Faculty Bibliography

In the summer of 1985, I had a chance meeting with Marvin Frankel. It would begin a career-long adventure into the world of federal sentencing, a looking-glass world where acquittals lead to punishment, rapes and robberies are not violent crimes, prosecutors gain sentencing power from courts, and numeric algorithms transform common sense punishment concepts into disfigured policies that often drive excessive and deficient sentences; and then, even worse, the system drives a perpetual cycle of further disfigurement. The U.S. Sentencing Commission’s reaction to Frankel’s book, Criminal Sentences: Law Without Order, was an attempt to create a criminal sentencing world with order. And while that idea is without doubt alluring, what resulted from the federal commission’s work was mostly “delusions of precision,” an accounting system of aggravating and mitigating factors that tries to achieve something approaching “perfect justice” but rather twists sensible sentencing concepts into flawed formulas. Frankel envisioned a world not of perfect justice, but of the humble search, “tentatively and with diffidence” for an elusive justice, a search made a little easier with simple and understandable guidelines. As a new federal Sentencing Commission considers the course it will take in crafting federal sentencing policy for the next 50 years, and as we celebrate the 50th anniversary of the publication of Marvin Frankel’s historic book, it’s worth considering Frankel’s vision anew.

The author of a monumental biography of Muhammad Ali uses new material to flesh out the civil rights giant.

US Constitution gave spending, borrowing powers to Congress to ensure separation of powers.

Surgical video recording has shown promise in identifying best practices, documenting errors, and establishing an objective record of surgical activities for patient care, education, training, and research. These opportunities have fueled an increasing number of academic studies, commercial enterprises, and proposed legislation to increase the utilization of recording in the operating room. As recording becomes more routine and expands from intracorporeal images to full room video and audio capture, important ethical, legal, and social (ELSI) issues grow in importance and must now be addressed. This is complex due to phenomena inherent in the surgical process. Patients are unaware of what happens once they are anesthetized, and the modern operating room is closed to non-medical observers, making the introduction of surveillance and transparency a significant shift in practice. Further, the multi-subject nature of procedural recordings--depicting both the patient's body and the surgical team's performance--are a novel consideration for medical data protection and ownership policies. Herein we address uncertainties regarding ownership, liability, risk, and privacy, and offer strategies to overcome barriers to routine recording.

The Hungarian-born billionaire has done more than anyone to turn Americans against Israel.

Despite an increasing reliance on fully-automated algorithmic decision-making in our day-to-day lives, humans still make consequential decisions. While the existing literature focuses on the bias and fairness of algorithmic recommendations, an overlooked question is whether they improve human decisions. We develop a general statistical methodology for experimentally evaluating the causal impacts of algorithmic recommendations on human decisions. We also examine whether algorithmic recommendations improve the fairness of human decisions and derive the optimal decision rules under various settings. We apply the proposed methodology to the first-ever randomized controlled trial that evaluates the pretrial Public Safety Assessment in the United States criminal justice system. Our analysis of the preliminary data shows that providing the PSA to the judge has little overall impact on the judge’s decisions and subsequent arrestee behaviour.

Supreme Court Justices, alone in our system, are not truly regulated by anyone other than themselves.

This paper explores the application of message framing as a management practice to promote change in employee behaviour for corporate sustainability. We conduct a field experiment in a German automotive company to test the effects of three different frames (emotional, normative and gain) on pro-environmental actions in relation to electric vehicle choices of 170 employees. The frames are applied via two communication channels: first, via emails to remind employees about ordering a new car and second, via pop-up notifications appearing in the online system where employees complete their orders. We find that the interventions applied in emails, but not in pop-up notifications, have significant positive effects on electric vehicle adoption. Yet, the durability of the effects is limited. Overall, gain framing in the form of cost saving information has the longest and most powerful impact on electric car choices. Our findings have implications for workplaces where employees might not yet possess strong pro-environmental beliefs, showing that employee sustainable behaviour can be enhanced by emphasising complementary gain motives.

A revered Supreme Court ruling protected the robust debate vital to democracy—but made it harder to constrain misinformation. Can we do better?

This Report presents a summary of the discussion at a workshop that explored in a comparative and cross-disciplinary manner the phenomenon of discrimination on the basis of chronological age, including discrimination against the young and against the old and against any ages in-between, and including both direct and discrimination (both practices with discriminatory intention and those with discriminatory impact), and also including a specific discussion of political rights of minors. The participants including current and former members of international and regional human rights institutions, judges, and academics from Harvard and other universities within and outside the United States.

Conventional wisdom says that “authorizations for the use of military force” (AUMFs) are the key congressional engagement with the forever war. Since Congress has not refreshed the relevant AUMFs in over two decades, the AUMF focus makes it seem like Congress is disengaged from the conduct of the forever war, or perhaps that Congress has inappropriately delegated war powers to the President. That focus also makes it seem like repealing or modifying the AUMFs is the key to ending the forever war, or at least to Congress recapturing or reasserting its war powers, or to disciplining presidential militarism. This paper argues that from a separation of powers perspective, the AUMF focus is misleading to the point of wrong. AUMFs are not the only or even the main congressional engagement with the forever war, even though the executive branch and scholars focus on those sources. Congress through its formal votes and through the continuous actions of certain committees has long been heavily involved in managing practically every element of U.S. forever-warfighting, through a thick and persistent array of appropriations, authorizations beyond the well-known AUMFs, reporting requirements, ongoing consultation, and extensive ex ante and ex post oversight. Congress is formally very much on board for the President’s conduct of the forever war, and is sometimes more hawkish than the President. This preliminary draft sketches these points and raises implications and questions.

