Faculty Bibliography

Charlayne Hunter-Gault’s ‘My People: Five Decades of Writing About Black Lives’ offers a survey of turbulent times and those who made history throughout them

Human decision-makers frequently override the recommendations generated by predictive algorithms, but it is unclear whether these discretionary overrides add valuable private information or reintroduce the human biases and mistakes that motivated the adoption of the algorithms in the first place. We develop new quasi-experimental tools to measure the impact of human discretion over an algorithm, even when the outcome of interest is only selectively observed, in the context of bail decisions. We find that 90% of the judges in our setting generally underperform the algorithm when making a discretionary override, with most judges making override decisions that are no better than random. Yet the remaining 10% of judges outperform the algorithm in terms of both accuracy and fairness when making a discretionary override. We provide suggestive evidence on the behavior underlying these differences in judge performance, showing that the high-performing judges are more likely to use relevant private information and less likely to overreact to highly-salient events compared to the low-performing judges.

What the next big Supreme Court labor case means for workers' right to strike — and what Congress can do about it.

This Viewpoint discusses the new Colorado law prohibiting anonymous gamete donation and other debates over reproductive technologies and secrecy.

Governments are put in place to carry out policies. Effective governance means that they have the capacity to implement those policies. As Samuel Huntington observed, “[t]he most important political distinction among countries concerns not their form of government but their degree of government.” For our purposes, state capacity is the ability of a government-in-place to develop and implement policies that its leaders believe will improve national well-being. The capacity to govern includes having the required material resources, the personnel for whatever is necessary to deliver the policies to their beneficiaries, and a bureaucratic organization that enables high-level officials to implement policies. How does state capacity feature in constitutional adjudication? And how can courts contribute to effective governance? Of course, they can interpret constitutions and statutes to authorize government officials to use whatever capacity they have to implement their chosen policies.

What is the added value – or disvalue – of a “right to effective governance”? That question is phrased in relative terms, and needs a baseline. If the baseline is the United States Constitution, then suffice it to say that the US Constitution is notoriously an eighteenth-century constitution with a few later additions, and that it includes rather few “positive rights” (meaning affirmative rights to government action, as opposed to negative rights to government forbearance). Assuming that the “right to effective governance” is defined in a manner that actually requires the government to do something, and especially if the right is enforceable by private persons, then it would add a great deal to the requirements of the US Constitution. (Whether the result would be a net benefit is a different question.)

When calls for regulating lies collide with free expression values

In a copyright case, the Justices revealed their own anxieties about interpreting precedents.

If Dobbs is correct from an originalist position, a wide range of Supreme Court doctrine is not.

This Viewpoint examines the murky legal treatment of various health-related wearable or other general wellness products for patients, physicians, and manufacturers, and recommends solutions.

Social and behavioral science research proliferated during the COVID-19 pandemic, reflecting the substantial increase in influence of behavioral science in public health and public policy more broadly. This review presents a comprehensive assessment of 742 scientific articles on human behavior during COVID-19. Two independent teams evaluated 19 substantive policy recommendations (“claims”) on potentially critical aspects of behaviors during the pandemic drawn from the most widely cited behavioral science papers on COVID-19. Teams were made up of original authors and an independent team, all of whom were blinded to other team member reviews throughout. Both teams found evidence in support of 16 of the claims; for two claims, teams found only null evidence; and for no claims did the teams find evidence of effects in the opposite direction. One claim had no evidence available to assess. Seemingly due to the risks of the pandemic, most studies were limited to surveys, highlighting a need for more investment in field research and behavioral validation studies. The strongest findings indicate interventions that combat misinformation and polarization, and to utilize effective forms of messaging that engage trusted leaders and emphasize positive social norms.

This book examines these new challenges to international and regional human rights in Africa, Europe, Latin America, and the Middle East.

