Faculty Bibliography

We consider a repeated moral hazard model of product quality choice by a multiproduct firm selling experience goods with imperfect private monitoring. When consumers receive imperfect private signals of product quality, consuming two products from the same firm improves monitoring. Monitoring by consumers has a positive externality on other consumers, but consumers ignore this when making their purchase decisions. Product bundling improves product quality by constraining consumers to purchase both goods and monitor more effectively. The social and private value of bundling is even larger if (1) consumers can only attribute a negative signal to a pair of complementary products and not to a specific product, and (2) if one of the two goods is a durable and the other is a complementary nondurable.

But it can be done without humiliating people.

The aim of this study was to systematically evaluate state Medicaid policies for the treatment of hepatitis C virus (HCV) infection with sofosbuvir in the United States. Medicaid reimbursement criteria for sofosbuvir were evaluated in all 50 states and the District of Columbia. The authors searched state Medicaid Web sites between 23 June and 7 December 2014 and extracted data in duplicate. Any differences were resolved by consensus. Data were extracted on whether sofosbuvir was covered and the criteria for coverage based on the following categories: liver disease stage, HIV co-infection, prescriber type, and drug or alcohol use. Of the 42 states with known Medicaid reimbursement criteria for sofosbuvir, 74% limit sofosbuvir access to persons with advanced fibrosis (Meta-Analysis of Histologic Data in Viral Hepatitis [METAVIR] fibrosis stage F3) or cirrhosis (F4). One quarter of states require persons co-infected with HCV and HIV to be receiving antiretroviral therapy or to have suppressed HIV RNA levels. Two thirds of states have restrictions based on prescriber type, and 88% include drug or alcohol use in their sofosbuvir eligibility criteria, with 50% requiring a period of abstinence and 64% requiring urine drug screening. Heterogeneity is present in Medicaid reimbursement criteria for sofosbuvir with respect to liver disease staging, HIV co-infection, prescriber type, and drug or alcohol use across the United States. Restrictions do not seem to conform with recommendations from professional organizations, such as the Infectious Diseases Society of America and the American Association for the Study of Liver Diseases. Current restrictions seem to violate federal Medicaid law, which requires states to cover drugs consistent with their U.S. Food and Drug Administration labels.

The Volcker rule – a key part of Congress’s response to the financial crisis – is best understood as a “structural law,” a traditional Anglo-American technique for governance of hybrid public-private institutions such as banks and central banks. The tradition extends much farther back in time than the Glass-Steagall Act, to which the Volcker Rule has been unfavorably (but unfairly) compared. The goals of the Volcker Rule are complex and ambitious, and not limited to reducing risk directly, but include reshaping banks’ organizational cultures. Another body of structural laws – part of the core of administrative law – attempts to restrain and discipline regulatory agencies, through process requirements such as cost-benefit analysis (CBA). Could the Volcker rule be the subject of reliable, precise, quantified CBA? Given the nature of the Volcker rule as structural law, its ambitions, and the current capacities of CBA, the answer is clearly “no,” as it would require regulators to anticipate, in advance of data, private market behavior in response to novel activity constraints. If administrative law is to improve regulatory implementation of structural laws such as the Volcker Rule, better fitting and more nuanced tools than CBA are needed.

The Oxford Handbook of the U.S. Constitution offers a comprehensive overview and introduction to the U.S. Constitution from the perspectives of history, political science, law, rights, and constitutional themes, while focusing on its development, structures, rights, and role in the U.S. political system and culture. This Handbook enables readers within and beyond the U.S. to develop a critical comprehension of the literature on the Constitution, along with accessible and up-to-date analysis. The historical essays included in this Handbook cover the Constitution from 1620 right through the Reagan Revolution to the present. Essays on political science detail how contemporary citizens in the United States rely extensively on political parties, interest groups, and bureaucrats to operate a constitution designed to prevent the rise of parties, interest-group politics, and an entrenched bureaucracy. The essays on law explore how contemporary citizens appear to expect and accept the exertions of power by a Supreme Court, whose members are increasingly disconnected from the world of practical politics. Essays on rights discuss how contemporary citizens living in a diverse multi-racial society seek guidance on the meaning of liberty and equality from a Constitution originally designed for a society in which all politically relevant persons shared the same race, gender, religion, and ethnicity. Lastly, the essays on themes explain how in a "globalized" world, people living in the United States can continue to be governed by a constitution originally meant for a society geographically separated from the rest of the "civilized world." Whether a return to the pristine constitutional institutions of the founding or a translation of these constitutional norms in the present is possible remains the central challenge of U.S. constitutionalism today

