Faculty Bibliography

Rick Hasen has presented the issue of money in politics as if we have to make a choice: it is either a problem of equality or it is a problem of corruption. Hasen’s long and influential career in this field has been a long and patient struggle to convince those on the corruption side of the fight (we liberals, at least, and, in an important sense, we egalitarians too) to resist the temptation to try to pass—by rendering equality arguments as corruption arguments, and to just come out of the closet. Hasen had famously declared that the corruption argument supporting Austin v. Michigan Chamber of Commerce was a fake and that the only basis for justifying the ban on corporate spending in Austin was equality, not corruption. And the U.S. Supreme Court famously (in our circles at least) agreed, in the process of striking down the ban on corporate spending in Austin and everywhere else. Thus, Hasen argues, it is a fool’s errand to fake the corruption argument. We need instead, Hasen has constantly counseled, a bit of egalitarian pride. Be true to ourselves, Hasen tells us, and give up the pretense of corruption talk.

Tying, bundling, minimum purchase requirements, loyalty discounts, exclusive dealing, and other purchase restraints can create stronger incentives for firms to invest in product quality. In our first example, the firm sells a durable experience good and a complementary non-durable good to a representative consumer. Tying shifts profits from the durable to the non-durable good, making profits more sensitive to the consumer's experience. In our second example, the firm sells a single experience good to consumers with heterogeneous demands. Minimum purchase requirements screen out the low-volume consumers who would otherwise free ride on the superior monitoring of the high-volume consumers. The examples illustrate that purchase restraints can increase both firm profits and consumer surplus by making firm profits more sensitive to consumer experience, either directly by giving the consumer more control over the stream of profits or indirectly by constraining consumers to monitor more intensively.

This paper reports the results of an experiment on incentive contracts for teams. The agents, whose efforts are complementary, are rewarded according to a sharing rule chosen by the principal. Depending on the sharing rule, the agents confront endogenous prisoner's dilemma or stag-hunt environments. Our main findings are as follows. First, we demonstrate that ongoing interaction among team members positively affects the principal's payoff. Greater team cooperation is successfully induced with less generous sharing rules in infinitely repeated environments. Second, we provide evidence of the positive effects of communication on team cooperation in the absence of ongoing team interaction. Fostering communication among team members does not significantly affect the principal's payoff, suggesting that agents’ communication is an imperfect substitute for ongoing team interaction. Third, we show that offering low sharing rules can backfire. The agents are willing to engage in costly punishment (shirking) as retaliation for low offers from the principal. Our findings suggest that offering low sharing rules is perceived by the agents as unkind behavior and hence, triggers negative reciprocity.

In recent years, most would associate “intent skepticism” with the rise of modern textualism. In fact, however, many diverse approaches — legal realism, modern pragmatism, Dworkinian constructivism, and even Legal Process purposivism — all build on the common theme that a complex, multimember body such as Congress lacks any subjective intention about the kind of difficult issues that typically find their way into court. From that starting point, competing approaches have tended to focus on which interpretive method will promote appropriate conceptions of legislative supremacy and the role of the courts in our constitutional system. The debates, in recent years, between textualists and modern defenders of Legal Process purposivism (such as Professor Peter Strauss) nicely illustrate that emphasis. A new generation of empirical scholarship, however, has raised questions about the intent skepticism that has long framed the interpretation debate. Most prominently, Professors Abbe Gluck and Lisa Bressman conducted an extensive survey of the understandings and practices of 137 members of the congressional staff who are engaged in legislative drafting. According to the authors, the resultant findings show, inter alia, that some interpretive approaches cannot be squared with legislative intentions while others nicely reflect such intentions. Ultimately, however, this Essay concludes that the study’s findings, although illuminating, do not alter the baseline of intent skepticism against which the statutory debate has proceeded. Indeed, the very idea of legislative intent remains unintelligible without a normative framework that structures what should count as Congress’s decision.

Market definition and market power are central features of competition law and practice but pose serious challenges. On one hand, market definition suffers decisive logical infirmities that render it infeasible, unnecessary, and counterproductive, and the practice of stating market power requirements as market share threshold tests is incoherent as a matter of empirics and policy. On the other hand, market power is often probative of the desirability of liability, yet the typically assumed functional relationship is unexplored and often implausible. These latter deficiencies are addressed through a ground-up analysis of the channels by which market power can be relevant. It is important to explicitly and simultaneously consider both anti-competitive and pro-competitive explanations for challenged practices and to attend to the magnitudes of the social consequences of correct and mistaken imposition of liability in order to identify the various ways and senses in which market power bears on optimal decision-making.

