Faculty Bibliography

In his paper for this collection on the history of the Law and Modernization program at the Yale Law School and in several other papers, David Trubek "affectionately" attributes a role to me, as a sort of angel of destruction or a fox in the chicken coop, a "nightmare." This is exaggerated! I did, however, play a part in supporting the emergence from the program of legal academic projects–the Law and Society Association, the field of law and development and critical legal studies–that rejected some of the meliorist liberal Cold War assumptions of the program’s initial formulation. This paper describes the personal, political and intellectual trajectory that brought me, like many others of my generation of children of the 1950s liberal establishment, to redefine myself as a “radical."

Our report begins by providing an overview of the costs and benefits of cloud technology for financial companies; we find that cloud technology can offer significant benefits to financial companies. We then describe the current regulatory frameworks that apply to financial institutions’ use of third-party technology providers, including cloud service providers, in various jurisdictions. Next, we describe key provisions of DORA that apply to cloud and other technology service providers and how such provisions are similar to or diverge from the current frameworks described in the previous section. We conclude by recommending that the EU revise DORA in certain key respects to better align with the approach in other jurisdictions as DORA’s divergences from other jurisdictions’ regulation of cloud and other third-party technology services may unnecessarily discourage the adoption of such services by financial companies.

To the Uttermost Parts of the Earth shows the vital role played by legal imagination in the formation of the international order during 1300–1870. It discusses how European statehood arose during early modernity as a locally specific combination of ideas about sovereign power and property rights, and how those ideas expanded to structure the formation of European empires and consolidate modern international relations. By connecting the development of legal thinking with the history of political thought and by showing the gradual rise of economic analysis into predominance, the author argues that legal ideas from different European legal systems - Spanish, French, English and German - have played a prominent role in the history of global power. This history has emerged in imaginative ways to combine public and private power, sovereignty and property. The book will appeal to readers crossing conventional limits between international law, international relations, history of political thought, jurisprudence and legal history.

This year’s Supplements contain numerous amendments to the Bankruptcy Code. They are from the COVID-19 Bankruptcy Relief Extension Act of 2021, the Consolidated Appropriations Act, and the Bankruptcy Administrative Improvement Act of 2020. The Supplement also contains new UCC comments on protected series and the effect of bad faith purchase at an Article 9 sale. It also contains minor amendments to the Bankruptcy Rules and the bankruptcy related provisions of Title 28. In the course of a career, the number of state and federal statutes that a serious practitioner of commercial law would likely consult must surely reach into the hundreds. Not many practitioners would try to carry such statutes around, either in books or in their heads. But a few statutes are used over and over. Together, those few form the core of two basic subjects in commercial law, secured transactions and bankruptcy. Those core statutes are reproduced in this slender volume.

The recording, aggregation, and exchange of personal data is necessary to the development of socially-relevant machine learning applications. However, anecdotal and survey evidence show that ordinary people feel discontent and even anger regarding data collection practices that are currently typical and legal. This suggests that personal data markets in their current form do not adhere to the norms applied by ordinary people. The present study experimentally probes whether market transactions in a typical online scenario are accepted when evaluated by lay people. The results show that a high percentage of study participants refused to participate in a data pricing exercise, even in a commercial context where market rules would typically be expected to apply. For those participants who did price the data, the median price was an order of magnitude higher than the market price. These results call into question the notice and consent market paradigm that is used by technology firms and government regulators when evaluating data flows. The results also point to a conceptual mismatch between cultural and legal expectations regarding the use of personal data.

The US Supreme Court created a new doctrine—incorporation—as a temporary way station for newly acquired territories. The doctrine allowed Congress whatever time it needed to ensure that these new lands and its inhabitants were fit to join the United States permanently. The doctrine was also intended to serve an educative role, allowing for what the political elites of the day viewed as the uncivilized territorial subjects the needed time to acculturate to a supposedly superior Anglo-Saxon civilization. Yet a century later, territorial subjects remain unincorporated—and presumably implicitly uncivilized. Territorial subjects are stuck in a colonial status with no obvious path forward. All relevant institutions have shamefully failed them, from Congress and the President to the Supreme Court and federal agencies. In response to these failures, this Article argues that the status of Puerto Rico is a shame on the Constitution and our constitutional culture. It suggests that given that both the courts and the political process have been closed off to advocates who are seeking the end of colonialism in Puerto Rico, the only path forward is to shame the nation as a way to shift the constitutional norms at the heart of the colonial status of the territories. The Article draws from past historical moments to sketch out what role shame can play in constitutional interpretation and changing constitutional norms and jurisprudence.

