Faculty Bibliography

More than thirty years after Congress passed the Religious Freedom Restoration Act, the extent of religious freedom enjoyed by military service members remains unsettled. Courts now largely agree that RFRA applies to the military. But scholars and judges disagree over the relationship between RFRA and the Commander-in-Chief power: Should courts follow RFRA’s text and impose strict scrutiny on the President’s decisions, or should they step aside in deference to executive control over the armed forces? This Article argues that history points the way to an answer—one that is, in other contexts, established and workable. Historically, Congress and the President handled religious accommodation internally—beginning with Congress’s creation of the chaplaincy and evolving through executive policies addressing particular religious needs. In repeated instances, Congress exercised its power to “make Rules” for the military by course-correcting the executive’s military religious freedom policies, and each time it did so, the executive acquiesced. Read against that historical pattern, the question of how to apply RFRA in the military is not the simple binary of executive versus judicial authority. It is instead a three-way separation-of-powers inquiry in which Congress has historically played the leading role. With this understanding, due deference to Congress means courts must scrutinize the military’s religious accommodation decisions under RFRA’s demanding test. Deciding such cases is still no easy task. Courts must determine what weight to give military professional judgment, balance government interests of the highest magnitude, and in some cases draw the line between RFRA’s protective sweep and the President’s prerogatives as Commander in Chief. But to answer those hard questions, courts should look to another area where they have traditionally deferred based on similar separation-of-powers concerns. As courts’ experience with prisoner cases shows, they already have a useful framework for applying RFRA in the military—one that respects both Congress’s intervention and the operational realities of military command.

Randall L. Kennedy explores the portrayal of interracial marriage in American literature, particularly the works of James Alan McPherson, the first African American to win the Pulitzer Prize for fiction. After tracing the history of racist state laws that banned interracial marriage and the Supreme Court decisions that invalidated these bans, Kennedy identifies three literary types: narratives depicting interracial matrimony positively, such as William Dean Howell’s An Imperative Duty (1892) and Eric Jerome Dickey’s Milk in My Coffee (1998); those depicting it negatively, marked by violence and resentment; and a realist perspective that presents interracial intimacy candidly within a racist society. Kennedy focuses on the realist archetype through the works of McPherson. He examines McPherson’s short story trio—“Gold Coast,” “Hue and Cry,” and “Elbow Room”—to shed light on two significant moments in American legal history: the campaign against anti-miscegenation laws and the white backlash to the Supreme Court’s Loving v. Virginia decision, which invalidated state anti-miscegenation laws. Kennedy argues that McPherson’s stories realistically depict the prejudices against interracial intimacy held by some African Americans. Regarding white backlash, he suggests that McPherson’s stories highlight the everyday behaviors and perceptions that discourage many whites and Blacks from pursuing interracial relationships. Through McPherson’s work, Kennedy provides a nuanced view of the complexities and realities of interracial intimacy in a prejudiced society.

Released in 2025, Institutional Books: Harvard Library (IB-HL) is a collection of 983,004 volumes (242B o200k_base tokens), originally digitized through Harvard Library's participation in the Google Books Library project. As researchers and developers have begun to use IB-HL, a tension has emerged between standard large-scale preprocessing practices and the goals of careful information stewardship. Many existing pipelines optimize for web text: as a result, they tend to aggressively filter, deduplicate, restrict by language, and sometimes discard meaningful metadata. Meanwhile, researchers seeking to use IB-HL duplicate effort while performing similar processing and analysis. We describe an approach that we call Enriched Text. Instead of producing a single 'complete' stream of tokens, we normalize the text while preserving metadata through annotations. We separate endmatter, detect per-paragraph language, identify clusters of duplicate paragraphs, and compute per-paragraph bits-per-byte scores. We provide this information through HTML-like annotations layered on top of the text. By parsing these annotations, users can tailor the output to their own needs instead of accepting a global editorial decision on content. The pipeline applies to all ≈250 languages in the collection. This report describes this project's goals, implementation, and design rationale. The release includes IB-HL-ET (an enriched-text version of IB-HL containing 217B o200k_base tokens across 983,003 volumes, organized into 1.39B annotated subtopic paragraphs) and the pipeline that produced it. These serve to make the collection easier for machines to parse and for humans to study.