Courts and legal scholars have long been concerned with the problem of "entrenchment" -the ways that incumbents insulate themselves and their favored policies from the normal processes of democratic change. But this wide swath of case law and scholarship has focused nearly exclusively on formal entrenchment: the legal rules governing elections, the processes for enacting and repealing legislation, and the methods of constitutional adoption and amendment. This Article demonstrates that political actors also entrench themselves and their policies through an array of functional alternatives. By enacting substantive policies that strengthen political allies or weaken political opponents, by shifting the composition of the political community, or by altering the structure of political decision making, political actors can achieve the same entrenching results without resorting to the kinds of formal rule changes that raise red flags. Recognizing the continuity of formal and functional entrenchment forces us to consider why public law condemns the former while ignoring or pardoning the latter. Appreciating the prevalence of functional entrenchment also raises a broader set of questions about when impediments to political change should be viewed as democratically pathological and how we should distinguish entrenchment from ordinary democratic politics.

There is a hole at the heart of equal protection law. According to long-established doctrine, one of the factors that determines whether a group is a suspect class is the group’s political powerlessness. But neither courts nor scholars have reached any kind of agreement as to the meaning of powerlessness. Instead, they have advanced an array of conflicting conceptions: numerical size, access to the franchise, financial resources, descriptive representation, and so on. My primary goal in this Article, then, is to offer a definition of political powerlessness that makes theoretical sense. The definition I propose is this: A group is relatively powerless if its aggregate policy preferences are less likely to be enacted than those of similarly sized and classified groups. I arrive at this definition in three steps. First, the powerlessness doctrine stems from Carolene Products’s account of "those political processes ordinarily to be relied upon to protect minorities." Second, "those political processes" refer to pluralism, the idea that society is divided into countless overlapping groups, from whose shifting coalitions public policy emerges. And third, pluralism implies a particular notion of group power — one that (1) is continuous rather than binary; (2) spans all issues; (3) focuses on policy enactment; and (4) controls for group size; and (5) type. These are precisely the elements of my suggested definition. But I aim not just to theorize but also to operationalize in this Article. In the last few years, datasets have become available on groups’ policy preferences at the federal and state levels. Merging these datasets with information on policy outcomes, I am able to quantify my conception of group power. I find that blacks, women, and the poor are relatively powerless at both governmental levels; while whites, men, and the non-poor wield more influence. These results both support and subvert the current taxonomy of suspect classes.

We show that loyalty discounts create an externality among buyers because each buyer who signs a loyalty discount contract softens competition and raises prices for all buyers. This externality can enable an incumbent to use loyalty discounts to effectively divide the market with its rival and raise prices. If loyalty discounts also include a buyer commitment to buy from the incumbent, then loyalty discounts can also deter entry under conditions in which ordinary exclusive dealing cannot. With or without buyer commitment, loyalty discounts will increase profits while reducing consumer welfare and total welfare as long as enough buyers exist and the entrant does not have too large a cost advantage. These propositions are true even if the entrant is more efficient and the loyalty discounts are above cost and cover less than half the market. We also prove that these propositions hold without assuming economies of scale, downstream competition, buyer switching costs, financial constraints, limits on rival expandability, or any intra-product bundle of contestable and incontestable demand.

Intelligence does not arise only in individual brains; it also arises in groups of individuals. This is collective intelligence: groups of individuals acting collectively in ways that seem intelligent.

