Faculty Bibliography

Artificial intelligence (AI) and Machine learning (ML) systems in medicine are poised to significantly improve health care, for example, by offering earlier diagnoses of diseases or recommending optimally individualized treatment plans. However, the emergence of AI/ML in medicine also creates challenges, which regulators must pay attention to. Which medical AI/ML-based products should be reviewed by regulators? What evidence should be required to permit marketing for AI/ML-based software as a medical device (SaMD)? How can we ensure the safety and effectiveness of AI/ML-based SaMD that may change over time as they are applied to new data? The U.S. Food and Drug Administration (FDA), for example, has recently proposed a discussion paper to address some of these issues. But it misses an important point: we argue that regulators like the FDA need to widen their scope from evaluating medical AI/ML-based products to assessing systems. This shift in perspective—from a product view to a system view—is central to maximizing the safety and efficacy of AI/ML in health care, but it also poses significant challenges for agencies like the FDA who are used to regulating products, not systems. We offer several suggestions for regulators to make this challenging but important transition.

This book is a primer on corporate law for law students and anyone else interested in the foundations of corporate law. The book provides a self-contained, accessible presentation of the field’s essentials: what corporations are, how they are governed, their interactions with their investors and other stakeholders, major transactions (M&A), and parallels with alternative entities including partnerships. Optional background chapters cover the investor ecosystem, contemporary corporate governance, and corporate finance. The book’s exposition of doctrine and policy is nuanced and sophisticated yet short and simple enough for a quick read.

This is the fifth chapter of the book Corporations in 100 Pages (2020), authored by Holger Spamann, Scott Hirst, and Gabriel Rauterberg. The book is an introduction to corporate law for students and anyone else interested in the foundations of corporate law. The book provides an accessible, self-contained presentation of the field’s essentials: what corporations are, how they are governed, their interactions with their investors, and other stakeholders, major transactions (M&A), and parallels with other legal entities, including partnerships. Optional background chapters cover the investor ecosystem, contemporary corporate governance, and corporate finance. The book’s exposition of doctrine and policy is nuanced and sophisticated, yet short and simple enough for a quick read. Chapter 5 explains the law governing “Fiduciary Duties,” which are legal duties imposed on specific individuals (“fiduciaries”) who exercise power on behalf of others. The chapter first provides an overview of corporate fiduciary duties: who owes what to whom, and introduces the principal fiduciary duties of care and of loyalty. The chapter then distinguishes standards of conduct and standards of review, and explains the two main standards of review that apply to fiduciary duties in corporate law, the “business judgment rule” and “entire fairness.” The chapter then explains how these standards of review apply to the paradigm cases of self-dealing and mere carelessness, as well as to cases involving corporate opportunities, bad faith, knowing violations of law, and (lack of) candor or oversight.

This is the seventh chapter of the book Corporations in 100 Pages (2020), authored by Holger Spamann, Scott Hirst, and Gabriel Rauterberg. The book is an introduction to corporate law for students and anyone else interested in the foundations of corporate law. The book provides an accessible, self-contained presentation of the field’s essentials: what corporations are, how they are governed, their interactions with their investors, and other stakeholders, major transactions (M&A), and parallels with other legal entities, including partnerships. Optional background chapters cover the investor ecosystem, contemporary corporate governance, and corporate finance. The book’s exposition of doctrine and policy is nuanced and sophisticated, yet short and simple enough for a quick read. Chapter 7, “Mergers and Acquisitions,” discusses ways of buying all or part of a corporation. The chapter provides an overview of these transactions and introduces key concepts and the main sources of law. The chapter then explains the three ways in which all or part of a corporation can be acquired—by acquiring its assets, acquiring its shares, and through a merger with another corporation—and the legal and practical differences between the three structures and variants thereof. The chapter explains the difference between friendly and hostile transactions, and the legal rules regarding how corporations may permissibly defend themselves against hostile transactions. The chapter also discusses the special considerations and rules that apply to mergers and acquisitions involving controlling shareholders. Finally, the chapter discusses litigation concerning mergers and acquisitions.

