Faculty Bibliography

Kicking the emergency abortion issue down the road as a national election looms is convenient for the court’s reactionary majority.

Hate speech consists of words of abuse or disparagement about racial and other minorities. Advocates for its regulation contend that hate speech contributes to the silencing of its targets, makes them feel unwelcome in public spaces, and reinforces existing practices of discrimination. Legal regulation of hate speech can alleviate those harms, though its effectiveness might be limited. Enforcement of laws against hate speech can cause collateral damage by deterring some speakers from saying things about public policy affecting minorities that might be mistakenly characterized as hate speech, and by discriminatory enforcement. The United States is exceptional among the world's liberal democracies in its unwillingness to treat hate speech regulation as consistent with the constitutional protection of expression. The reasons for this exceptionalism include differences among constitutional texts, doctrines dealing with the direct effects of constitutional guarantees of equality on private actors, variation in institutional capacity to guard against abusive enforcement of hate speech laws, and variations the public trust 1 This is a draft chapter. The final version will be available in Elgar Companion to Free Expression edited by Alan Chen and Ashutosh Bhagwat, to be published in 2025, Edward Elgar Publishing Ltd.

Congressional hearings and public reports have drawn attention to problems afflicting Medicare Advantage (MA), the privatized version of Medicare. Private plans became a staple of Medicare through the passage of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA). Congress passed this law during a furor of privatization, when think tanks and powerful financial interests emphasized the power of corporations’ profit incentive to improve the efficiency and quality of social enterprise. Yet the surging criticism of MA suggests a misalignment between the financial interest of some MA plans and the well-being of their patient populations. The criticisms range from deceptive marketing, ghost networks, and patient cherry-picking to unethical prior authorization denials and defrauding the government. In total, MA plans cost the federal government 22% more per patient than if these patients in question were enrolled in traditional Medicare. Moreover, it is not clear that this additional funding is producing proportional benefits. These developments raise questions about the presence of a profit incentive in Medicare, and perhaps health care more broadly.

The American electorate is transforming—undergoing its most sweeping changes in half a century. As this Article explores, these transformations are poised to reshape election policy and law. Consider the trends of financial depolarization and educational polarization. Income has largely disappeared as a partisan cleavage in recent years. In its place, a “diploma divide” has emerged between Democrats with more schooling and Republicans with less. As a result, Democrats now tend to be more reliable voters than Republicans. This means that, contrary to the parties’ usual assumptions, modern voting restrictions often have muted or even pro-Democratic electoral effects. These effects are not just politically but also legally consequential. Because of them, fewer voting limits are deemed to heavily burden the franchise and thus to trigger heightened judicial scrutiny. Or take the pro-Republican shift among minority voters over the last few elections, paired with white voters’ movement toward Democrats. Less racially polarized voting has important but conflicting implications for line-drawers trying to create minority opportunity districts. Less minority cohesion impedes these districts’ construction while more white crossover voting facilitates it. Under the Voting Rights Act, however, less racially polarized voting has clear legal consequences. It makes it harder for plaintiffs to establish certain preconditions for liability—and so more likely that their claims will fail. Turning from voters’ choices to their locations, the country’s political geography has evolved as well. Cities have become somewhat less Democratic, exurban and rural areas have grown far more Republican, and suburbs have shifted from a reddish to a blueish shade of purple. Because of these changes, when district maps are randomly generated without considering election results, they no longer favor Republicans in most states. Instead, these maps are now generally close to neutral. Accordingly, both parties today can gerrymander with similar ease when they have the chance. Nonpartisan institutions now tend to adopt fair plans lacking inadvertent pro-Republican skews. And in state court, plaintiffs bringing gerrymandering challenges benefit from voters’ new spatial patterns. Thanks to these patterns, quantitative measures of partisan bias increasingly tell the same story whether or not they take into account where voters live. Finally, as the wealthy have voted for Democratic candidates in larger numbers, they have also donated more to their campaigns. So, in a reversal of the historical norm, Democratic candidates now routinely outraise their Republican opponents. This reality could lead both parties to revisit their longstanding positions on campaign finance regulation. It could legally imperil contribution limits, too. Courts currently uphold these limits on the ground that they prevent corrupt exchanges between donors and politicians. But the reasons the rich now give more to Democrats are mostly ideological, not transactional. Curbs on their contributions may therefore block too little corruption to pass constitutional muster.

