Faculty Bibliography

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

Politicians appear to be increasingly dependent upon a group of ultra-wealthy elites who not only fund their campaigns but are critical for the functioning of public governance. These ultrawealthy individuals provide the indispensable infrastructure, expertise, and communication that are critical to modern electoral politics. These ultra-wealthy individuals want more than influence, seeking instead to govern even though the voters do not elect them. This chapter describes this process and argues that the campaign finance literature, which is mired in a debate about corruption and equality, is not well-positioned to address this contemporary challenge to representative democracy. The piece refers to this challenge as "plutocratic democracy," and uses Elon Musk as a case study.

We examine how priority of workers’ claims vis-à-vis secured claims in insolvency varies across jurisdictions and over time as a window into the shifting treatment of distributional or social justice considerations in private law. Existing literature focuses on the extent to which laws in the Global South are either legal transplants from European countries belonging to the same legal family or have more recently adhered to “neoliberal” prescriptions from the United States or international organizations. Our findings highlight the limits of these theories by showing (i) Global South-driven legal innovation and diffusion, with Mexico’s 1917 constitution granting workers’ claims priority over secured claims nearly two decades before comparable French legislation was enacted, and (ii) significant persistence—and, in some cases, growing recognition—of priority for workers’ claims across jurisdictions, despite strong contrary pressures from international organizations such as the World Bank and UNCITRAL. We also discuss the role of state capacity in explaining legal heterodoxy in the Global South and describe the growth of sub rosa legal reforms that circumvent workers’ priority in bankruptcy through new categories of insolvency-proof security interests.

Fresh out of college, we were a bunch of misfits, in a chaotic, run-down communal home, desperately trying to figure out who we were meant to be.

In certain antitrust settings, it is sometimes claimed that otherwise cognizable benefits (efficiencies, procompetitive effects) do not count in the balance if they arise in a different "market" from the locus of harm. Such an omission would be pernicious. If broadly applied, it would condemn many movements of resources to their best uses, the lifeblood of a well-functioning economy. After all, when supply and demand shift or drastic innovations channel resources in new directions--whether by contracts, internal decisions of firms (including monopolists), or acquisitions--they necessarily move resources away from being deployed somewhere else. An immediate implication is that, at a fundamental level, healthy economic activity routinely leaves some suppliers and customers worse off, no matter how widespread and substantial are the benefits to others. Attempts to regulate an economy that ignore "out-of-market" benefits would undermine its basic operation. It would be dangerous to expand this type of limitation on sound analysis and decision-making; instead, any such restrictions should be expunged.

Wolford v. Lopez presents the Supreme Court with a novel question: may states require property owners to affirmatively consent before armed persons enter private property that is held open to the public? Hawaii enacted such a default rule after New York State Rifle & Pistol Association v. Bruen instructed courts to assess modern gun regulations by analogy to historical restrictions that are “relevantly similar” in “how and why” they burden the right to armed self-defense. In Wolford, the parties have turned to colonial-era hunting statutes limiting armed entry onto private land, but they disagree fundamentally about what those laws represent. This Essay shows how Wolford crystallizes the level-of-generality problem embedded in Bruen’s historical framework. Outcomes often turn on the frame courts choose for “the relevant tradition”: defined too narrowly, no analogue fits; defined too broadly, almost anything does. Wolford poses that problem on both “why” and “how.” On “why,” the parties and lower courts dispute whether Founding-era hunting laws targeted “poaching” alone or broader concerns about armed trespass. On “how,” they dispute whether bans tied to “enclosed” or “improved” land map onto the modern category of “private property open to the public.” Reexamining the record through property history clarifies what the hunting laws can—and cannot—do in the analogical analysis. Even an “anti-poaching” frame does not resolve whether the laws addressed theft of game or a broader bundle of concerns including trespass, property damage, and violence associated with armed strangers. And “enclosure” and “improvement” functioned as publicly legible property signals—proxies for claim and notice—rather than precursors to contemporary zoning-era distinctions between residential and commercial space. The Essay closes by arguing that when history is genuinely ambiguous and competing constitutional values are in tension, courts should be transparent about the level-of-generality choices that drive outcomes and candid about the extent to which those choices inevitably reintroduce means-ends reasoning under another name.

