Faculty Bibliography

The article focuses on the alternatives to the state action doctrine in the era of privatization, mandatory arbitration, and the internet for serving human needs. Topics discussed include increased use of the internet and digital communications; increased privatization of traditionally public services; and importance of the line between governmental and nongovernmental activities.

This law school casebook was developed by a team of professors at Harvard Law School to introduce students with little or no quantitative background to the basic analytical techniques that attorneys need to master to represent their clients effectively. This casebook presents clear explanations of decision analysis, games and information, contracting, accounting, finance, microeconomics, economic analysis of the law, fundamentals of statistics, and multiple regression analysis. References and examples have been thoroughly updated for this 3rd edition, and exposition of a number of key topics has been reworked to reflect insights gained from teaching these topics using the 1st edition to many hundreds of Harvard Law students over the past decade.

This paper examines the use of collective sanctions in classical Athens. Collective sanctions have been interpreted in two very different ways: for some they reflect a distinctively primitive conception of collective guilt and responsibility; for others collective sanctions are an instrumental method of promoting deterrence. The paper argues that the Athenians understood collective sanctions primarily in instrumental terms. While the long pedigree of collective sanctions in Greek literature and culture made these punishments less morally repugnant to the Athenians than they are to moderns, the relatively rare uses of collective sanctions in classical Athens do not support a cultural account. At the same time, modern functional accounts only explain a small subset of Athenian collective punishments. Most functional accounts describe ancient collective liability as a form of indirect, delegated deterrence which encourages group members to monitor, prevent, and punish individual wrongdoers within the group. I argue that while this model applies to one form of collective punishment in Athens — group punishment of boards of magistrates — in most cases Athenian collective sanctions were aimed at direct, rather than indirect, deterrence.

This paper estimates the effect of Chapter 13 bankruptcy protection on post-filing financial outcomes using a new dataset linking bankruptcy filings to credit bureau records. Our empirical strategy uses the leniency of randomly-assigned judges as an instrument for Chapter 13 protection. Over the first five post-filing years, we find that Chapter 13 protection decreases an index measuring adverse financial events such as civil judgments and repossessions by 0.316 standard deviations, increases the probability of being a homeowner by 13.2 percentage points, and increases credit scores by 14.9 points. Chapter 13 protection has little impact on open unsecured debt, but decreases the amount of debt in collections by $1,315.

“Big data” has become the ubiquitous watchword of this decade. Predictive analytics, which is something we want to do with big data -- to use of electronic algorithms to forecast future events in real time. Predictive analytics is interfacing with the law in a myriad of settings: how votes are counted and voter rolls revised, the targeting of taxpayers for auditing, the selection of travelers for more intensive searching, pharmacovigilance, the creation of new drugs and diagnostics, etc. In this paper, written for the symposium “Future Proofing the Law,” we want to engage in a bit of legal arbitrage; that is, we want to examine which insights from legal analysis of predictive analytics in better-trodden ground — predictive policing — can be useful for understanding relatively newer ground for legal scholars — the use of predictive analytics in health care. To the degree lessons can be learned from this dialogue, we think they go in both directions.

When an agency fails to engage in quantitative cost-benefit analysis, has it acted arbitrarily and hence in violation of the Administrative Procedure Act? At first glance, the question answers itself: Congress sometimes requires that form of analysis, but if it has not done so, then agencies have discretion to proceed as they see fit. But as recent decisions suggest, the underlying issues are far more complicated than they seem. The central reason is that for all its limitations, cost-benefit analysis is the best available method for testing whether regulations increase social welfare. Whenever a statute authorizes an agency to consider costs and benefits, its failure to quantify them, and to weigh them against each other, requires a non-arbitrary justification. Potential justifications include the technical difficulty of quantifying costs and benefits; the relevance of values such as equity, dignity, and fair distribution; and the existence of welfare effects that are not captured by monetized costs and benefits. These justifications will often be sufficient. But in some cases, they are not, and agencies should be found to have acted arbitrarily in failing to quantify costs and benefits and to show that the benefits justify the costs.