The First Amendment protects the right to hear speech, including his criticisms of the trial.

Rep. Marjorie Taylor Greene might like it, but no one else should take this idea as anything other than what it appears to be — a political ploy with serious negative ripple effects.

This response to commentaries composing a symposium on my book ‘Constitutional Essentials: On the Constitutional Theory of Political Liberalism’ (2022) includes restatements of some major themes from the book, as prompted by thoughts from the commentators.

In this Viewpoint, the authors refute recent suggestions that the US Food and Drug Administration (FDA) is not accountable for its decisions, pointing out the legal, legislative, and executive checks and balances on the agency.

On 17 February 2024, the Digital Services Act (DSA) became fully applicable in Europe. The DSA takes a novel regulatory approach to intermediaries by imposing not only liability rules for the (user) content they host and moderate, but also separate due diligence obligations for the provider’s own role and conduct in the design and functioning of their services. This new approach fundamentally reshapes the regulation and liability of platforms in Europe, and promises to have a significant impact in other jurisdictions, like the US, where there are persistent calls for legislative interventions to reign in the power of Big Tech. This short book brings together a group of renowned European and American scholars to conduct an academic transatlantic dialogue on the potential benefits and risks of the EU’s new approach. It is the final version of an online symposium first published in the Verfassungsblog in early 2024. The contributions to this book can be divided into two larger themes. After a general introduction to the topic (João Pedro Quintais), a first set of contributions considers transversal issues of platform regulation in the EU and US, namely those of consistency (Rebecca Tushnet), due process (Eric Goldman and Sebastian Felix Schwemer), fundamental rights (Christophe Geiger and Giancarlo Frosio; Martin Senftleben) and the potential “Brussels Effect” of the DSA (Martin Husovec and Jennifer Urban). A second set of contributions zooms in on key regimes, critically assessing rules on trusted flaggers (Eleonora Rosati), human in the loop (Rachel Griffin and Erik Stalman), access to data for researchers (Niva Elkin-Koren), and transparency (Pamela Samuelson and Natali Helberger).

Courts and commentators often assume that “real” corruption—quid pro quo corruption—is largely absent in modern American politics. But it isn’t. In at least one important area, government contracting, quid pro quo exchanges remain common today. In this book chapter, I first survey the empirical literature establishing the continued prevalence of corruption in government contracting. Next, I outline a theory capable of explaining why corruption might be widespread in government contracting but rare in generic legislating. On this account, corruption is most likely when concentrated benefits can be allocated to private parties by individual politicians through secretive, nonsalient means. Finally, I explore the implications for law and policy of pervasive corruption in government contracting. Courts should uphold measures aimed at preventing trades of contributions for contracts. Policymakers should extend existing pay-to-play bans to contractors’ PACs, parent firms, subsidiaries, employees, and family members. And all of us should realize that the ghost of “real” corruption has hardly been exorcised.

This is about a lot more than one university's disciplinary action.

Women’s Health Research, barely 40-year-old in the United States has recently received an all-important boost from First Lady Jill Biden. The $100 million in question are bound to make a meaningful difference in this all-important arena. It was the view of the White House that “our nation must fundamentally change how we approach and fund women’s health research.” The White House expressed its hope that “congressional leaders, the private sector, research institutions, and philanthropy” will answer the call to “improve the health and lives of women throughout the nation.”