Long before the federal onslaught, a Twin Cities museum showed what it meant to find a home in America.

In an attempt to protect its dominant position in the market for incorporations, Delaware recently relaxed the constraints on public company controllers. This article analyzes how the relaxation of controller constraints is expected to affect public investors and the economy. In particular, we show that this relaxation should be expected to: (i) provide controllers with substantial private benefits through six channels that we identify and discuss; (ii) impose even larger costs on public investors and thereby generate considerable efficiency costs and reductions in corporate value; (iii) transform ownership patterns over time-leading both to an increase in the prevalence of controlled companies and to a decline in the ownership stakes held by controllers; and (iv) lower the quality of investor protection in U.S. controlled companies to a level significantly below that observed in other advanced economies. We also demonstrate that market forces and private ordering cannot be relied on to adequately address the above concerns. The looming risks we identify for both public investors and the broader economy raise serious concerns for anyone interested in investor protection and economic performance.

This Article documents and examines Brazil’s pioneering imposition of joint and several liability for labor obligations on parent companies since 1937, complicating existing narratives about the German origins of group law. We uncover evidence that nationalism and resistance to foreign corporate groups contributed significantly to this legal development. Central to Brazil’s groundbreaking 1937 reform holding parent companies liable for subsidiaries’ labor obligations was the concern about protecting local workers from foreign groups attempting to evade legal responsibilities through separate legal entities. This innovation has shown remarkable durability and contemporary relevance. A 2024 decision by the Brazilian Supreme Court applied the economic group doctrine to enforce its orders against X (formerly Twitter) by freezing the assets of the Brazilian subsidiaries of Starlink, also controlled by Elon Musk. Our comparative analysis reveals a gradual, if contested, trend toward eroding corporate separateness to protect workers across jurisdictions. Moreover, this development appears to be more common in the Global South, with Portugal standing as the sole Global North country examined to converge with Brazil’s comprehensive statutory approach—and only after a 70-year delay. These findings suggest that challenges in state capacity and the geographic divide between capital and labor, often pronounced along North-South lines, can shape the evolution of limited liability and corporate separateness doctrines in ways that challenge conventional narratives in corporate and comparative law.

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

Early in his life, Sanders left the streets of Brooklyn for the woodlands of Vermont. What did the man bring to the state—and what did the state bring to the man?

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.

From the constitutional Founding until Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), federal courts routinely applied a body of “general law” to resolve a wide range of legal issues, including issues relating to commercial law, torts, international law, conflict of laws, equity, and procedure. This general law regime became politically fraught and difficult to administer, and the Supreme Court finally repudiated it in Erie, declaring that “there is no federal general common law” and requiring the federal courts to ground all rules in either federal or state law. Erie and its progeny created what this Article terms the “Erie algorithm,” which requires federal courts to convert pre-Erie rules premised on one understanding of law and federal judicial power into rules premised on different understandings of both, almost always with a different meaning and different legal status than prevailed at the Founding and in the nineteenth century. This algorithm undergirds nearly every corner of contemporary federal courts doctrine. Despite its willingness to rethink other major structural constitutional law precedents, the Supreme Court has accepted—and, indeed, embraced—the Erie algorithm and incorporated it throughout modern public law. By contrast, a number of scholars in recent years—primarily but not exclusively originalists—have sought to revive the pre-Erie general law. “General law revivalism,” this Article argues, overlooks how dysfunctional the general law regime had become before Erie and fails to appreciate the incompatibility of that regime with the post-Erie constitutional order. In addition, those who suggest jettisoning Erie have not made the case for absorbing the massive system costs that such an effort would generate. The Article concludes that many strands of originalism are left with “the problem of 1938”: the necessity of reconciling originalist commitments with a legal system fundamentally shaped by Erie and its transformational algorithm.

