Faculty Bibliography

This Viewpoint discusses new guidance on responsible use of artificial intelligence.

Bâli and Dajani's edited collection on federalism and decentralization in North Africa and the Middle East draws needed attention to the importance of the purposes of leading actors in decentralization efforts and the great diversity in motivations to decentralize or federalize state power. Among the editors’ six typologies, an interesting and important one is “Authoritarian Decentralization,” in which apparent decentralization is used to enhance or preserve power at the center. The chapters in this important collection richly reward reading and illustrate both the different valences of the “federalism” idea in different societies and the different structures that may be able to promote rights-respecting and effective governance.

In this Viewpoint, a California artificial intelligence law is described, including its positive contributions to making these companion chatbots safer for minor and adult users and the limits of the law, and recommends further steps California and other states can adopt to improve protections for mental health and chatbot safety, especially for minors.

This Viewpoint explores the US Food and Drug Administration’s plan to approve leucovorin for patients with autism and the potential implications for evidentiary standards.

A new Section 1557 rule bans discrimination by AI-based clinical decision tools, with compliance required by May 2025. This paper explores challenges in identifying and mitigating algorithmic bias, especially where outcome disparities exist. We emphasize the need to audit high-risk tools, address proxy discrimination, and provide standardized guidance. Political uncertainty around enforcement complicates long-term planning, making expanded regulatory support essential for health systems and developers alike.

U.S. states traditionally play a minor role in establishing national security policies, which generally fall within the federal government’s remit. But the return of great power competition with China and Russia and the accompanying proliferation of threats have spurred states to act on national security concerns. With unprecedented speed, breadth, and frequency, U.S. states have taken it upon themselves to address perceived security concerns with TikTok, purchases of real estate by foreign actors, and foreign-made drones, as well as commercial dealings with Russian firms. Drawing on their police powers, they have enacted security-related laws that sometimes parallel and sometimes go beyond the federal government’s actions. We term this phenomenon “entrepreneurial federalism” and explain its unique features. The increasing frequency and breadth of states’ national security–focused actions have set U.S. states and the federal government on a collision course. Private parties have launched a range of legal challenges to state laws, arguing that courts should hold that those laws are preempted based on existing federal statutes or on broader doctrines that disable states from acting in foreign relations. Courts may be tempted to do so, especially because China and Russia are near-peer threats that require careful federal management. But if the courts adopt broad preemption doctrines in this space, they may inadvertently foreclose two constructive phenomena that can arise from acts of entrepreneurial federalism: useful supplementation by the states of federal efforts to address national security threats and the productive friction that states can introduce into policymaking to improve the quality of U.S. national security policies. Even when there are good reasons for courts to hold that state actions that implicate the U.S. relationship with China or Russia are preempted, judicial decisions that reach that result too readily — or that use a broader form of preemption than necessary — may unintentionally impose longer-term costs on U.S. national security. This Article documents the rise of states’ national security actions, distinguishes them from earlier academic models of federalism, and proposes ways that the courts, Congress, the Executive, and the states can foster a positive role for states while minimizing the downsides that could flow from state actions in the national security space.

This Viewpoint reviews employer protection initiatives for family caregivers in Illinois and other states.

This chapter examines the use of family ties in the application of antitrust law. Competition authorities in Argentina, Brazil, Indonesia, and Turkey have relied on family ties in the contexts of merger control and scrutiny of anticompetitive agreements. Authorities have converged in using family ties to define the boundaries of an enterprise in merger review. However, there is divergence in the use of family links either as evidence of bid rigging or, conversely, as a single entity defense to bid rigging. The greater relevance of family ties in antitrust enforcement in developing countries points to an unnoticed source of variation in comparative antitrust law, and shows the adaptability of their competition laws to local circumstances. Similarly to the treatment of legal persons linked by equity ties, antitrust law’s “veil peeking” – or disregard of legal separateness – of natural persons linked by family ties does not necessarily require a showing of fraud or abuse.

Money has recently regained a history. Long set aside as a commodity, convention, or empty instrumentality, money figures increasingly in recent scholarship as a consequential subject of debate and design in early America. That development invites attention to the strange historiography of money and its recent turn. Money’s modern historiography dates to the Enlightenment, when the narrative took hold that money was essentially a transparent technology, one that transmitted determinations about value made independently by individuals as agents. After tracing that narrative and its impact in organizing contemporary assumptions and disciplines, this essay considers emerging approaches to money as represented by the papers presented at the 2023 WMQ -EMSI Workshop, “Money in Vast Early America.” Though those approaches vary, they tend to read money as a practice that organizes value rather than simply expressing it. Money appears as a complexly crafted system with formative influence rather than as a mere marker or straightforward mode of measure. Analyzing the historical drama in the workshop papers, this essay argues that societies create money as a respiratory system for capital, one that sources value in viable form, circulates it, and channels its use distinctively around the society that engineers it. Recognizing money as that expansive phenomenon opens a wide new avenue for insight on early America and its capitalist aftermath.

