Faculty Bibliography

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.

How should the administrative state be organized, from the epistemic point of view? There is a tension or tradeoff between local and global knowledge; this tradeoff implicitly structures a number of debates about the epistemic capacities of line agencies, the Office of Information and Regulatory Affairs, and the administrative state more generally. I will examine the tradeoff between local and global knowledge at two related levels. The first is the scope of the administrative state’s regulatory jurisdiction; this is the large-scale question of government versus markets that is central to the Hayekian program. The second level is the internal organization of the regulatory bureaucracy, within the area committed to the administrative state’s regulatory jurisdiction. Here the industrial organization literature has adapted Hayekian questions to new settings. On the first issue, Hayekian arguments for a constrained administrative state overlook the ability of non-market institutions to aggregate local and tacit knowledge. On the second issue, top-down epistemic coordination of agencies turns out to be indispensable; OIRA aggregates and coordinates dispersed information – information that is dispersed around the bureaucracy, rather than society -- and does so in a manner that cannot be replicated by decentralized horizontal coordination among agencies.

Research on low-cost ways to engage consumers holds promise for tackling the high default rates in debt-collection lawsuits.

It seems fair to say that human rights law takes the human as given. Human beings are particular kinds of entities with particular kinds of psychologies and propensities, and it is the job of human rights law and human rights enforcement to govern that kind of entity, be it through sanctions, education, incentives, or other mechanisms. More specifically, human rights law takes human brains as given. If humans were different kinds of beings, both the mechanisms of getting compliance and possibly the very rules themselves would be different. The purpose of this essay is to very tentatively start to tie together thinking in neuroscience, bioethics, and human rights law to ask whether human rights law should take the nature of human beings, and more specifically, human brains, as given. I sketch the alternative possibility and examine it from a normative and (to a lesser extent) scientific perspective: instead of merely crafting laws and setting up structures that get human beings such as they are to respect human rights, that the human rights approach should also consider embracing attempts to remake human beings (and more specifically human brains) into the kinds of things that are more respectful of human rights law. This is currently science fiction, but there is some scientific evidence that moral enhancement may one day be possible. I call the alternative “moral enhancement to respect human rights law.” To put the aim of the essay in its mildest form it is to answer the following question: if it becomes possible to use enhancement to increase respect for human rights and fidelity to human rights law (whatever you think is constitutive of those categories), and in particular in a way that reduces serious human rights violations, is it worth “looking into?” Or, by contrast, are the immediate objections to such an endeavor so powerful or hard to refute that going in this direction should be forbidden.

Over the spring and summer of 2014, New York City put in place a full-day universal pre-kindergarten (UPK) program. The blistering pace, enormous scale, and administrative complexity of this rollout were all striking: a program that did not exist when funding for it was finalized in March 2014 had put 53,250 four-year-olds in more than 1700 new full-day programs by the first day of school in September. This report provides a detailed account of the launch. It includes an extensive discussion of the city’s use of data science techniques; the city was able to combine and analyze databases in such a way that outreach teams could contact households that were likely to include four-year-olds and help interest parents sign up, all with a sharp eye for the privacy of New Yorkers. The launch as a whole combined the energy of a micro-targeted political campaign with service-oriented, street-level energy, and the lessons New York City learned in the course of this work should be useful to other cities and states.

There is widespread consensus that the legal profession stands at an important inflection point. Traditional models of professional organization, practice, and education are under increasing pressure to adapt to important changes in the environments in which lawyers work. At the same time, these same forces make the profession’s commitment to its traditional ideals of equality and the rule of law more relevant and important than ever. The current status of women in the legal profession mirrors this complex duality. On the one hand, the number of women entering the profession has increased dramatically in recent decades, and women lawyers can now be found in leadership positions in virtually every major legal institution in the country, including three female justices on the United States Supreme Court. And yet, the percentage of women in these top positions remains far below their representation in the profession, even when adjusted for the fact that women did not begin to enter legal practice in significant numbers until the 1970s. To make matters worse, even women who have achieved important career success appear to be leaving their prestigious positions - and the profession as a whole - in alarming numbers. It is against this background that we offer this Preliminary Report on The Women and Men of Harvard Law School. The Preliminary Report presents the results of the Harvard Law School Career Study (HLSCS), conducted by the school’s Center on the Legal Profession (CLP). Begun with a generous grant from a visionary group of women alumnae in connection with the 55th celebration of the graduation of the school’s first female students in 1953, the study seeks to deepen the understanding of the career choices made by HLS graduates by providing for the first time systematic empirical information about the careers trajectories of graduates from different points in the school’s history. In this Preliminary Report, we offer a first look at the Study’s findings about the salient similarities and differences between the careers of the school’s female and male graduates.