Alignment of artificial intelligence (AI) encompasses the normative problem of specifying how AI systems should act and the technical problem of ensuring AI systems comply with those specifications. To date, AI alignment has generally overlooked an important source of knowledge and practice for grappling with these problems: law. In this paper, we aim to fill this gap by exploring how legal rules, principles, and methods can be leveraged to address problems of alignment and inform the design of AI systems that operate safely and ethically. This emerging field -- legal alignment -- focuses on three research directions: (1) designing AI systems to comply with the content of legal rules developed through legitimate institutions and processes, (2) adapting methods from legal interpretation to guide how AI systems reason and make decisions, and (3) harnessing legal concepts as a structural blueprint for confronting challenges of reliability, trust, and cooperation in AI systems. These research directions present new conceptual, empirical, and institutional questions, which include examining the specific set of laws that particular AI systems should follow, creating evaluations to assess their legal compliance in real-world settings, and developing governance frameworks to support the implementation of legal alignment in practice. Tackling these questions requires expertise across law, computer science, and other disciplines, offering these communities the opportunity to collaborate in designing AI for the better.

The U.S. penal apparatus is a bundle of wildly divergent practices. Police in some cities use more force than others. Prosecutors in some jurisdictions file charges automatically while others screen carefully. Public defenders in some counties lack zeal while others provide high quality representation. Offices that share the same name and perform the same basic legal functions—“police,” “prosecutor,” “public defender,” “criminal court”—actually operate according to highly disparate legal, professional, and normative standards. These differences give rise to a stratified criminal process in which a minority of defendants and cases are handled lawfully with attention and care, while a much larger group of defendants and cases are treated with legally sloppy inattention, disrespect, and even violence. These variations are a function of, among other things, distinctive institutional choices: the strikingly diverse organizational arrangements, resource allocations, and routine decision-making cultures within each of our major penal institutions. Under the influence of both federalism and localism, we tolerate a highly decentralized and internally inconsistent criminal system which distributes resources, status, and accountability unequally. As a result, American defendants are subject to a broad and often conflicted spectrum of operative criminal practices, principles, and norms, some far more punitive than others. These institutional differences represent a kind of systemic inequality, created and imposed by the workings of the criminal apparatus itself. While they reflect the well-studied inequalities that flow from defendant wealth, race, and neighborhood, they also inflict their own bespoke brand of unequal treatment through the unique processes, consequences, and normative values of criminalization. At the most foundational level, they alter the significance of basic legal principles such as due process, accuracy, and fairness, downgrading them under pressure from divergent institutional thinking and cultures. As a result, our very notions of criminality, justice, and equal treatment are unfairly protean: institutionally changeable and maldistributed throughout the penal system. This Article maps these maldistributions and the myriad ways in which the organization and operation of our basic criminal institutions shake out as powerful drivers of penal inequality.

Although much has been written about why Donald Trump's Executive Order purporting to abolish birthright citizenship for children of unlawfully present or temporarily present parents violates the Citizenship Clause of the Fourteenth Amendment, there is a prior issue that has received less discussion: the Executive Order also violates the Immigration and Nationality Act. This article examines that statutory issue through the lens of one particular but revealing aspect of the voluminous evidence, the law and practice of suspension of deportation for noncitizen parents of children born as citizens while their parents were unlawfully or temporarily present in the United States. The dense interaction of Congress and the executive from 1940 into the 1950s on suspension of deportation shows repeated confirmation of the shared interpretation of both branches on the scope of birthright citizenship, as embodied in the 1940 Nationality Act and then the 1952 INA. This article discusses both published sources and previously unpublished documentation obtained from INS files in the archives. Appendices to this article make available examples of previously unpublished suspension decisions, in order to further demonstrate that the Executive Order violates the INA. The actual practice totally contradicts revisionist theories that claim to support the Executive Order.

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.

