Faculty Bibliography

This chapter summarizes the case for considering money as a legal institution. The Western liberal tradition, represented here by John Locke’s iconic account of money, describes money as an item that emerged from barter before the state existed. Considered as an historical practice, money is instead a method of representing and moving resources within a group. It is a way of entailing or fixing material value in a standard that gains currency because of the unique cash services it provides. The evidence to that end comes from coin itself, the practice of free-minting, judicial commentary, and academic theorizing. As the second half of the chapter details, the relationships that make money work are matters of governance carried out in law. Thus law defines public debt, allocates authority to create money, and determines what counts as a ‘commodity’. Comparing medieval, early American, and modern money law on money demonstrates the dramatic importance of that legal engineering.

On January 28, 2016 Georgia Law's 113th Sibley Lecture was delivered by Harvard Law School's David B. Wilkins, who currently serves as the school's Kissel Professor of Law, its director of the Center on the Legal Profession and its vice dean for global initiatives on the legal profession. Wilkins presented "The Accountants Are Coming ― Again!: The Rise and Transformation of the Big 4 Accountancy Firms and What it Means for the Global Market for Legal Services” at the event.

Suppose a laptop were found at the apartment of one of the perpetrators of last year’s Paris attacks. It’s searched by the authorities pursuant to a warrant, and they find a file on the laptop that’s a set of instructions for carrying out the attacks.

What are the rights of religious institutions? Should those rights extend to for-profit corporations? Houses of worship have claimed they should be free from anti-discrimination laws in hiring and firing ministers and other employees. Faith-based institutions, including hospitals and universities, have sought exemptions from requirements to provide contraception. Now, in a surprising development, large for-profit corporations have succeeded in asserting rights to religious free exercise. The Rise of Corporate Religious Liberty explores this "corporate" turn in law and religion. Drawing on a broad range perspectives, this book examines the idea of "freedom of the church," the rights of for-profit corporations, and the implications of the Supreme Court's landmark decision in Burwell v. Hobby Lobby for debates on anti-discrimination law, same-sex marriage, health care, and religious freedom. -- Back cover.

Over the last two decades, lower courts have repeatedly held that agencies must use notice-and-comment procedures before they issue purported policy statements that are “practically binding,” in the sense that they are fixed and firm. As a matter of policy, this requirement has both desirable and undesirable consequences. It increases the likelihood that agencies will benefit from public comments, but it also creates a strong incentive for agencies to speak vaguely or not to issue policy statements at all. The requirement therefore has epistemic advantages while also encouraging open-ended standards rather than clear rules. As a matter of law, the practically binding test is an unjustified departure from the best reading of the APA. The Supreme Court’s decision in Vermont Yankee rules that departure out of bounds. It is true that Vermont Yankee suggests an approach that would revolutionize a large number of existing doctrines and that for good reasons, the Court has declined to endorse the full Vermont Yankee-ization of administrative law. But the practically binding test is beyond the pale. Over the last two decades, lower courts have repeatedly held that agencies must use notice-and-comment procedures before they issue purported policy statements that are “practically binding,” in the sense that they are fixed and firm. As a matter of policy, this requirement has both desirable and undesirable consequences. It increases the likelihood that agencies will benefit from public comments, but it also creates a strong incentive for agencies to speak vaguely or not to issue policy statements at all. The requirement therefore has epistemic advantages while also encouraging open-ended standards rather than clear rules. As a matter of law, the practically binding test is an unjustified departure from the best reading of the APA. The Supreme Court’s decision in Vermont Yankee rules that departure out of bounds. It is true that Vermont Yankee suggests an approach that would revolutionize a large number of existing doctrines and that for good reasons, the Court has declined to endorse the full Vermont Yankee-ization of administrative law. But the practically binding test is beyond the pale.

In July 2015, President Barack Obama released an updated National HIV/AIDS Strategy (NHAS) for the United States to guide HIV efforts through the year 2020. A federal action plan to accompany the updated NHAS will be released in December 2015. In this editorial, we offer a strengths, weaknesses, opportunities and threats analysis with the aim of increasing discussion of ways to truly fulfill the promise of the updated NHAS and to address barriers that may thwart it from achieving its full potential.

