Financial Crisis of 2007-2009. Using stress tests for this purpose promised greater risk sensitivity at the individual firm level and a better assessment of the banking system as a whole than the pre-crisis methods of setting fixed minimum capital requirements or using banks' internal models. A dozen years later, however, the robust stress testing regime that motivated its use for setting capital requirements has been diluted and is now a more routinized, predictable process. As the current Federal Reserve stress tests proceed to conclusion in June, Harvard law professor Dan Tarullo, who oversaw supervision and regulation as a Federal Reserve governor from 2009 to 2017, seeks to prompt a debate on whether stress testing should remain the basis for large bank minimum capital requirements in the U.S.

The United States has an Economic Constitution, governing federal regulation, and explaining how to conduct regulatory impact analysis, with reference to quantification and monetization of the costs and benefits of proposed and final regulations. Known as OMB Circular A-4, the Economic Constitution of the United States was thoroughly revised in 2023, with new directions on behavioral economics and nudging; on discount rates and effects on future generations; on distributional effects and how to account for them; and on benefits and costs that are hard or impossible to quantify. The revised document leaves numerous open questions, involving (for example) the valuation of human life, the valuation of morbidity effects, and the value of the lives of children.

Artificial intelligence (AI)-enabled chatbots are increasingly being used to help people manage their mental health. Chatbots for mental health and particularly ‘wellness’ applications currently exist in a regulatory ‘gray area’. Indeed, most generative AI-powered wellness apps will not be reviewed by health regulators. However, recent findings suggest that users of these apps sometimes use them to share mental health problems and even to seek support during crises, and that the apps sometimes respond in a manner that increases the risk of harm to the user, a challenge that the current US regulatory structure is not well equipped to address. In this Perspective, we discuss the regulatory landscape and potential health risks of AI-enabled wellness apps. Although we focus on the United States, there are similar challenges for regulators across the globe. We discuss the problems that arise when AI-based wellness apps cross into medical territory and the implications for app developers and regulatory bodies, and we outline outstanding priorities for the field.

In arguments about Presidential immunity, the conservative Justices, who avoided mentioning Trump, made clear that they are less concerned with holding him accountable than with shielding former Presidents from retribution.

From at least the early twentieth century, legal scholars have recognized that rights and other legal relations inhere between individual legal actors, forming a vast and complex social network. Yet, no legal scholar has used the mathematical machinery of network theory to formalize these relationships. Here, we propose the first such approach by modelling a rudimentary, static set of real property relations using network theory. Then, we apply our toy model to measure the level of modularity—essentially, the community structure—among aggregations of these real property relations and associated actors. In so doing, we show that even for a very basic set of relations and actors, law may employ modular structures to manage complexity. Property, torts, contracts, intellectual property, and other areas of the law arguably reduce information costs in similar, quantifiable ways by chopping up the world of interactions between parties into manageable modules that are semi-autonomous. We also posit that our network science approach to jurisprudential issues can be adapted to quantify many other important aspects of legal systems. This article is part of the theme issue 'A complexity science approach to law and governance'.

Importance: Interest in administering psychedelic agents as mental health treatment is growing rapidly. As drugmakers invest in developing psychedelic medicines for several psychiatric indications, lawmakers are enacting legal reforms to speed access globally, and health agencies are preparing to approve these treatments. Meanwhile, US states, such as Oregon and Colorado, are making psychedelics available for supervised use outside the conventional health care system. Observations: Despite legal change and potentially imminent regulatory approval in some countries, standards for integrating psychedelics into health care have lagged, including norms for designing and implementing informed consent processes. Informed consent is complicated by the unique features of psychedelics and their means of administration. Because no governments have approved any classic psychedelics for general medical or psychiatric use, only clinical researchers have obtained informed consent from trial participants. Accordingly, there is an unmet need for informed consent processes tailored to the challenges of administering psychedelics in nonresearch settings. Conclusions and Relevance: Analysis of the challenges of designing and implementing psychedelic informed consent practices revealed 7 essential components, including the possibility of short- and long-term perceptual disturbances, potential personality changes and altered metaphysical beliefs, the limited role of reassuring physical touch, the potential for patient abuse or coercion, the role and risks of data collection, relevant practitioner disclosures, and interactive patient education and comprehension assessment. Because publicly available informed consent documents for psychedelic clinical trials often overlook or underemphasize these essential elements, sample language and procedures to fill the gap are proposed.

Due to infrequent and inconsistent testing, there is no reliable count of how many infants are exposed to substances in utero, yet recent data on drug use and child fatalities signal an unmitigated crisis. Efforts to limit responsibility of Child Protective Services (CPS) for substance-exposed infants, including laws to prevent doctors from conducting toxicology screenings when there is reasonable suspicion the infant was exposed, severely diminish the likelihood that the parent and child will receive necessary care. Plans of Safe Care, voluntary offers of services seen as a more compassionate alternative to CPS involvement, are not backed by any evidence of their actual efficacy in keeping children safe.