This chapter situates the Global South in current debates on comparative corporate governance, with a special focus on the “BICS” (Brazil, India, China, and South Africa). The BICS now boast higher levels of stock market capitalization as a percentage to GDP than the four largest Global North economies, and their firms are also increasingly integrated into Global North markets. However, traditional views on corporate governance in the Global South have either assimilated the South into Global North categories (such as legal families) or have had a narrow focus on failures in legal transplantation or in ensuring investor protection. New ways of thinking about the Global South are emerging, however. Those have identified institutional innovations and adaptations in corporate laws in the Global South that account for local realities, especially in incorporating concerns about stakeholder protections and inequality. Global South legal systems are also increasingly a prominent driver of corporate law and governance trends around the world. While in earlier decades Global South jurisdictions sought to mobilize the United Nations (UN) to regulate multinational corporations, more recently the UN has sought to mobilize corporations to mitigate regulatory gaps in the Global South. Concerns about regulatory gaps in the Global South with respect to human rights and environmental protection have helped inspire global trends in corporate governance such as the ESG movement and human rights due diligence, thus contributing to the resurgence of stakeholderist proposals and reforms in the Global North. Interestingly, the growing interest in stakeholder-oriented approaches in the Global North can also be interpreted as a form of “reverse convergence” in comparative corporate governance, with various institutions of the Global North coming to resemble their Global South counterparts.

For a long time, for both Justices and many observers, “legitimacy” was a focal criterion for assessing the Supreme Court’s performance. But what if the Court, or a big enough faction of its Justices, dropped legitimacy as a concern or goal? What if enough Justices felt that there was big enough of a chance to make fundamental transformations in the law that it was not only acceptable but necessary to deteriorate the institution’s standing—or scrap it altogether? Our proposal is that the performance of the contemporary Supreme Court prompts just this question. The current majority’s zeal to validate its longstanding unitary executive theory in collusion with President Trump raises the possibility of a post-legitimacy court most obviously, but the evidence for the abandonment of what had been a traditional goal and metric is far more pervasive. If our descriptive proposal is that the Supreme Court’s majority has relinquished legitimacy as a criterion of its own performance, our evaluative corollary is that we should cease pining for its return, and draw the consequences of living in the aftermath.

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.

Corporate debt financing and the restructuring of large corporations are now governed by what this Article calls the “global law of debt,” a transnational system shaped more by law firms, investment banks, and investors in New York and London than by national laws or court decisions. Large companies can now optimize governing law on a transaction-by-transaction basis, for example by borrowing in New York and then restructuring that debt in the United Kingdom, or by borrowing in London through English-law governed contracts with New York-law interpretation for select provisions. This Article provides the first account of this development, tracing its origins to the 1960s, when New York and London debt professionals expanded into each other’s markets, creating an entangled system that fostered mutual learning and competition. In 1978, Congress enacted a new bankruptcy law that gave American lawyers and investors corporate restructuring expertise that they later exported abroad. In the post-pandemic era, London emerged as a global restructuring hub rivaling the United States. These developments have produced a robust global debt market, but they have also unsettled long-standing assumptions about the rights of creditors as Chapter 11’s primacy fades and controversial American innovations that erode creditor protections proliferate globally.

