Faculty Bibliography

Upon the release of the Dobbs decision, the public and legal academic conversation quickly shifted to implications for other rights closely connected to substantive due process. Justice Alito’s opinion attempts to argue that abortion’s involvement of “potential life” is what distinguishes abortion from other substantive due process rights. This chapter argues that reproductive technologies, specifically those that involve embryo destruction, are directly implicated by Alito’s language. The Dobbs decision erects a barrier to a federal constitutional right to engage in reproductive technologies involving embryo destruction, raises the possibility that states that prohibit abortion could restrict embryo destruction (though data on public opinion suggests few will), and creates normative questions about embryo destruction that turn on particular theories of embryonic/fetal personhood. The chapter concludes that some who believe abortion should be restricted should also oppose embryo destruction, and that some who oppose abortion restrictions should not oppose restrictions on embryo destruction.

Poor nutrition and food insecurity are drivers of poor health, diet-related diseases, and health disparities in the U.S. State Medicaid Section 1115 demonstration waivers present opportunities to pilot food-based initiatives to address health outcomes and disparities. Several states are now leveraging 1115 demonstrations, but the scope and types of utilization remain undefined. To fill this gap, we conducted a systematic analysis of state Medicaid Section 1115 applications and approvals available on Medicaid.gov through July 1, 2023. We found that 19 approved and pending 1115 waivers address nutrition, with 11 submitted or approved since 2021. Fifteen states provide or propose to provide screening for food insecurity, referral to food security programs, and/or reporting on food security as an evaluation metric. Thirteen provide or propose to provide coverage of nutrition education services. Ten provide or propose to provide direct intervention with healthy food. The primary target populations of these demonstrations are individuals with chronic diet-sensitive conditions, mental health or substance use disorders, and/or who are pregnant or post-partum. Since 2021, state utilization of Medicaid 1115 demonstrations to address nutrition has accelerated in pace, scope, and population coverage. These findings and trends have major implications for addressing diet-related health and healthy equity in the U.S.

This chapter explores the implications of the Supreme Court’s revocation of pregnant person’s right to choose to terminate a pregnancy; specifically, it explores implications for individuals’ right to choose to prevent a pregnancy through the purchase and use of contraceptives.Examining what the justices explicitly stated about the impact of the decision in Dobbs v. Jackson Women’s Health Organization on access to contraception, what they did not discuss, and what are likely and possible effects of the discussion, the chapter explores immediately and grave uncertainty and heightened risk not only of unwanted pregnancies but also of job and wage insecurity for many people who can become pregnant as well as jeopardy to public confidence in the courts and law.

The expected societal impact of quantum technologies (QT) urges us to proceed and innovate responsibly. This article proposes a conceptual framework for Responsible QT that seeks to integrate considerations about ethical, legal, social, and policy implications (ELSPI) into quantum R&D, while responding to the Responsible Research and Innovation dimensions of anticipation, inclusion, reflection and responsiveness. After examining what makes QT unique, we argue that quantum innovation should be guided by a methodological framework for Responsible QT, aimed at jointly safeguarding against risks by proactively addressing them, engaging stakeholders in the innovation process, and continue advancing QT (‘SEA’). We further suggest operationalizing the SEA-framework by establishing quantum-specific guiding principles. The impact of quantum computing on information security is used as a case study to illustrate (1) the need for a framework that guides Responsible QT, and (2) the usefulness of the SEA-framework for QT generally. Additionally, we examine how our proposed SEA-framework for responsible innovation can inform the emergent regulatory landscape affecting QT, and provide an outlook of how regulatory interventions for QT as base-layer technology could be designed, contextualized, and tailored to their exceptional nature in order to reduce the risk of unintended counterproductive effects of policy interventions. Laying the groundwork for a responsible quantum ecosystem, the research community and other stakeholders are called upon to further develop the recommended guiding principles, and discuss their operationalization into best practices and real-world applications. Our proposed framework should be considered a starting point for these much needed, highly interdisciplinary efforts.