In considering potential reforms, the Commission should take care to do the following: * Preserve judicial independence. The courts’ job is to apply the law to cases before them. We rely on courts, not only to reach individual judgments of guilt or civil liability, but to enforce the limited powers of different governments and different branches. Correcting for judges’ errors, even serious ones, by shifting these powers to another department would not make that enforcement more reliable. But it would harm the courts’ ability to act as neutral tribunals in particular cases—a crucial element of the rule of law, and for that reason a frequent target of autocracies the world over. America has a nearly unbroken tradition of judicial independence, and we should not break it today. * Put politics in its place. If you want a less political judiciary, you need a more political amendment process. You need to move political fights out of judicial conference rooms and into the statehouses and the halls of Congress. A “court reform” that ignores Article V is reform only in name—because a Court that practices constitutional amendment on the cheap, evading the Constitution in the guise of interpreting it, will forever be a target for partisan capture. * Beware unforeseen consequences. It is much harder to build than to destroy. Traditions of judicial independence built up over time can be demolished rather quickly, and many proposed reforms would have consequences far beyond what we expect. These might include: ** measures that are likely unconstitutional absent amendment, such as supermajority requirements or 18-year terms; ** measures that would be constitutional but dangerous and irresponsible, such as court-packing or jurisdiction-stripping; ** measures that would be lawful but unwise, such as cameras in the Court. The Commission’s greatest contribution might be to raise the profile of smaller-bore reforms, whose consequences can be better assessed (and, if necessary, more easily reversed). There is much that could be improved about the Supreme Court. Over the last century, the Justices have too often mistaken their own rulings for the law they are charged to enforce. But these problems are not yet matters of universal agreement, and they can only be solved by the slow work of persuading others. There are no drastic policy changes that would avoid the need for this work, and there is no sudden crisis that calls out for major reform. Rather, the Commission’s first rule should be to do no harm.

In two recent decisions—Bostock v. Clayton County and Niz-Chavez v. Garland—a majority of the Supreme Court claimed to apply a textualist approach to statutory interpretation, and a dissent charged the majority with applying “literalism” instead. But what is literalism and what, if anything, is wrong with it? This Essay borrows a few ideas from the philosophy of language to try to pin down a more precise sense in which the majority opinions in Bostock and Niz-Chavez were arguably literalistic. The opinions may have been literalistic in the sense that they failed to consider how context pragmatically enriched what the relevant statutes asserted by fixing the operative sense of a polysemous word. If that is right, then one problem with such a literalist approach is that it pushes controversial interpretive choices underground rather than giving a linguistic (or any other sort of) argument for those choices.

FDR wanted the federal government to help with poor relief. He never meant for Uncle Sam to do it alone.

Judicial review gives any five justices power over the whole government. Why?

It is an exciting time to be in reproductive health research. Building on decades of research and new technologies, the opportunities for human reproductive medicine have never been greater. However, reproductive health is a field with additional debates that go beyond research and medicine. To complement the scientific articles in this special issue, Trends in Molecular Medicine discussed ethical questions and societal implications with Eli Y. Adashi, Professor of Medical Science at Brown University (left), and I. Glenn Cohen, Professor of Law at Harvard Law School (right), and talked about the challenges and opportunities that lie ahead for reproductive health research and medicine.

Diagnostic mobile medical apps call for increased regulatory intervention, even if they do not dispense advice or treatment.

The conservative majority’s opinion has declared that voter fraud, not racial discrimination, is a threat to the American system of representation.