In this Article, I examine a phenomenon unfolding within the United States’s military legal establishment: an effort by a segment of military lawyers to define how the law of armed conflict (LOAC) applies to the wars they anticipate fighting in the future. I refer to this effort as LSCO lawyering: the development, advancement, and institutionalization of a vision of LOAC tailored to large-scale combat operations (LSCOs), understood here as multi-domain warfare against a peer adversary such as China. Drawing on doctrinal materials, planning documents, and conversations with current and former armed-forces legal advisers from the United States and allied or partner forces, I trace how LSCO lawyering reflects a diagnosis of interpretive and institutional crisis—a perceived mismatch between prevailing legal expectations and the operational realities of high-intensity war—and a response that aims not to dismantle LOAC but to reassert it on terms viewed as credible and feasible under conditions of existential conflict. At the heart of this project lies a reconfiguration of what I call American international humanitarian law (IHL): the United States’s distinctive assemblage of legal interpretations, operational practices, and normative commitments that shape its approach to the conduct of hostilities. While LSCO lawyering is often framed internally as a modest clarification of existing law, I suggest that it functions as a far-reaching attempt to reshape the interpretive ecosystem within which LOAC is applied by privileging internal coherence, institutional discretion, and operational speed over policy overlays, external scrutiny, and extensive civilian-protection norms. The LSCO lawyering project does not reject the law, but it does aim to narrow its aperture to ensure that legal interpretation does not require, in the view of its proponents, normatively undue or operationally unsustainable limits on commanders preparing to fight—violent, vicious, and fast—in a potentially existential war, which would entail extraordinarily high consequences for civilian death and destruction. The emergence of LSCO lawyering sheds light on deeper conditions within the law of armed conflict’s normative and interpretive architecture. It brings to the surface long-standing tensions—between operational feasibility and civilian protection, between internal judgment and external review, between doctrinal minimalism and progressive development—that have shaped the field for decades. As a project grounded in anticipatory planning, LSCO lawyering highlights the degree to which LOAC interpretation is shaped not only by treaty text or customary practice but also by institutional culture, professional memory, and perceived strategic necessity. In that sense, it offers a revealing case through which to examine the evolving contours of LOAC as a legal, operational, and epistemic system—one whose boundaries are still being contested and whose authority remains under active construction.

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.

Where a country maintains a higher-legal (‘constitutional’) script of institutional forms, procedures and directives for the state’s exercise of lawmaking powers, we may demand or expect of that script that it be designed and applied with an overriding view to securing conditions of humanity, dignity and freedom for all the people of the country. The constitutional directives may, accordingly, include guarantees respecting named basic interests and needs of the people. Looking here into appraisals in South Africa of that country’s subsisting Constitution (and judicial applications of it), I find debates extending to a question of what sort of work a higher-legal constitution should anyway be doing in that country. As a nation-state among nation-states, South Africa today presents the aspect of a regime of civil government, authorised and responsible to oversee by law the ordering and conduct of affairs across its bounded territory. We tend to assume that any such nation-scale regime of government by law will have to rest on its population’s convergence on a script of procedures and directives for the state’s exercise of lawmaking powers: a constitution. This constitutional-existential assumption might not necessarily hold at every moment for every country. Here I advance it provisionally, with a view to charting implications from it that for some readers may bolster doubts — or dampen hopes — that the constitutional-existential proposition is fully fit to the South African case. Impending upon such doubts or hopes is a widely held sense of a collision here of culturally entrenched predispositions — ‘African,’ say, with ‘Western’ — towards conceptions of being-in-the-world and persons-in-society. I ask here about the resulting prospects for South African constitutionalism. I do so partly with a view to tempering intuitions about how to judge the doings of the Constitution’s drafters and its first-generation judicial custodians.

Amid plans to mark the nation’s semiquincentennial, many are asking whether or not the people really do rule, and whether the law is still king.

In the Supreme Court’s tariffs case, the conservative Justices will weigh two conflicting impulses regarding Presidential authority.

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

His posts and rants are omnipresent, ugly, and unhinged. Don’t look to history to make it make sense.

Congress wrote statutes with the apparent assumption that whoever held the office of the Presidency would use the powers they granted in good faith.

In the last one hundred years, the United States Constitution has remained essentially the same. About halfway through that century, however, constitutional theory reimagined it. In the time before, everyone agreed that the U.S. Constitution was undemocratic. That was the point of it, for its defenders; and it was the cause of America’s crises and thus the predicate of reform, for its critics. Nor was this fact especially surprising: the point of constitutionalism, ancient or modern, was generally to limit democracy or not to have it. After a brief transition, in the middle of the twentieth century, almost everyone came to agree that the U.S. Constitution — indeed constitutionalism generally — is democratic, actually and potentially. Nothing about the document had changed; indeed, it had changed more through formal amendment before this development, compared to since. This turn is best understood as the pseudo-democratization of American constitutional theory. The purpose of this chapter is descriptive and narrow. It is to establish the fact of pseudo-democratization. The core of the chapter is an enumeration of the forms of the new (pseudo)democratic constitutional theory.