Alongside the regulative and integrative functions we theorize for constitutions, a function of legitimation perhaps deserves a focus of its own. By legitimation, I mean the social and communicative processes by which a country’s people sustain among themselves a sense of assurance of the deservingness of its political regime of general and regular support. On the level of political philosophy, the idea of the constitution as a platform for legitimation finds expression in John Rawls’s proposal – named by him as “the liberal principle of legitimacy” – that enactments by political majorities can be justified to dissenters in any given case (regardless of which side of the case you might think true justice and policy would favor) by a showing that the winners have acted within the terms of a good-enough (in the paper’s terms, a “legitimation-worthy”) constitution. The Rawlsian proposal figures as one for what the paper calls “legitimation by constitution” or “LBC.” The paper posits, as a hypothesis, the activity of this idea in a population’s political consciousness, with a view to tracing resultant effects on constitutional-legal practice and debate. As a prime case in point, the paper points to an apparent correlation, within the world of broadly-speaking liberal constitutional thought, of a recent spread of receptivity to the idea of “weak-form” judicial constitutional review with a spread, within that same world, of conviction that a legitimation-worthy constitution would have to include guarantees respecting the so-called socioeconomic rights of citizens vis-a-vis their states. The paper suggest that LBC (the idea) provides a hinge between these two developments.

To fully understand governance and authority in the large corporation, one must attend to politics. Because basic dimensions of corporate organization can affect the interests of voters, because powerful concentrated interest groups seek particular outcomes that deeply affect large corporations, because those deploying corporate and financial resources from within the corporation to buttress their own interests can affect policy outcomes, and because the structure of some democratic governments fits better with some corporate ownership structures than with others, politics can and does determine core structures of the large corporation. In this review piece for the Oxford Handbook on Corporate Governance, we analyze the generalities and then look at core aspects of corporate governance that have been, and continue to be, politically influenced and sometimes politically driven: first, the historically fragmented ownership of capital in the United States; second, the postwar power of labor in Europe and its corporate impact; and, third, the ongoing power of the American executive and the American board as due in part to their influence on political and legal outcomes.

As the U.S. rethinks its stance on mass incarceration, misdemeanor decriminalization is an increasingly popular reform. Seen as a potential cure for crowded jails and an overburdened defense bar, many states are eliminating jail time for minor offenses such as marijuana possession and driving violations, and replacing those crimes with so-called “nonjailable” or “fine-only” offenses. This form of reclassification is widely perceived as a way of saving millions of state dollars — nonjailable offenses do not trigger the right to counsel — while easing the punitive impact on defendants, and it has strong support from progressives and conservatives alike. But decriminalization has a little-known dark side. Unlike full legalization, decriminalization preserves many of the punitive features and collateral consequences of the criminal misdemeanor experience, even as it strips defendants of counsel and other procedural protections. It actually expands the reach of the criminal apparatus by making it easier — both logistically and normatively — to impose fines and supervision on an ever-widening population, a population who ironically often ends up incarcerated anyway when they cannot afford the fines or comply with the supervisory conditions. The turn to fine-only offenses and supervision, moreover, has distributive implications. It captures poor, underemployed, drug-dependent, and other disadvantaged defendants for whom fines and supervision are especially burdensome, while permitting well-resourced offenders to exit the process quickly and relatively unscathed. Finally, as courts turn increasingly to fines and fees to fund their own operations, decriminalization threatens to become a kind of regressive tax, turning the poorest populations into funding fodder for the judiciary and other government budgets. In sum, while decriminalization appears to offer relief from the punitive legacy of overcriminalization and mass incarceration, upon closer inspection it turns out to be a highly conflicted regulatory strategy that preserves and even strengthens some of the most problematic aspects of the massive U.S. penal system.

