Faculty Bibliography

This article analyzes the effect of savings-related policies on labor supply in a model that explicitly incorporates myopic decision-making. Both social security and capital taxation may cause labor supply to rise or fall when individuals are myopic, depending on the curvature of individuals' utility as a function of consumption. Moreover, whatever is the sign of these effects under one assumption about how myopia relates to labor supply decisions, the sign is reversed under the other assumption that is considered. Additionally, some interventions have a first-order effect on labor supply from the outset but others do not, and some labor supply effects rise with the magnitude of the intervention whereas others fall.

In diverse areas—from retirement savings, to fuel economy, to prescription drugs, to consumer credit, to food and beverage consumption—government makes personal decisions for us or helps us make what it sees as better decisions. In other words, government serves as our agent. Understood in light of Principal-Agent Theory and Behavioral Principal-Agent Theory, a great deal of modern regulation can be helpfully evaluated as a hypothetical delegation. Shifting from personal decisions to public goods problems, we introduce the idea of reverse delegation, with the government as principal and the individuals as agents.

“There is a war against religion!” “Exemptions on religious groups undermine civil rights!” “Pluralism and tolerance are in jeopardy!” “Freedom for some ends up trumping freedom and equality for others!” Whether any of these individual statements is true, the rising claims of catastrophe by opposing groups across the United States prompted an intense and engaging conference, “Religious Accommodation in the Age of Civil Rights,” held at Harvard Law School on April 3–5, 2014, sponsored by Harvard Law School, the Williams Institute at the University of California in Los Angeles, the American Civil Liberties Union, and the University of Southern California Center for Law, History and Culture. Engaging and intense discussions among forty panelists and over 120 participants generated the articles presented in this issue as well as others filling special issues of two other journals. The focus on accommodations for religion reflects both increasing challenges to traditional denials of rights and protections for lesbian, gay, bisexual, and transgender individuals and religious objections to contraception and abortion. Clashes increase with political and legal advances in legal treatment of marriage equality for same-sex couples and expanding recognition of legal claims of businesses for freedom of speech and religion. Ongoing disagreements over the scope of existing and potential federal, state, and local anti-discrimination laws, health insurance requirements, and other general rules trigger political and social debates but also produce legal questions requiring answers.

The author discusses the special kind of presidential power called imperial presidency termed by American historian Arthur Schlesinger that led U.S. into war on the president's terms. He states that the position of the imperial presidency in international affairs will be secure as long as U.S. foreign policymakers preserves the nation's harmonic role in the world and its position can be dangerous as the world is in stake of war. He also mentions Stephen Griffin's authored book "Long Wars and the Constitution" that discusses the creation of the National Security State in the U.S. during the Cold War.

This Article argues that the same legal standards should apply to RAND commitments whether they are made to standard-setting organizations or not. The arguments for concluding that RAND commitments should limit injunctive patent relief or trigger antitrust liability turn on whether the commitment reasonably induces lock-in that generates hold-up effects or market power when that commitment is breached. But RAND commitments can induce such lock-in effects when they are made outside of standard-setting organizations and do not always induce them when they are made to standard-setting organizations. Thus, any special legal rules for RAND commitments should turn on whether the commitments induced such lock-in, rather than on the institutional context. The arguments against using special legal rules for RAND commitments turn on the extent to which lock-in might fail to generate holdup problems, denying patent injunctions might generate reverse-holdup problems, and contract or promissory estoppel remedies might obviate the need for antirust liability. But those arguments likewise apply equally inside and outside of standard-setting organizations. Thus, however one resolves the arguments for and against applying special legal rules to RAND commitments, the resulting legal standards should be the same whether or not the commitment is made to a standard-setting organization.