Context: The opioid epidemic is a major US public health crisis. Its scope prompted significant public outreach, but this response triggered a series of journalistic articles comparing the opioid epidemic to the crack cocaine epidemic. Some authors claimed that the political response to the crack cocaine epidemic was criminal justice rather than medical in nature, motivated by divergent racial demographics. Methods: We examine these assertions by analyzing the language used in relevant newspaper articles. Using a national sample, we compare word frequencies from articles about crack cocaine in 1988–89 and opioids in 2016–17 to evaluate media framings. We also examine articles about methamphetamines in 1992–93 and heroin throughout the three eras to distinguish between narratives used to describe the crack cocaine and opioid epidemics. Findings: We find support for critics' hypotheses about the differential framing of the two epidemics: articles on the opioid epidemic are likelier to use medical terminology than criminal justice terminology while the reverse is true for crack cocaine articles. Conclusions: Our analysis suggests that race and legality may influence policy responses to substance-use epidemics. Comparisons also suggest that the evolution of the media narrative on substance use cannot alone account for the divergence in framing between the two epidemics.

"Over the last century, North Atlantic legal intellectuals developed the philosophical, doctrinal and institutional tools which strategic actors use everyday around the world to press their interests, defeat their rivals, and consolidate their gains. At the same time, however, they promoted ideas about law in global affairs which make it difficult to see law’s constitutive role in the global distribution of wealth. This chapter explores the interactive history of these two innovative strands before offering an alternative approach to law in global affairs which foregrounds law’s role in political and economic struggle ather than its promise of order, its distributional impact rather than its peace-building or humanitarian potential."

What principle underlies the Supreme Court’s “colorblind” or “anticlassification” approach to race and equal protection? According to the Court and many commentators, the answer lies in a kind of individualism—a conviction that people should be treated as individuals, not as instances of racial types. Yet the Court has said almost nothing about what it means to treat someone “as an individual.” This Article excavates the philosophical foundations of that idea. And in so doing, it offers a framework for understanding, and then evaluating, the Court’s assertions that the government fails to treat people as individuals when it classifies them by race. Rightly understood, the Article argues, treating people as individuals means showing respect for their individuality—a central facet of their moral standing as persons. To evaluate the claimed linkage between individualism and colorblindness, then, one first has to consider what respect for a person’s individuality involves. Drawing on the philosophical literatures on respect and autonomy, the Article offers an answer to that question: Treating someone as an individual requires taking due account of the information conveyed by her self-defining choices. But that answer entails that respect for a person’s individuality does not inherently require, or even favor, disregard of information carried by her race. The Article thus offers an internal critique of the Supreme Court’s avowedly “individualistic” approach to race and equal protection; it shows that the central moral argument for colorblindness rests on too shallow an account of what individualism itself demands. Building on that conclusion, the Article then turns to suggestions that racial distinctions—whatever their intrinsic moral status—are nonetheless stamped with social meanings that render them disrespectful of a person’s individuality. Even if such a symbolic norm might justify limiting integrative race-based state action, the Article contends, the recognition that no more basic moral wrong is at work should transform how the colorblindness project is carried out. Most fundamentally, that recognition should prompt the Court to enforce colorblindness, if it does, with regret rather than indignation. And most concretely, it should lead the Court to decide cases and write opinions in ways that avoid further entrenching respect conventions that operate as obstacles to valuable means of racial repair. In sum, with the Court poised to double-down on colorblindness in the years ahead, this Article surfaces the internal challenges that an intellectually serious form of the doctrine would need to address and charts the course that a more reflective colorblindness doctrine might take.

This article discusses the ambiguity found in the WTO Anti-Dumping Agreement concerning price suppression analysis. Previous case law has established that investigating authorities undertaking to highlight price suppression must conduct a counterfactual analysis. This article examines the difficulties that investigating authorities face in performing such an analysis when the investigating period overlaps with a financial crisis or other abnormal economic circumstances. It suggests that the Appellate Body was correct to require consideration of how profit margins and costs are affected by market circumstances, but ought to pay further attention to the behavior of firms in imperfectly competitive markets.