Historical book collections contain rich visual elements - such as illustrations, photographs, engravings, and decorative art - that are frequently under-explored in large-scale digitization projects. While Optical Character Recognition (OCR) has standardized the extraction of textual content, these visual components offer a layer of nuance and context that remains largely untapped by automated text extraction workflows. This technical report introduces Institutional Books - Visual Elements, an open-source end-to-end pipeline for detecting, classifying, deduplicating, and captioning visual elements from historical book collections. Alongside this pipeline, we release an initial dataset of 22.6 million visual elements extracted from the 983,004 scanned volumes that comprise the Institutional Books: Harvard Library dataset. This work contributes to ongoing, community-wide efforts to enable new use cases for digitized library collections through computational access, from artificial intelligence model training to digital humanities research.

Historical newspapers are an abundant record of public life, but their dense, irregular and sometimes noisy layouts make computational access to these materials both challenging and limited. We present the Institutional Newspapers Pipeline, a modular system we jointly designed with Boston Public Library to extract high-quality, structured datasets from historical newspaper scans. It was architected so that each step remains interpretable and customizable, and so that the pipeline as a whole remains computationally frugal enough to run on workstation-level hardware. The pipeline runs each scan through a multi-step process: it segments scans into individual type-agnostic crops and performs OCR on each resulting segment before then performing text analysis, type classification, reading order detection, named entities recognition, subject classification, language detection, and pre-computed embeddings generation on every crop. We ran this pipeline against a portion of Boston Public Library's holdings and released the results as an open dataset. The optical character recognition (OCR) output represents 16.3 billion o200k_base tokens across 83.1 million individual crops, extracted from 1,473,635 public domain newspaper scans published between 1795 and 1930. This report describes our methods for each processing step, the small models we trained, as well as the evaluation results and dataset-scale measurements we collected in the process. It accompanies the release of the pipeline, models, and dataset. We position this work as a substantial step towards unlocking high-quality data from tens of millions of newspaper scans.

We introduce a structured dataset and accompanying processing pipeline for nearly 200 years of decision making, derived from the Proceedings of the Board of Regents of the University of Michigan. This English-language collection holds official decision making records of one of the oldest public research universities in the United States, covering the period of 1837-2023. These records span 55,177 pages across 71 volumes, containing roughly 36 million o200k_base text tokens. We describe how our pipeline makes use of open-source reasoning Large Language Models (LLMs) to extract insights from these records, at meeting, volume and collection level. We separate each volume into individual Board meetings—1,755 in total—and then extract meeting-level metadata records (date, attendees, location, presiding officer) and governance events in several categories: degree programs, leadership transitions, organizational units, fundraising, buildings, and strategic plans. The event categories we extract were defined together with University of Michigan librarians, reflecting the kinds of requests for hard-to-reach information they have received about these records over the years. We also include a derivative reasoning dataset that pairs each meeting with a model-generated summary, chain-of-though traces, and decade-level synthesis. Finally, we include EPUB exports for each meeting to increase the accessibility of the information for human readers. These datasets are of particular interest for research on historical governance and decision-making and, as a narrow-domain corpus paired with reasoning traces, may also contribute to AI training efforts. None of this data processing would be possible without clearly established ground truths. To that end, we evaluate each stage of the pipeline against hand-annotated reference data.