This Article draws on empirical analysis, history, and economic theory to show that corporations have begun to displace individuals as direct beneficiaries of the First Amendment and to outline an argument that the shift reflects economically harmful rent seeking. The history of corporations, regulation of commercial speech, and First Amendment case law is retold, with an emphasis on the role of constitutional entrepreneur Justice Lewis Powell, who prompted the Supreme Court to invent corporate and commercial speech rights. The chronology shows that First Amendment doctrine long post-dated both pervasive regulation of commercial speech and the rise of the U.S. as the world’s leading economic power – a chronology with implications for originalists, and for policy. Supreme Court and Courts of Appeals decisions are analyzed to quantify the degree to which corporations have displaced individuals as direct beneficiaries of First Amendment rights, and to show that they have done so recently, but with growing speed since Virginia Pharmacy, Bellotti, and Central Hudson. Nearly half of First Amendment challenges now benefit business corporations and trade groups, rather than other kinds of organizations or individuals, and the trend-line is up. Such cases commonly constitute a form of corruption: the use of litigation by managers to entrench reregulation in their personal interests at the expense of shareholders, consumers, and employees. In aggregate, they degrade the rule of law, rendering it less predictable, general and clear. This corruption risks significant economic harms in addition to the loss of a republican form of government.

The books starts with a discussion of traditional approaches to choice-of-law problems, followed by an examination how modern courts and commentators have struggled to formulate more responsive approaches.

The conclusion of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) in 1994 established a minimum baseline for regulating access to technology and knowledge goods. This global regime of intellectual property rights has since been a contentious aspect of modern economic relations. It has been viewed by consumers around the world as a significant barrier to access to technology and associated knowledge goods, including stymieing opportunities for social and political engagement by citizens. Public disenchantment with intellectual property as a primary regulator of access to technology could be addressed by the explicit linkage of proprietary rights to a new welfare axis comprised of development aspirations, human rights norms, and liberty considerations. To the extent social norms that develop around new technologies facilitate positive returns recognized by these complementary legal regimes, intellectual property rights that are in tension with these regimes will likely continue to lose moral sway, making the future of the TRIPS Agreement far less stable and its minimum obligations more costly to enforce. Moreover, gaps in how formal law and social norms regulate technology are not easily captured by the rigid prescriptions of treaty provisions, and thus the TRIPS Agreement is far less capable of serving the important role of shaping contemporary approaches to access to technology. As technology continues to reach deep into the private lives of citizens, and to affect the capacity and trajectory of national development in less-advanced economies, the design and construction of formal laws around which technology is produced, disseminated, and used will have greater import if they purposefully accommodate other legal orders whose norms resonate powerfully in advancing stylized visions of societal progress and human well-being.

Large law firms patterned on the Anglo-American model can now be found in most major commercial centers around the world. Yet, at the very time that mode of the production of law is spreading around the world, the traditional ‘Cravath System’ upon which the Anglo-American model is based is increasingly under pressure, both by sophisticated clients demanding ‘more for less,’ and by a range of alternative providers offering competing services at the intersection of law, technology, project management, and other professional expertise. This article seeks to explain this paradox and posits some alternative futures for large law firms in the new ‘global age of more for less.’

We often imagine that money is a simple stand-in for value. In fact, money has an internal design; it is collectively engineered by the societies that use it. Decoding money’s design reveals that money holds value based on its use for public obligations and the premium it carries in private exchange. Decoding money’s design also exposes moments of radical change in its collective engineering. Christine Desan compares the design of commodity money with the design of money produced by modern banks of issue. The modern method shares the monopoly traditionally held by the public with private actors, pays them for money creation, and institutionalises self-interest at the heart of the political economy.

In this paper we study the public debate over net neutrality in the United States from January through November 2014. We compiled, mapped, and analyzed over 16,000 stories published on net neutrality, augmented by data from Twitter, bit.ly, and Google Trends. Using a mixed-methods approach that combines link analysis with qualitative content analysis, we describe the evolution of the debate over time and assess the role, reach, and influence of different media sources and advocacy groups in setting the agenda, framing the debate, and mobilizing collective action. We conclude that a diverse set of actors working in conjunction through the networked public sphere played a central, arguably decisive, role in turning around the Federal Communications Commission policy on net neutrality.

Is a negotiated resolution of the Israeli Palestinian conflict possible? Can the parties fashion a comprehensive permanent status agreement at the bargaining table that puts an end to the dispute? To put the question in the jargon of negotiation theory: is there a Zone of Possible Agreement, or “ZOPA”? The article seeks to determine whether there is a ZOPA in regards to the Israeli-Palestinian conflict, and if so, the manner in which it can be emphasized and utilized. The first part uses a simple example to define ZOPA, along with other basic negotiation terms. The second part refers to the feasibility of a ZOPA in the Israeli-Palestinian conflict, and the final section identifies the barriers to an agreement.