As the Israel-Hamas war provokes claims about unacceptable speech, the ability to debate difficult subjects is in renewed peril.

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.

Scientific evidence regularly guides policy decisions, with behavioural science increasingly part of this process. In April 2020, an influential paper proposed 19 policy recommendations (‘claims’) detailing how evidence from behavioural science could contribute to efforts to reduce impacts and end the COVID-19 pandemic. Here we assess 747 pandemic-related research articles that empirically investigated those claims. We report the scale of evidence and whether evidence supports them to indicate applicability for policymaking. Two independent teams, involving 72 reviewers, found evidence for 18 of 19 claims, with both teams finding evidence supporting 16 (89%) of those 18 claims. The strongest evidence supported claims that anticipated culture, polarization and misinformation would be associated with policy effectiveness. Claims suggesting trusted leaders and positive social norms increased adherence to behavioural interventions also had strong empirical support, as did appealing to social consensus or bipartisan agreement. Targeted language in messaging yielded mixed effects and there were no effects for highlighting individual benefits or protecting others. No available evidence existed to assess any distinct differences in effects between using the terms ‘physical distancing’ and ‘social distancing’. Analysis of 463 papers containing data showed generally large samples; 418 involved human participants with a mean of 16,848 (median of 1,699). That statistical power underscored improved suitability of behavioural science research for informing policy decisions. Furthermore, by implementing a standardized approach to evidence selection and synthesis, we amplify broader implications for advancing scientific evidence in policy formulation and prioritization.

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.

When a resident of an anti-abortion state goes to a prochoice state to get an abortion, which law applies to that person? To the abortion provider? To anyone who helps them obtain the abortion? Since Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade, states have passed conflicting laws regarding abortion, and courts will need to determine whether anti-abortion states can apply their laws to persons or events outside their territory either through civil lawsuits or criminal prosecution. This article canvasses the major disputes likely to arise over conflicts of abortion law and the arguments on both sides in those cases. It addresses both common law analysis and the constitutional constraints on application of state law under the Full Faith and Credit Clause and the Due Process Clause, and it comes to some conclusions both about what laws should apply in different fact settings and how the choice of law analysis should proceed.Since Dobbs focused on the “history and tradition” behind rights under the Due Process Clause, and because the constitutional test for “legislative jurisdiction” that regulates when a state can apply its law to a controversy is partly based on the Due Process Clause, we start with the prevalent approaches to conflicts of law available to judges at the time the Bill of Rights was adopted in 1791 and when the Fourteenth Amendment was adopted in 1868, focusing on the “comity” approach championed by Justice Joseph Story. We consider also the First Restatement’s vested rights approach in vogue between the end of the nineteenth century and the middle of the twentieth century. We then move to modern choice of law analysis to determine which law applies when a person leaves their state to obtain an abortion. We will consider the Second Restatement’s “most significant relationship” test, the “comparative impairment” approach, the “better law” and “forum law” approaches, as well as the emerging Third Restatement of Conflict of Laws rules being drafted right now by the American Law Institute.One set of cases involves conduct that is wholly situated within the borders of the anti-abortion state. That state has full authority under the Constitution to regulate its internal affairs and to apply its laws to people who distribute or use anti-abortion medication there or who otherwise assist residents in violating its laws prohibiting or limiting access to abortion. Anti-abortion states have full authority to regulate conduct within their borders. However, the First Amendment protects people who provide information about the availability of abortion services in other states where it is legal, and the constitutional right to travel should protect those who transport someone out of state to get an abortion in a prochoice state or who subsidize the cost of such out-of-state travel.A second set of cases concerns cross-border torts where conduct in a prochoice state has effects in an anti-abortion state. Courts traditionally apply the law of the place of injury to those cases if it was foreseeable that the conduct would cause the injury there. But there are traditional exceptions to the place of injury rule that should apply in the abortion context when the place of conduct defines the conduct as a fundamental right and immunizes the actor from liability or places a duty or an affirmative privilege on the abortion provider to provide the care. Courts should depart from the place of injury rule in those circumstances when conduct is wholly confined to the immunizing (prochoice) state, and that means that an anti-abortion state cannot legitimately punish an abortion provider in a prochoice state who provides care there in reliance on rules of medical ethics that require the care to be provided. Nothing would violate rule of law norms more severely than placing a person under a simultaneous duty to provide care and a duty not to provide that care. On the other hand, anti-abortion states have full authority to regulate out-of-state conduct that does spill over the border into the anti-abortion state, such as shipping abortion medication to a recipient there. Difficult issues of foreseeability and proximate cause arise when an abortion provider prescribes abortion medication in a prochoice state but knows or suspects that the patient will be taking the medication back to the anti-abortion state to ingest. In some fact settings, the foreseeability issue is significant enough that it may rise to a constitutional limitation on the powers of the anti-abortion state to apply its law to out-of-state conduct or to assert personal jurisdiction over the abortion provider. In other cases, the place of injury has the constitutional authority to apply its law to out-of-state conduct that the actor knows will cause unlawful harm across the border but it may or may not have personal jurisdiction over the nonresident provider.A third set of cases involve bounty claims, tort survival lawsuits, or wrongful death suits that an anti-abortion state might seek to create by giving claims to one of its residents against the resident who left the state to get the abortion. Such cases may be viewed as “common domicile” cases by the anti-abortion state since both plaintiff and defendant reside in the anti-abortion state. That may tempt the anti-abortion state to apply its laws to an abortion that takes place in another state even though both conduct and injury occurred in a state that privileges the conduct and immunizes the defendant from liability. However, the law of the place of conduct and injury should apply in those cases since the prochoice law is a “conduct-regulating rule,” and choice of law analysis, traditional rules, and constitutional constraints on legislative jurisdiction all require deference to the law of the prochoice state in such cases. Courts sometimes apply the law of the common domicile when the law at the place of conduct and injury is not geared to regulating conduct there, but the opposite is true for laws directed at conduct, and this article will show why prochoice laws that define abortions as a fundamental right are conduct-regulating rules. The same is true for the question of criminal prosecution. An anti-abortion state has no legitimate authority to punish a resident who leaves the state to get an abortion in a state where abortion is protected as a fundamental right.

