Faculty Bibliography
-
Type:
Categories:
Sub-Categories:
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.
-
Type:
Categories:
Sub-Categories:
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.
-
Type:
Categories:
Links:
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.
-
Type:
Categories:
Sub-Categories:
Links:
This Viewpoint discusses new guidance on responsible use of artificial intelligence.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Links:
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.
-
Type:
Categories:
Sub-Categories:
Links:
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.
-
Type:
Categories:
Sub-Categories:
Links:
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.
-
Type:
Categories:
Sub-Categories:
Links:
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.
-
Type:
Categories:
Sub-Categories:
Links:
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.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Links:
This Viewpoint reviews employer protection initiatives for family caregivers in Illinois and other states.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
-
Type:
Categories:
Sub-Categories:
Links:
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.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
American democracy is experiencing a stress test, but the field that ought to be preoccupied with democracy seems to have little to say about it. The law of democracy has long grappled with fundamental challenges over political inequality, racial exclusion, and clientelism. For much of its history, the field of election law adjudicated these and similar issues more or less successfully. That mode of adjudication succeeded primarily because the problems of democratic politics could be addressed, for the most part, by applying the core commitments of the extant constitutional order. Significantly, American democracy relied on the Supreme Court to excavate, articulate, and implement those commitments. In the last few years, however, the challenges to democratic politics have changed. Our politics have become more existential, and so have our constitutional disputes. As a result, in an emergent category of law and democracy cases, the parties now fight over divergent partisan conceptions of democracy. Each side contends that the other is antidemocratic and effectively asks the Court to arbitrate between their competing claims. Because these emergent challenges are about defining liberal democracy itself, they cannot be resolved by invoking the commitments of America’s liberal constitutional democracy. These new challenges question the content of the polity’s commitments, not its failure to apply them. The familiar tools of election law were forged under different political conditions. Those tools have limited utility in our era of existential politics. Students and practitioners of the law of democracy need to develop an agenda for reforming our political systems. Election law can no longer depend upon the Court to resolve democracy’s pathologies. Courts can buy us time. But to meet the challenge of structural reform, our politics must do much more. In short, the law of democracy is now in its reconstruction era.
-
Stephen Breyer, A autoridade da Suprema Corte e o perigo da política (2025) (Braz.).
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Links:
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.
-
Type:
Categories:
Sub-Categories:
Links:
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.
-
Type:
Categories:
Links:
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.
-
Type:
Categories:
Links:
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.
-
Type:
Categories:
Sub-Categories:
Links:
We propose that AI-driven wellness apps powered by large language models can foster extreme emotional attachments and dependencies akin to human relationships — posing risks such as ambiguous loss and dysfunctional dependence — that challenge current regulatory frameworks and necessitate safeguards and informed interventions within these platforms.
-
Type:
Categories:
Sub-Categories:
This report evaluates the “Make America Healthy Again” (MAHA) movement’s food policy proposals, identifying five areas with strong scientific support to reduce diet-related chronic diseases. These five science-supported policy areas include: eliminating toxic chemicals, prohibiting subsidies for sugary drinks and ultra-processed foods, protecting children from unhealthy food environments, improving access to nutrition services in healthcare settings, and reducing conflicts of interest in food and nutrition research.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
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.
-
Type:
Categories:
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.
-
Type:
Categories:
Sub-Categories:
Links:
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.
-
Type:
Categories:
Sub-Categories:
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.