Faculty Bibliography

As Biden’s campaign shifts into high gear, you don’t need fantasy to believe he can win.

In new research, Alma Cohen finds that the political affiliations of Circuit Court judges influence decisions in a much wider variety of cases than previously thought.

Similar investments are often taxed differently, rendering our system less efficient and fair. In principle, fundamental reforms could solve this problem, but they face familiar obstacles. So instead of major surgery, Congress usually responds with a Band-Aid, denying favorable treatment to some transactions, while preserving it for others. These loophole-plugging rules have become a staple of tax reform in recent years. But unfortunately, they often are ineffective or even counterproductive. How can Congress do better? As a case study, we analyze Section 1260, which targets a tax-advantaged way to invest in hedge funds. This analysis is especially timely because a multi-billion dollar litigation is pending about this rule. This Article proposes a three-step approach. First, when faced with a new type of tax planning, policymakers should decide whether a response is really necessary. How harmful is the transaction? How feasible is it to target this transaction without also burdening “good” transactions, which don’t involve the same abuse? This first phase determines what we call “the normative presumption” about the transaction. Second, Congress should define which transactions are potentially problematic. An “initial filter” should exempt transactions that clearly don’t pose the relevant concern. Third, once a transaction is deemed to be potentially problematic, a sophisticated test is needed to check whether it actually is. Admittedly, a sophisticated test is costly to administer. This is why initial filters are needed to limit how often it is used. Along with proposing this three-part framework, this Article offers a novel critique of a sophisticated test the government has begun using: a “delta” test, which measures how closely investments track each other. Although delta is often considered the gold standard, we show how easy it is to manipulate. The trick is to add contingencies (e.g., so the investment terminates when the price reaches a specified level). To head off this gaming, we recommend an alternative test that focuses on value instead of on changes in value–and, more generally, on enduring features instead of temporary quirks.

Background: Clinicians and their employers, concerned with privacy and liability, are often hesitant to support the recording of clinical encounters. However, many people wish to record encounters with healthcare professionals. It is therefore important to understand how existing law applies to situations where an individual requests to record a clinical encounter. Methods: We searched for and reviewed relevant legal documents that could apply to recording clinical encounters. We limited the scope by purposefully examining relevant law in nine countries: Australia, Brazil, Canada, France, Germany, India, Mexico, the United Kingdom and the United States. We analyzed legal texts for consents needed to record a conversation, whether laws applied to remote or face-to-face conversations and penalties for violations. Findings: Most jurisdictions have case law or statutes, derived from a constitutional right to privacy, or a wiretapping or eavesdropping statute, governing the recording of private conversations. However, little to no guidance exists on how to translate constitutional principles and case law into advice for people seeking to record their medical encounters. Interpretation: The law has not kept pace with people’s wish to record clinical interactions, which has been enabled by the arrival of mobile technology.

Changing America’s founding document may seem prohibitively difficult, but there’s a proven path to getting it done.

US cities are regulating private use of technology more actively than the federal government, but the likely effects of this phenomenon are unclear. City lawmaking could make up for national regulatory shortfalls, but only if cities can thread the needle of special interests and partisanship.

Data is an integral part of healthcare delivery. A growth in digital technologies has produced large swaths of health data that contain individuals’ personal, and often sensitive, information. A key question for policymakers is how to regulate the collection, storage, sharing, and disclosure of this information. In this chapter, the authors evaluate two different types of regulatory enforcement mechanisms: public rights of action (where the government sues) and private rights of action (where private persons sue). They use a recent case to illustrate the advantages and drawbacks of private rights of action in health data privacy cases, and then use this analysis to contrast them with public rights of action. Their analysis suggests that public and private rights of action should be viewed as complementary regulatory tools, rather than competing alternatives. In short, both public and private rights of action have important roles in regulating health data. To ensure private rights are effective regulatory tools, policy makers should pay particular attention to how those rights of action are designed and implemented.

Senate Republicans’ brief in the Supreme Court surprisingly argues just that.