In the last decades, many political theorists have explored the idea of “deliberative democracy.” The basic claim is that well-functioning democracies combine accountability with a commitment to reflection, information acquisition, multiple perspectives, and reason-giving. Does that claim illuminate actual practices? Much of the time, the executive branch in the United States combines both democracy and deliberation, not least because it places a high premium on reason-giving and the acquisition of necessary information. It also contains a high degree of internal diversity, encouraging debate and disagreement, not least through the public comment process. These claims are illustrated with concrete, if somewhat stylized, discussions of how the executive branch often operates.

This chapter demystifies Carl Schmitt by interpreting his main insights through the lens of modern social sciences,. There is a large literature in political science on the political foundations of democracy, constitutionalism, and the rule of law. This literature emphasizes that legal rules, by themselves, cannot create a political equilibrium, which always depends on the expectation of political actors that other actors will contribute to preserving the constitutional regime rather than subverting it. This insight allows us to interpret Schmitt’s distinction between legality and legitimacy more concretely than in extant work. There is also a large literature in law and economics on ex ante rules versus ex post standards. Schmitt’s theory of the exception can be understood as an argument that governance through ex post standards, rather than ex ante rules, is inevitable and even desirable where political, economic, or military conditions change rapidly.

The current framework governing emergency lending – including reforms to Federal Reserve lending enacted after the recent crisis – are inadequate and not credible. We propose reforms that would establish a credible framework of rules to constrain and guide emergency lending by the Federal Reserve and by fiscal authorities during a future financial crisis. Our proposed framework follows five overarching rules, informed by history, empirical evidence and theory, which would serve as the foundation on which detailed legislation should be constructed. Adequate assistance to financial institutions would be provided in systemic crises but would be limited in its form, and by the process that would govern its provision. Our framework would serve as a basis for establishing effective rules that would be credible, and that would properly balance the moral-hazard costs of emergency lending against the gains from avoiding systemic collapse of the financial system.

"After 20 years, the return of a classic! The 10th edition of Weinstein, Abrams, Brewer and Medwed, Evidence—Cases and Materials (the authors of the previous edition were Weinstein, Mansfield, Abrams and Berger)—to be published in time for classes beginning in the Fall 2017 semester. This book enables teaching of the rules of evidence, with an in-depth understanding achieved by no other casebook. The authors extensively cover rationales for the rules and how they fit into our system of resolving civil disputes as well as handling criminal justice issues in both jury and non-jury contexts. Many books focus on teaching the rules only in a trial practice mode. In this era of fewer trials, the book’s philosophic underpinning is that the best way to teach Evidence is to provide students with a full and in-depth understanding of each rule so as to prepare them to deal with any possible variation on the issues that can arise at the stages of fact-gathering and investigation, or deposition and discovery, or at the stages of trial, or on appeal. The new edition, while as comprehensive and rich in analysis and supporting materials as previous editions, also contains new explanatory material designed to further students’ understanding of the issues. This edition blends the new with the old, representing the latest installment of a casebook with a lineage that dates back to the nineteenth century. The tenth edition retains much of the historical evolution of evidence law from its common law origins through the emergence of the Federal Rules of Evidence and analogous state approaches. In addition, this comprehensive casebook covers new developments in scientific evidence, and applies new insights from fields such as logic and probability." -- Foundation Press

Debates about constitutional federalism—by which I roughly mean the division of powers and responsibilities between the national and state governments—abound. Participants typically cast such debates as constitutional in character. Nearly invariably, however, policy concerns exert a dominating influence, either on the surface or just beneath it. More often than not, proponents offer federalism-based arguments on behalf of conclusions that they value for policy-based reasons. Reciprocally, champions of particular theories of constitutional federalism typically argue that their visions would yield better outcome —as measured along some dimension—than would any other understanding of the Constitution’s structure. In an effort to chart some dimensions of the relationship between federalism-based arguments and more overtly normative or policy based arguments, I pursue three lines of inquiry in this Essay.

It can be paternalistic to force people to choose. Often people do not wish to choose, but both private and public institutions ask or force them to do so, thus overriding their wishes. As a result, people’s autonomy may be badly compromised and their welfare may be greatly reduced. These points have implications for a range of issues in law and policy, suggesting that those who favor active choosing, and insist on it, may well be overriding people’s preferences and values, and thus running afoul of John Stuart Mill’s Harm Principle (for better or for worse). People have limited mental bandwidth, and forcing choices can impose a hedonic or cognitive tax. Sometimes that tax is high.