The constitutionality of a search or seizure typically depends upon the connection between the target of that search or seizure and some allegation of illegal behavior — a connection assessed by asking whether the search or seizure is supported by probable cause. And yet, central as probable cause is to the Fourth Amendment’s administration, no one seems to know what it means, or how it operates. Indeed, the Supreme Court has gone so far as to insist that it is “not possible” to define the term, holding instead that the probable cause inquiry entails no more than the application of “common-sense” to “the totality of the circumstances.” That doctrinal approach is routinely criticized as an “I know it when I see it” mode of jurisprudence that is ill equipped to safeguard civil liberties in the face of competing and weighty law enforcement demands. Viewed charitably, however the Supreme Court’s refusal to elaborate on the meaning of probable cause stems from an understandable desire for doctrinal flexibility in the face of widely varying law enforcement-civilian interactions. This tension between doctrinal flexibility and structure is the animating dilemma of probable-cause jurisprudence — a dilemma that this Article attempts to navigate, and ultimately to resolve. To do so, it urges a rejection of an often invoked (if not always followed) tenet of Supreme Court doctrine: probable cause unitarianism. That dominant idea, expressly endorsed in many of the Court’s leading precedents, holds that whatever probable cause means, it ought to entail the same basic analytic method, judged by the same substantive standard, from one case to another. On close inspection, however, the Supreme Court does not always practice what it preaches. Rather, beneath the surface of its probable cause canon there are seeds of an alternative — and superior — conception of probable cause, which this Article terms probable cause pluralism. On this view, “probable cause” is an open-textured and capacious idea that can comfortably encompass multiple distinct analytic frameworks and multiple different substantive standards, each of which can be tailored to the unique epistemological and normative challenges posed by different types of Fourth Amendment events. Probable cause, as the case may be, can be statistically driven or intuitively assessed; it can demand compelling evidence of illegal behavior or only an occasionally satisfied profile; it can presume the credibility of some types of witnesses, while treating others with deserved skepticism or disbelief. It can, in short, come to mean something, so long as it gives up on meaning any one thing in all cases. Because probable cause’s pluralism is both nascent and implicit, it is also undertheorized, having escaped sustained or comprehensive analysis by either the Court or its commentators. As a result, probable cause pluralism, in its current form, is at best a stunted and haphazard collection of disparate and disconnected ideas. This Article’s central contribution is to bring those ideas together, refining and synthesizing them into a comprehensive account of what a pluralist theory of probable cause could and should like in practice. Specifically, by organizing probable cause around three central analytic axes — which in turn ask how to assess evidentiary claims, how to assess proponents of such claims, and how to determine the certainty thresholds for those two assessments — the Article constructs a universally applicable framework for determining the constitutionality of any given search or seizure. With that framework in hand, scholars and jurists will be better equipped to reason through all the many and varied cases to come, and better able to assess all the many cases that have come before.

What is the constitutional status of falsehoods? From the standpoint of the First Amendment, does truth or falsity matter? These questions have become especially pressing with the increasing power of social media, the frequent contestation of established facts, and the current focus on “fake news,” disseminated by both foreign and domestic agents in an effort to drive U.S. politics in particular directions. In 2012, the Supreme Court ruled for the first time that intentional falsehoods are protected by the First Amendment, at least when they do not cause serious harm. But in important ways, 2012 seems like a generation ago, and the Court has yet to give an adequate explanation for its conclusion. Such an explanation must begin the risk of a “chilling effect,” by which an effort to punish or deter falsehoods might also and in the process chill truth. But that is hardly the only reason to protect falsehoods, intentional or otherwise; there are several others. Even so, these arguments suffer from abstraction and high-mindedness; they do not amount to decisive reasons to protect falsehoods. These propositions are applied to old questions involving defamation and to new questions involving fake news, deepfakes, and doctored videos. It emerges that New York Times v. Sullivan is an anachronism, and that it should be rethought in light of current technologies and new findings in behavioral science. Government should have authority to control deepfakes and doctored videos, and also certain kinds of “fake news,” when it threatens political processes. It also emerges that Facebook, Twitter, and other social media platforms should do far more than they are now doing to control falsehoods, deepfakes, and doctored videos.