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.

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.

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?

The Fourteenth Amendment’s Section One is central to our constitutional law. Yet its underlying principles remain surprisingly obscure. Its drafting history seems filled with contradictions, and there is no scholarly consensus on what rights it protects, or even on what kind of law defines those rights.This Article presents a new lens through which to read the Fourteenth Amendment—new to modern lawyers, but not to the Amendment’s drafters. That lens is general law, the unwritten law that was taken to be common throughout the nation rather than produced by any particular state. Though later disparaged in the era of Erie Railroad Co. v. Tompkins, general law was legal orthodoxy when the Amendment was written.To those who created the Fourteenth Amendment, general law supplied the fundamental rights that Section One secured. On this view, while Section One identified the citizens of the United States, it did not confer new rights of citizenship. Instead, it secured preexisting rights—rights already thought to circumscribe state power—by partially shifting their enforcement and protection from state courts and legislatures to federal courts and Congress. This general-law understanding makes more sense of the historical record than existing theories, which consider the Fourteenth Amendment solely in terms of federal or state law. And it has significant implications for modern Fourteenth Amendment doctrine, from state action to civic equality to “incorporation” to “substantive due process.”

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.

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.

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.

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.

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.

“Intentional torts,” “Negligence,” and “Strict Liability” are typically cast as the major categories of tort liability. Conspicuously absent from this list is “Recklessness,” which would seem to fit between intentionality and negligence and is treated in criminal law as a category of its own. And yet recklessness does make sporadic appearances in tort law. Because it lies between categories without constituting a distinct category, recklessness thus can fairly be described as operating “interstitially” within tort law. As we explain, recklessness fulfills this role in two quite different ways. In the law of defamation and fraud, it sets the lower boundary of ‘malice,’ understood as mistreatment of another involving dishonesty or other states of mind inconsistent with good faith. A quite different collection of tort settings in which recklessness plays an important role – one that includes the application of assumption of risk to recreational activities – are those in which courts are prepared to relieve actors of liability notwithstanding that their actions generate a significant risk of harm. In this domain, recklessness marks an upper rather than a lower boundary, namely, the point at which conduct becomes so unjustifiably dangerous that liability will attach. We conclude by suggesting that attention to the different ways in which recklessness serves as a fine-tuning mechanism in tort law may illuminate philosophical debates about the nature of recklessness, as well as jurisprudential inquiries concerning interstitial legal concepts.