Approaching the concept of Islamic constitutionalism from a comparative perspective, this thought-provoking study by Antoni Abat i Ninet and Mark Tushnet uses traditional Western political theory as a lens to develop a framework for analyzing the events known as the 'Arab Spring'. Writing with clarity and insight, the authors place Western and Arabic traditions into a constructive dialogue. They focus on whether we can develop a 'theory of revolutions' that helps us understand events occurring at divergent times at geographically separate locations. This question is meticulously analyzed through the detailed examination of specific developments relevant to the ideas of revolution and constitutionalism in several nations affected by the Arab Spring. Case studies focus on Morocco and Libya as examples of unsuccessful revolutions, as well as Tunisia and Egypt. These lead the authors to consider the nature of constitutionalism itself and the concept of illiberal but non-authoritarian constitutions: a particularly pressing concern given the prominent contemporary discussions of the role of shari'a in post-Arab Spring constitutions. The Arab Spring will offer new insights to scholars, researchers and students of law and the political sciences, in particular those focusing on theories of revolution, democracy, constitutional law, Islamic constitutionalism and legal theory.

Review of Phishing for Phools: The Economics of Manipulation and Deception, edited by George A. Akerlof and Robert J. Shiller (2015).

Health care fragmentation today raises costs and worsens health outcomes. The theory of the firm indicates that cost and quality problems could be addressed by permitting greater vertical integration among complementary health care providers. The puzzle is why such integration does not occur. The answer is that a host of regulatory and payment laws create artificial obstacles to such integration. Various provisions in Obamacare could and should be used to lift these obstacles and allow health care integration that could potentially save tens of thousands of lives and hundreds of billions of dollars.

In an important new book, Phishing for Phools, George A. Akerlof and Robert J. Shiller demonstrate, through a series of examples, the prevalence of manipulation (“phishing”) in consumer markets and in society more broadly. Manipulation is inevitable, they argue. It is the equilibrium outcome. High-road sellers will soon lose out to their low-road competitors and disappear from the market. You must manipulate to survive: phish or perish. As Akerlof and Shiller recognize, their book builds on a now rich literature in behavioral economics. Their contribution lies in the generality of their claims and in their ambition to present market failure – the bad phishing equilibrium – as the rule, rather than the exception. This short post does two things: First, it discusses consumer contracts as an example of phishing. Second, it considers different policy responses to the unhappy picture that Akerlof and Shiller so vividly paint.

As of June 1, 2015, the Tokyo Stock Exchange mandated a "corporate governance code" on firms that would list their stock on its exchange. In effective, the code required most listed firms to appoint outside directors to their boards. The code itself was the output of a study committee organized under the auspices of the Financial Service Agency and the Exchange. And it had as its formal impetus the 2014 amendments to the Corporate Code that increased pressure on firms to appoint outside directors. The mandates trace their origins to debates within other countries over corporate governance, and to the on-going political disputes over reviving Japanese economic growth. In this article, we explore four questions relating to the mandate: (a) what do the outside director mandates actually require, (b) who actually decides the substance of the mandate, (c) what process resulted in the mandate, and (4) what relation does the mandate bear to economic theory and empirical research? By standard economic theory, market pressure will push shareholders to select those directors (whether insiders or outsiders) who most effectively increase stockholder wealth. To mandate the appointment of anyone else (again, whether insiders or outsiders) will necessarily cause stockholder welfare to fall. The proponents of the new mandate argued aggressively that that it would stimulate the Japanese economy. We suspect they will soon adopt other measures that require outside directors even more rigidly. Nothing in economic theory or research, however, provides any support for their claims. Also available at: 28 Osaka gakuin daigaku keizai ronshu 15 (2015) (written in Japanese).

The hermeneutic of suspicion is a disposition of participants in legal discourse to interrogate skeptically claims of legal necessity made to justify decision of a legal issue involving significant ideological stakes. The hermeneutic critiques a particular claim of legal necessity and alleges an ideologically motivated error. This article proposes a social psychological explanation of the hermeneutic as the projection of the actor onto his opponent of his own denied ideological motives. The projection lessens the pain of role conflict. Legal technique is supposed to purge ideological motives from legal judgment, but regularly puts the jurist in the position of choosing rather than following law, and requiring that he deny what he is doing. Cause lawyers, whether believers or realists, and legal neutrals, respond differently to the dilemma. Because they are bound to pursue substantive justice as well as legality in an unstable legal field, and substantive justice claims are today not distinguishable from ideological claims, all lawyers have to (should) doubt their own motives. Projection of the denied forbidden motive onto the opponent is solace. But ideology forms law through substance far more than through ideologically motivated error, and this too is elided by the projection.