Over the course of U.S. history, and especially in turbulent times, the federal government and civil society have sought to promote civic information. They have sought to make it easier for citizens to get accurate, local, and timely information, and for suppliers of that information to reach citizens. Exposure to civic information and engagement with it is what makes self-rule possible, which is why the First Amendment is the cornerstone of democratic liberties. As a policy matter, the United States has treated civic information as a critical infrastructure—one that should be resilient and decentralized. The infrastructure built at the nation’s founding started with the postal service. After the authoritarian surge in Europe around the Second World War, the focus turned to modifying a highly concentrated commercial system of information production to shore up democracy. Amid the turmoil of the 1960s, the commitment to civic information infrastructure powered the creation of a decentralized public media system. Today, the challenges to democratic practice and governance are as severe as they have ever been. Many Americans live in separate realities, lack access to local news, distrust expertise and institutions, feel antagonistic to tens of millions of their fellow citizens, and struggle to access or accept credible information. They are manipulated by a digital advertising machine that pushes them toward disinformation and discord. The problem is so bad that the U.S. Surgeon General has issued an Advisory on health misinformation. Disordered information flows are a global phenomenon and some of the responses will require coordinated effort to change the incentives and characteristics of social media and digital advertising. But there are also distinctly U.S. responses that are available, drawing on the country’s decentralized public media tradition. This paper outlines what a “full stack” approach to new public media might look like. The “full stack” involves all the layers in communicating information, from production through distribution. In considering what a reinvigorated infrastructure for civic information might look like, the paper asks anew what have always been questions for media policy: How can community anchor institutions like libraries and universities participate? How can we ensure robust and resilient physical infrastructure everywhere? What technical and regulatory protocols will free citizens from exploitative commercial control? How can we support accurate, high-quality content that the market does not produce? The United States needs to invest in a new digital public sphere—a new civic infrastructure—if it hopes to sustain democratic practice and informed participation.

To understand contemporary arguments about deconstructing and reconstructing the modern administrative state, we have to understand where that state came from, and what its futures might be. This introductory essay describes the traditional account of the modern administrative state’s origins in the Progressive era and more recent revisionist accounts that give it a longer history. The competing accounts have different implications for our thinking about the administrative state’s constitutional status, the former raising some questions about constitutionality, the latter alleviating such concerns. This introduction then draws upon the essays in this issue to describe three options for the future. Deconstructing the administrative state without adopting a program of across-the-board deregulation would entail more regulation by the legislature itself and would insist that Congress give clear instructions to administrative agencies. Tweaking would modify existing doctrine around the edges without making large changes. Reconstruction might involve adopting ever more flexible modes of regulation, including direct citizen participation in making and enforcing regulation.

The coronavirus pandemic has produced a public health debacle of the first-order. But, the virus has also propagated the kind of exogenous shock that can precipitate—and to a certain degree has precipitated—a systemic event for our financial system. This still unfolding systemic shock comes a little more than a decade after the last financial crisis. In the intervening years, much as been written about the global financial crisis of 2008 and its systemic dimensions. Considerable scholarly attention has focused on first devising and then critiquing the macroprudential reforms that ensued, both in the Dodd-Frank Act and the many regulations and policy guidelines that implemented its provisions. In this essay, we consider the coronavirus pandemic and its implications for the financial system through the lens of the frameworks we had developed for the analysis of systemic financial risks in the aftermath of the last financial crisis. While today’s pandemic differs in many critical respects from the events of 2008, systemic events in the financial sector have a common structure relevant to both crises. Reflecting back on responses to the last financial crisis also affords us an opportunity both to understand how financial regulators are currently responding to the coronavirus pandemic and also to speculate how the pandemic might lead to further reforms of financial regulation and other areas of public policy in the years ahead.