We show that nonbinding law can have a constraining effect on political leaders, because legal compliance is a costly signal to imperfectly informed voters that the leader is unbiased. Moreover, nonbinding law can also have a liberating effect, enabling some leaders to take action when they otherwise would have done nothing. In addition, we illustrate how voters may face a trade-off between the legal standard that induces optimal behavior of the current leader (i.e., that most effectively addresses the moral hazard problem) and the legal standard that optimizes selection of future leaders (i.e., that most effectively addresses the adverse selection problem). We discuss a range of positive and normative implications that follow from our analysis.

In the United States, exceptionally, an established judicial protocol for constitutional clearance of legislative incursions on freedom of action sets up a two-track scheme, prescribing a searching form of review for a subset of such incursions and a markedly more cursory review for the rest. The model further sets up a general standard of 'fundamentality' by which to sort such incursions into the two classes – as opposed, say, to a name-by-name specification of protected liberties drawn directly from the text of the bill of rights. Political Liberalism, I argue, should be at home with both these features of the U.S. jurisprudence. The role assigned by that jurisprudence to fifth and fourteenth amendment 'liberty' is matched by the role assigned to 'liberty of conscience' in Rawlsian political philosophy; while the second principle of justice (and not, as might appear, any Rawlsian philosophical denial of value to freedom of action 'as such') points toward a refusal of heightened-scrutiny protection for freedom of action across the board. In a Rawlsian well-ordered society, two-track scrutiny would be understandable as a device for holding the two principles of justice in equipoise.

The goal of this post is to highlight one particular problem raised by the Big Data revolution – the problem of price discrimination. Price discrimination describes a situation where a seller, usually a monopolist (or, more generally, a seller with some degree of market power), charges different prices to different consumers for the very same product or service. The seller seeks to identify her customer’s willingness to pay, and then charges higher prices to those consumers who are willing to pay more.

Media fandom is a worldwide cross-cultural phenomenon. Although fandom as a concept has far-reaching and diverse historical roots, this chapter focuses on a particular variety of media fandom that includes as a significant focus the creation of “fanworks...

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.

1st edition 2002; 2nd edition 2006; 3rd edition 2010. Third edition: http://id.lib.harvard.edu/aleph/012608850/catalog. Copyright in a Global Information Economy explores the full range of copyright law and its relationship to technological innovations and globalization. Written with precision and clarity, this ambitious yet manageable casebook elucidates the fundamental disputes of copyright law with incisive and balanced perspective. The book features comprehensive coverage of domestic and international copyright law, a balanced treatment of controversial issues, as well as a wide selection of concisely edited cases, engaging and practical examples and discussions, and photographs that facilitate and stimulate discussion of cases.

Mutant mitochondrial DNA (mtDNA) gives rise to a broad range of heritable clinical syndromes (1). A cure for those affected remains out of reach (1). However, recently developed mitochondrial replacement therapy (MRT) has raised the prospect of disease-free progeny for women carriers (2–4). Moreover, the feasibility of replacing mutant oocytic or zygotic mtDNA with a donated wild-type counterpart in humans has now been firmly established (2–4). In the United Kingdom, legislation regulating the clinical application of MRT, now 10 years in the making, has recently been approved by the House of Commons (5) and the House of Lords (6). The regulatory vetting of MRT in the United States, under way for a year, remains a work in progress (7). Here, we compare and contrast the regulatory history of MRT in the United Kingdom and the United States and examine potential lessons learned.