Psychiatry is rapidly adopting digital phenotyping and artificial intelligence/machine learning tools to study mental illness based on tracking participants’ locations, online activity, phone and text message usage, heart rate, sleep, physical activity, and more. Existing ethical frameworks for return of individual research results (IRRs) are inadequate to guide researchers for when, if, and how to return this unprecedented number of potentially sensitive results about each participant’s real-world behavior. To address this gap, we convened an interdisciplinary expert working group, supported by a National Institute of Mental Health grant. Building on established guidelines and the emerging norm of returning results in participant-centered research, we present a novel framework specific to the ethical, legal, and social implications of returning IRRs in digital phenotyping research. Our framework offers researchers, clinicians, and Institutional Review Boards (IRBs) urgently needed guidance, and the principles developed here in the context of psychiatry will be readily adaptable to other therapeutic areas.

Decades after data-driven consumer surveillance and targeted advertising emerged as the economic engine of the internet, data commodification remains controversial. The latest manifestation of its contested status comes in the form of a recent wave of more than a dozen state data protection statutes with a striking point of uniformity: a newly created right to opt out of data sales. But data sales as such aren’t economically important to businesses; further, property-like remedies to privacy problems have long and repeatedly been debunked by legal scholars, just as the likelihood of efficient privacy markets has been undercut by an array of experimental findings from behavioral economics. So, why are data sales a dominant point of focus in recent state legislation? This work proposes a cultural hypothesis for the recent statutory and political focus on data sales, and explores this hypothesis with an experimental approach. Inspired by the taboo trade-offs literature, a branch of experimental psychology looking at how people handle morally uncomfortable transactions, this work describes two experiments that explore reactions to data commodification. The experimental results show that selling data is far more contested than selling a traditional commodity good, suggesting that selling data fits within the domain of a taboo transaction. Further, various potential modifications to a data sale are tested, but in each case the initial resistance to the taboo transaction remains. The experimental results show a robust resistance to data commodification, suggesting that newly enacted state-level sales opt-out rights provide a culturally powerful balm to consumers. The results also suggest a new framework for analyzing economic measurements of privacy preferences, suggesting a new possibility for interpreting those findings in light of the tabooness of data commodification. More broadly, the normative implications of the results suggest the need for culturally-responsive privacy reform while keeping an eye to the possibility for taboos to distort technology policy in ways that ultimately fail to serve consumer protection interests.

There is anger among many at the growing recognition that this conservative Supreme Court is marching, not resting. That little of the past--like precedent--will constrain it. And that the decisions of the preceding terms--overturning Roe v. Wade, expanding the "right to bear arms," ending affirmative action, among other extraordinary decisions--are just the beginning of a long and cold jurisprudential winter. Many on the Left have responded by proposing ambitious strategies for resisting the Court. There are calls for court packing, and for the impeachment of faithless justices. Two of the most prominent among younger American law professors have declared the "need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism." This response is a mistake. The right strategy to answer people who believe that they are doing right is not to try to convince them their principles are wrong. It is to show them that they are not following their principles. The answer to the growing originalist majority on the United States Supreme Court is not to attack originalism, but to show how incomplete and inconsistent this Court's originalism has become. That is my aim in this essay. Not because arguments change minds. Necessarily. But because they set the predicate for what would be a principled and appropriate response by Congress. It is time for Congress to reclaim the role that the framers of our second Constitution--the Civil War Amendments--intended for it. Because a principled originalism could not resist that claim, and that claim, more than anything else, would liberate rights in America from their current, narrow judicial hold.