Sex and administrative law are not words that are traditionally uttered in the saine breath. Yet, recently, administrative law scholars and courts have increasingly focused on precisely this relationship. The past decade has seen a transformation of the way sex discrimination, sexual violence, sexual harassment, and just plain sex is legally regulated in the United States. Increasingly, adininistrative agencies are defining what sex is permissible, requiring educational institutions to adopt particular policies on sex, and specifying how sex that deviates from those norms is investigated and adjudicated. Today, sex is a domain of the federal bureaucracy. The question is what role traditional administrative law principles will play in the administration of sex.

Although historical debates about the separation of powers focus on Congress, the President, and the Judiciary, in modern times, the bureaucracy is the elephant in the room. In a world of seemingly inevitable widespread congressional delegation to administrative agencies, as well as the Supreme Court’s blessing of independent agencies, how exactly is the fourth branch of government to be controlled? The canonical answer in administrative law, constitutional law, and political science, is agency design. By carefully selecting structural features of administrative agencies and requiring the use of specific decision-making procedures for policymaking, the legislature and the executive can ensure responsive and accountable bureaucracy—or so the argument goes. As Congress continues to create ever more agencies using ever more variations in institutional structure, and as the Supreme Court continues to grapple with which features of administrative are constitutional, the stakes of these conceptual debates have risen steadily. Indeed, we are in the midst of something of an agency design renaissance—a time period of fundamental change with respect to the federal bureaucracy—deriving mainly, although not exclusively, from the emergence of new administrative forms. Unfortunately, there is virtually no empirical scholarship that demonstrates a link between agency design and political responsiveness or agency behavior. This is due not to a lack of attention but to a fundamental problem of research design and the institutional landscape of administrative agencies. To address this question, scholars have studied individual agencies to document political influence exerted by Congress or the president in a specific policy domain. Such studies of individual agencies are important, but also analytically incapable of identifying the role of agency design in political responsiveness for two reasons. First, the relevant institutional features almost never vary within a single agency. Second, most policy outputs—where one would look to see evidence of political control—are not readily comparable across agencies. As a consequence, there has been little quantitative scholarship that establishes a link between agency design and a similar agency output across agencies or over time. This Essay focuses on an activity common to and comparable across many agencies—the distribution of federal moneys—to answer one of the most basic questions for agency design. We show that a prominent structural feature of agency design— the extent of high-level personnel politicization—affects the degree of political responsiveness by agencies

U.S Supreme Court Justice Stephen Breyer gave the Keynote Address at the Assembly on Thursday March 31, 2016. Justice Breyer was introduced by Lori Fisler Damrosch, President of the American Society of International Law.

This casebook for a basic bankruptcy course takes a deal-oriented finance approach to bankruptcy, with a focus on business bankruptcy. The student will not only learn the major elements of bankruptcy and corporate reorganization in chapter 11 of the Bankruptcy Code, but also the major facets of bankruptcy that influence financing transactions. The hidden message behind these materials is how to understand complex financial deal-making and how to integrate finance with law, in the context of bankruptcy.

Careful attention to choice architecture promises to open up new possibilities for environmental protection – possibilities that go well beyond, and that may be more effective than, the standard tools of economic incentives, mandates, and bans. How, for example, do consumers choose between environmentally-friendly products or services and alternatives that are potentially damaging to the environment but less expensive? The answer may well depend on the default rule. Indeed, green default rules may well be a more effective tool for altering outcomes than large economic incentives. The underlying reasons include the power of suggestion; inertia and procrastination; and loss aversion. If well-chosen, green defaults are likely to have large effects in reducing the economic and environmental harms associated with various products and activities. Such defaults may or may not be more expensive to consumers. In deciding whether to establish green defaults, choice architects should consider both consumer welfare and a wide range of other costs and benefits. Sometimes that assessment will argue strongly in favor of green defaults, particularly when both economic and environmental considerations point in their direction. But when choice architects lack relevant information, when interest-group maneuvering is a potential problem, and when externalities are not likely to be significant, active choosing, perhaps accompanied by various influences (including provision of relevant information), will usually be preferable to a green default.