In a decades-long series of decisions, the Delaware courts constructed a doctrinal infrastructure that encouraged two procedural protections for minority shareholders in freezeout transactions: approval by a special committee of independent directors (“SC” approval), and approval by a majority-of-the-minority shares (“MOM” approval). Empirical evidence indicated that practitioners largely adopted this dual-pronged approach to freezeouts for most of the following decade. However, a trilogy of decisions from 2022-2023 unintentionally created dis-incentives for MOM conditions. We present the first empirical evidence from this trilogy, and find that MOM conditions have indeed decreased significantly in incidence: from approximately 80% beforehand to approximately 45% afterwards. As a policy matter, we argue that our findings likely reflect a step in the wrong direction because the combination of SC approval and MOM approval tracks the procedural protections in an arms-length deal process. We expect that MOM conditions will rebound as a result of the recent reforms in SB21. However, to the extent that controllers are declining to provide the conditions due to “hold up” risk by activist investors, we propose an additional mechanism to address this concern: the majority-of-the-original minority (MOOM) condition.

We quantitatively compare the use of legal authorities (cases, statutes, and literature) in three paragon jurisdictions of common law (England) and civil law (France and Germany). From each jurisdiction, we sample 40 representative opinions of its apex court in contract cases in the years 1880–89 and 2007–16. The odd one out, if any, is France, not England. England and Germany differ only in degree, not kind. For example, most German opinions were already citing and distinguishing precedent in the 1880s. However, the Germans tend to engage less closely with precedent than the English. Moreover, a new gap has developed with respect to the use of scholarly literature, which only the modern German court engages extensively. Our findings challenge popular accounts of differences and convergence between common and civil law.

In this chapter, we examine how the rise of private equity has reshaped the dynamics of Chapter 11 reorganizations. We argue that modern bankruptcy increasingly involves “team breakup” strategies, where favored creditor coalitions—often majority secured lenders—are granted exclusive financing or settlement opportunities that disadvantage minority creditors. This evolution reflects changes in capital structures, where secured creditors dominate and the fulcrum security has moved up the priority ladder. We trace how these strategies exploit weak team-protection rules for secured creditors, undermine market testing, and create new agency costs that courts struggle to police. We illustrate our argument with case studies of Peabody Energy, Serta Simmons, and Nine West. These developments challenge longstanding assumptions about creditor governance and raise questions about fairness, efficiency, and judicial oversight in modern bankruptcy practice.

The revival of psychedelic medicalization is often narrated as a story of scientific legitimacy and neurotherapeutic promise, yet the unusual sensitivity of psychedelics to environmental conditions has encouraged research on music, therapy, setting, and other contextual factors. Treating setting and context as the building blocks of felt atmospheres, this article examines how regulation actively shapes atmospheres of consumption for substances that alter affective and sensory perception. Debates over drug-centric versus therapy-centered models are situated within the broader issue of how law shapes contexts and settings of psychedelic consumption. Policy developments in the United States and Australia show how emerging legal pathways have variably defined personnel, setting, access, substance, and the permitted forms of “holding space” or providing support or therapy. We introduce the concept of regulatory atmospheres to describe the diffuse and sometimes invisible ways in which policy shapes the contextual conditions of psychedelic use. Although policy rarely addresses atmospheres directly, we argue that it powerfully conditions them, which the case of psychedelic drug policy makes particularly clear. Alongside emerging legal pathways, the persistent shadow cast by prohibition over underground and traditional contexts reveals how some ontologies of risk and efficacy are privileged over others.

Gender/sex variables are often included in clinical algorithms, typically without articulating which aspects of gender or sex-linked biologies are hypothesized to contribute to the tools’ output. To date, there exists little systematic evaluation of how gender/sex inputs are used in clinical algorithms. We analyzed all clinical algorithms available in the online database MDCalc, assessing whether and how they include gender/sex inputs. For tools with gender/sex inputs, we evaluated the consequences of, justification for, and timeline of including such inputs. Of 602 tools reviewed, 112 (18.6 percent) included gender/sex. These inputs were used to adjust the algorithmic outcome by directly allocating points according to a change in the gender/sex variable or to normalize the outcome by using gender/sex to interpret other tool inputs. Fewer than half of tools included text justifying the inclusion of gender/sex in initial tool development, and only five tools had been updated since their initial development. Systematic reconsideration and regular reevaluation of gender/sex inputs in clinical algorithms may be needed to determine which inputs, if any, are warranted to support clinicians in providing better care for patients.