A crucial path to legal status for immigrant victims of crimes is the U visa, which Congress established with strong bipartisan support to protect victims of particular crimes who are helpful to law enforcement. Because the U visa was intended to encourage reporting of crimes, the application requires a certification form to be completed by a federal, state, or local authority that is investigating or prosecuting the alleged offense. Arbitrary and inconsistent certification decisions by state and local authorities make it especially important to identify relevant federal authorities that can serve as certifying authorities for U visas. This Piece argues that congressional committees and subcommittees that engage in investigations qualify as certifying authorities under the statute and regulations. To date, these congressional committees have never certified a U visa. The Piece provides three examples of congressional investigations in which U visa certification would be warranted: investigations into medical abuses of detained women, the so-called “Zero Tolerance” family-separation policy, and the use of solitary confinement in immigration detention.

Health care delivery is shifting away from the clinic and into the home. Even prior to the COVID-19 pandemic, the use of telehealth, wearable sensors, ambient surveillance, and other products was on the rise. In the coming years, patients will increasingly interact with digital products at every stage of their care, such as using wearable sensors to monitor changes in temperature or blood pressure, conducting self-directed testing before virtually meeting with a physician for a diagnosis, and using smart pills to document their adherence to prescribed treatments. This volume reflects on the explosion of at-home digital health care and explores the ethical, legal, regulatory, and reimbursement impacts of this shift away from the 20th-century focus on clinics and hospitals towards a more modern health care model. This title is also available as Open Access on Cambridge Core.

Private law theory is pulled in opposite directions along many dimensions: internal and external perspectives on law; holistic and reductionist methodologies; conceptualist and nominalist views; and deontological and consequentialist approaches. Relatedly, theories tend to focus on the micro or the macro scales – interpersonal relations or societal effects – but face difficulties in relating these in systematic ways. In this paper, we examine these problems in private law theory through the lens of the legal phenomenology of Adolf Reinach. According to Reinach, the law presupposes a realm of real, timeless entitles and their workings that are synthetic a priori: they are neither conventional nor contingent. Nor are they inherently moral or customary. We argue that whether what Reinach identifies as a priori has the ontological status he claims for it, it does point toward something more robust than most current theories would countenance. We illustrate the usefulness of this perspective through Reinach’s analysis of property, transfer, and representation. Reinach’s analysis of, for example, the principle of nemo dat quod non habet (‘one cannot transfer what one does not own’) as underlying all transfer even if displaced by positive rules such as good faith purchase, captures features and generalizations that have eluded analysis. His views also point toward the importance of accessibility for legal concepts, including cases of tacit knowledge. Whatever its exact source, this “deep structure” of the law has the potential to partially reconcile some of the fissures in private law theory and to connect the micro and the macro through a better understanding of system in law.

A warning to Biden that he risks losing the votes of Jewish Democrats like us.

Earlier this month, a broad bipartisan majority in the House passed legislation that would force TikTok’s Chinese parent company to either sell the app or have it banned in the United States. A platform once known primarily for goofy dances and launching Lil Nas X to fame now stands at the center of a geopolitical struggle. But what is perhaps even more surprising is how the pending legislation has scrambled domestic political alliances. On the Republican side, all but fifteen members voted in favor of the bill, despite Trump’s vocal opposition, while on the Democratic side, members favored the bill by a 3-1 margin, with prominent progressive voices staking out opposing sides. To help us make sense of the situation, and decide what to make of the proposed ban, the LPE Blog invited six tech and regulatory experts to share their initial reactions.

In his first interview after the release of his controversial report, the former special counsel insists that it was not his job to write for the public.

The use of Artificial Intelligence (AI) based on data-driven algorithms has become ubiquitous in today's society. Yet, in many cases and especially when stakes are high, humans still make final decisions. The critical question, therefore, is whether AI helps humans make better decisions as compared to a human alone or AI an alone. We introduce a new methodological framework that can be used to answer experimentally this question with no additional assumptions. We measure a decision maker's ability to make correct decisions using standard classification metrics based on the baseline potential outcome. We consider a single-blinded experimental design, in which the provision of AI-generated recommendations is randomized across cases with a human making final decisions. Under this experimental design, we show how to compare the performance of three alternative decision-making systems--human-alone, human-with-AI, and AI-alone. We apply the proposed methodology to the data from our own randomized controlled trial of a pretrial risk assessment instrument. We find that AI recommendations do not improve the classification accuracy of a judge's decision to impose cash bail. Our analysis also shows that AI-alone decisions generally perform worse than human decisions with or without AI assistance. Finally, AI recommendations tend to impose cash bail on non-white arrestees more often than necessary when compared to white arrestees.

Eliminating the line could help ensure that voters, not party insiders, have the final say.