In this retrospective honoring the exemplary psychologist Daniel Kahneman (1934–2024), the authors present a curated selection of quotes from the academic community reflecting on his ideas. These submissions, gathered from a wide range of scholars, highlight Kahneman’s contributions to fields spanning attention, judgment, decision-making, and well-being. From his exploration of cognitive biases to his groundbreaking work on prospect theory, Kahneman’s research revolutionized researchers’ understanding of human behavior and decision-making. Beyond his research, many quotes also emphasize Kahneman’s thoughts on what it means to be a behavioral scientist—focusing on a commitment to criticism, transparency, and adversarial collaboration; showcasing the dynamic nature of scientific inquiry across disciplinary divides; and highlighting his dedication to advancing the greater good. Together, these reflections paint a portrait of a visionary thinker whose theoretical and meta-scientific contributions have left an indelible mark on psychology and other social sciences.

We propose a new and better way to align the interests of lawyers and clients. A lawyer, representing a plaintiff, enjoys de facto control over the effort spent pursuing the case and over settlement decisions. It is well-known that hourly fees may create incentives for over-lawyering and excessive delay, while percentage fees may create incentives for under-lawyering and early settlement at disadvantageous terms. With our new method, the lawyer is paid by the hour but their pay is capped by the plaintiff's net recovery in excess of the rejected settlement offer. Benchmarking against the defendant's settlement offers aligns the lawyer's incentives with the plaintiff's, avoids windfall attorney fees, and gets the defendant to make early and reasonable settlement offers. Our method harnesses the information and incentives of the defendant to solve agency problems between the plaintiff and their lawyer and reduce the administrative burden on the court.

This Article defends a structural theory of the brutality of the carceral state. We argue that American penal systems are destined to be inhumane, barring sweeping changes to the social and economic order of the United States; and that prison and police abolition are neither sufficient nor necessary to bring these kinds of changes about. This theory stands on two premises. First, we defend The Principle of Less Eligibility, which holds that it is politically infeasible for capitalist democracies to permit the incentives to defy the law to exceed those to obey it. As we show, the Principle of Less Eligibility implies that the brutality of the American carceral state is a symptom of the clustered and concentrated disadvantage that define the American ghetto. Second, we show that social policy is bedeviled by what we call The Efficiency-Feasibility Paradox. Hyper-targeted social programs are a more efficient way to improve the lives of the least well-off than universal social policy. But it is politically infeasible for governments to fund hyper-targeted programs at the scale necessary to eliminate the American ghetto. Abolishing the American ghetto will require appealing to the interests of a broad majority.

This book provides a new theoretical perspective to election law showing how alignment theory would operate in practice, in both litigation and legislation.

Experimental research on judicial decision-making is hampered by the difficulty of recruiting judges as experimental participants. Can students be used in judges’ stead? Unfortunately, no—at least if the objective is to study legal reasoning. We ran the same high-context 2 × 2 factorial experiment of judicial decision-making focused on legal reasoning with 31 U.S. federal judges and 91 elite U.S. law students. We obtained diametrically opposed results. Judges’ decisions were strongly associated with one factor (sympathy, i.e., bias) but not the other (law). For students, it was the other way around. Equality between the two groups is strongly rejected. Equality of document-view patterns—a proxy for thought processes—and written reasons is also strongly rejected.