This Viewpoint discusses the executive order supporting the development and approval of psychedelic drugs and outlines issues surrounding their ethical and evidence-based integration into clinical care.

This Viewpoint discusses the potential benefits and risks, such as privacy violations, discrimination, and exacerbation of health disparities, that may accompany the unfiltered upload of electronic health records to large language models.

The Genetic Information Nondiscrimination Act (GINA) became law almost two decades ago, when genomic medicine was still in its infancy. One reason for its passage was to ensure that individuals and society would reap the benefits of emerging advances in genetic medicine, and would be able to benefit from genetic testing and research without fear of employment or health insurance discrimination. Since then, genomics has matured into a complex probabilistic science that increasingly allows for individualized estimates of genetic risk derived from large-scale population studies. Polygenic risk scores (PGSs), which provide genome-wide estimates of disease liability and may help indicate effective preventive care for an individual, raise new benefits but also concerns. PGS testing may become common in clinical practice, particularly to mitigate common complex diseases such as cardiac conditions and cancer. But are existing antidiscrimination protections adequate for a world where polygenic risk scoring is the norm? In this paper, we consider how existing laws apply and whether new legal and policy approaches are needed to support widespread, beneficial clinical use of PGSs. We also propose avenues for potential action by policymakers.

This chapter examines Margaret H. Marshall, the first female Chief Justice of the Supreme Judicial Court of Massachusetts. Best known for her Court's ground-breaking 2003 decision in Goodridge v Department of Public Health, upholding the right under the Massachusetts State Constitution for same-sex couples to marry, Marshall's work brought together deep principles—of equal human dignity and judicial independence—with a well-honed sense of prudence. To her adjudicatory role she brought fine legal craft. In stewarding the state courts, she brought forward-looking leadership skills as well as a commitment to improving the entire justice system. Her commitments to constitutional democracy were reflected not only in her opinions and her work to improve the administration of justice but also in her efforts to advance gender equality in the Bar. She rightly deserves to be viewed as among the judicial heroines of the late 20th and early 21st centuries.

This Article documents and examines Brazil’s pioneering imposition of joint and several liability for labor obligations on parent companies since 1937, complicating existing narratives about the German origins of group law. We uncover evidence that nationalism and resistance to foreign corporate groups contributed significantly to this legal development. Central to Brazil’s groundbreaking 1937 reform holding parent companies liable for subsidiaries’ labor obligations was the concern about protecting local workers from foreign groups attempting to evade legal responsibilities through separate legal entities. This innovation has shown remarkable durability and contemporary relevance. A 2024 decision by the Brazilian Supreme Court applied the economic group doctrine to enforce its orders against X (formerly Twitter) by freezing the assets of the Brazilian subsidiaries of Starlink, also controlled by Elon Musk. Our comparative analysis reveals a gradual, if contested, trend toward eroding corporate separateness to protect workers across jurisdictions. Moreover, this development appears to be more common in the Global South, with Portugal standing as the sole Global North country examined to converge with Brazil’s comprehensive statutory approach—and only after a seventy-year delay. These findings suggest that challenges in state capacity and the geographic divide between capital and labor, often pronounced along North-South lines, can shape the evolution of limited liability and corporate separateness doctrines in ways that challenge conventional narratives in corporate and comparative law.