Kent Garrett describes the frustration of being one of only a few students of color.

This chapter addresses a basic difference between the rules governing tort and contract damages. It also explains why this already puzzling divergence is all the more puzzling in virtue of a seemingly intuitive “foreseeable-at-breach” rule that tort law rejects in favor of one that is less restrictive, while contract law rejects in favor of one that is more so. The chapter sets out to explain this phenomenon, in the process defending and illuminating prevailing doctrine. Two cases provide the focal point for this discussion. Hadley v. Baxendale (1854) stands for the rejection, in contract law, of the foreseeable-at-breach rule in favor of foreseeability of loss at the time of contract formation. Vosburg v. Putney (1891), meanwhile, holds that damages may be recovered in a tort action even if not reasonably foreseeable at the time of breach.

A firm sells a dangerous product to a population of heterogeneous consumers. Higher consumer types enjoy higher gross benefits from product use but suffer accidents more often. The firm invests resources to reduce the frequency of accidents. When the consumer's net benefit function (gross benefits minus expected harms) is decreasing in consumer type, the firm contractually accepts liability for accident losses and invests efficiently in product safety. When the consumer's net benefit function is increasing in consumer type, the firm contractually disclaims liability for accident losses and under-invests in product safety. Legal interventions, including products liability and limits on contractual waivers and disclaimers, are necessary to raise the level of product safety.

This chapter discusses the tension over recent decades in child welfare policy in the United States between two conflicting value systems, one focusing on parent and group rights over children, and the other focusing on child rights to grow up with nurturing parental care. It describes the leading legal and policy movements that have promoted keeping children with the family of origin and in the racial, ethnic and national group of origin. It contrasts these with some laws and policies that have instead prioritized protecting children against abuse and neglect, and placing them with nurturing parents including in adoption. It situates domestic US child welfare policy debates within the larger international context.

The importance of evidence-based policy rooted in experimental methods is increasingly recognized, from the Oregon Medicaid experiment to the efforts to address global poverty that were awarded a 2019 Nobel Prize. Over the past several decades, there have been attempts to extend this scientific approach to legal systems and practice. Yet, despite progress in empirical legal studies and experimental social policy research, judges, lawyers, and legal services providers often fail to subject their own practices to empirical study or to be guided by empirical data, with a particular aversion to randomized controlled trials (RCTs) (1). This is troubling, as many questions fundamental to legal practice and those it affects, such as allocation of attorney services, bail decisions, and use of mandatory mediation, could and should be informed by a rigorous evidentiary foundation. Although there are practical obstacles to undertaking legal practice RCTs, they have also been stymied by cultural barriers...

Responding to Jeffrey A. Pojanowski, Neoclassical Administrative Law, 133 HARV.L.REV.852 (2020).

This article reviews state ratification and implementation of the Marrakesh Treaty since its conclusion in 2013. We find that most states have adhered closely to the Treaty’s text, thus creating a de facto global template of exceptions and limitations that has increasingly enabled individuals with print disabilities, libraries and schools to create accessible format copies and share them across borders. The article argues that the Marrakesh Treaty’s core innovation—mandatory exceptions to copyright to promote public welfare—together with consultations with a diverse range of stakeholders, may offer a model for harmonising human rights and IP in other contexts.

Chapter 9 of the South African Constitution refers to ‘institutions protecting constitutional democracy’ (IPDs). Contemporary constitution designers have written into new constitutions numerous such institutions, and scholars have begun to identify them as a fourth branch of government alongside the traditional legislative, executive, and judicial branches. This article explores some of the conceptual issues associated with the new fourth branch: what justifies the creation of these IPDs (the short answer: a particular type of conflict of interest); what are their generic characteristics (the short answer: they are reasonably permanent institutions rather than ad hoc or statutory ones, unlike their antecedents); what is their relation to a constitutional court – another twentieth-century innovation; and why should they be understood to be a ‘branch’ of government rather than a congeries of useful innovations (the short answer: like the traditional branches, they perform distinctive function not readily performed by institutions located within those branches)?