Times v. Sullivan sets a striking principle: without (nearly unobtainable) proof of “actual malice,” public officials can’t win defamation suits. If public persons’ reputations conflict with free discourse, the latter wins. Sullivan is iconic. But it’s increasingly beleaguered, said to immunize lies that tear our polity apart. These fears are well-founded. The Sullivan Regime is broken. But understanding why starts not, as critics suggest, from new technology or constitutional doctrine. It starts from the tort of defamation. What interest does the defamation tort protect? What injury does it redress? Leading accounts look to property, dignity, or other values. But these miss something vital. In our polity, a central, serious harm defamation redresses is democratic disempowerment: the destruction of political efficacy in one’s community. Defamation victims (say, those falsely branded sex offenders) lose more than honor. They lose their ability to be credibly heard, participate in civic discussion, have their voices matter. They are discredited. And in our democracy, where participation is core to personhood, this wrong is profound indeed. This insight shows Sullivan, in balancing vigorous press against defamation suits, wasn’t trading “speech” against “non-speech” (say, politicians’ dignity). Rather, the balance was among speech priorities—vigorous press, and democratically enabled People. Silencing by lawsuits, versus silence by slanders. But Sullivan saw speech on just one side. And in our Viral Age, this error causes crisis: a wave of democratic disempowerment, crashing hardest at democracy’s front lines (school boards, election workers, journalists). Fortunately, seeing the problem shows how we might solve it. End “actual malice” for most public persons, but end all defamation suits brought by the very powerful. Make swifter merits decisions, but re-empower lay juries. Surer defeats for nuisance plaintiffs, but stark damages for egregious defamers. Bold, paradoxical shifts to protect both vigorous critique and democratic participation. And which help tame broader discontents—from baseless conspiracies to bigoted cybermobs. Lastly, most broadly, seeing defamation this way hints at a new private law paradigm: one taking democratic efficacy as a core personal interest (like our bodies, lands, and psyches). Today, this interest faces new threats (like lawless “deplatformings”) but is ill-served by old protectors (like constitutional doctrines). In this context, democracy torts—civil remedies to guard our democratic efficacy—hold great promise.

Adjacent to the recent (and ongoing) legal disputes over admissions to elite university programs, parallel disputes over admission to the most selective high schools continue. New York City operates the best known of these high schools and chooses its students through blindly graded exams. Critics--including prominent scholars like Stanford's Richard Banks and Yale's Daniel Markovitz--argue that the exams favor the wealthy. The Obama administration urged the high schools to replace their blind exams with a random selection mechanism for all applicants who met a minimum competency standard. For decades, the Tokyo Board of Education had similarly maintained an elite high school and had similarly selected its students through a blind exam. Under similar egalitarian pressure, it replaced the exam with what would in time become the Obama administration template: the combination of a minimum competency exam with random selection. Almost immediately, the most promising students abandoned public high schools entirely. They shifted to what had previously been inferior private schools. The best of these private schools raised their standards in response, and public education in Tokyo never recovered. Students learn best when taught at their level. The brightest students learn best when taught at a level that challenges them, and with which other students could never keep up. Bright Tokyo students wanted that challenge. When the public schools denied it to them, they left the public schools en masse.

This chapter provides an updated examination of public enforcement efficacy in the context of securities regulation. We summarize the literature exploring the relationship between enforcement and other measures of robust capital markets; between enforcement and capital flows, valuations, and cross-listing decisions; and between enforcement and the success of regulatory reform efforts. We also review recent efforts to employ more sophisticated econometric methods to tease out the direction of causality between enforcement intensity and robust capital markets. We conclude by surveying a new frontier for the public enforcement of securities laws: cryptocurrencies. Overall, existing scholarship confirms that greater levels of public enforcement are associated with key measures of robust capital markets.

Instant-runoff voting (“IRV”) is having a moment. More than a dozen American localities have adopted it over the last few years. So have two states. Up to four more states may vote on switching to IRV in the 2024 election. In light of this momentum, it’s imperative to know how well IRV performs in practice. In particular, how often does IRV elect the candidate whom a majority of voters prefer over every other candidate in a head-to-head matchup, that is, the Condorcet winner? To answer this question, this Article both surveys the existing literature on American IRV elections and analyzes a new dataset of almost two hundred foreign IRV races. Both approaches lead to the same conclusion: In actual elections—as opposed to in arithmetical examples or in simulated races—IRV almost always elects the Condorcet winner. What’s more, a Condorcet winner almost always exists. These findings help allay the concern that candidates lacking majority support frequently prevail under IRV. The results also reveal an electorate more rational than many might think: voters whose preferences among candidates are, at least, coherent in virtually all cases.