“Is the world about to watch 750,000 Somalis starve to death?” asked the New York Times in 2011. The United Nations had declared a famine in Somalia, and hundreds of thousands of Somalis set out on foot across the desert in search of food, shelter, and safety. To make matters worse, al-Shabaab, an al-Qaeda-linked terrorist group, restricted access to famine-affected areas and threatened the safety of humanitarian aid groups. Aid organizations, many funded by the U.S. government, faced an ethical conundrum: they could pay a “tax” to al-Shabaab to access restricted areas and provide life-saving relief to Somalis, but this interaction might contravene U.S. anti-terrorism law. This case study provides an opportunity for students to examine the potential impacts of U.S. material-support-to-terrorism laws in the context of humanitarian crises, through the lens of the 2011 Somalia famine. This background document (A) surveys the decades of political and humanitarian crises before 2011; the rise of al-Shabaab; the history of U.S. foreign assistance, international legal obligations, and material-support regulations; a complicating Supreme Court decision; and the role of Executive Orders and government enforcement agencies. Participants are primed to problem solve, navigate potentially competing domestic and international law and policy, and make ethical and legal decisions in a high-pressure, complex international crisis. This background document may be paired with one or both of the following participant exercises: The National Security Council Dilemma (Part B1, on the challenges in developing a consensus government response to a humanitarian crisis involving terrorists) The NGO General Counsel Dilemma (Part B2, on the legal and ethical issues faced by general counsel advising international humanitarian organizations)

We report the results of an online survey, conducted on behalf of Harvard Law School, of 124 practicing attorneys at major law firms. The survey had two main objectives: (1) to assist students in selecting courses by providing them with data about the relative importance of courses; and (2) to provide faculty with information about how to improve the curriculum and best advise students. The most salient result is that students were strongly advised to study accounting and financial statement analysis, as well as corporate finance. These subject areas were viewed as particularly valuable, not only for corporate/transactional lawyers, but also for litigators. Intriguingly, non-traditional courses and skills, such as business strategy and teamwork, are seen as more important than many traditional courses and skills.

Presentation at the 7th Annual Hunger Action Summit, January 30, 2015, in Santa Clara, CA.

Many regulators have concluded that cost-benefit analysis is the best available method for capturing the welfare effects of regulations. It is therefore understandable that in recent years, some people have been interested in requiring financial regulators to engage in careful cost-benefit analysis of their regulations, and to proceed only if the benefits justify the costs. Ideas of this sort have played a significant role in judicial review of agency action, especially in cases involving the Securities and Exchange Commission. But it is important to distinguish the question whether courts should require cost-benefit analyses, and review them for arbitrariness, from the separate question whether financial regulators should produce such analyses. It is also important to understand that in some cases, cost-benefit analysis presents serious challenges for financial regulators. When agencies lack relevant information, and cannot project benefits (or costs), they can invoke established techniques to discipline the question whether and how to proceed. In particular, breakeven analysis plays a valuable role. Of course it remains possible that in rare cases, agencies have so little information that they cannot even use breakeven analysis. In such cases, it is not helpful to refer to the precautionary principle or to “expert judgment.” In such rare cases, the best that agencies may be able to do is to rely on some version of maximin, while also seeking to fill informational gaps over time.

All over the world, governments are using nudges as regulatory tools. Is this ethical? Much of the answer depends on whether nudges promote or instead undermine welfare, autonomy, and dignity. Many nudges, and those that deserve support, promote some or all of those ideals, and undermine none of them. If welfare is our guide, much nudging is actually required on ethical grounds, even if it comes from government. If autonomy is our guide, much nudging is also required on ethical grounds, in part because some nudges actually promote autonomy, in part because some nudges enable people to devote their limited time and attention to their most important concerns. Finally, nudges should not, and need not, compromise individual dignity, which many nudges actually promote. There is, however, a genuine risk that some nudges might count as manipulation; an emphasis on welfare, autonomy, and dignity helps to show how to avoid that risk.