This chapter examines the emerging landscape of corporate climate disclosure in the Global South, focusing on Brazil, India, China, and South Africa (BICS), and compares the adoption of international standards by the largest economies in both the Global South and North. The authors analyse these early developments in view of three perspectives on Global South regulatory tendencies: the resistance view, predicting opposition to climate change measures due to developmental concerns; the foreign influence view, suggesting greater susceptibility to international standards; and the legal heterodoxy view, positing that Global South jurisdictions develop legal innovations incorporating broader public policy objectives. The authors find diverse patterns combining elements of all three views. Strikingly, all ten jurisdictions examined in the Global South and North have adopted some form of corporate climate disclosure in the last decade. However, following the withdrawal of the US Securities and Exchange Commission’s defence for its climate rule in 2025, the US stands out as the only major jurisdiction lacking a dedicated federal climate disclosure framework. Consistent with the foreign influence view, Brazil was the first jurisdiction worldwide to adopt ISSB standards, while China modified these standards to include double materiality. The chapter observes evidence of legal heterodoxy, with South Africa and India implementing pioneering frameworks for sustainability reporting that anticipated the European Union’s emphasis on double materiality. While Global South jurisdictions fall behind EU standards, they often exceed US and Japanese requirements, thereby contradicting a strong version of the resistance view in this area.

There are two Moralities of Law. The first is the Morality of Legality. The second is the Morality of the Rule of Law. The Morality of Legality is narrow. It calls for fidelity to existing law. It usually plays an important role within the executive branch, where violations of existing law are often (not always) experienced as taboo. The Morality of the Rule of Law is broader. It calls for (1) clear, general, publicly accessible rules laid down in advance; (2) prospectivity rather than retroactivity;(3) conformity between law on the books and law in the world; (4) hearing rights;(5) some degree of separation between (a) lawmaking and law enforcement and (b) interpretation of law; (6) no unduly rapid changes in the law; and (7). no contradictions or palpable inconsistency in the law. The Morality of Legality can be seen as an inference from the Morality of the Rule of Law and in particular from (3) and (5). Neither of the two Moralities of Law takes a stand on free markets, freedom of speech, economic equality, or democracy. Still, both moralities are important. A nation that lacks the Morality of Legality is in deep trouble. A nation that lacks the Morality of the Rule of Law is going to become authoritarian.

From the standpoint of both autonomy and welfare, use of willingness to pay (WTP) is a precious human achievement. At the same time, WTP might be infected by a lack of information and by behavioral biases. There are also philosophical objections to certain uses of WTP, pointing, among other things, to the problem of adaptive preferences and to turning certain goods into commodities. In the end, we have two cheers for WTP, and possibly two-and-a-half.

As recently as November 2024, the National Center for Health Workforce Analysis (NCHWA) of the Health Resources and Services Administration (HRSA) made note of the latest census data of U.S. physicians [1]. It was the conclusion of the NCHWA that the U.S. is presently home to a total of 933,788 “professionally active” physicians of whom 800,355 are “reported as patient care practicing physicians [1].” The NCHWA went on to project a “shortage of 187,130 full-time equivalent (FTE) physicians in 2037” as well as the possibility that “nonmetro areas will experience greater shortages of physicians than metro areas [1].” The NCHWA further estimates that “75 million people live in a primary care Health Professional Shortage Area (HPSA)” and that “a total of 122 million people live in a mental health HPSA [1].” Note was also made of the reality that “the maldistribution of the health care workforce results in severe shortages in rural communities [1].” Seeking to address the extant challenges, a bipartisan group of members of the Senate Committee on Finance stepped into the breach [2]. Led by Sen. Ron L. Wyden (D-OR), it was the intent of the Senators to introduce legislation that will assist teaching hospitals in the training of more physicians by reforming Medicare's Graduate Medical Education (GME) rules [2]. In this Commentary, we review the evolution of the aforementioned draft legislation as well as assess the likelihood of the materialization thereof.

The finding of a California jury represents the opening legal salvo in a fight against one of the central anxieties of our time.