The space between jurists and advocate at the Supreme Court is only a little more than six feet during oral arguments. As counsel for the state in Massachusetts v. EPA learned, the exchange of fire over that small divide is highly penetrating and usually hostile.

In developing international humanitarian law (IHL), States have aimed in part to lay down the primary normative and operational framework pertaining to principled humanitarian action in situations of armed conflict. The possibility that certain counterterrorism measures may be instituted in a manner that intentionally or unintentionally impedes such action has been recognized by an increasingly wide array of States and entities, including the United Nations Security Council and the U.N. Secretary-General. At least two aspects of the contemporary international discourse on intersections between principled humanitarian action and counterterrorism measures warrant more sustained attention. The first concerns who is, and who ought to be, in a position to authentically and authoritatively interpret and apply IHL in this area. The second concerns the relationships between IHL and other possibly relevant regulatory frameworks, including counterterrorism mandates flowing from decisions of the U.N. Security Council. Partly in relation to those two axes of the broader international discourse, a debate has emerged regarding whether the U.N. Security Council may authorize one particular counterterrorism entity — namely, the Counter-Terrorism Committee Executive Directorate (CTED) — to interpret and assess compliance with IHL pertaining to humanitarian action in relation to certain counterterrorism contexts. In a new legal briefing for the Harvard Law School Program on International Law and Armed Conflict (HLS PILAC), Dustin A. Lewis, Naz K. Modirzadeh, and Jessica S. Burniske seek to help inform that debate by raising some preliminary considerations regarding that possibility. The authors focus on the possible implications of States and other relevant actors pursuing various responses or not responding to this debate. One of the authors’ goals is to help raise awareness of this area with a focus on perspectives drawn from international law. Another is to invite a broader engagement with the question of the preservation of the humanitarian commitments laid down in IHL in a period marked by a growing number — and a deepening — of the intersections between situations of armed conflict and measures to suppress terrorism.

Neoclassical and credit approaches to money represent dramatically different theories of value. For many within the neoclassical tradition, the market exists as a conceptual enterprise – a place where independent agents compare and rank real goods, exchanging them afterwards to in accord with their preferences. That theory reflects a particular approach to value, identifying it as a pre-existing quality ranked by individual choice. The theory also generates a particular approach to money, assuming that a term of measurement naturally imports commensurability into evaluation. By contrast, public credit approaches suggest that creating commensurability in a world heterogeneous in so many aspects is a profound challenge. Modern political communities have responded by substantiating value in a unit that is cognizable to all: they issue credit tokens that can be set off against widely shared public obligations. That means, first, that value cognizable in money follows rather than pre-exists market activity: it is produced as individuals use credit money as a medium. Second, because value is produced as people use money, the character of that money matters: its nature as credit carries with it an allocative bias. Both governments and private lenders (banks) advance credit in order to spend selectively: they create a credit medium by providing credit to some people relative to others. According to the way money is created, definitionally we might say, individuals will not be equally situated in the process that generates prices. Decisions about value are made in the wake of that fact. The essay closes by contrasting the democratic visions at stake in neoclassical and public credit approaches to value. That exercises suggests that, if the public credit approach better describes money and market, their potential can only be realized by promoting rather than assuming equality.