Written by respected scholars and experienced educators, this book showcases rules and doctrine of civil procedure at work in actual practice of law. The procedural and nonprocedural aspects of the cases are thought-provoking, to hold students’ interest. Each chapter contains a well-written introduction, cases, and clear explanations of the doctrine, supported by comments and questions which deepen students’ understanding and clarify key concepts. This book also includes more than forty well-crafted problems the can be used in or out of class to to help students solidify their understanding of the materials. In-class exercises and simulations based on two sample case files are integrated throughout. Pleadings, memoranda, transcripts, exhibits, motions, and more (all taken from real cases) appear in the Appendix. Features: –All cases and notes have been updated so that the book is current through the early part of 2016. –Authors have added several practice exercises to the text that give students more experiential learning opportunities. –Two sample case files with transcripts, memoranda, exhibits, motions integrated throughout book. –Emphasis on lawyering skills and values and social responsibility Distinguished authorship by experienced educator-scholars. –Revised Teacher’s Manual, along with a new online community for adopters to allow for the sharing of teaching notes and other content among adopters.

The law largely has overlooked one of the most important sociological developments of the last half-century: a sharp decline in residential segregation. In 1970, 80% of African Americans would have had to switch neighborhoods for blacks to be spread evenly across the typical metropolitan area. By 2010, this proportion was down to 55%, and was continuing to fall. Bringing this striking trend (and its causes) to the attention of the legal literature is my initial aim in this Article. My more fundamental goal, though, is to explore what desegregation means for the three bodies of civil rights law — housing discrimination, vote dilution, and school segregation — to which it is tied most closely. I first explain how all three bodies historically relied on segregation. Its perpetuation by housing practices led to disparate impact liability under the Fair Housing Act. It meant that minority groups were “geographically compact,” as required by the Voting Rights Act. And it contributed to the racially separated schools from which segregative intent was inferred in Brown and its progeny. I then argue that all of these doctrines are disrupted by desegregation. Fair Housing Act plaintiffs cannot win certain disparate impact suits if residential patterns are stably integrated. Nor can claimants under the Voting Rights Act satisfy the statute’s geographic compactness requirement. And desegregating homes usually result in desegregating schools, which in turn make illicit intent difficult to infer. Lastly, I offer some tentative thoughts about civil rights law in a less racially separated America. I am most optimistic about the Fair Housing Act. “Integrated and balanced living patterns” are among the statute’s aspirations, and it increasingly is achieving them. Conversely, I am most pessimistic about the Voting Rights Act. One of its objectives is minority representation, which is threatened when minorities are politically distinctive but spatially dispersed. And a mixed verdict seems in order for school desegregation law. Rising residential integration eventually should produce rising school integration. But it has not done so yet, and even when it does, this improvement may not reach schools’ other racial imbalances.

Human beings often see coherence and planned design when neither exists. This is so in movies, literature, history, economics, and psychoanalysis – and constitutional law. Contrary to the repeated claims of George Lucas, its principal author, the Star Wars series was hardly planned in advance; it involved a great deal of improvisation and surprise, even to Lucas himself. Serendipity and happenstance, sometimes in the forms of eruptions of new thinking, play a pervasive and overlooked role in the creative imagination, certainly in single authored works, and even more in multi-authored ones extending over time. Serendipity imposes serious demands on the search for coherence in art, literature, history, and law. That search leads many people (including Lucas) to misdescribe the nature of their own creativity and authorship. The misdescription appears to respond to a serious human need for sense-making and pattern-finding, but it is a significant obstacle to understanding and critical reflection. Whether Jedi or Sith, many authors of constitutional law are a lot like the author of Star Wars, disguising the essential nature of their own creative processes.

Constitutionally speaking, "democracy" signifies something beyond the rule of many or the crowd as opposed to die few or "the one." Constitutional democracy marches arm-in-arm with freedom. A Dworkinian substantive ("constitutional") conception of proper democracy means some form of institutional entrenchment of basic human-rights interpretations against procedural-democratic revision. To reply to the majoritarian objection, Ronald Dworkin needs to uphold the constitutional conception. To uphold that conception persuasively, he needs to demonstrate its consonance with endorsement of positive liberty as a basic human interest. Dworkins self-assigned task is defense of the constitutional conception of democracy against the charge of defeating positive liberty. Dworkin concludes that if any beings positive liberty is in principle infringed when the constitutional conception allows non-popularly determined basic-rights interpretations, it can be that of the citizenry taken whole. Crucial to the demonstration is Dworkins distinction between "kinds" or ’readings" of collective action—between ways of interpreting the idea that a decision has been made "by the people."