Despite the fusion of law and equity and the apparent demise of equity as a distinct system, this Article argues that equity is a distinct decision making mode within a legal system. Private law relies on formal structures of rights and rules that can be exploited and abused by opportunists. The possibility of strategic manipulation of the information available to other parties and to courts furnishes a rationale for a second-order safety valve on the formal law. In the Anglo-American tradition this anti-opportunism safety valve corresponds roughly to a major strand of equity jurisprudence. The Article shows that an equitable safety valve is to be found in both traditional equity theory and as a theme in equity, from the maxims to defenses to remedies to procedure. The Article explains and partially justifies the equitable safety valve as an ex post higher-order intervention aimed at a problem of measurement and uncertainty: law needs protection against opportunistic distortion and misuse of probabilistic information used by parties and courts. The importance of equity suggests a rethinking of “actuarialist” assumptions in conventional law and economics about stable and unbiased probabilistic information being available to parties and courts. Opportunists can be regarded as entrepreneurs in doing bad who exploit uncertainty. Once the function of equity as an anti-opportunism device is understood, many jurisprudential debates, especially those revolving around formalism and contextualism, can be seen to be lacking an appreciation of hybrid decision making that equity makes possible. Equity as an anti-opportunism safety valve provides an attractive way out of some thorny dilemmas.

Doubt pervades most laws, becomes alarming when it arises in criminal law, and seems especially discomfiting in the context of Islamic criminal law. In the high-stakes area of American criminal prosecutions, dubious facts or ambiguous laws can result in unjustified deprivations of life, liberty, or property. Criminal prosecutions in early Islamic contexts bore similar risks, which were compounded by the idea of a divine lawgiver who had outlined a set of fixed criminal laws and harsh punishments. In this system, there was no legislature to update the law, no high court to authorize departures from it, and no prosecutor charged with proving facts beyond a reasonable doubt. These features made-and continue to make--doubt in Islamic criminal law not only concerning but also ubiquitous.

This dissertation explores the role of mens rea, or guilty mind, as a factor in jury assessments of guilt and innocence during the first two centuries of the English criminal trial jury, from the early thirteenth through the fourteenth century. Drawing upon evidence from the plea rolls, but also relying heavily upon non-legal textual sources, including popular literature and guides for confessors, I argue that mind was central to how jurors determined whether a particular defendant should be convicted, pardoned, or acquitted outright. I analyze the meaning of the word “felony,” demonstrating that its meaning was considerably more complex in the medieval context than it is now, when it tends to serve as a placeholder for a category of serious crime. An examination of the word’s use in medieval England’s three primary languages—Latin, Middle English, and Anglo-Norman French—reveals that “felony” was often used interchangeably with such concepts as malice, iniquity, treason, and evil. Furthermore, jury acquittals and pardon recommendations reveal a default understanding of felony that involved, in its paradigmatic form, three essential elements: an act that was reasoned, willed in a way not constrained by necessity, and evil or wicked in its essence. Further chapters explore the complicating role of anger, which could exacerbate or reduce the level of guilt attached to an alleged felony; the contours and mechanisms of guilt assessment, including the gradation of particular sins and crimes and the use of confession to access guilty mind; and the peculiar dangers and difficulties involved in the task of judging, a task shared by judges and jurors within the medieval English system of felony adjudication. The dissertation engages with a long-standing discussion on the history of the medieval English criminal trial jury while also initiating a new discourse on this early chapter in the long Anglo-American history of ideas about criminal responsibility. It introduces a new methodological approach for the study of the early criminal trial jury, placing legal texts within a broader cultural context in order to illuminate the concerns of jurors otherwise largely silenced by the formality and brevity of the legal record.

In their eagerness to reward celebrities for the power of their “images,” and to prevent other people from exploiting those images, courts have allowed the right of publicity to distort the First Amendment. The power of the visual image has allowed courts to create an inconsistent, overly expansive regime that would be easily understood as constitutionally unacceptable were the same rules applied to written words as to drawings and video games. The intersection of a conceptually unbounded right with a category of objects that courts do not handle well has created deep inconsistencies and biases in the treatment of visual and audiovisual media, particularly comics and video games. These problems show up both in First Amendment defenses and in copyright preemption analysis. The possible arguments one might offer for treating images differently are insufficient to justify this disparity. The Article concludes that, absent the distortion produced by images, the right of publicity would properly be understood as sharply limited.