Medication shortages constitute an ongoing threat to patient care across the United States and affect nearly every aspect of health care. National drug shortages have been a recurring challenge of the US health care system but were markedly aggravated during the COVID-19 pandemic. Federal executive and legislative efforts to bolster the resiliency of the pharmaceutical supply chain have thus far fallen short. This Commentary reviews the leading executive and legislative initiatives proposed during the 118th Congress and the Biden administration to protect the national drug supply in the hope of avoiding future shortages. It will be up to the new (119th) Congress and presidential administration to take up this issue again and pursue remediation of the nation’s drug shortage problem. The health of the nation demands action by policy makers to mitigate drug shortages that give rise to discontinuity of care and thereby to a compromise of the national state of health.

The innovations emerging at the frontier of artificial intelligence (AI) are poised to create historic opportunities for humanity but also raise complex policy challenges. Continued progress in frontier AI carries the potential for profound advances in scientific discovery, economic productivity, and broader social well-being. As the epicenter of global AI innovation, California has a unique opportunity to continue supporting developments in frontier AI while addressing substantial risks that could have far reaching consequences for the state and beyond. This report leverages broad evidence, including empirical research, historical analysis, and modeling and simulations, to provide a framework for policymaking on the frontier of AI development. Building on this multidisciplinary approach, this report derives policy principles that can inform how California approaches the use, assessment, and governance of frontier AI: principles rooted in an ethos of trust but verify. This approach takes into account the importance of innovation while establishing appropriate strategies to reduce material risks.

Large language models (LLMs) use data to learn about the world in order to produce meaningful correlations and predictions. As such, the nature, scale, quality, and diversity of the datasets used to train these models, or to support their work at inference time, have a direct impact on their quality. The rapid development and adoption of LLMs of varying quality has brought into focus the scarcity of publicly available, high-quality training data and revealed an urgent need to ground the stewardship of these datasets in sustainable practices with clear provenance chains. To that end, this technical report introduces Institutional Books 1.0, a large collection of public domain books originally digitized through Harvard Library's participation in the Google Books project, beginning in 2006. Working with Harvard Library, we extracted, analyzed, and processed these volumes into an extensively-documented dataset of historic texts. This analysis covers the entirety of Harvard Library's collection scanned as part of that project, originally spanning 1,075,899 volumes written in over 250 different languages for a total of approximately 250 billion tokens. As part of this initial release, the OCR-extracted text (original and post-processed) as well as the metadata (bibliographic, source, and generated) of the 983,004 volumes, or 242B tokens, identified as being in the public domain have been made available. This report describes this project's goals and methods as well as the results of the analyses we performed, all in service of making this historical collection more accessible and easier for humans and machines alike to filter, read and use.

The federal government has long used solitary confinement, or segregation, in immigration detention to isolate immigrants from the general population with dire health consequences. The COVID-19 pandemic exacerbated the use of solitary confinement, with officials segregating individuals instead of providing them with necessary medical treatment. There is a general lack of transparency concerning the extensive use of solitary confinement, despite a 2013 federal directive that requires data collection about its use. Public records recently obtained through Freedom of Information Act requests and subsequent litigation reveal that individuals with mental illness, disabilities, and LGBTQ+ identities continue to be placed in solitary at high rates and often for prolonged periods, with some individuals held in solitary confinement for years. This Article documents the cruel and abusive use of solitary confinement in immigration detention for the last decade and its negative effects on mental and physical health. It draws on information obtained from federal agencies concerning the prolific use of solitary confinement in immigration detention and concludes by charting a path forward through executive action and legislative change at the federal and state levels.

Will algorithms help people or hurt them? What about artificial intelligence in general? If consumers know what they need to know and do not suffer from behavioral biases, algorithms and AI are likely to be helpful. Consumers will be more likely to get what they want and need. But if consumers lack information, algorithms in particular will be able to convince them to make harmful or foolish choices. And if consumers suffer from behavioral biases, such as unrealistic optimism or a focus on the short term, algorithms will be able to produce serious harms. In Algorithmic Harm: Protecting People in the Age of Artificial Intelligence, Oren Bar-Gill and Cass Sunstein consider the harms and benefits of AI and algorithms and catalog the different ways in which algorithms are being or may be used in consumer and other markets. The authors identify the market conditions under which these uses injure consumers and consider policy and regulatory responses that could reduce the risks consumers, investors, workers, and voters face now—and in the future. Democracy and self-government are at risk; there is a great deal that can be done to reduce that risk.