When the Supreme Court announced its ruling in Massachusetts v. EPA, the decision was immediately hailed as a landmark. But this was the farthest thing from anyone’s mind when Joe Mendelson, an idealistic lawyer working on a shoestring budget for an environmental organization no one had heard of, decided to press his quixotic case. In October 1999, Mendelson hand-delivered a petition to the Environmental Protection Agency asking it to restrict greenhouse gas emissions from new cars. The Clean Air Act had authorized the EPA to regulate “any air pollutant” that could reasonably be anticipated to endanger public health. But could something as ordinary as carbon dioxide really be considered a harmful pollutant? And even if the EPA had the authority to regulate emissions, could it be forced to do so? Environmentalists urged Mendelson to stand down. Thinking of his young daughters and determined to fight climate change, he pressed on—and brought Sierra Club, Greenpeace, NRDC, and twelve state attorneys general led by Massachusetts to his side. This unlikely group—they called themselves the Carbon Dioxide Warriors—challenged the Bush administration and took the EPA to court. The Rule of Five tells the story of their unexpected triumph. We see how accidents, infighting, luck, superb lawyering, and the arcane practices of the Supreme Court collided to produce a legal miracle. An acclaimed advocate, Richard Lazarus reveals the personal dynamics of the justices and dramatizes the workings of the Court. The final ruling, by a razor-thin 5–4 margin, made possible important environmental safeguards which the Trump administration now seeks to unravel.

This Article seeks to contribute to the heated debate on the disclosure of political spending by public companies. A rulemaking petition urging SEC rules requiring such disclosure has attracted over 1.2 million comments since its submission seven years ago, but the SEC has not yet made a decision on the petition. The petition has sparked a debate among academics, members of the investor and issuer communities, current and former SEC commissioners, and members of Congress. In the course of this debate, opponents of mandatory disclosure have put forward a wide range of objections to such SEC mandates. This Article provides a comprehensive and detailed analysis of these objections, and it shows that they fail to support an opposition to transparency in this area. Among other things, we examine claims that disclosure of political spending would be counterproductive or at least unnecessary; that any beneficial provision of information would best be provided through voluntary disclosures of companies; and that the adoption of a disclosure rule by the SEC would violate the First Amendment or at least be institutionally inappropriate. We demonstrate that all of these objections do not provide, either individually or collectively, a good basis for opposing a disclosure rule. The case for keeping political spending under the radar of investors, we conclude, is untenable.

The financial crisis considerably strengthened the case for a “macro-prudential” component in financial regulation – that is, regulatory measures developed and implemented with a view to the stability of the financial system as a whole, rather than with sole attention to the circumstances of individual financial firms. Of particular conceptual appeal are time-varying measures that would discourage the creation of excessive risk, or at least augment the resiliency of firms and markets that could suffer greater losses in periods of economic or financial stress. Unfortunately, the analytic, political and practical hurdles to imposing effective time-varying measures during good times – whether through rules or discretionary action – are substantial. And, during periods of stress, market forces may demand that firms maintain fortress balance sheets, thereby thwarting the macro-prudential aim of allowing those firms to support economic activity through new lending that reduces capital levels and draws down liquidity reserves. This short paper examines these challenges through two examples – counter-cyclical capital requirements and the liquidity coverage ratio. It also suggests an approach that might begin to overcome these challenges, tough only partially and only for macro-prudential measures that increase regulatory requirements. The problem of market constraints on macro-prudential relaxation of requirements remains a problem.

Alex Whiting thoroughly analyzes the submissions by the ICC Office of the Prosecutor and statements made by the Prosecution. He explains the different approaches of the first and the second Prosecutor: The first embraced a theory of ‘disruption and specific deterrence’, seeking to intervene in real time to stop ongoing crimes with the Court being a force for diplomacy and peace. The second Prosecutor, on the other hand, focuses on the judicial tasks of the Court, chooses fewer cases, acts slowly and carefully. This way, the Court moved towards an expressive theory of punishment, investigations and cases are a way of expressing, shaping and enforcing norms. In the end, Whiting concludes that at the ICC’s Office of the Prosecutor theory does not dictate practice – it is the other way round: The Office’s strategy is reactive to and constrained by the dependency on state cooperation and the limits of the ICC’s authority. Only within those constraints, can theories of punishment play a role: ‘robust theories of punishment are a luxory of actors with power’.