The right to food has been acknowledged as a key part of the global human rights framework, officially recognized by 171 countries. Even in countries that have not formally recognized the right—notably including the United States—there is general agreement that government plays an important role in ensuring food security. Recent global shocks, including the COVID-19 pandemic, the Russia-Ukraine conflict, and the impacts of climate change on agricultural output, are straining that right. Yet, governments have under-recognized a key global opportunity: leveraging surplus edible food that would otherwise go to waste to help realize the right to food. Governmental entities in several countries recently recognized the connection between food waste and the right to food. The Lahore High Court in Pakistan made this connection in a 2019 decision, as did national legislation in Mexico enacted in 2024. However, this connection has been understudied. While scholarly literature exists about the right to food and about food waste, there is little discussion about how the two issues intersect. Further, critics of connecting food redistribution with the right to food have posed challenges to the broad set of solutions that are available. This Article fills a gap in the literature by describing the ways in which food waste violates the right to food, and how recovery and donation of surplus food can actually ensure the right to food. This Article argues that, given all the options available to reduce food waste, governments that fail to take action to remediate food waste should be seen as violating the right to food. To make this argument, the Article analyzes how food waste negatively impacts the right to food, looking at the Lahore High Court decision as well as legislation in Mexico and other countries that connect the right to food and food waste. The Article also examines various policies that countries have adopted to address food waste even when not directly referencing the right to food. The Article closes with a discussion of various critiques of the connection between food waste reduction and the right to food, concluding that these critiques actually offer further evidence of the important role government must play in efforts to align food waste reduction and the right to food.

All over the world, governments are using nudges as regulatory tools. Is this ethical? When? 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 risk that some nudges might count as manipulation, as in the case of "dark patterns"; an emphasis on welfare, autonomy, and dignity helps to show how to avoid that risk.

By standard accounts, there are fifty-four constitutions across the federal, state, and territorial governments of the United States. But in fact, there are 230 other governmental constitutions that currently govern peoples and territories within the United States. These constitutions not only flow from a sovereignty that existed prior to the United States but also came out of a legal movement that asserted its independence from both the U.S. Constitution and state constitutions. This Article tells the story of these constitutions — the constitutions of Native nations. Having existed for over two centuries with an archive of thousands of constitutional documents and amendments, tribal constitutions have been left out of the narratives of American constitutional history while being obscured within the fields of American constitutional law and federal Indian law. This Article corrects these oversights and calls for the recognition of a tradition of “Indigenous constitutionalism” in the United States. This Article’s aims are both theoretical and historical. On one hand, it conceptualizes Indigenous constitutionalism as a distinct and shared constitutional practice through which Native nations claim and exercise self-governance while embedded in the wider constitutional — and colonial — landscape of the United States. On the other hand, this Article draws Indigenous constitutionalism’s features from the two-hundred-year history of tribal constitutions. It explores, for the first time, three major eras of tribal constitutional development: the first constitutions during the early nineteenth-century period of Indian Removal, the explosion of constitutions under the Indian Reorganization Act in the early twentieth century, and the movement for tribal constitutional reform that has stretched from the late twentieth century to today. But this Article also brings theory and history together to rethink the prevalent narratives surrounding tribal law, federal Indian law, and American constitutionalism. Indigenous constitutionalism reveals the fundamental and persistent questions around which a tribal constitutional law framework can be constructed. It also revises the origin stories of federal Indian law, demonstrating that the field did not coalesce in isolation from tribal law but was actually cocreated with tribal constitutions. Finally, by placing tribal constitutions into conversation with other American charters, Indigenous constitutionalism disrupts and expands the category of constitutionalism itself. This Article demonstrates that tribal constitutions — unique among American constitutions — showcase how these documents can appear in many forms, function as external-facing declarations of sovereignty, and exist alongside other forms of fundamental law.

The outpouring of empirical work on how and when human beings depart from perfect rationality has led to a wholesale rethinking of paternalism and its limits. Over the last decades, three camps have emerged: (1) coercive paternalists, who urge that behavioral findings undermine John Stuart Mill's Harm Principle and greatly strengthen arguments for paternalistic mandates and bans; (2) libertarian paternalists, who urge that behavioral findings justify a host of paternalistic but freedom-preserving interventions or "nudges," such as warnings, reminders, labels, and automatic enrollment; and (3) antipaternalists, who urge that behavioral findings do not justify paternalism and argue only, or at most, for efforts to strengthen or "boost" people's competences, or their capacities to make good choices. On welfare grounds, it is possible to identify the assumptions under which, and the policy domains in which, one or another approach would be best. Libertarian paternalism often has significant advantages over coercive paternalism, at least in circumstances in which choosers are heterogeneous. But when all or most choosers err, the welfarist argument for coercive paternalism is strengthened, and when choosers are not only heterogeneous but also adequately informed and free from behavioral biases, antipaternalism makes a great deal of sense.