In this Article, we argue that animal rights and rights of nature can and should find synergistic connections to tackle some of the most significant planetary threats today, notably, industrial animal agriculture. Until a landmark 2022 decision of the Constitutional Court of Ecuador, no court or legislation had concluded that animal rights could exist within rights of nature, and scholarship on rights of nature and animal rights has mostly ignored each other. Tackling industrial animal agriculture fits both movements’ goals as this industry is a major driver of climate change, deforestation, land and water use, and soil erosion, and is responsible for the suffering of billions of animals. However, the animal rights movement has not developed a significant practical strategy or achieved substantial success against industrial animal agriculture, and the rights of nature movement has taken on many issues adjacent to industrial animal agriculture but not the key issues themselves. We examine each movement, identify its history, aims, past practices, strengths, advantages, weaknesses, and disadvantages, and piece together a path forward that is inspired by the Ecuadorian decision and draws upon the strengths of each movement. We propose an approach that can produce an effect greater than the sum of the parts and call the movements together to advance the strategy we launch here. This Article presents an argument and an invitation.

This chapter considers where law and bioethics intersect as to the 100-year life. It tackles two different issues. The first is an exploration of the bioethics of life extension and whether such extension is something that should be pursued. The second considers attempts to extend reproduction into the late period of life and the ethics thereof.

How do private law institutions of developing countries differ from those of developed countries? A common view is that the legal systems of the Global South are often outdated, failed transplants of Global North models, or plagued by enforcement challenges. This book project offers a different perspective by focusing on legal innovation and adaptation in the Global South. We examine how countries in the Global South have embraced legal doctrines and solutions that deviate from approaches that currently hold the status of orthodoxy in richer countries, and pursue distinct and potentially broader public policy objectives or reflect different values, in response to conditions that are commonplace in developing countries. Our analysis points to reasons why the legacy of colonialism, limited fiscal capacity, economic dependence on richer countries and macro-economic volatility may encourage lawmakers in poor countries to develop heterodox doctrines. We explore different manifestations of legal heterodoxy across various areas of private law in a range of countries in the Global South. Recognizing legal heterodoxies in the Global South enlarges our understanding of legal experiences and possibilities, and contributes to our understanding about the driving forces and direction of legal evolution around the world.

Loper Bright, overruling Chevron, is unmistakably part of administrative law’s current “Grand Narrative,” which sees contemporary administrative agencies with suspicion, as a product of successive breaches of Article I, II, and III of the Constitution. The decision should be seen as our Marbury v. Madison—an effort to insist that it is emphatically the province and duty of the judicial department to say what the law is. But will the decision produce large changes? The answer depends, of course, on the meaning of both Chevron and Loper Bright. Under Chevron, courts hardly gave a blank check to agencies; on the contrary, they frequently invalidated agency interpretations of law. How much will invalidation rates rise? We cannot give a confident answer, in part (1) because Loper Bright retains Skidmore (which calls for respectful attention to agency interpretations); in part (2) because Loper Bright recognizes that Congress sometimes explicitly or implicitly delegates interpretive authority to agencies; and in part (3) because (and these must be counted as some of its effects) Loper Bright will (a) increase litigants’ incentive to attack agency interpretations and (b) reduce agencies’ incentive to adopt adventurous interpretations (though agencies may have other incentives to do that). Any numerical projection would be hazardous, but Loper Bright gives a clear signal, a green light to federal courts where Chevron gave a yellow light—which means that it is reasonable to predict a nontrivial increase in judicial invalidations (other things being equal). It is also safe to predict that in the near future, the combination of Loper Bright with increasing judicial skepticism about the administrative state will result in a nontrivial increase in invalidation of regulations designed to protect health, safety, and the environment. In the near future, Loper Bright will also lead to a significant increase in ideological divisions in the lower courts. Still, Loper Bright is our Marbury, and will, sooner rather than later, be seen as such in mounting conflicts between agencies and courts.

Each morning, before the day’s decree, I turned to a slim book, hoping for sense, or solace.