Panelist, A Study in Mediation Techniques, United States District Court, District of Massachusetts Bench and Bar Conference

This chapter examines the U.S. constitutional law of citizenship, particularly as a status recognized by the Constitution entailing rights and duties. It first traces the evolution of the institution of citizenship in the Constitution and how federalism has contributed to the maintenance of multiple citizenship statuses rather than a uniform common citizenship. It discusses the constitutionally salient rights of citizenship, and citizenship itself as a right, before turning to civic duties implied by the Constitution. Against that background, it focuses on women’s citizenship, and the slow dismantling of gender differentiation in civic rights and duties. It also explores the extraterritoriality of citizens’ constitutional rights and concludes by examining the weak constraints that constitutional rights place on naturalization and immigration policies.

This report focuses on the concept of “foreign terrorist fighters” (FTFs) as it relates to U.N. Security Council practice and principled humanitarian action in situations of armed conflict involving terrorists. It has two goals. First, we aim to provide a primer on the most salient issues at the intersection of counterterrorism measures and humanitarian aid and assistance, with a focus on the ascendant FTF framing. Second, we seek to put forward, for critical feedback and assessment, a provisional methodology for evaluating the following question: is it feasible to subject two key contemporary wartime concerns—the fight against FTFs and supporting humanitarian aid and assistance for civilians in terrorist-controlled territories—to meaningful empirical analysis?

In late 2013, the Japanese Supreme Court voided inheritance rules giving nonmarital children half the shares of their marital half-siblings. To punish children for the sins of their parents, it explained, violated the equal protection clause of the Constitution. Like the stigma that most traditional societies attached to illegitimacy, the inheritance rules had reflected a simple selection bias: the societies that survive are those where more children live to reproductive age; in harsh environments (the norm until a few centuries ago) whether children survived turned on the level of investment adults made in them; men tend not to invest in children whose paternity they do not know; hence, non-marital children had been substantially less likely to survive; but the stigma attached to illegitimacy and the accompanying legal disabilities had helped minimize the number of such children by channeling sex into stable dyadic relationships. The pre-2013 inheritance rule had promoted that relational stability by helping women hold men to their promises. In order to induce women to marry them, men routinely promise to invest in the children they bear together. The earlier rule had assured women that if their husbands breached those promises in life, they could at least trust the law to favor their children in his death. After 2013, the courts could no longer offer even that assurance.

Constitutional theorists usually assume that minority-protective judicial review leads to outcomes more favorable to the protected minority and less favorable to the majority. Our analysis highlights an indirect effect of judicial review that complicates this conventional wisdom. Without judicial review, pro-majority and pro-minority leaders adopt different policies. Because judicial review limits the degree to which pro-majority leaders can adopt anti-minority policies, it becomes easier for pro-minority leaders to ‘mimic’ pro-majority leaders by adopting the most anti-minority policy that the judiciary would uphold. Furthermore, if judicial invalidation of anti-minority policies is probabilistic rather than certain, pro-majority leaders may propose even more extreme anti-minority policies in order to deter pro-minority leaders from mimicking. These effects can sometimes nullify, or even reverse, the assumed relationship between minority-protective judicial review and pro-minority outcomes. When such reversal occurs, majoritarian democrats should favor minority-protective judicial review, while those concerned with protecting unpopular minorities should oppose it.

This brief addresses the first question presented in Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, which concerns the use of statistical techniques in class actions. The brief informs the Supreme Court of the appropriate uses of statistics and other inferential proof in class actions. It also shows that statistical techniques can be used by courts while allowing a defendant to assert individual defenses. Courts can do so by utilizing bifurcation or similar trial practices.

What makes the control of corruption so difficult and contested? Drawing on the insights of political science, economics and law, the expert contributors to this book offer diverse perspectives.

Although the field of constitutional law has become increasingly comparative in recent years, its geographic focus has remained limited. South Asia, despite being the site of the world's largest democracy and a vibrant if turbulent constitutionalism, is one of the important neglected regions within the field. This book remedies this lack of attention by providing a detailed examination of constitutional law and practice in five South Asian countries: India, Pakistan, Sri Lanka, Nepal, and Bangladesh. Identifying a common theme of volatile change, it develops the concept of 'unstable constitutionalism', studying the sources of instability alongside reactions and responses to it. By highlighting unique theoretical and practical questions in an underrepresented region, Unstable Constitutionalism constitutes an important step toward truly global constitutional scholarship.