The Supreme Court decided two cases of central importance to free speech during the 2022 term – in both cases without addressing the First Amendment implications. In Andy Warhol Foundation v. Goldsmith, the Court upheld a ruling that Andy Warhol’s reworkings of Lynn Goldsmith’s photograph of the artist Prince into highly stylized silkscreens and drawings were not transformative, and thus were unfair, at least when images of the artworks were licensed to illustrate articles about Prince. In Jack Daniel’s v. VIP Products, the court found that a parody dog toy in the general shape of a Jack Daniel’s bottle, with the label “Bad Spaniels,” deserved no special protection for its parody against Jack Daniel’s trademark claim. The Court reached these results using ideas about the lesser status of profitable speech that it flatly rejected in other cases the same term, and with rationales that seem directly at odds with its First Amendment jurisprudence. In this Article, we show that the Court’s decisions cannot be reconciled with its approach to any other area of speech and that they are already having pernicious effects in the lower courts. We consider some possible explanations for the inconsistency: the possibility that the Court just doesn’t see First Amendment issues in IP cases; the possibility that a political realignment has left conservative Justices less enchanted with speech in the marketplace; and the possibility that this is part of a broader trend away from holding courts to the same constitutional standard as the other branches of government, combined with statutes that leave room for substantial judicial discretion in individual cases. Whatever the explanation or explanations, the decisions in Warhol and Jack Daniel’s to cut back dramatically on judicially-created, speech-protective rules may have the ironic effect of forcing the Court to confront directly the constitutional fragility of much modern IP law.

Does the Constitution guarantee free speech on university campuses? The Supreme Court has essentially said so, at least insofar as we are speaking of public universities. Some private universities are interested in adhering to the First Amendment, even though it does not bind them. But what do First Amendment protections entail or require? It is clear that in general, universities may not discriminate on the basis of viewpoint. It is also clear that as educational institutions, universities may sometimes regulate speech to protect their essential mission – by, for example, forbidding “true threats,” prohibiting plagiarism, protecting speakers from being shouted down, forbidding students from taking over buildings, and ensuring that students and teachers focus on the topics of their courses. By exploring thirty-seven scenarios, it is possible to concretize these general propositions, and to see which questions are easy and which questions are hard. The broadest conclusion is that to the extent that universities seek to comply with the First Amendment, they must permit a great deal of speech that is offensive, hateful, and even horrifying.

Election law has changed over the last decade. What will access to voting look like in the future?

From a human rights perspective, impeachment offers an extraordinary mechanism for halting or preventing violations serious enough to motivate the legislature’s intervention. The need for this mechanism is greatest when officials who cannot otherwise be removed are committing or directing the violations. Historically, impeachment has often served human rights goals. Nonetheless, the power of impeachment has also been abused for partisan advantage or to undermine the independence of the judiciary. Human rights tribunals have articulated limits on the impeachment process to protect the rights of officials and of the voters who supported them. These limits also need to preserve the potential of impeachment for protecting democracy and human rights.

Despite heightened awareness of fairness issues within the machine learning (ML) community, there remains a concerning silence regarding discrimination against a rapidly growing and historically vulnerable group: older adults. We present examples of age-based discrimination in generative AI and other pervasive ML applications, document the implicit and explicit marginalization of age as a protected category of interest in ML research, and identify some technical and legal factors that may contribute to the lack of discussion or action regarding this discrimination. Our aim is to deepen understanding of this frequently ignored yet pervasive form of discrimination and to urge ML researchers, legal scholars, and technology companies to proactively address and reduce it in the development, application, and governance of ML technologies. This call is particularly urgent in light of the expected widespread adoption of generative AI in many areas of public and private life.