The judgments of human beings can be biased; they can also be noisy. Across a wide range of settings, use of algorithms is likely to improve accuracy, because algorithms will reduce both bias and noise. Indeed, algorithms can help identify the role of human biases; they might even identify biases that have not been named before. As compared to algorithms, for example, human judges, deciding whether to give bail to criminal defendants, show Current Offense Bias and Mugshot Bias; as compared to algorithms, human doctors, deciding whether to test people for heart attacks, show Current Symptom Bias and Demographic Bias. These are cases in which large data sets are able to associate certain inputs with specific outcomes. But in important cases, algorithms struggle to make accurate predictions, not because they are algorithms but because they do not have enough data to answer the question at hand. Those cases often, though not always, involve complex systems. (1) Algorithms might not be able to foresee the effects of social interactions, which can depend on a large number of random or serendipitous factors, and which can lead in unanticipated and unpredictable directions. (2) Algorithms might not be able to foresee the effects of context, timing, or mood. (3) Algorithms might not be able to identify people’s preferences, which might be concealed or falsified, and which might be revealed at an unexpected time. (4) Algorithms might not be able to anticipate sudden or unprecedented leaps or shocks (a technological breakthrough, a successful terrorist attack, a pandemic, a black swan). (5) Algorithms might not have “local knowledge,” or private information, which human beings might have. Predictions about romantic attraction, about the success of cultural products, and about coming revolutions are cases in point. The limitations of algorithms are analogous to the limitations of planners, emphasized by Hayek in his famous critique of central planning. It is an unresolved question whether and to what extent some of the limitations of algorithms might be reduced or overcome over time, with more data or various improvements; calculations are improving in extraordinary ways, but some of the relevant challenges cannot be solved with ex ante calculations.

In the last several months, several major disciplines have started their initial reckoning with what ChatGPT and other Large Language Models (LLMs) mean for them – law, medicine, business among other professions. With all of this Sturm und Drang in other professions, I was delighted when the journal asked me to offer some tentative thoughts on what ChatGPT might mean for bioethics. I want to emphasize my humility – the reported performance jump of ChatGPT-3 to 4 is quite remarkable and it is often said that while human beings are good at understanding linear growth, we are bad at correctly conceptualizing exponential growth of the kind that is more likely with these models. I will first argue that many bioethics issues raised by ChatGPT are similar to those raised by current medical AI – built into devices, decision support tools, data analytics, etc. These include issues of data ownership, consent for data use, data representativeness and bias, and privacy. I describe how these familiar issues appear somewhat differently in the ChatGPT context, but much of the existing bioethical thinking on these issues provides a strong starting point. There are, however, a few "new-ish" issues I highlight - by new-ish I mean issues that while perhaps not truly new seem much more important for it than other forms of medical AI. These include issues about informed consent and the right to know we are dealing with an AI, the problem of medical deepfakes, the risk of oligopoly and inequitable access related to foundational models, environmental effects, and on the positive side opportunities for the democratization of knowledge and empowering patients. I also discuss the way in which race dynamics (between large companies and between the U.S. and geopolitical rivals like China) risk sidelining ethics. I end on a note of humility: so much has changed so fast in the development of LLMs and how people are using them that any assessment at the moment is very tentative.

The work of Tom Ginsburg, a leading scholar of comparative constitutional studies, is influential around the world and spans a very wide range of topics. He has played an absolutely essential role in establishing a database of constitutional provisions, both around the world and over time, that has fueled his own research, including his co-authored book on the endurance of national constitutions, and the research of other comparative constitutional scholars. He has contributed important insights about many different areas of comparative constitutional study. In much of his work he has been concerned with the relationship between political forces and political life on the one hand, and constitutional forms of law on the other. Whether on judicial review in new democracies, or on the role of courts and constitutions in authoritarian societies, his work is always interesting and reflects his terrific instinct for important and fruitful topics of inquiry.

“Outsider scholarship,” we hear, “is characterized by a commitment to the interests of people of color and/or women, by rejection of abstraction and dispassionate ‘objectivity,’ and by a preference for narrative and other engaged forms of discourse.” Off the bat, we think: “Delgado!”, “Rodrigo!” Rightly, we raise our hats and cheer.

On International Workers' Day, the Clean Slate for Worker Power reflects on the intersection of the labor, climate, and racial justice movements in its report "Exploratory Principles: Making Progress for People and the Planet."