Importance: As government agencies around the globe contemplate approval of the first psychedelic medicines, many questions remain about their ethical integration into mainstream medical practice. Objective: To identify key ethics and policy issues related to the eventual integration of psychedelic therapies into clinical practice. Evidence Review: From June 9 to 12, 2023, 27 individuals representing the perspectives of clinicians, researchers, Indigenous groups, industry, philanthropy, veterans, retreat facilitators, training programs, and bioethicists convened at the Banbury Center at Cold Spring Harbor Laboratory. Prior to the meeting, attendees submitted key ethics and policy issues for psychedelic medicine. Responses were categorized into 6 broad topics: research ethics issues; managing expectations and informed consent; therapeutic ethics; training, education, and licensure of practitioners; equity and access; and appropriate role of gatekeeping. Attendees with relevant expertise presented on each topic, followed by group discussion. Meeting organizers (A.L.M., I.G.C., D.S.) drafted a summary of the discussion and recommendations, noting points of consensus and disagreement, which were discussed and revised as a group. Findings: This consensus statement reports 20 points of consensus across 5 ethical issues (reparations and reciprocity, equity, and respect; informed consent; professional boundaries and physical touch; personal experience; and gatekeeping), with corresponding relevant actors who will be responsible for implementation. Areas for further research and deliberation are also identified. Conclusions and Relevance: This consensus statement focuses on the future of government-approved medical use of psychedelic medicines in the US and abroad. This is an incredibly exciting and hopeful moment, but it is critical that policymakers take seriously the challenges ahead.

For years, universities have been less inclined to protect speech and quicker to sanction it. After this spring’s protests, it will be difficult to turn back.

Some of the Supreme Court Justices and scholars who support a reinvigoration of the nondelegation doctrine would allow for an exception for grants of authority relating to foreign affairs. Others have criticized such an exception as unprincipled or as reflecting improper “foreign affairs exceptionalism.” This Article argues against a foreign affairs exception to the nondelegation doctrine but contends that the doctrine should be applied less strictly when a statutory authorization relates to an area of independent presidential power. The President has more independent power relating to foreign affairs than domestic affairs, so this limitation on the nondelegation doctrine will do more work in the foreign affairs area. But the President does not have unlimited power over foreign affairs and has some independent constitutional power relating to domestic affairs, so it is inaccurate and potentially misleading to refer to a “foreign affairs” exception. After establishing this point, the Article identifies three circumstances in which independent presidential power reduces nondelegation concerns, which we call “redundant authorizations,” “unlocking authorizations,” and “independent discretion authorizations.” The Article then analyzes a number of broad statutory authorizations relating to foreign affairs and domestic security and finds that some but not all of them can be justified by reference to the President’s independent powers. The Article concludes by considering the relevance of this analysis to the application of the major questions doctrine, and it explains why that doctrine likely poses less of a threat to authorizations related to foreign affairs than scholars have maintained.

The Fourteenth Amendment’s Section One is central to our constitutional law. Yet its underlying principles remain surprisingly obscure. Its drafting history seems filled with contradictions, and there is no scholarly consensus on what rights it protects, or even on what kind of law defines those rights. This Article presents a new lens through which to read the Fourteenth Amendment—new to modern lawyers, but not to the Amendment’s drafters. That lens is general law, the unwritten law that was taken to be common throughout the nation rather than produced by any particular state. Though later disparaged in the era of Erie Railroad Co. v. Tompkins, general law was legal orthodoxy when the Amendment was written. To those who created the Fourteenth Amendment, general law supplied the fundamental rights that Section One secured. On this view, while Section One identified the citizens of the United States, it did not confer new rights of citizenship. Instead, it secured preexisting rights—rights already thought to circumscribe state power—by partially shifting their enforcement and protection from state courts and legislatures to federal courts and Congress. This general-law understanding makes more sense of the historical record than existing theories, which consider the Fourteenth Amendment solely in terms of federal or state law. And it has significant implications for modern Fourteenth Amendment doctrine, from state action to civic equality to “incorporation” to “substantive due process.”