Does Artificial Intelligence (AI) have rights? A plausible answer depends on the answer to another question: Is AI capable of experiencing emotions, such as sadness, pleasure, regret, anxiety, joy, and distress? A negative answer to that question means that AI lacks moral rights and that it is not entitled to legal rights (though such rights might be granted for instrumental reasons). It follows that if and when AI has emotions, it has moral rights, and it should be entitled to legal rights as well. The capacity to experience emotions can be seen as a necessary and sufficient condition for the recognition and conferral of rights. That conclusion might be rejected by those who emphasize (for example) a capacity for self-awareness or an ability to reason. A focus on emotions also leaves open the question of what rights AI has, supposing that it has rights, and the grounds on which its rights might be defeasible.

This Research Agenda indicates key directions for future investigation in tort law, with particular focus on the ways in which laws could and should assign responsibility for injury and regulate safety. Bringing together leading international experts, this book maps out key challenges of emerging developments in tort law and theory.

Federal disability anti-discrimination laws expect clinical trials to render study processes and sites accessible to potential participants, including through the provision of reasonable accommodations. Nonetheless, people with disabilities, and particularly people with mental illness, are often excluded from clinical trials. Supported decision-making, a strategy that allows people to select trusted others to help them understand and communicate decisions, is an important accommodation to further inclusion. However, because mental illness can be dynamic and vary widely in nature (e.g., diagnosis, symptom severity, functional impairment) and duration (e.g., short-term, intermittent, progressive, permanent), supported decision-making is neither a one-size-fits-all strategy nor one that can serve as a reasonable accommodation in every situation. While prior work on supported decision-making has focused predominantly on adults with intellectual and developmental disabilities or dementias, people with mental illness may also benefit from supported decision-making, although the variability in decision-making capacity in mental illness presents nuanced challenges. Here, we explore supported decision-making in the case of people with intermittent or episodic mental illness that may impact decision-making capacity to varying degrees at different times.

In the name of national security, the Trump administration has taken a stake in Intel, acquired a “golden share” in U.S. Steel, obtained equity stakes in critical minerals companies, and required semiconductor companies to pay the government a percentage of their profits from sales to China in exchange for export licenses. These actions mark a dramatic departure from the traditional U.S. capitalist system, which relies on the market, not the government, to pick winners and losers. Indeed, they carry overtones of a command economy. But as unusual and occasionally illegal as these developments are, they also build on a broader shift that has pushed U.S. companies into a central role in U.S. national security policy in the last decade. Recent administrations of both parties have invoked the mantra that “economic security is national security.” To implement that philosophy, they have relied heavily on economic tools, including sanctions, export controls, investment screening, and tariffs. While these tools provide important levers for the U.S. government to manage national security threats, their proliferation is also fostering deeper, more diverse, and riskier roles for companies in this new era. We identify five such roles. Companies are: 1) key to security supply chains, prompting government involvement in the companies; 2) front-line enforcers or self-enforcers of economic security; 3) national security proxies for the U.S. government; 4) sources of products that the government uses as negotiating leverage; and 5) sources of funds that the government can extract in exchange for national-security related approvals. These enhanced, often novel, and sometimes illegal roles for companies in the national security ecosystem pose disturbing costs to public law values, such as legality, rationality, accountability, and fairness. The government’s burgeoning reliance on companies to implement national security policy undercuts public law values by fostering incentives for companies and the government to act unlawfully, creating principal/agent problems, and undercutting transparency. The Trump administration’s latest moves go even further: by introducing profit motives into security-related decisions, they produce conflicts of interest, potential corruption, and decision-making distortions both for the government and for companies. This approach is especially pernicious in national security policy-making because the stakes are so high. The end result will be a United States that is both less safe and economically weaker. Because many of these corporate roles likely will continue in future administrations (whether Democratic or Republican), finding ways to minimize the risks to public law values is crucial. For each of the risks that we identify, we propose concrete measures that Congress, the Executive, companies, and even allied governments could undertake to mitigate the corrosive effects of corporate entanglement in U.S. national security policy going forward.