Much of the history of corporate law has concerned itself not with shareholder power, but rather with its absence. Recent shifts in capital market structure require a reassessment of the role and power of shareholders.

Enabled by globalizing processes such as trade liberalization, medical tourism is a practice that involves patients’ intentional travel to privately obtain medical care in another country. Empirical legal research on this issue is limited and seldom based on the perspectives of destination countries receiving medical tourists. We consulted with diverse lawyers from across Barbados to explore their views on the prospective legal and regulatory implications of the developing medical tourism industry in the country.

From the streets of Hong Kong to Ferguson, Missouri, civil disobedience has again become newsworthy. What explains the prevalence and extremity of acts of civil disobedience? This paper presents a model in which protest planners choose the nature of the disturbance hoping to influence voters (or other decision-makers in less democratic regimes) both through the size of the unrest and by generating a response. The model suggests that protesters will either choose a mild “epsilon” protest, such as a peaceful march, which serves mainly to signal the size of the disgruntled population, or a “sweet spot” protest, which is painful enough to generate a response but not painful enough so that an aggressive response is universally applauded. Since non-epsilon protests serve primarily to signal the leaders’ type, they will occur either when protesters have private information about the leader’s type or when the distribution of voters’ preferences are convex in a way that leads the revelation of uncertainty to increase the probability of regime change. The requirements needed for rational civil disobedience seem not to hold in many world settings, and so we explore ways in which bounded rationality by protesters, voters, and incumbent leaders can also explain civil disobedience.

Presenter, Negotiation Workshop, Middle East Partnership Initiative Civic Engagement Leadership Institute

This essay argues that invoking the concept of the “constituent power” clarifies some persistent puzzles about the constitutional and legal status of purportedly unconstitutional constitutional amendments. It argues that in some circumstances such amendments should be understood as exercises of the constituent power, effecting revolutionary transformations in a nation’s constitutional identity but—sometimes—through the forms of legality. The essay distinguishes between a purely conceptual version of the constituent power and a more sociological or real-world version, and argues that the former is superior to the latter.

The article explores certain claims about the amendment process of the US Constitution. Empirically, it argues that the difficulty posed by formal procedures in obtaining textual amendments of the US Constitution is overstated, if one looks to history and to analogous constitutional requirements for override of presidential vetoes. It suggests that the low amendment rate may result not only from its formal procedures, and exaggerated estimates of their difficulty, but also from ideological or emotional opposition to amendment, as opposed to other methods of legal change. As a normative matter, it argues that, notwithstanding important arguments for caution in seeking constitutional amendment, a constitution that is truly not amendable by its own formal procedures, that relies on indefinitely long tenures for its highest court, and that is committed to judicial supremacy in constitutional interpretation, is in real tension with the democratic component of democratic constitutionalism.

Routine default threatens the foundations of the United States court system. We study the problem of routine default by human defendants, using the Boston Municipal Court’s debt collection docket as our laboratory. Arbitraging various non-law literatures, we designed interventions consisting of two forms of mailings. We study the effectiveness of our two mailings in a randomized control trial that includes a no-intervention control group. We find no difference in effectiveness as between our two mailings, but that both roughly double the rate at which defendants participate in their lawsuits. Results are statistically significant. We discuss implications of our findings.