A firm licenses a product to overlapping generations of heterogeneous consumers. Consumers may purchase the product, pirate/steal it, or forego it. Higher consumer types enjoy higher gross benefits and are caught stealing at a higher rate. The firm may commit to an out-of-court settlement policy that is “soft” on pirates, so high types purchase the product and low types steal it until caught. Settlement contracts, which include both cash payments and licenses for future product use, facilitate price discrimination. Settlement may either create social value by expanding the market or destroy value by limiting market access and possibly deterring more efficient entrants.

Laura Underkuffler has kindly commented on my progressive, social- relations approach to property and property law. I feel humbled, honored, and seen. She notices the core moral commitments manifested in that work. She focuses on my scholarship on discrimination in public accommodations, the violent dispossession and persisting sovereignty of Native nations, and the obligations of the rich toward the poor. She emphasizes my willingness to take a moral stance. And she comments on the fact that I attempt to persuade readers about what the law should be, not just by interpreting authoritative texts, but by making normative arguments that are built on stories. She ponders the role of stories in the legal system. Well, here are some stories, and here are some moral stances.

There is broad consensus that the law of conflict of trust laws is outdated. Both the American Law Institute and the Uniform Law Commission have initiated reform projects to address this obsolescence. But there is no consensus around what went wrong or how to fix it. This Article, prepared for a Symposium on Conflict of Laws in Trusts and Estates, responds to that gap by providing a historically, theoretically, and institutionally grounded account of the rise and fall of the old regime with an eye toward informing ongoing law reform efforts. We first show that the prevailing regime--that of the 1971 Restatement (Second) of Conflict of Laws--was purpose-built to encode then-common norms of trust law and practice. We then explain how and why modern trust law and practice has departed from those norms, upending the Restatement's foundational assumptions. In the Restatement's era, conflicts of trust laws rarely arose and were easily resolved through reliance on the locational anchors of land, probate, and court supervision. Today, by contrast, provoking a conflict of trust laws by drafting a trust to capture the benefits of interstate variation in law is a routine estate planning strategy, and the locational anchors of land, probate, and court supervision have become unmoored. Indeed, our account recasts nearly every significant development affecting trust law and practice over the past fifty years as a contributor to the revolution in conflict of trust laws. Informed by this understanding of the old regime's obsolescence, we offer tentative suggestions for the law reform efforts currently underway.

In evaluating interventions, policymakers should consider both their welfare effects, including their effects on people’s emotional states, and their effects on distributive justice, including their effects on those at the bottom of the economic ladder. The arguments for investigating welfare effects, and effects on distributive justice, are meant as objections to efforts to evaluate behaviorally informed interventions solely in terms of (for example) revealed preferences and effects on participation rates. The arguments are also meant as a plea for investigation and specification of the effects of such interventions on experienced well-being. If interventions give people a sense of security and safety, that is a strong point in their favor; if they make people feel frightened and sad, that is a strong point against them. A central concern is that policymakers sometimes neglect the emotional impact, whether negative or positive, of behaviorally informed interventions. Personalized approaches can promote distributive goals and also target interventions to those who are most likely to be helped by them.

In both countries, people protest their judiciary, but in Israel, these protests have not turned violent even as tensions rise.

Policy must support generation of evidence on safety and effectiveness.

The Fifth Edition embodies the authors’ collective wisdom from teaching the text over many years and incorporates numerous substantive and pedagogical changes. New notes introduce the principal cases succinctly and clearly. These notes orient readers to the topics at hand and illuminate related puzzles and controversies. They both assist students in understanding the cases that follow and serve to spur careful analysis and robust classroom discussion. Many new headings and subheadings have also been added. These, too, are intended to facilitate understanding by clearly indicating how various issues fit together within the larger topic. The revision includes over 50 new cases, squibs, and other materials. These updates reflect both developments in traditional fields of tort liability and new phenomena such as the rise of online platforms where products are now sold and commerce is carried on. Some of these new cases show courts grappling with questions of gendered and racialized wrongs in ways that they would not have done even a decade ago. Since the Fourth Edition, many provisions of the Second Restatement (of Torts, Agency, or other fields of law) have been superseded or supplemented by corresponding provisions of the Third Restatement. Moreover, many states have adopted pattern jury instructions that succinctly outline the elements of various claims and defenses. These new materials provide clear guidance regarding the current scope and contours of numerous claims and defenses. There are also important organizational changes and deletions. To name just a few: several chapters have been reorganized to address the rise of classical accident law and to clarify how modern tort law develops from it, to update and expand upon limitations on punitive damages, and to clarify the elements of battery and the defenses to battery. Furthermore, the casebook has been shortened and its materials have been focused on those topics addressed in current first-year torts classes. Lastly, this edition expands the book’s treatment of an emerging area of law: public nuisance. While public nuisance originally landed in the United States along with the rest of the English common law, it owes its contemporary prominence in mass tort litigation to the tobacco suits of the 1990’s. In the wake of the stunning success of the tobacco litigation, ambitious public nuisance claims have proliferated to encompass contemporary social problems such as the public health scourge of lead paint contamination, greenhouse gases, and opioids. This important legal field is comprehensively addressed in the portion of the casebook discussing mechanisms of recovery for increasingly common situations in which many people are put at risk, and many ultimately hurt, by the same tortious conduct.

The Supreme Court’s decision is good for science and especially good for women.