Artificial Intelligence (AI) presents unprecedented opportunities to transform healthcare worldwide, from improving diagnostic accuracy to expanding access in underserved regions. Despite this potential and growing investment, a significant gap persists between AI's theoretical promise and its realised benefits in healthcare settings. This article examines the complex barriers impeding AI benefits realization in global health contexts, including ethical uncertainties, data infrastructure limitations, evidence quality concerns, and regulatory ambiguities. We analyze current initiatives addressing these challenges and highlight how technological solutions alone cannot resolve fundamental healthcare inequities. Drawing on the interdisciplinary perspectives and insights presented at the Global Health in the Age of AI Symposium hosted by the Cini Foundation and Yale Digital Ethics Center, 1 we propose five core infrastructure requirements necessary for ethical AI implementation: robust data exchange; epistemic certainty with staff autonomy; actively protected healthcare values; validated outcomes with meaningful accountability; and environmental sustainability. These requirements form the foundation for a systems approach that balances technological advancement with ethical imperatives, contextual adaptability, and global equity considerations. We conclude that the successful integration of AI into healthcare demands coordinated action across sectors and borders, with careful attention to avoiding technological colonialism and ensuring AI serves as a force for health equity rather than widening existing disparities.

Maternal care deserts, defined as counties where there are no hospitals offering obstetric services or birth centers and no obstetricians, gynecologists, or certified nurse midwives, have a significant adverse effect on the quality of maternity care afforded women in the United States, especially Black women and women in rural areas. The maternal mortality rate for Black women in 2022 was 2.6 times higher than the rate for White women. The rate in the most rural counties is 1.6 times higher than the rate in large metropolitan counties. Across the nation, 36% of all US counties qualify as maternal care deserts, contributing to the country's poor placement globally among high-income nations. A recent report by the March of Dimes draws attention to the crisis in maternal health care. A number of interventions have been proposed by federal government entities to address the persistent problem. Family physicians in particular have a potential role in improving the situation as they represent the broadest geographic coverage of all maternity care providers.

In this chapter, we analyze three political economy configurations that illustrate the “classical” political economy of corporate governance. First, we examine how the political economy of organizing financial institutions affects, and often determines, the flow of capital into the large firm, thereby affecting, and often determining, the power and authority of shareholder-owners. Second, we show how continental European nations were slow to develop diffusely owned public firms in the years after World War II. The third focuses on management in diffusely owned firms and management's power to influence the rules that govern the firm. We also look at other political economy channels for corporate governance, including the historical organization of capital ownership in the US, the political explanations for the continuing power of the American corporate executive and the board and the power of labor in postwar Europe. Lastly, we integrate the “new” political economy of corporate governance, arising from political pressures to support prosocial corporate purposes. We conclude with the limits of a political economy analysis.

This chapter examines the regulation of mergers and acquisitions (M&A), and restructuring within corporate law and governance, focusing on their role in improving corporate and societal outcomes. It defines M&A transactions, emphasizing their complexity and significance, and explores how corporate decision-makers navigate ownership changes. The regulation of M&A aims to allocate authority, reduce transaction costs, resolve conflicts of interest, and protect dispersed shareholders while balancing facilitation and restriction. It outlines various regulatory modes, including disclosure requirements, fiduciary duties, fairness standards, and structural limitations, which shape practices across jurisdictions based on market structures and legal traditions. Finally, the chapter highlights how corporations adapt strategies to navigate or avoid M&A laws, reflecting jurisdictional differences and structural market variations.

The Food and Drug Administration (FDA) lacks certain authorities and is persistently underresourced to fulfill its mission of protecting the public by ensuring that foods are safe, wholesome, sanitary, and properly labeled. Particularly concerning gaps exist in pre- and postmarket oversight of food ingredients that are often found in ultraprocessed foods. Numerous substances either have evidence of harm or are unknown to the FDA and the public. Additional authorities and resources are necessary. User fees have been successfully implemented to provide resources to the FDA for other programs under its purview. This legal and policy analysis evaluates the FDA’s food-related authorities that would be amenable to a new user fee program. It reviews policy domains where new or enhanced user fees may be warranted. We find that a new comprehensive FDA user fee program for food may benefit industry and generate targeted new resources to strengthen the agency’s oversight.

In response to rising health, economic, and equity burdens of suboptimal nutrition, health care stakeholders are increasingly integrating nutritional supports into health care delivery and financing. In January 2023, federal guidance clarified that states may use “in lieu of services and settings” (ILOS) authority to address health-related social needs, including nutrition, in Medicaid managed care. However, few data are available regarding ILOS implementation. This analysis reviewed ILOS policies based on managed care documents from forty states as of October 1, 2024. Thirty-five states have authorized ILOS to address behavioral health, and fourteen states have authorized ILOS to address general medical needs. Twelve states use ILOS to address health-related social needs; of these, only ten address nutrition. In addition, fewer than half of the forty states provide robust guidance regarding evaluation or establishment of new ILOSs. We examine the policy implications of these findings and provide recommendations to strengthen the role of ILOS in improving nutrition, health care costs, and health equity.