In surveys, majorities of Americans disapprove of twelve hypothetical nudges (seven involving default rules, five involving education campaigns or disclosure requirements). These results provide an illuminating contrast with the majority support for twenty-two nudges that were also tested, and that are more realistic examples of the kinds of nudges that have been adopted or seriously considered in democratic nations. In general (and with some interesting exceptions), there is a strikingly broad consensus, across partisan lines, about which nudges do and do not deserve support. The best understanding of the data is that people dislike those nudges that (a) promote what people see as illicit ends or (b) are perceived as inconsistent with either the interests or values of most choosers. A ranking of the thirty-four nudges, in terms of their popularity, is provided, along with reports of differences (when they exist) among Democrats, Republicans, and Independents.

For scholars studying the political attitudes of the general public, someone’s position on the ideological spectrum is a good place to start. Typically, scholars identify that position through factor analysis on survey questions, making the assumption that the most important artificially constructed factor indicates the person’s position on the liberal-conservative spectrum. The leading attitudinal surveys, however— the GSS, the CCES, and the ANES— include a variable giving a respondent’s self-identified ideology, a variable given no special prominence by factor analysis. We suggest a new ideology measure: the individual’s fitted value from a regression of self-identified ideology on other variables. We describe various ways to choose those other variables. This approach gives proper priority to the usefulness of self-reported ideology. It lets us test whether voters identify their own ideology through identity-group variables; avoids the bias introduced in choosing which issue variables to include in factor analysis; and shows which positions the average American— as opposed to the analyst— thinks define “liberal” and “conservative”.

‘Medical tourism’ (to use the most common term, though ‘cross-border health care’ or ‘medical travel’ could also be used), is the travel of patients from their home country to a foreign country for the primary purpose of receiving health care services. There is no doubt that the existing market is significant, even though there are considerable disputes about its exact size. This chapter concerns legal and ethical issues related only to medical tourism for services that are legal in the patient’s home and destination country and will cover issues faced by all three populations of medical tourists engaged in it: patients paying out of pocket, private insurer prompted and government prompted medical tourists. I put to one side medical tourism for services illegal in the home or destination country, which I have dealt with elsewhere. First, I will discuss the question of how tourist patients can determine the quality of foreign facilities, the possibility of state interventions and the ability and the provision of patient safety information and the challenges in securing that information are discussed, including comparisons to domestic initiatives. Second, and especially as to medical tourists coming from the US, I discuss the question of whether medical tourists can recover for medical malpractice committed abroad and possible regulatory salves. Third, I turn to private insurer prompted medical tourism, focusing on its existing (and potential) regulation in the US health care system. Finally, I discuss government-prompted medical tourism in the form of the EU rules regarding reimbursement of cross-border health care. Because of the large numbers of topics covered here, my treatment of each will be brief, but I have written on each in-depth in other work.

The deterrence of crime and its reduction through incapacitation are studied in a simple multiperiod model of crime and law enforcement. Optimal imprisonment sanctions and the optimal probability of sanctions are determined. A point of emphasis is that the incapacitation of individuals is often socially desirable even when they are potentially deterrable. The reason is that successful deterrence may require a relatively high probability of sanctions and thus a relatively high enforcement expense. In contrast, incapacitation may yield benefits no matter how low the probability of sanctions is—implying that incapacitation may be superior to deterrence.

In recent years, Greece has inflicted widespread inhuman and degrading treatment on asylum seekers. The European Union border agency Frontex has knowingly exposed asylum seekers to such treatment in Greek detention centres. This article argues that acts of Greek and Frontex agents may lead to individual responsibility for crimes against humanity under Article 7 1. (e), (h) and (k) of the Rome Statute. Investigation of such acts remains unlikely, not due to the relevant doctrine, but due to a popular imagination of crimes against humanity as radically evil acts. But International Criminal Law should not only aim to punish radically evil acts. Equally important is seemingly banal violence that appears as an inevitable by-product of global social and economic structures. Such is the violence currently wielded against asylum seekers. Confronting the latter category requires the ICC Prosecutor to realize the political nature of her judgement.