The surge of executive power unleashed by the Supreme Court has reached the Federal Reserve, provoking a crisis that the justices seem suddenly anxious to avoid. But the drama is long overdue. The central bank has a constitutional stature that poses a direct challenge to unitary executive theory, the principle animating the Court's recent case law. Congress established the Federal Reserve System to carry out a critical legislative prerogative-making the sovereign money supply. Congress used an institutional form-national banking- innovated precisely to secure sovereign money-making from executive (originally monarchical) interference. Congress in turn assigned a vital responsibility-the capacity to make money out of debt in the people's name-to the Fed. The constitutional conclusion follows: Congress's prerogative over money-making clearly secures the Fed's independence from presidential interference. That conclusion is lost in current scholarship that treats the Fed as fundamentally like other independent agencies. The Court has assumed, similarly, that the unitary executive presides over a relatively homogeneous regulatory field. The case of the Fed exposes the separation of powers as a more complicated project. Legislatures built democratic sovereignty by struggling for prerogatives that, like money-making, protected their lawmaking authority. The prerogatives claimed by Congress inform the work of each agency and official, including within the executive branch. The Court dismantles democratic sovereignty when it denies the reach of those prerogatives.

Traditional accounts of corporate governance focus on internal actors and largely neglect external governance: the ways in which actors outside the firm seek to embed broader objectives into corporate decision-making. This Article argues that nonprofits are now among the most important engines of external governance and taking their role into account sheds critical light on corporate governance developments in the past, present, and future. We make three primary contributions. First, we identify the range of nonprofits that engage in external governance, discuss their defining features, and explain why governance-related activism occurs through nonprofit vehicles. Second, we examine their strategic playbook, which includes legislative advocacy, litigation, shareholder proposals, and soft law and shaming campaigns. We analyze how these strategies have contributed to key corporate governance shifts, from global supply chain and benefit corporation legislation to the rise and backlash against CSR, ESG, DEI, and climate-related agendas. Third, we explore the broader implications of this phenomenon for reform proposals and the future of corporate governance. Nonprofits have consistently operated to expand the scope of corporate governance beyond shareholder-manager dynamics, thus challenging traditional conceptions of corporate governance, incorporating competing ideologies, and fueling unpredictable chain reactions. Their global reach and varied strategies create a hydraulic effect—when one avenue of influence is constrained, nonprofits redirect efforts through alternative mechanisms. Nonprofits also help explain why twenty-first-century corporate governance developments have diverged from predictions of an “end of history,” instead reflecting a global trend toward broader and more contested models of governance. Finally, shining a light on nonprofits as engines of external governance reveals a range of normative perspectives on both their constructive and concerning dimensions.

What is the connection between a lawsuit brought by a proxy adviser against the Securities and Exchange Commission (SEC) and Niccolò Machiavelli’s Discourses on Livy, a 16th-century Italian treatise on history and politics? It’s just a word – solicit – which is at the center of the lawsuit and appears in some English translations of the Discourses but not in others, thus creating a small linguistic mystery about its meaning. Does soliciting entail a preference, a desire, or a personal interest in the ultimate outcome of the solicited action, as the plaintiff argues in the lawsuit? Or does it merely denote a pursuit or a mechanical causation of that action, with no regard for intentions or preferences, as the SEC maintains? It turns out that translating Machiavelli requires thinking hard about this question. To be sure, neither the lawyers nor the court in the proxy advisers case made this connection with Machiavelli. But this lexicographic journey is, I believe, instructive. It shows how hard – and sometimes inane – it is to try to “crack the code” of a text without drowning in the philosophical and literary depths of words.