In law – and in many other social activities, including music, art, and literature – reasonable people can and do argue over the best conception of interpretation. Intended meaning is unquestionably one candidate, but there are others. To choose among plausible accounts of what interpretation entails, judges and lawyers need to think about the world and to look outward, rather than to pretend that definitions can solve the problem. They need to ask which approach would make our constitutional order better rather than worse.

People are frequently exposed to competing evidence about climate change. We examined how new information alters people’s beliefs. We find that people who doubt that man-made climate change is occurring, and who do not favor an international agreement to reduce greenhouse gas emissions, show a form of asymmetrical updating: They change their beliefs in response to unexpected good news (suggesting that average temperature rise is likely to be less than previously thought) and fail to change their beliefs in response to unexpected bad news (suggesting that average temperature rise is likely to be greater than previously thought). By contrast, people who strongly believe that man-made climate change is occurring, and who favor an international agreement, show the opposite asymmetry: They change their beliefs far more in response to unexpected bad news (suggesting that average temperature rise is likely to be greater than previously thought) than in response to unexpected good news (suggesting that average temperature rise is likely to be smaller than previously thought). The results suggest that exposure to varied scientific evidence about climate change may increase polarization within a population due to asymmetrical updating. We explore the implications of our findings for how people will update their beliefs upon receiving new evidence about climate change, and also for other beliefs relevant to politics and law.

The completion of the project of the International Law Commission (ILC) on "the expulsion of aliens" marked an important stage in the development of international law relating to migration. The resulting Draft Articles on the Expulsion of Aliens reflect the joint effort of the ILC's distinguished experts on public international law, from all regions of the world, to enunciate principles that regulate states' exercise of a power that is frequently abused. The product of this multi-year effort deserves the attention and engagement of other experts in the field. of international migration, regardless of the cold reception it has initially received from states. The international law regarding expulsion of aliens is influenced by centuries-old interstate rules on responsibility for injury to another state's nationals as well as modern rules of human rights law, which I will construe here as including refugee law. The Draft Articles may someday serve as the basis for a multilateral treaty regulating the expulsion of aliens, and in the meantime they offer themselves as a reference for identifying states' international responsibilities within the scope of the topic. The introductory "general commentary" and the commentary on draft article point out that the Draft Articles involve both codification of existing international law and exercises in progressive development of international law-twin aspects of the ILC's mandate The goal of this Essay is to examine the Draft Articles from the human rights perspective. One should ask, to what extent do the Draft Articles measure up to existing human rights standards, to what extent do they fall short of those standards, and to what extent do they progress beyond the status quo in human rights law? This short Essay cannot be comprehensive, but it will explore what appear to me as the most important discrepancies that are not discussed by other essays in this symposium.

This article discusses the racial injustice faced by Native Americans, with whom land titles in the United States originated with. The author argues it is vital to interpret the Supreme Court cases of the 19th century that correctly defined Indian title, and to honor the property rights of Indian title just as we do the "fee simple of the whites".

Institutional corruption is typically viewed as a subset of corruption that is legal and systemic. There has been a surge of scholarship on institutional corruption in recent years, brought on in large part by a definition put forth by Lessig (2009b; 2013). Scholars have examined institutional corruption in various domains, such as Congress, the Department of Defense, and the pharmaceutical industry (Gilga, 2014; Sah & Fugh-Berman, 2013; Thompson, 2013). The growing body of research on institutional corruption has contributed to a much greater understanding of the legal corruption that is widespread in both public and private institutions; it has also raised new questions about institutional corruption. This paper systematically reviews the existing literature on institutional corruption and examines some of these remaining open questions. Specifically, we focus on the topics of institutional purpose, the funder-institution relationship, public trust, and personal responsibility, as they pertain to institutional corruption. Finally, we explore proposed solutions to institutional corruption, namely conflict of interest disclosure, conflict of interest elimination, and blinding.