Most debates about the proper meaning of “transformativeness” in fair use are really about a larger shift towards more robust fair use. Part I of this short Article explores the copyright-restrictionist turn towards defending fair use, whereas in the past critics of copyright’s broad scope were more likely to argue that fair use was too fragile to protect free speech and creativity in the digital age. Part II looks at some of the major cases supporting that rhetorical and political shift. Although it hasn’t broken decisively with the past, current case law makes more salient the freedoms many types of uses and users have to proceed without copyright owners’ authorization. Part III discusses some of the strongest critics of liberal fair use interpretations, especially their arguments that transformative “purpose” is an illegitimate category. Part IV looks towards the future, suggesting that broad understandings of transformativeness are here to stay.

Ben-Shahar and Schneider have written an important book: "More Than You Wanted to Know." They develop a powerful critique of a prevalent regulatory technique: Mandatory Disclosure. They argue that disclosure does not work and that it cannot be fixed. Lawmakers should, therefore, abandon this ineffective and, possibly, harmful regulatory approach and look elsewhere or … do nothing. While I agree with almost everything they write, when the authors discuss, and critique, “scores” toward the end of Chapter 8, I must respectfully disagree. This article focuses on scores, presenting their benefits and costs and, as examples, focusing specifically on three types. I also seek common ground between my position and that of the authors, and conclude by venturing beyond scores to discuss the promise of full disclosure targeted at intermediaries, rather than consumers.

Adjudication is fundamentally about information, usually concerning individuals' previous or proposed behavior. Legal system design is challenging because information ordinarily is costly and imperfect. This Article analyzes a broad array of system features, asking throughout whether design should aim at the truth or at consequences, how these approaches may differ, and what general lessons may be drawn from the comparison. It will emerge that the differences in approach are often large and their character is sometimes counterintuitive. Accordingly, system engineers concerned with social welfare need to aim explicitly at consequences. This message is not one opposed to truth per se but rather a strong admonition: it is dangerous to be attached to the alluring view that adjudication is primarily about generating results most in accord with the truth of the matter at hand.

Many consumer markets feature a multidimensional price. A policy maker—a legislator, a regulator, or a court—concerned about the level of one price dimension may decide to cap this price. How will such a price cap affect other price dimensions? Will the overall effect be good or bad for consumers? For social welfare? Price caps can be beneficial when sellers set prices in response to consumers’ misperception. The scope for welfare-enhancing regulation depends on the type (and direction) of the underlying misperception and on market structure.

How should administrative law cope with genuine uncertainty, in which probabilities cannot be attached to outcomes? I argue that there is an important category of agency decisions under uncertainty in which it is rational to be arbitrary. Rational arbitrariness arises when no first-order reason can be given for the agency’s choice, yet the agency has valid second-order reasons to make a particular choice. When these conditions obtain, even coin flipping may be a perfectly rational strategy of decision making for agencies. Courts should defer to rationally arbitrary decisions. There is a proper role for courts in ensuring that agencies have adequately invested resources in information gathering, which may dispel uncertainty. Yet in some cases the value of further investments in information gathering will be genuinely uncertain. If so, courts should defer to agencies’ second-order choices about informational investments on the same grounds that justify deference to agencies’ first-order choices under uncertainty. If the [Board of Immigration Appeals] proposed to narrow the class of deportable aliens eligible to seek [legal] relief by flipping a coin—heads an alien may apply for relief, tails he may not—we would reverse the policy in an instant. That is because agency action must be based on non-arbitrary, “relevant factors.” (Judulang v. Holder, 132 S. Ct. 476, 485 [2011] [Kagan, J.]) The sense in which I am using the term [“uncertainty”] is that in which the prospect of a European war is uncertain, or the price of copper and the rate of interest twenty years hence, or the obsolescence of a new invention, or the position of private wealth-owners in the social system in 1970. About these matters there is no scientific basis on which to form any calculable probability whatever. We simply do not know. Nevertheless, the necessity for action and for decision compels us as practical men to do our best to overlook this awkward fact and to behave exactly as we should if we had behind us a good Benthamite calculation of a series of prospective advantages and disadvantages, each multiplied by its appropriate probability, waiting to be summed. (Keynes 1937, p. 214)