This report is the second in a series of two reports by the Program on International Financial Systems dedicated to cryptoassets. The first report in this series was published in February 2023 (“Phase I Report”) and overviewed the regulation of cryptoassets in the United States. This report describes how other jurisdictions have begun to implement more effective regulatory frameworks for the issuance, trading, and custody of cryptoassets, identifies the costs to US markets and investors stemming from the lack of an effective framework in the US, and recommends reforms that can reposition the US as a leader in cryptoasset regulatory structure. The US government has recognized that the rise of cryptoassets creates an opportunity to reinforce American leadership in global financial markets and at the technological frontier. Providing regulatory clarity to the cryptoasset sector will help to ensure cryptoasset market participants from the US and around the world continue to entrust their resources to the private sector of the US economy, as the number and types of available cryptoasset products expand over time. The report consists of three parts: Part I compares the status of cryptoasset regulation in the United States with four major jurisdictions that have taken significant steps toward dedicated cryptoasset regulatory structures: (1) Japan, (2) the European Union, (3) Hong Kong, and (4) the United Kingdom. It also briefly reviews three other jurisdictions that have taken meaningful steps toward similar frameworks: (1) Australia, (2) Canada, (3) Singapore, and (4) the United Arab Emirates. The comparison shows that the US has fallen far behind other jurisdictions in implementing a regulatory structure that facilitates the efficient issuance, trading, and custody of cryptoassets while protecting cryptoasset investors and customers of cryptoasset service providers. Part II identifies the current and future costs for US markets arising in part from the absence of an effective cryptoasset regulatory framework. We present data indicating that the share of global cryptoasset trading activity that occurs on US trading platforms and the share that is denominated in US-issued assets lag far behind traditional financial markets and are declining, limiting the ability of US cryptoasset investors and businesses to participate in those markets and lessening the ability of US policymakers and regulators to supervise and regulate them. We show that the US has lost and will continue to lose cryptoasset-related jobs and businesses, tax revenue, and other economic benefits associated with cryptoasset-related activities as a result in part of the ongoing regulatory uncertainty in the US. We also show that despite the presence of domestic cryptoasset trading platforms and other service providers that comply with US laws, including anti-fraud, anti-money laundering, and relevant state law regimes, and that voluntarily implement additional rigorous customer protections, many US investors have relied on service providers that take advantage of regulatory gaps and that do not adhere to similar standards, suffering losses from fraud and mismanagement. Part III recommends reforms that can reposition the US at the forefront of cryptoasset regulatory structure. These reforms include the creation of a workable framework for the registration and operation of cryptoasset trading platforms, clarifying the regulatory status of cryptoassets, and implementing workable custody requirements. Although some of our recommendations could require new legislation, we include recommendations for how US regulators can begin to address the most pressing problems pending the passage of necessary legislation.

Nuisance is once again a hot topic in legal practice and scholarship. Public nuisance law is at the center of efforts to hold product manufacturers, energy companies, and internet platforms liable for billions in losses. Scholars have in turn offered competing accounts of the legitimacy and scope of this form of liability. Meanwhile, private nuisance has been the subject of renewed academic attention, including the issuance of new Restatement provisions, that aim to make sense of its distinctive features. Unfortunately, to date, these two lines of inquiry have mostly been pursued in isolation, a pattern that reflects the prevailing wisdom (famously articulated by William Prosser and others) that the two nuisances share nothing beyond a common name. To the contrary, this Article maintains that the key to practical and theoretical progress in this complex area of law is to appreciate that the two nuisances are variants of the same general concept. As variants, they do indeed differ: a private nuisance is a wrong involving the violation of another’s right to use and enjoy their property, whereas public nuisance in the first instance does not turn on the violation of private property rights. And yet both nuisances involve wrongful interferences with others’ access to, or use of, physical spaces or resources. By attending to and appreciating this common core, lawyers, judges, and scholars will be better positioned to develop nuisance law in a consistent and principled manner.

This article explores subjects in optimal income taxation characterized by recent research interest, practical importance in light of concerns about inequality, potential for misunderstanding, and prospects for advancement. Throughout the analysis, paths for further investigation are highlighted. Areas of focus include multidimensional abilities and endogenous wages; asymmetric information and the income of founders; production and consumption externalities from labor effort; market power and rents; behavioral phenomena relating to perceptions of the income tax schedule, myopic labor supply, and the interactions of savings, savings policies, and labor supply; optimal income transfers; the relationship between optimal income taxation and the use of other instruments; and issues relating to the social welfare function and utility functions, including non-welfarist objectives, welfare weights, heterogeneous preferences, and taxation of the family.

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.

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.