This Review Essay uses the publication of Martin Loughlin’s Against Constitutionalism and Roberto Gargarella’s The Law as a Conversation Among Equals as the occasion for reflections on the tension between contemporary constitutionalism and constitutional democracy, a tension both authors identify and analyze in detail. After laying out their concerns, the Review Essay constructs an argument for a different kind of constitutionalism, one that is predicated on deliberative interactions among the people, flexible, and respectful of fundamental rights. In that form of constitutionalism, structural arrangements and specifications of fundamental rights are always provisional, subject to revision after considered deliberation among the people. The Review Essay concludes that such arrangements deserve the honorific label “constitutionalist,” and addresses some arguments to the contrary.

The Coca-Cola bottle is celebrated today as a design classic and the paradigmatic illustration of protected trade dress. How the Coca-Cola Company achieved that exalted position, however, is poorly understood. This essay is an effort to fill that gap. As we explain, the bottle’s IP protection in the early years, pursued by means of design patents and unfair competition claims, was flawed and fragile. The Company’s patent strategy suffered from several defects. Its first patent covered a prototype and arguably did not stretch to cover the production bottle, which differed significantly from the prototype. Its weak position was revealed in failed litigation that narrowly construed the patent. A belated second patent, essentially covering the production bottle, was sought years after production began. This patent might well have been invalid, given its close resemblance to the prior art production bottle, and in any event could not have been applied retroactively to prevent copying. The striking implication of these missteps is that other firms were probably legally free to use the hourglass shape as soon as the first bottle came off the production line in 1916. The Company’s unfair competition approach faced uncertainties too. The patents bought time for secondary meaning to develop, but their flaws put that development at grave risk. Moreover, early case law rejected efforts to convert short-term design patent exclusivity into long-term unfair competition protection. Although courts eventually accepted this sort of conversion, during the early years it posed an existential threat to the viability of the Company’s unfair competition claims. Thus, in multiple respects, this most famous example of trade dress was built on a surprisingly shaky legal foundation.

This paper works out the scheme of “institutional competences” that underlies the famous Hart and Sacks Legal Process Materials first distributed in final mimeographed form in1958. The Materials were not published during the life times of their authors but were nonetheless a major influence on American legal thought from their first distribution as course materials at Harvard Law School until their abrupt fall from prominence in the early 1970s. The Materials offer the scheme as a solution to the apparent anomaly in a democracy of the law making power in both public and private law of unelected judges serving long terms. The paper critiques the Hart and Sacks solution, called law making through “reasoned elaboration,” which they claimed was sharply distinct from legislative law making or administrative fiat. The paper argues that in both public and private law the materials the judge is to elaborate are characterized by contradictory internal logics. The judge has to choose between them without a meta-criterion. In cases with high stakes, extra-juristic normative orientations, whether moral theories or political ideologies, will come into play, regardless of the judge’s commitment to excluding them. The second part of the paper places Hart and Sacks in a larger historical and comparative context of efforts to solve the problem of social order by way of legal rationality. These two parts were preceded in the original paper by a long discussion, now lost but never very satisfying to me, of the Hart and Sacks theory of “private ordering” in relation to state regulatory power. I wrote the paper for extra credit in the spring of 1970 as a third year student at the Yale Law School. I’ve corrected a few typos but haven’t changed it in any other way. I never published it but it was circulated to a limited extent among Legal Process devotees. Eskridge and Frickey, editors of the Materials as published finally in 1994, credit it, along with another unpublished student paper by Roberto Unger, with hastening the demise of the Materials as a master text. The first part of this version of the paper was recently published in Droit et Philosophie, no. 13, p. 97-117 (2021).