Should we use the language of international criminal law (ICL) to discuss, analyze, and address Western policies of migration control? Such policies have included or resulted in indefinite and inhumane detention, deportations, including through practices of push- and pull-backs and numerous deaths of migrants attempting to cross land or sea borders. And yet, recourse to ICL's conceptual and rhetorical apparatus, often reserved for “unimaginable atrocities,” may seem ill-fitting and an emotive stretch of doctrine. Drawing from international strategic litigation practice on Australian and European policies, this article examines whether the legal concept of crimes against humanity can apply to the deaths, detention, and deportation of migrants, as part and consequence of Western policies of migration control. As migration control policies involve increasingly sophisticated practices of outsourcing and responsibility avoidance, I further ask whether the tools ICL has developed to describe system criminality can trace individual liability against the distance created by such policies. I also inquire into the potential that the transnational nature of migration and the spreading of anti-migration policies have in activating the jurisdiction of courts and the prioritization of the role of the International Criminal Court. Finally, I consider the danger of fetishizing an international punitive approach, before offering some thoughts that aim to bridge a critical approach to international criminal law with its use in meaningful strategic litigation. Throughout the Article, I argue that applying the categories of ICL to Western policies of migration control can contribute to revealing both the potential and the limits of the regime and its institutions, as well as the structures of asymmetry and injustice present both in anti-migration policies and in international criminal law itself.

The administrative state faces a pervasive problem: “benefit neglect,” understood as insufficient attention to the benefits of regulation. In 2017, for example, President Donald Trump issued Executive Order 13771, calling for a regulatory budget of $0 and directing agencies to eliminate two regulations for every regulation that they issue. The order has two laudable ambitions: to reduce the stock of existing regulations and to stem the flow of new regulations. But because it entirely ignores the benefits of regulations and focuses only on costs, it is a singularly crude instrument for achieving those goals. In both theory and practice, it threatens to impose large net costs (including significant increases in mortality and morbidity). It would be much better to abandon the idea of a regulatory budget, focused solely on costs, and instead to engage in two sustained but independent efforts: (1) a continuing “look back” at existing regulations, with the goal of simplifying or eliminating those that are unwarranted, and (2) cost-benefit discipline for new regulations. A third goal, no less important than (1) and (2), should be a very high priority, which is to produce institutional mechanisms to promote issuance of regulations that would have high net benefits (including reductions in mortality and morbidity). Congress, courts, and the executive branch should take steps to combat benefit neglect.

Boston Housing Authority v. Y.A., 482 Mass. 240 (2019), is the most recent guidance from the Supreme Judicial Court concerning the application of the federal Violence Against Women Act (VAWA), 34 U.S.C. §§ 12291 et seq., to summary process (eviction) cases. Among other safeguards provided under VAWA, the statute protects victims of domestic violence from eviction from federally subsidized housing so long as the basis for the eviction is a direct result of domestic violence. Boston Hous. Auth. v. Y.A., 482 Mass. 240, 245 (2019); 34 U.S.C. § 12491(b)(1) (2018); 24 C.F.R. § 5.2005(b).

Alan Dershowitz has been called “one of the most prominent and consistent defenders of civil liberties in America” by Politico and “the nation’s most peripatetic civil liberties lawyer and one of its most distinguished defenders of individual rights” by Newsweek. Yet he has come under intense criticism fire for applying those same principles, and his famed “shoe‑on‑the‑other‑foot test,” to Donald Trump, especially after arguing on the president’s behalf before the U.S. Senate as it deliberated impeachment. Defending the Constitution seeks to refocus the debate over impeachment to the same standard that Dershowitz has upheld for decades: the law of the United States of America, as established by the Constitution. Citing legal examples from a long lineage of distinguished judges and attorneys, and examining the impeachment language in the Constitution itself, Dershowitz proves—first to the U.S. Senate, and now to readers everywhere—that President Trump should not have been impeached, and certainly should not be removed, for causes that do not meet the standards laid out by the founding fathers. This book is Alan Dershowitz’s argument for a return to nonpartisan judgment based on the Constitution, for a preservation of the separation of powers and the checks and balances that make American government great. It is essential reading for anyone interested in or concerned about the impeachment of President Trump, and for everyone who cares about the future of U.S. government and society.