"The first paperback edition of a classic of American constitutional theory. The book is divided into two parts. In Part I Professor Tushnet appraises the five major competing "grand theories" of constitutional law and interpretation, and, argues that none of them satisfy their own requirements for coherence and judicial constraint. In Part II the author offers a descriptive sociology of constitutional doctrine and raises critical questions as to whether a grand theory is necessary, is it possible to construct a coherent, useful grand theory, and is construction of an uncontroversial grand theory possible? Professor Tushnet's new Afterword is organized in parallel fashion to the original text. Part I offers a new survey of the contemporary terrain of constitutional interpretation. Part II provides an extended discussion of the most prominent of contemporary efforts to provide an external analysis of constitutional law, the idea of regime politics. This includes discussion of major court decisions, including Bush v. Gore and Citizens United"-- Provided by publisher.

The U.S. House of Representatives Judiciary Committee recently passed H.R.1153, the Asylum Reform and Border Protection Act of 2015 (“the ARBP Act”), a bill that restricts immigration to the United States, except for families fleeing persecution because they homeschool their children. For those families, the bill allocates 500 grants of asylum per fiscal year. In contrast, for women and children fleeing persecution from gangs in Central America, the bill prohibits any federal funding for legal representation, imposes a heightened burden of proof, and creates unnecessary procedural hurdles, such as forcing certain asylum applicants to travel to Mexico or another “Safe Third Country” to apply for asylum. - See more at: http://www.reflaw.org/refugee-protection-for-homeschoolers-congressional-efforts-to-amend-the-refugee-definition-and-restrict-protection-for-central-american-refugees/#sthash.V6cmXLVg.dpuf

This paper offers a framework for regulating internalities. Using a simple economic model, we provide four principles for designing and evaluating behaviorally-motivated policy. We then outline rules for determining which contexts reliably reflect true preferences and discuss empirical strategies for measuring internalities. As a case study, we focus on energy efficiency policy, including Corporate Average Fuel Economy (CAFE) standards and appliance and lighting energy efficiency standards.

Debates about legal interpretation frequently bypass or give short shrift to the more basic concept of legal "meaning." Seeking to rectify that deficiency, this Article explores the meaning of "meaning." Examination of familiar terms of legal argument reveals an astonishing number of possible senses of that term - and, correspondingly, an equally large number of possible referents for ultimate claims concerning what legal provisions mean. These referents include a statutory or constitutional provision's semantic or literal meaning, its contextual meaning as framed by the shared presuppositions of speakers and listeners, its "real" conceptual meaning, and its intended, reasonable, and previously interpreted meanings. Proponents of interpretive theories such as textualism and originalism sometimes suggest that legal meaning depends on prelegal, linguistic facts that make one of these kinds or senses of meaning uniquely correct. But that suggestion reflects a misunderstanding about how language works. Framing the challenge for legal interpretation as that of choosing the normatively best referent for claims of legal meaning from among otherwise eligible candidates, this Article shows that textualism and originalism, in particular, lack the resources to make the unique, consistent, categorical selections and exclusions that some versions of those theories purport to achieve. Like a variety of other interpretive theories, they lapse into reliance on case-by-case normative judgments. When understood against the background of a careful delineation of the choices that legal interpretation requires, the aspirations of textualism and originalism help to frame a fundamental question: Given the function of interpretive theories to guide or determine choices among otherwise plausible senses of legal meaning, should such theories do so on a categorical or a case-by-case basis? This Article advocates the latter approach. A due appreciation of the interpretive challenge - which frequently requires a choice among the literal, con-textually framed and limited, real conceptual, intended, reasonable, and interpreted meanings of statutory and constitutional provisions - reveals the stark hubris of proposals that commit in advance to categorical selections or even categorical exclusions.