The foundations of modern administrative law were laid in 1980, with the disparate opinions of a sharply divided Court in Industrial Union Department, AFL-CIO v. American Petroleum Institute (commonly referred to as the "Benzene Case"). Consider four points. (1) The Benzene Case is now understood to be the first contemporary appearance of the Major Questions Doctrine. (2) The Benzene Case marked the return of the nondelegation doctrine, signaled most plainly by then-Justice William Rehnquist's elaborate concurring opinion but also by a favorable reference in the plurality opinion by Justice John Paul Stevens and an open-minded sentence from Justice Lewis Powell. (3) The Benzene Case is the origin of contemporary cost-benefit default principles, permitting the requiring agencies to exempt de minimis risks, to consider costs, and to engage in some form of cost-benefit balancing, unless Congress has squarely said otherwise. (4) The Benzene Case essentially defined "significant risk," with a precise numerical definition (one in one thousand) that persists at the Department of Labor to this day. At the same time, a close analysis of the plurality opinion in the Benzene Case shows that it is best understood as a specification, above all, of the Absurdity Canon--a Church of the Holy Trinity v. United States for the modern administrative state--with the specific purpose of ensuring against the imposition of high costs for small benefits, and thus of requiring a kind of proportionality between costs and benefits. So understood, the Benzene Case had, and continues to have, an important and salutary effect on regulatory programs. Its significant and much broader current role, more than four decades after the opinions were issued, is an intriguing case study in doctrinal development, and in particular, how Supreme Court decisions can plant small seeds that become big trees.

This Viewpoint discusses the litigation strategy of state-initiated lawsuits alleging illegal and immoral conduct regarding the pricing of insulin by pharmaceutical companies and pharmacy benefit managers.

There is little credible evidence to help inform policy and practice for remote courts. In this study of self-represented family law litigants, preliminary information suggests that remote court may not affect appearance rates or case timelines but may come at a cost in terms of litigants’ perceptions of fairness.

When medical AI systems fail, who should be responsible, and how? We argue that various features of medical AI complicate the application of existing tort doctrines and render them ineffective at creating incentives for the safe and effective use of medical AI. In addition to complexity and opacity, the problem of contextual bias, where medical AI systems vary substantially in performance from place to place, hampers traditional doctrines. We suggest instead the application of enterprise liability to hospitals—making them broadly liable for negligent injuries occurring within the hospital system—with an important caveat: hospitals must have access to the information needed for adaptation and monitoring. If that information is unavailable, we suggest that liability should shift from hospitals to the developers keeping information secret.

This chapter examines the role of liability in shaping the use of artificial intelligence (AI) in medicine. It examines various forms of liability—physician medical malpractice, lack of informed consent, corporate liability for hospitals, and developer liability. Finally, it turns to the preemption of liability and regulation. This chapter focuses primarily on US law, with some reference to EU law.

Millions of times every year, American prosecutors make the all-important decision whether to decline or file formal criminal charges after police have made an arrest. This declination decision determines whether an arrest will become a full-fledged criminal case and thus whether an individual arrestee will become a defendant. It establishes the classic dividing line between investigation and adjudication, triggering numerous constitutional consequences. Through declination, prosecutors also check and regulate police decision-making within the executive branch. In an era of racialized mass incarceration, prosecutorial declination can function as a mode of equitable gatekeeping, regulating the impact of sloppy or biased policing practices on communities, courts, and the rest of the criminal pipeline. It is therefore a unique structural moment of institutional and constitutional significance. Declination is especially influential because police and prosecutors are the two main decision-makers within the carceral executive branch. This Article conceptualizes the relationship between them as an overlooked example of internal separation of powers, with the declination decision as its most impactful regulatory moment. Administrative law teaches that intrabranch checks are vital, especially when interbranch separation of powers has proven ineffective as it famously has with respect to the penal executive. The prosecutorial declination decision, in turn, is an especially promising intrabranch checking tool. It offers decisional friction, oversight, and accountability within the executive at precisely the moment when good law enforcement decision-making makes a big difference for millions of people. In our massive misdemeanor system, this regulatory promise usually fails. Misdemeanor prosecutors routinely rubber-stamp police arrest decisions and convert arrests automatically into formal charges: namely, they abdicate their screening and checking functions by deferring to police. Misdemeanor declination rates are typically very low—often less than five percent—which means that police effectively get to decide not only who will be arrested but who will be formally charged with a crime. This is not how the criminal system is supposed to work. In administrative law terms, such prosecutorial abdication is a violation of basic branch design and a worrisome species of intrabranch collusion. It is, however, neither universal nor foreordained. Around the country, many newly elected prosecutors have embraced strong misdemeanor declination policies, not only as a way of checking police but increasing equity, efficiency, and accountability. Such policies exemplify how misdemeanor declination is an underappreciated opportunity to regulate the penal executive from within and to mitigate the excesses and injustices of the low-level carceral state.