Many officials have been considering whether it is possible or desirable to use choice architecture to increase use of environmentally friendly (“green”) products and activities. The right approach could produce significant environmental benefits, including large reductions in greenhouse gas emissions and better air quality. This Article presents new data from an online experiment (N=1,245) in which participants were asked questions about hypothetical green energy programs. The central finding is that active choosing had larger effects than green energy defaults (automatic enrollment in green energy), apparently because of the interaction between people’s feelings of guilt and their feelings of reactance. This finding is driven principally by the fact that when green energy costs more, there is a significant increase in opt-outs from green defaults, whereas with active choosing, green energy retains considerable appeal even when it costs more. More specifically, we report four principal findings. First, forcing participants to make an active choice between a green energy provider and a standard energy provider led to higher enrollment in the green program than did either green energy defaults or standard energy defaults. Second, active choosing caused participants to feel more guilty about not enrolling in the green energy program than did either green energy defaults or standard energy defaults; the level of guilt was positively related to the probability of enrolling. Third, respondents were less likely to approve of the green energy default than of the standard energy default, but only when green energy cost extra, which suggests reactance towards green defaults when enrollment means additional private costs. Fourth, respondents appeared to have inferred that green energy automatically would come at a higher cost and/or be of worse quality than less environmentally friendly energy. These findings raise important questions both for future research and for policymaking. If they reflect real-world behavior, they suggest the potentially large effects of active choosing — perhaps larger, in some cases, than those of green energy defaults.

This handsome photography book contains 83 diverse photos that the photographer/author took over a period of half a century. They include distinctive landscapes of many moods, mysteries, beauties and configurations, as well as pictures of people solo or interacting with others while engaged in such basic life activities as work, romance, reflection, parenting, prayer and politics. The photographer's academic career concentrated on international human rights. The hardbound book of 132 pages has high quality color reproduction. Ten pages of text comment on the photos. A sample of pictures in the book can be seen through the "lookinside" feature on this page. (Note that some pictures in the book that spread over two pages appear one half at a time as you scroll down, and sometimes one or the other half is missing.) You can also see pictures on www.henrysteinerphotos.com.

An ideal accompaniment to any civil procedure casebook, including the authors’ own Civil Procedure: Doctrine, Practice, and Context, Fifth Edition, the 2016-2017 statutory supplement presents the current Federal Rules of Civil Procedure (FRCP). Useful cross-references to Advisory Committee Notes, Restatement sections, and Transnational Rules have been integrated into the FRCP to help students explore the larger context of each Rule. Complete features include: The current Federal Rules of Civil Procedure and proposed amendments; The U.S. Constitution and U.S. Code provisions current through May 1, 2016; Excerpts from the Restatement (Second) of Judgments; Excerpts from the American Law Institute/UNIDROIT Rules of Transnational Civil Procedure; and Examples of state long-arm and venue statutes.

Financial Regulation: Law and Policy is a new textbook that aims to teach students about today's financial sector with a modular, accessible, balanced, practical, and ready-to-use approach. Our goal is to give students the tools to understand how American history and political economy have shaped the regulatory perimeter, how different policy choices have been made at different times across different parts of the financial sector, and how these choices matter a great deal in shaping not only financial stability, but also how the financial sector supports the economy and society. The textbook includes chapters on Insured Depository Institutions, Insurance, Securities Firms and Capital Markets, Consumer Protection and the CFPB, Financial Conglomerates, Payment Systems, Corporate Governance, Lender of Last Resort and Resolution, Mutual Funds and Other Investment Vehicles, Derivatives and Rate Markets, and Shadow Banking. The textbook comes with a teacher's manual that explores key themes, suggests a range of teaching approaches, answers questions posed in the textbook, and includes class slides for each chapter. This download contains the summary table of contents and Chapter 1.1: Finance Today.