On October 11, 2022, the Supreme Court will hear a case, National Pork Producers Council v. Ross, that asks whether California can, consistent with the Dormant Commerce Clause (DCC), ban the sale of pork meat in the state that is not sourced from a pig raised humanely by California standards. The petitioners in Ross claim that the California animal welfare law violates the extraterritoriality prong of the DCC because it has a huge impact on the pork production processes and costs in other states, and violates Pike balancing as well. Ross could be one of the most consequential DCC cases in decades. It squarely raises both the continuing validity of the contested extraterritoriality doctrine, and the issue of judicial competence to do Pike balancing. And it raises these issues in an unusual doctrinal context. First, Ross asks whether and how the so-called “California effect” implicates the DCC. The California effect occurs when a large state’s relatively strict regulation becomes the de facto standard in many smaller states because it is cheaper for producers in the smaller states to comply with the regulation than it is to withdraw from the large market or devise multiple production lines. The result can be that consumers in smaller states pay more for a product due to producers’ responses to the large-state regulation. The validity of laws with this effect has never been directly addressed in Supreme Court DCC jurisprudence. Second, Ross raises the issue whether California can regulate the sale of a product (pork) not based on the characteristics or quality of the product, but rather based on how it is produced in other jurisdictions. Such “process-based regulation” of goods produced in another jurisdiction raises concerns that have been much-discussed and litigated under international trade law, but not in the Court’s DCC jurisprudence. These novel issues come before a Court in transition. The DCC has been under attack from some members of the Court—especially Justices Scalia and Thomas—for a long time. In recent years four new Justices have joined the Court. Justice Gorsuch questioned the independent validity of the extraterritoriality prong in the court of appeals and has filed one opinion in the Supreme Court that evinces skepticism toward a robust reading of the DCC. Justices Kavanaugh, Barrett and Jackson did not rule on a DCC issue in the lower courts and have not yet cast a meaningful vote in a DCC case at the Supreme Court. This essay sets forth our thoughts on Ross. As in a previous article, our thinking is influenced by Supreme Court doctrine and by the economics of state regulation of transborder transactions. We use economics to understand the DCC because the primary justification for the DCC is an efficiency criterion: to ensure free trade and associated benefits in interstate transactions. We, like others, including many on the Court, think that the efficiency criterion provides the best normative account of the DCC, and provides a sound way to analyze novel problems that arise under the DCC. Our conclusions, in a nutshell, are as follows: (1) The California animal welfare law raises potential efficiency concerns from a national perspective due to the costs it might impose in other states; (2) whether the law is actually inefficient in the aggregate (and thus violates the DCC) is a complicated empirical question; (3) absent a sea change in their approach DCC cases, federal courts lack the resources and tools to sort out this empirical question, whether under the rubric of Pike balancing or extraterritoriality; (4) the process-based element of the California law raises slippery-slope concerns to which the Court should be attentive, but which the Court currently lacks doctrinal tools to resolve; (5) international trade law has addressed process-based regulations for decades, and has come to an uneasy acceptance of them, perhaps in part because the slippery-slope concerns have not materialized; and (6) the Court should consider more targeted and less-demanding doctrinal tools than Pike balancing and extraterritoriality, drawn from international trade law, to address DCC concerns about the California law.

In recently-enacted legislation, Congress drew upon the 35-year experience with sentencing reform in the federal civilian criminal courts to reform significant aspects of the sentencing process in the military justice system. The article reviews the sentencing reform provisions contained in the National Defense Authorization Act for FY2022 and the Military Justice Act of 2016, which address many of the core elements of sentencing, including: (1) the principles governing sentencing in courts-martial; (2) the use of sentencing “parameters” and “criteria” in the adjudication of sentences by general and special courts-martial; (3) the role of the military judge in the adjudication of sentences; (4) consideration of plea agreements at the trial level; (5) appellate review of sentences; (6) clemency and related actions on the sentence, and more. After summarizing the history of military and civilian sentencing, the article reviews the newly-enacted military justice sentencing provisions, comparing them to the relevant provisions in the federal civilian sentencing system that were enacted as part of the Sentencing Reform Act of 1984 and subsequent legislation, and implemented by the U.S. Sentencing Commission. Although some of these newly-enacted reforms mirror similar elements of the federal civilian sentencing system, others follow a different approach, reflecting a decision by Congress to adapt rather than simply adopt current civilian practices. As Congress, the Administration, and a new Sentencing Commission focus on criminal justice reform, including possible changes to civilian sentencing law and policy, the recent reforms in military justice sentencing provide an important source of insights worthy of consideration.