This chapter describes the principal arguments about intellectual property rights as mechanisms for promoting the public interest, as opposed to particular private interests. Public interest arguments typically feature in balancing accounts of intellectual property rights that evince concern for the distribution of benefits as well as for the production of new works or inventions. Public interest rationales also often feature in justifications both for the rights themselves and for limitations or exceptions to those rights when private control of an intellectual resource would not promote the general welfare. The chapter considers patents, copyright, trademarks, and related rights, including the right of publicity. It concludes by examining various challenges faced by public interest accounts.

Some things, people say, are “gone forever.” But what exactly does that mean? Some losses are irreparable in the sense that nothing can be done to restore the status quo ante – or if something can be done, it is not enough (or perhaps outsiders can never know if it is). The Irreversible Harm Precautionary Principle takes the form of an insistence on paying a premium to freeze the status quo and to maintain flexibility for the future, while new information is acquired. In many settings, it makes sense to pay for an option to avoid a risk of irreversible losses. An implicit understanding of option value can be found in the emphasis on irreversibility in National Environmental Policy Act and other federal statutes, along with many international agreements. The idea of irreversibility offers a distinctive perspective on the legal concept of “irreparable harm,” a prerequisite for granting preliminary injunctions. In fact some irreparable harms seem to qualify as such precisely because they are irreversible. We can obtain new insights into the time-honored idea of irreparable harm through the lens of irreversibility, especially in environmental cases but also in many contexts, including freedom of speech, privacy, and discrimination on the basis of race and sex.

Do people think better in a foreign language? In some ways, yes. There is considerable evidence to this effect, at least to the extent that they are less likely to rely on intuitions that can lead to serious errors. This finding reinforces, and makes more plausible, a central claim in regulatory policy, which involves the value of cost-benefit analysis. In a sense, cost-benefit analysis is a foreign language, and it reduces the risk that people will rely on intuitions that cause serious errors. Do people think better in a foreign language? D'une certaine façon, oui. Il existe des preuves considérables à cet effet, du moins dans la mesure où ils sont moins susceptibles de s'appuyer sur des intuitions qui peuvent conduire à de graves erreurs. Questa scoperta sottolinea e rende più plausibile, una richiesta centrale nella politica di regolamentazione, il che significa che il valore delle analisi costi-benefici. In gewissem Sinne ist die Kosten-Nutzen-Analyse eine Fremdsprache und verringert das Risiko, dass Menschen auf Intuitionen zurückgreifen, die schwere Fehler verursachen.

Immigration detention will likely play a central role in the Trump administration’s efforts to increase deportations. Despite the President’s broad authority to detain, the U.S. Supreme Court will have an opportunity to limit that authority via a case that will be heard for a second time before the Court this year. In Jennings v. Rodriguez, the Court will consider both statutory and constitutional challenges to the government’s ability to detain certain individuals without providing them the opportunity to be released on bond. Not only does the Court’s decision in Jennings have the potential to restrict the government’s use of immigration detention, but it could simultaneously chip away at the plenary power doctrine, which traditionally accords Congress and the President broad authority to enact, administer, and enforce immigration law without judicial oversight.

"While the law can create conflict between religion and health, it can also facilitate religious accommodation and protection of conscience. Finding this balance is critical to addressing the most pressing questions at the intersection of law, religion, and health in the United States: should physicians be required to disclose their religious beliefs to patients? How should we think about institutional conscience in the health care setting? How should health care providers deal with families with religious objections to withdrawing treatment? In this timely book, experts from a variety of perspectives and disciplines offer insight on these and other pressing questions, describing what the public discourse gets right and wrong, how policymakers might respond, and what potential conflicts may arise in the future. It should be read by academics, policymakers, and anyone else - patient or physician, secular or devout - interested in how US law interacts with health care and religion." -- Publisher

This paper estimates the impact of local labor market conditions on criminal recidivism using rich administrative prison records on over four million offenders released from 43 states between 2000 and 2013. Exploiting each offender’s exact date of release, I find that being released to a county with higher low-skilled employment and higher average low-skilled wages significantly decreases the risk of recidivism. The impact of higher wages on recidivism is larger for both black offenders and first-time offenders, and in sectors that report being more willing to hire ex-offenders. These results are robust to individual and county-level controls, policing and corrections activity, and do not appear to be driven by changes in the composition of released offenders during good or bad economic times.