Americans now hold trillions of dollars in individual retirement savings accounts. Concerned about conflicts of interest among financial advisers who provide advice to retirement savers, the Department of Labor has proposed imposing fiduciary status and a "best interest" standard on such advisers. To ameliorate the resulting compliance costs, the DOL has also raised the possibility of a safe harbor for certain "high-quality low-fee investments." However, the notion of a "high-quality" investment is in irreconcilable tension with the highly individualized assessment of risk and return that is required by modern portfolio theory, the well-accepted concept from financial economics that has been codified in the "prudent investor rule" as the standard of care for fiduciary investment. This policy incoherence is worrisome because of the potential for the safe harbor to swallow the best interest standard.

This practical handbook explores the crucial elements of leadership in legal practice.

A considerable number of cases require the justices to examine the law and practices of other nations.

"Since America's founding, hundreds of U.S. Supreme Court Justices have issued a vast number of decisions on a staggeringly wide variety of subjects. Yet as the eminent legal scholar, Cass R. Sunstein shows, constitutional law is dominated by a mere quartet of character types, regardless of ideology : the hero, the soldier, the minimalist, and the mute."--Jacket flap.

When a significant event occurs at a publicly traded company, federal law requires the firm to disclose this information to investors in a securities filing known as a Form 8-K. But the firm need not disclose immediately; instead, SEC rules give companies four business days after the event occurs within which to file an 8-K. These rules thus create a period during which market-moving information is known by those inside the firm but not most public-company investors — a period we call the “8-K trading gap.” In this Article, we study how corporate insiders trade their company’s stock during the 8-K trading gap. We develop a unique dataset of 15,419 Form 8-Ks with trades by insiders during this gap. We identify systematic abnormal returns of 42 basis points on average, per trade, from trades by insiders during the 8-K gap. When insiders engage in an unusual transaction during the gap — open-market purchases of their own company’s stock — they earn even larger abnormal returns of 163 basis points. We also show that, when they engage in such purchases, insiders are correct about the directional impact of the 8-K filing more often than not — and that the probability that this finding is the product of random chance is virtually zero. To examine whether it is the expertise of the insiders, or the value associated with the information, that drives insider returns, we then focus on a type of 8-K that reveals positive information: those that announce new agreements with the company’s business partners. We show, without reference to any specific insider transaction, that a trading strategy of buying on the date such an agreement is struck and selling immediately before the agreement is disclosed yields, on average, abnormal returns of 35.4 basis points. We also demonstrate that insiders are more likely to engage in open market purchases of their own company’s stock when the firm is about to reveal new agreements with customers and suppliers. In light of the potential concerns raised by these findings, lawmakers should reconsider the effects of information-forcing rules such as those governing Form 8-K on the incidence and profitability of trading by insiders.

Campaign finance law is in crisis. In a series of recent decisions, the Supreme Court has rejected state interests such as anti-distortion and equality, while narrowing the anti-corruption interest to its quid pro quo core. This core cannot sustain the bulk of campaign finance regulation. As a result, an array of contribution limits, expenditure limits, and public financing programs have been struck down by the Court. If any meaningful rules are to survive, a new interest capable of justifying them must be found. This Article introduces just such an interest: the alignment of voters’ policy preferences with their government’s policy outputs. Alignment is a value of deep democratic significance. If it is achieved, then voters’ views are heeded, not ignored, by their elected representatives. Alignment also is distinct from the interests the Court previously has rebuffed. In particular, alignment and equality are separate concepts because equal voter influence is neither a necessary nor a sufficient condition for alignment to arise. And there is reason to think the Court might be drawn to alignment. In decisions spanning several decades, the Court often has affirmed that public policy ought to reflect the wishes of the people. It is not enough, though, if alignment is merely an appealing value. For it to justify regulation, money in politics must be able to produce misalignment, and campaign finance reform must be able to promote alignment. The Article draws on a new wave of political science scholarship to establish both propositions. This work shows that individual donors are ideologically polarized, while parties and PACs are more centrist in their giving. The work also finds that politicians tend to adhere to the same positions as their principal funders. Accordingly, policies that curb the influence of individual donors would be valid under the alignment approach. But measures that burden more moderate entities could not be sustained on this basis.