This is a co-authored foreword to a symposium in Law & Contemporary Problems titled "Theorizing Contemporary Legal Thought." It includes a discussion of the background of the project, a brief summary of the articles included in the issue, and a very short statement from Desautels-Stein and Kennedy on the "loss of faith" indicative of Contemporary Legal Thought.

Traditionally, two general methods have been used to make constitutional law. The first involves creating a constitutional text, and has been done by constituent assemblies convened especially for that purpose or by legislatures either proposing replacement constitutions or more limited constitutional amendments. The second involves interpreting existing constitutional texts, and has been done by specialized constitutional courts or generalist courts. After describing briefly what we know about how constitutional law is made by these traditional methods, this essay turns to some recent innovations in making constitutional law, which I describe generically as involving substantially higher levels of public participation than in the traditional methods: the process of drafting a proposed new constitution for Iceland, and the practice of "public hearings" in the Brazilian Supreme Federal Court. My aim is to identify some features of these newer methods that might be of interest to scholars of comparative constitutional law. For that reason, the essay paints in deliberately broad strokes, isolating features that may point in the direction of a more general understanding of constitution-making processes while ignoring features that may play crucial roles in the two specific processes on which I focus.

This essay offers an overview of US civil rights policy from the nineteenth century to the present. The expansion of the range of substantive interests covered by the term “civil rights” has been accompanied by an increasing emphasis on the connection between equality and civil rights. From the late nineteenth century through the first half of the twentieth, the term referred to racial equality with respect to whatever fit into the category, whether property rights, the right to vote, or social rights. Starting roughly in the middle of the twentieth century, “civil rights” began to be connected to other categories, such as gender, religion, sexual orientation, and by the twenty-first century quite a bit more. After examining the history of the idea and its implementation, the essay concludes with a discussion of contemporary controversies over disparate impact versus disparate treatment, affirmative action, and accommodation mandates.

This brief essay serves as an introduction to a volume of studies by Latin American scholars of constitutional law and theory responding to themes in my work. It outlines the jurisprudential and historical-political background against which my work developed, stressing the important roles played by American Legal Realism and the politics of the 1960s in shaping my thinking. The essay explains how my interest in populist constitutional law and dialogic forms of constitutional review emerged from the same background, but was strengthened by an interest in comparative constitutional law that I developed in the 1990s.

This article examines the relationship between antidumping duties and strategic industrial policy. We argue that the dynamic between the two instruments is more complex and elaborate than that offered by the conventional account. We use the recent China–X-Ray Equipment dispute as a case study to show that linkage between the two instruments may not be the consequence of a government-led policy but instead a result of firm-driven responses to an industrial policy. This in turn may lead to antidumping tit-for-tat behavior between WTO members. We also analyze how WTO litigation serves as a means to alter the payoff and discuss the implications and unresolved questions that remain following the China–X-Ray Equipment ruling by the WTO.

A central justification for social insurance and for other policies aimed at retirement savings is that individuals may fail to make adequate provision during their working years. Much research has focused on myopia and other behavioral limitations. Yet little attention has been devoted to how these infirmities, and government policies to rectify them, influence labor supply. This linkage could be extremely important in light of the large pre-existing distortion due to income and consumption taxation and income-based transfer programs. For example, might myopic individuals, as a first approximation, view payroll taxes and other withholding to fund retirement savings as akin to an income tax, while largely ignoring the distant future retirement benefits that they fund? If so, the distortion of labor supply may be many times higher than otherwise, making savings-promotion policies much more costly than appreciated. Or consider what may be the labor supply implications for an individual who is defaulted into higher savings and, as a consequence, sees concomitantly lower take-home pay. This essay offers a preliminary, conceptual exploration of these questions. In most of the cases considered, savings policies do not act purely like a tax despite individuals’ non-optimizing savings behavior, and in some cases labor supply actually is raised, not lowered, in which event policies that boost savings may be significantly more welfare-enhancing than recognized. Accordingly, there is a compelling need for empirical exploration of the interaction between nonoptimal savings behavior and labor supply.