Presently, in the United States there is a fair amount of speculation regarding the future of food and agricultural laws and policies, given the recent election of a new president. Based on campaign rhetoric and comments since the election, the next four-to-eight years could signal a dramatic shift in a variety of food policy areas, including specific provisions of the Farm Bill, incentives for local food systems and organic farmers, and conservation on farms. Additionally, the new Administration has been exceedingly vocal about immigration reform, which will have significant impacts on the food and farming sectors. 

The concept of a national food strategy is not new. Other countries, facing similar food system challenges, have developed national food strategies to address these challenges in a holistic and integrated manner. These strategies represent an acknowledgement that, like the United States, many countries have an uncoordinated set of laws and policies that impact the food system. The creation of a national food strategy is both an effort to understand myriad laws and policies related to the food system, and a means by which to chart a path forward with a clear set of goals and priorities to guide future decision making. Although the United States does not have a national food strategy, it has developed national strategies in response to other issues of national concern, such as antibiotic-resistant bacteria or HIV/AIDS, where a coordinated response was needed.

While the incoming Administration's food and agricultural policies remain uncertain, the creation of a national strategy can address many existing food system regulatory challenges. Such a strategy could be created in one of two ways. First, the incoming Administration can commit to a national food strategy that may comprehensively address, prioritize, and set goals related to many of the issues important to American voters, including public health, the economy, immigration, the environment, and trade. Alternatively, stakeholders can begin the process--as they have done internationally--to develop their own strategy to present to the next Administration. This Article argues that either of these outcomes is superior to the status quo, yet concludes a national food strategy in the United States will ultimately require governmental engagement to achieve the benefits of long-term, coordinated food system law and policy making.

The enormous misdemeanor system is an increasingly important and fertile area of criminal justice reform. With over 10 million cases filed each year, vastly outnumbering felonies, the petty offense process is how most Americans experience the criminal justice system. Characterized largely by speed, informality, and a lack of regulation and transparency, the petty-offense process generates millions of criminal convictions as well as burdensome punishments that affect employment, housing, education, and immigration. This chapter explains the major policy issues raised by the misdemeanor system, including its assembly-line quality, high rates of wrongful conviction, its racial skew, and how it quietly impoverishes working people and the poor. Key targets of reform include arrest, bail, prosecutorial policies, the right to counsel, diversion, decriminalization, debtor’s prison, criminal records, and collateral consequences.

As a result of movements for labeling food with genetically modified organisms (GMOs) Congress enacted a mandatory labeling requirement in 2016. These movements, and the legislation, raise recurring questions about mandatory product labels: whether there is a market failure, neoclassical or behavioral, that justifies them, and whether the benefits of such labels justify the costs. The first goal of this essay is to identify and to evaluate the four competing approaches that agencies now use to assess the costs and benefits of mandatory labeling in general. The second goal is to apply those approaches to the context of GM food. Assessment of the benefits of mandatory labels presents especially serious challenges. Agencies have (1) claimed that quantification is essentially impossible; (2) engaged in breakeven analysis; (3) projected various endpoints, such as health benefits or purely economic savings; and (4) relied on private willingness to pay for the relevant information. All of these approaches run into serious normative and empirical challenges. In principle, (4) is best, but in practice, (2) is sometimes both the most that can be expected and the least that can be demanded. Many people favor labeling GM food on the ground that it poses serious risks to human health and the environment, but with certain qualifications, the prevailing scientific judgment is that it does no such thing. In the face of that judgment, some people respond that even in the absence of evidence of harm, people have “a right to know” about the contents of what they are eating. But there is a serious problem with this response: there is a good argument that the benefits of such labels would be lower than the costs. Consumers would obtain no health benefits from which labels. To the extent that they would be willing to pay for them, the reason (for many though not all) is likely to be erroneous beliefs, which are not a sufficient justification for mandatory labels. Moreover, GMO labels might well lead people to think that the relevant foods are harmful and thus affirmatively mislead them. Some people contend that GMOs pose risks to the environment (including biodiversity), to intelligible moral commitments, or to nonquantifiable values. Many people think that the key issue involves the need to take precautions in the face of scientific uncertainty: Because there is a non-zero risk that GM food will cause irreversible and catastrophic harm, it is appropriate to be precautionary, through labels or through more severe restrictions. The force of this response depends on the science: If there is a small or uncertain risk of serious harm, precautions may indeed be justified. If the risk is essentially zero, as many scientists have concluded, then precautions are difficult to justify. The discussion, though focused on GM foods, has implications for disclosure policies in general, which often raise difficult questions about hard-to-quantify benefits, the proper use of cost-benefit balancing, and the appropriate role of precautionary thinking.