This paper explores the meaning of the word “felony” in thirteenth and fourteenth century England, i.e., during the first two centuries of the English criminal trial jury. To compile a working definition of felony, the paper presents examples of the language of felony drawn from literary and religious sources, in addition to considering the word’s more formulaic appearance in legal records. The paper then analyzes cases ending in acquittal or pardon, highlighting the factors that might take a criminal case out of the realm of felony. It suggests that the very definition of felony and felonious behavior—and thus the essence of criminal responsibility—may be bound up with the idea of mens rea during this period. The paper aims to uncover broader societal understandings of the nature of guilt and innocence, and to highlight connections and disconnections between the formal criminal law of felony, with its heavy emphasis on capital punishment, and popular and ecclesiastical understandings of culpability.

Many institutions, large or small, make their decisions through some process of deliberation. Nonetheless, deliberating institutions often fail, in the sense that they make judgments that are false or that fail to take advantage of the information that their members have. Micro mistakes can lead to macro blunders or even catastrophes. There are four such failures; all of them have implication for large-scale institutions as well as small ones. (1) Sometimes the predeliberation errors of an institution’s members are amplified, not merely propagated, as a result of deliberation. (2) Institutions fall victim to cascade effects, as the initial speakers or actors are followed by their successors, who do not disclose what they know. Nondisclosure, on the part of those successors, may be a product of either informational or reputational cascades. (3) As a result of group polarization, deliberating institutions sometimes end up in a more extreme position in line with their predeliberation tendencies. Sometimes group polarization leads in desirable directions, but there is no assurance to this effect. (4) In deliberating institutions, shared information often dominates or crowds out unshared information, ensuring that institutions do not learn what their members know. Informational signals and reputational pressure help to explain all four errors. The results can be harmful to numerous institutions, including large ones, and to societies as a whole. Markets are able to correct some of these problems, but cascade effects occur there as well.

This paper proposes and evaluates alternative methods for addressing the tax treatment of interest expenses in a multijurisdictional setting. The differential deductibility of debt entailed by various current tax law provisions leads to potential distortions in the patterns of asset ownership across MNCs and various proposed solutions have significant limitations. We suggest alternative regimes - a worldwide debt cap (WDC) and a net financing deduction (NFD) - to address the ownership distortions that we highlight along with other well-established problems of income-shifting through debt. These alternative regimes are extensions to a multinational setting of two general approaches to the neutral treatment of interest expenses - the CBIT (comprehensive business income tax) and ACC (allowance for corporate capital). While these regimes provide solutions to ownership distortions and to problems of "base erosion and profit shifting," they have the potential disadvantage of restricting other policy parameters.

The surge in armed conflicts involving terrorism has brought to the fore the general question of medical care in armed conflict and the particular legal protections afforded to those providing such care to terrorists. Against this backdrop, we evaluate IHL protections for wartime medical assistance concerning terrorists. Through that lens, we expose gaps and weaknesses in IHL. We also examine tensions between IHL and state responses to terrorism more broadly.

Some people believe that nudges undermine human agency, but with appropriate nudges, neither agency nor consumer freedom is at risk. On the contrary, nudges can promote both goals. In some contexts, they are indispensable. There is no opposition between education on the one hand and nudges on the other. Many nudges are educative. Even when they are not, they can complement, and not displace, consumer education.

This essay has three general themes. The first involves the claim that nudging threatens human agency. My basic response is that human agency is fully retained (because nudges do not compromise freedom of choice) and that agency is always exercised in the context of some kind of choice architecture. The second theme involves the importance of having a sufficiently capacious sense of the category of nudges, and a full appreciation of the differences among them. Some nudges either enlist or combat behavioral biases but others do not, and even among those that do enlist or combat such biases, there are significant differences. The third general theme is the need to bring various concerns (including ethical ones) in close contact with particular examples. A legitimate point about default rules may not apply to warnings or reminders. An ethical objection to the use of social norms may not apply to information disclosure. Here as elsewhere, abstraction can be a trap. We continue to learn about the relevant ethical issues, about likely public reactions to nudging, and about differences across cultures and nations. Future progress will depend on a high level of concreteness, perhaps especially in dealing with the vexing problem of time-inconsistency.