This article (1) reviews the history of the immigration bed mandate (or bed quota) from 2009 to present, (2) discusses its inconsistent interpretation by the U.S. Department of Homeland Security, and (3) offers reasons why the bed mandate is both constitutionally questionable and bad policy.

The application of the doctrine of standing has become less and less predictable since the Supreme Court’s adoption of a tripartite test for standing in the 1970s. Professor Fallon analyzes the Court’s decisions in standing cases in order to discern patterns in the Court’s application of this test. Fallon concludes that the Supreme Court and legal scholars should embrace the fragmentation of the doctrine of standing and look to discernable patterns in the cases to find general rules of application for different contexts.

What good are theories if they cannot be tested? Election law has wrestled with this question over the last generation. Two new theories have emerged during this period that reject conventional rights-and-interests balancing. In its place, the responsiveness theory asserts that legislators’ positions should be sensitive to changes in the views of their constituents. Similarly, the alignment theory claims that voters’ and legislators’ preferences should be congruent. Unfortunately, both of these theories share a common flaw: They provide no way for anyone to tell whether electoral policies improve or worsen responsiveness or alignment. They operate at too normative a level to be useful to practically minded courts or policymakers. They are caught in clouds of abstraction. This Article is an attempt to pull the theories down from the clouds. In the last few years, data has become available, for the first time, on voters’ and legislators’ preferences at the state legislative level. We use this data to calculate responsiveness and alignment for both individual legislators and whole legislative chambers, across the country and over the last two decades. We also pair these calculations with a new database of state electoral policies that covers the areas of (1) franchise access, (2) party regulation, (3) campaign finance, (4) redistricting, and (5) governmental structure. This pairing enables us to estimate the policies’ actual effects on responsiveness and alignment. Our results mean that laws’ representational impact now is a matter of empirics, not conjecture. Courts that wish to decide cases in accordance with the responsiveness or alignment theories may do so by consulting our findings. Policymakers who aim to enact beneficial reforms may do the same. And academics no longer have an excuse for debating the theories from a purely normative perspective. Now that the “is” has been intertwined with the “ought,” the “is” no longer may be ignored.

We suggest thinking about the beginning and ending of wars as an exercise in risk management. We argue that states, like individual citizens, must accept that some degree of security risk is inevitable when coexisting with others. We offer two principles for the just management of military risk. The first principle is Morally Justified Bearable Risk, which demands that parties at war temper their claims of justice with the realities of an anarchic and conflicted international system. The second principle, Minimum Consistency toward Risk, mandates that states generally not weigh security threats higher than risks from other sources.

On January 20, 2015, Michael J. Davidson, MD, a cardiothoracic surgeon, was fatally shot on the premises of the Brigham and Women’s Hospital in Boston, Massachusetts. In the year leading up to this tragic day, a total of 14 active shooter incidents occurred in hospitals throughout the United States, leaving 15 fatalities in their wake. This reality and its potential amplification by copycats has reignited the debate over the adequacy of current and future hospital security arrangements. In this Viewpoint, we discuss the evolving frequency of hospital-based active shooter incidents, the relevant legal framework, and the role of hospitals and physicians in countering this threat.

Human beings show a greater inclination to assist (and avoid harming) persons and groups identified as those at high risk of great harm than to assist (and avoid harming) persons and groups who will suffer (or already suffer) similar harm but are not identified (as yet). The problem touches almost every aspect of human life and politics: health, the environment, the law. This volume is the first book to tackle the effect from all necessary perspectives.