Liberals see human beings as subjects, not objects. They reject despotism in its many forms. With Justice Robert Jackson, liberals believe that “compulsory unification of opinion achieves only the unanimity of the graveyard.” Liberal authoritarianism is an oxymoron. Illiberal democracy is illiberal, and liberals oppose it for that reason. Liberals are puzzled by many of those, on the left and the right, who describe themselves as “antiliberal” or “postliberal.” With respect to some claims of “antiliberals” or “postliberals,” liberals agree with Amos Tversky and Daniel Kahneman: “The refutation of a caricature can be no more than a caricature of refutation.” With respect to those claims of “antiliberals” or “postliberals” that do not amount to a caricature, liberals insist on the importance of freedom of thought and action and deliberative democracy, and on the need to respect reasonable pluralism.

The philanthropic sector is highly consequential, particularly in the United States, and the most important policies directed toward this sector are tax policies. Yet most economic analysis of the optimal tax treatment of charitable giving is ad hoc, treating it as a subject unto itself. This article advances a different approach: integrating the tax treatment of charitable giving into the optimal income tax framework that has been developed over the past half century. The results supplement or overturn conventional wisdom. Notably, the analysis of revenue effects and the purported efficiency of subsidies to charitable giving is recast, focusing on the pertinent externalities rather than the direct revenue costs, which themselves are irrelevant in the basic case. Distributive concerns regarding donors are also misplaced because distributive effects can be offset by tax rate adjustments to the broader income tax and transfer system. These ideas are developed systematically, with an emphasis on intuition rather than technical formalism. The analysis also broadens and deepens the assessment of externalities from charitable giving, which are more numerous and heterogeneous than is generally recognized. Finally, refocusing our understanding of the optimal tax treatment of charitable giving identifies important subjects requiring further research.

With textualism’s ascendancy, courts increasingly invoke the canon to assume “ordinary meaning” unless the context indicates otherwise and the rule to enforce “plain meaning” regardless of extratextual considerations. Yet the relationship between ordinary meaning and plain meaning can become confused in practice. Courts use the terms interchangeably, and they conflate them doctrinally. Ordinary meaning and plain meaning are distinct. Ordinary meaning is what the text would convey to a reasonable English user in the context of everyday communication. Plain meaning refers to a judgment that whatever the text conveys in context is clear from the text. Thus, a term’s ordinary meaning is also its plain meaning only when it is clear from how the term is used in the statute that its context is ordinary, as opposed to technical. Courts conflate the two, however, when they assume ordinary meaning under the ordinary meaning canon and then conclude that they are therefore bound to enforce that meaning under the plain meaning rule. As a result, they end interpretation prematurely, excluding extratextual aids that might well show that the ordinary meaning assumption should give way. This Article is the first to investigate the relationship between ordinary meaning and plain meaning. It clarifies their differences, identifies the ways in which they are conflated, and evaluates when they should converge. For textualists, greater clarity on this score illuminates when and how to bring ordinary meaning and plain meaning together in a principled manner. For methodological pluralists, understanding the gap between ordinary meaning and plain meaning opens opportunities to argue beyond the text in our increasingly textualist world.