In this chapter, law and technology scholar Jonathan Zittrain warns of the danger of relying on answers for which we have no explanations. There are benefits to utilising solutions discovered through trial and error rather than rigorous proof: though aspirin was discovered in the late 19th century, it was not until the late 20th century that scientists were able to explain how it worked. But doing so accrues ‘intellectual debt’. This intellectual debt is compounding quickly in the realm of AI, especially in the subfield of machine learning. Whereas we know that ML models can create efficient, effective answers, we don’t always know why the models come to the conclusions they do. This makes it difficult to detect when they are malfunctioning, being manipulated, or producing unreliable results. When several systems interact, the ledger moves further to the red. Society’s movement from basic science towards applied technology that bypasses rigorous investigative research inches us closer to a world in which we are reliant on an oracle AI, one in which we trust regardless of our ability to audit its trustworthiness. Zittrain concludes that we must create an intellectual debt ‘balance sheet’ by allowing academics to scrutinise the systems.

Restatements interact with the common law in multiple ways. Restatements reflect the common law, but they also may do much more; for example, they may accelerate legal reform, and they may freeze the law in place. This chapter considers ways that Restatements can address a concern that Justice Cardozo emphasized: the need for a balance between certainty and flexibility. With that in mind, a central concern is the way that the common law operates as a complex system. The system of the common law is a hybrid of a spontaneous and a made order; it is also, potentially, a loosely connected system rather than the kind of deductive system that some formalists imagine. Taking these features into account, we argue that a key consideration in the drafting of Restatements should be the architecture of the common law, including its conceptual structure. Restatements can seek an “architectural fit,” and in doing so they can strike a workable balance between certainty and flexibility.

Prior to Putin’s invasion of Ukraine and threats of using nuclear weapons, I had pushed fear of nuclear annihilation to the very edges of my consciousness. James Carroll bids us to recall this fear, to bring it back to the center of our concerns, and to extinguish it through effective action.

The following article adapts and consolidates two comment letters submitted last spring by a group of twenty-two professors of finance and law on the SEC's proposed climate change disclosure rules. The professors reiterate their recommendation that the SEC withdraw its proposal as legally misguided, while outlining some of the issues that the proposal will face when challenged in court.

TIME 100 Next Leaders When they emigrated from Nigeria, Wally Adeyemo’s parents - a nurse and an elementary-school principal - could scarcely have imagined that their young son would quickly grow to become one of the U.S.’s top economic policymakers. Having previously worked in the Obama White House, the Treasury Department, and the Consumer Financial Protection Bureau, Adeyemo serves today as Deputy Treasury Secretary - the first Black American to hold the job. Adeyemo’s fortitude in helping drive our economic response to Russia’s war in Ukraine earned him the distinction of being sanctioned and blacklisted by Vladimir Putin.

The biggest news in the world of protections for gig-economy workers came this month not from the National Labor Relations Board or the Department of Labor or the Equal Employment Opportunity Commission — the federal agencies charged with setting employment standards for the fair treatment of the nation’s workforce. Instead, the Federal Trade Commission made […]

Whether or not one sees the Supreme Court’s Dobbs decision as barely concealed theocracy, it fails to provide any coherent legal analysis of why the right to abortion is not protected by the Fourteenth Amendment.

Respect for civil liberties and the Constitution is more important than partisan differences.

Men have utterly failed to protect women so women must take matters into their own hands. This book shows them how. The Bonobo Sisterhood explores the power and potential of female alliances to stop male-on-female violence.

Why is a young, ideologically-driven judge with a lifetime appointment to the bench allowed to ignore legal precedents?