MERS represents a major departure from and grave disruption of recording practices in counties such as Montgomery County, Pennsylvania, that have traditionally ensured the orderly transfer of real property across the country. Prior to MERS, records of real property interests were public, transparent, and provided a secure foundation upon which the American economy could grow. MERS is a privately run recording system created to reduce costs for large investment banks, the “sell-side” of the mortgage industry, which is largely inaccessible to the public. MERS is recorded as the mortgage holder in traditional county records, as a “nominee” for the holder of the mortgage note. Meanwhile, the promissory note secured by the mortgage is pooled, securitized, and transferred multiple times, but MERS does not require that its members enter these transfers into its database. MERS is a system that is “grafted” onto the traditional recording system and could not exist without it, but it usurps the function of county recorders and eviscerates the system recorders are charged with maintaining. The MERS system was modeled after the Depository Trust Company (DTC), an institution created to hold corporate and municipal securities, but, unlike the DTC, MERS has no statutory basis, nor is it regulated by the SEC. MERS’s lack of statutory grounding and oversight means that it has neither legal authority nor public accountability. By allowing its members to transfer mortgages from MERS to themselves without any evidence of ownership, MERS dispensed with the traditional requirement that purported assignees prove their relationship to the mortgagee of record with a complete chain of mortgage assignments, in order to foreclose. MERS thereby eliminated the rules that protected the rights of mortgage holders and homeowners. Surveys, government audits, reporting by public media, and court cases from across the country have revealed that MERS’s records are inaccurate, incomplete, and unreliable. Moreover, because MERS does not allow public access to its records, the full extent of its system’s destruction of chains of title and the clarity of entitlements to real property is not yet known. Electronic and paper recording systems alike can contain errors and inconsistencies. Electronic systems have the potential to increase the accessibility and accuracy of public records, but MERS has not done this. Rather, by making recording of mortgage assignments voluntary, and cloaking its system in secrecy, it has introduced unprecedented and perhaps irreparable levels of opacity, inaccuracy, and incompleteness, wreaking havoc on the local title recording systems that have existed in America since colonial times.

Joseph P. Fishman’s Creating Around Copyright advances a provocative thesis: some restrictions on creativity can spur the development of additional creative solutions, and (some level of) copyright might be one of those restrictions. If Picasso was right that “forcing yourself to use restricted means is the sort of restraint that liberates invention,” then being forced by law to use restricted means might do the same thing, ultimately leading to more varied and thus more valuable works. At the outset, it’s important to know the baseline against which we ought to evaluate Fishman’s claims. Most copyright restrictionists, of whom I count myself one, don’t want to eliminate all copyright law. Fishman’s argument is directed at creators who want to take an existing work and do something with it — incorporate parts of it into a new creative work or make a derivative work based on it. Because the question is the proper scope of copyright as applied to these works, the comparison should not be to a world without copyright, but should instead focus on the marginal effects of expanding or contracting copyright’s definitions of substantial similarity and derivative works. Once the question is properly framed, I have concerns about the major analogies Fishman uses — patent law and experimental evidence about other types of constraints on creativity — as well as his model of the rational creator.

The volume examines the public/private distinction in the cultures and religions of the ancient Mediterranean, in the formative periods of Greece and Rome and the religions of Judaism, Christianity and Islam.

Happiness and the Law is an important book. Bronsteen, Buccafusco and Masur (BBM) provide a well-written, thought-provoking, rigorous introduction to hedonic psychology and its many potential applications in law and policy. Numerous lessons are already ripe for consumption by policymakers. Other ideas set the stage for a fruitful research agenda that will influence policy in years to come.

Review of Daniel R. Ernst's Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940.

This essay is a review of Edna Ullmann-Margalit’s pathbreaking 1978 book, The Emergence of Norms. It urges that Ullmann-Margalit’s treatment of PD norms and coordination norms remains convincing, but that a great deal of work remains to be done on the topic of norms of partiality, where adaptive preferences and preference falsification play significant roles. It also emphasizes the importance of distinguishing between causal and functional accounts of norms.

Corporate Governance 2.0 is not quite a clean-sheet redesign of the current system, but a back-to-basics reconceptualization of what sound corporate governance means. It is based on three core principles: 1. Boards should have the right to manage the company for the long term. 2. Boards should install mechanisms to ensure the best possible people in the boardroom. 3. Boards should give shareholders an orderly voice. The shift is vital in the United States, where the power of shareholders has increased over the past ten years and the natural instinct of boards is to cave to activist demands. Over the long term, a Corporate Governance 2.0 perspective would transform corporate governance from a never-ending conflict between boards and shareholders to a source of competitive advantage in the marketplace.