Originalism is not about the text. Though the theory is often treated as a way to read the Constitution’s words, that conventional view is misleading. A society can be recognizably originalist without any words to interpret: without a written constitution, written statutes, or any writing at all. If texts aren’t fundamental to originalism, then originalism isn’t fundamentally about texts. Avoiding that error helps us see what originalism generally is about: namely, our present constitutional law, and its dependence on a crucial moment in the past.

From free and open source software, through Wikipedia to video journalism, peer production plays a more significant role in the information production environment than was theoretically admissible by any economic model of motivation and organization that prevailed at the turn of the millennium. Its sustained success for a quarter of a century forces us to reevaluate three core assumptions of the standard models of innovation and production. First, it places intrinsic and social motivations, rather than material incentives, at the core of innovation, and hence growth. Second, it challenges the centrality of property, as opposed to the interaction of property and commons, to growth. And third, it questions the continued centrality of firms to the innovation process.

On June 23, 2017, the Supreme Court’s 5-3 decision in Murr v. Wisconsin provided some long-awaited guidance for courts to use in defining the relevant unit of property to perform regulatory takings analyses. The Court announced a new three-part test, tasking lower courts with two different multifactor inquiries to determine whether a federal regulatory taking has occurred. First, the court must figure out the right unit of property, and second, it must determine whether just compensation is owed using the three-pronged test articulated forty years ago in Penn Central Transportation Co. v. New York City. Despite its resort to multiple factors to determine the relevant unit of property, Murr is most striking because of an important one it minimizes: state-specific positive law. Takings doctrine has long valued, incorporated, and awarded protection to varied unique forms of state property. This constitutional property federalism is widely perceived as desirable, encouraging beneficial competition and innovation in the forms and content of property rights in different jurisdictions. This Essay argues that the Murr decision threatens constitutional property federalism by inviting courts to define the scope of protected property interests using law and regulation across jurisdictional boundaries. As lower courts and scholars struggle to give meaning to Murr, its effects on the federalist structure of property should not be neglected.

Pennoyer v. Neff has a bad rap. As an original matter, Pennoyer is legally correct. Compared to current doctrine, it offers a more coherent and attractive way to think about personal jurisdiction and interstate relations generally. To wit: The Constitution imposes no direct limits on personal jurisdiction. Jurisdiction isn’t a matter of federal law, but of general law—that unwritten law, including much of the English common law and the customary law of nations, that formed the basis of the American legal system. Founding-era states were free to override that law and to exercise more expansive jurisdiction. But if they did, their judgments wouldn’t be recognized elsewhere, in other states or in federal courts—any more than if they’d tried to redraw their borders. As Pennoyer saw, the Fourteenth Amendment changed things by enabling direct federal review of state judgments, rather than making parties wait to challenge them at the recognition stage. It created a federal question of what had been a general one: whether a judgment was issued with jurisdiction, full stop, such that the deprivation of property or liberty it ordered would be done with due process of law. Reviving Pennoyer would make modern doctrine make more sense. As general-law principles, not constitutional decrees, jurisdictional doctrines could be adjusted by international treaty—or overridden through Congress’s enumerated powers. The Due Process Clause gives these rules teeth without determining their content, leaving space for federal rules to govern our federal system. In the meantime, courts facing jurisdictional questions should avoid pitched battles between “sovereignty” and “liberty,” looking instead to current conventions of general and international law. Pennoyer’s reasoning can be right without International Shoe’s outcome being wrong; international law and American practice might just be different now than they were in 1878 or 1945. But if not, at least we’ll be looking in the right place. General law may not be much, but it’s something: the conventional settlement of the problems of political authority at the root of any theory of personal jurisdiction. Recovering those conventions is not only useful for its own sake, but a step toward appreciating our deep dependence on shared traditions of general law.