In the late nineteenth century, James Bradley Thayer urged that an act of Congress should not be struck down unless the constitutional violation “is so clear as to leave no room for reasonable doubt.” Thayer’s beyond-a-reasonable-doubt test helped define constitutional understandings for more than a half-century; Oliver Wendell Holmes, Louis Brandeis, Learned Hand, Benjamin Cardozo, and Felix Frankfurter were practicing Thayerians. Thayerism provided crucial orientation for Alexander Bickel’s conception of judicial review and his embrace of “the passive virtues,” and also for John Hart Ely’s democracy-reinforcing approach to constitutional law. But Thayerism seems to have dropped out of contemporary constitutional law. One reason is that as a matter of simple psychology, it is extremely difficult for any judge consistently to embrace it. Another reason is that Thayer’s defense of Thayerism was very thin; for the most part, he purported to be describing longstanding practice, rather than to be justifying it. But if we make certain judgments about the likely capacities and performance of judges, legislators, and others, Thayerism would make a great deal of sense. If we make contrary judgments, Thayerism would be preposterous. Selective Thayerism, of the sort defended by Bickel or Ely, might follow from yet another set of judgments. The broader lesson is that no approach to constitutional law can be adopted or rejected in the absence of an answer to the question whether it would make our constitutional order better rather than worse, which requires in turn a set of judgments about the likely behavior of various institutions. We might also understand Thayerism as a kind of arms control agreement: I will adopt a Thayerian approach if you will as well. More particularly, left-of-center judges might be willing to be Thayerian if and only if right-of-center judges are willing to be Thayerian as well. The problem, of course, is that unless a strong norm is in place, both sides will be tempted to defect. And that is, in fact, what we observe.

The Harvard affirmative action case being heard by the Supreme Court in two weeks embodies a growing solidarity movement between the AAPI and African American communities, accelerated by the events of the summer of 2020.

Archivists regularly contend with a wide range of security threats, including data breaches, inadvertent loss, and legal action by those hoping to make sealed records public. These threats are particularly salient when sensitive materials are donated with delayed-release conditions. Trust in archivists’ ability to enforce such conditions gives donors the confidence to enter into the historical record materials that they might otherwise destroy. But as these materials are increasingly born-digital (and therefore hackable, convenient to exfiltrate en masse, and more easily corrupted), and as governments and private parties become ever more aggressive in their efforts to secure early releases, we must innovate in order to stand still. To compensate for these new dynamics, we propose Strong Dark Archives (SDA), a blended legal and technical protocol for securing delayed-released archival materials among a network of libraries. SDA leverages modern cryptography and institutional agreements to coordinate access-control across multiple accredited archival organizations, providing broad resilience to data breaches, technical failures, and legal process. Through this distributed approach to security, SDA imposes meaningful friction on efforts to force the early disclosure of archival records.

Judge Aileen Cannon’s opinion screams out that she applies more lenient rules to Donald Trump.

ABOUT WE DISSENT The full text of one of the most radical and controversial Supreme Court decisions in American history, highlighting the galvanizing dissent by Justices Breyer, Sotomayor, and Kagan … Dobbs v Jackson, the landmark decision to overthrow the rights first granted to women in the Roe v Wade decision fifty years ago, is the first U.S. Supreme Court decision in American history to actually take away from citizens a Constitutionally-protected right. As such it may be the most consequential Court ruling ever. Compounding matters, the decision opened the door to the overthrow of still further rights — such as same-sex marriage, for example, or equal rights for trans people. Nowhere is the danger of this decision made more clear than in the sobering yet electrifying dissent filed by Justices Breyer, Sotomayor, and Kagan. That dissent is highlighted in this edition, which includes the entire decision, to let readers decide for themselves, but forefronts the stirring and eloquently reasoned dissent. That eloquence will surely inspire, inform, and fuel the increasingly impassioned debate during the tumultuous campaign season of the upcoming mid-term elections — and beyond.