Executive Summary: In this paper, we evaluate the regulatory structure for risk management at U.S. banking institutions as compared to technology companies. We also evaluate the appropriate regulatory structure for cloud service providers to U.S. banking institutions, as banking institutions are increasing their reliance on cloud service providers for their data needs and effective risk management regulation can safely facilitate that transition.Part I of our paper provides a comprehensive review of the regulation of corporate governance and risk management at U.S. banking institutions with a focus on how the regulatory structure is tailored to address the business activities of U.S. banks. We find that the regulation of risk management processes by U.S. banking institutions is highly prescriptive and that U.S. banking regulators have centralized key risk management responsibilities with the board of directors and senior management.Part II of our paper reviews the regulation of corporate governance and risk management at U.S. technology companies. We find that the regulation of risk management at technology companies is principles-based and does not shift prescriptive responsibilities to technology companies’ board of directors.Part III of our paper considers whether the banking approach to the regulation of risk management or the technology approach to the regulation of risk management is better suited for cloud service providers to U.S. banks. In doing so, we consider key differences between the risks faced by U.S. banking institutions as compared to cloud service providers. We conclude that a principles-based and decentralized approach to the regulation and supervision of cloud service providers and other technology services providers to U.S. banking institutions would better address the risks inherent in such services and facilitate continued adoption of cloud services by U.S. banking institutions.

Under Delaware law, a securities issuance in which all existing investors may participate pro rata (a “rights offer”) is often seen as treating insiders and outsiders equally, making it difficult for nonparticipating outsiders to prevail on a claim that insiders sold themselves cheap securities. I show that insiders can use rights offers to sell themselves cheap securities, even if outsiders are sophisticated and well-capitalized. My analysis suggests courts applying Delaware law should more aggressively probe rights offers for substantive fairness. I conclude by describing red flags indicating a heightened risk of expropriation.

The notion of stock-market-driven short-termism relentlessly whittling away at the American economy’s foundations is widely accepted and highly salient. Presidential candidates state as much. Senators introduce bills assuming as much. Corporate interests argue as much to the Securities and Exchange Commission and the corporate law courts. Yet the academic evidence as to the problem’s severity is no more than mixed. What explains this gap between widespread belief and weak evidence? This Article explores the role of narrative power. Some ideas are better at being popular than others. The concept of pernicious stock market short-termism has three strong qualities that make its narrative power formidable: (1) connotation — the words themselves tell us what is good (reliable long-term commitment) and what is not (unreliable short-termism); (2) category confusion — disparate types of corporate misbehavior, such as environmental degradation and employee mistreatment, are mislabeled as being truly and primarily short-termism phenomena emanating from truncated corporate time horizons (when they in fact emanate from other misalignments), thereby making us view short-termism as even more rampant and pernicious than it is; and (3) confirmation — the idea is regularly repeated, because it is easy to communicate, and often boosted by powerful agenda-setters who benefit from its repetition. The Article then highlights the real-world implications of narrative power — powerful narratives can be more certain than the underlying evidence, thereby leading policymakers astray. For example, a favorite remedy for stock-market-driven short-termism is to insulate executives from stock market pressure. If lawmakers believe that short-termism is a primary cause of environmental degradation, anemic research and development, employee mistreatment, and financial crises — as many do — then they are likely to focus on further insulating corporate executives from stock-market accountability. Doing so may, however, do little to alleviate the underlying problems, which would be better handled by, say, stronger environmental regulation and more astute financial regulation. Powerful narratives can drive out good policymaking.

The existing liability system in the United States and other countries can’t handle the risks relation to AI. That’s a problem because it will slow AI innovation and adoption. The answer is to revamp the system, which involves revising standards of care, changing who compensates parties when inevitable accidents occur via insurance and indemnity; changing default liability options; creating new adjudicators; and revamping regulations to prevent mistakes and exempt certain kinds of liability.

What information would people like to have? What information would they prefer to avoid? How does the provision of information bear on welfare? Representative surveys in eleven nations find that substantial percentages of people do not want to receive information even when it bears on health, sustainability, and consumer welfare. People’s willingness to pay for information, contingent on their wanting it, is mostly higher than people’s willingness to pay not to receive information, contingent on their not wanting it. We develop a model and estimate the welfare effects. We find substantial benefits and costs, with the former outweighing the latter.

This chapter analyzes two examples in which policy contributes to food waste or creates barriers to food waste reduction and recovery: regulation of expiration date labels on food products, and food safety regulations. It examines several policies that have effectively driven food waste reduction efforts, including liability protections for food donation, tax incentives for food donors, and organic waste ban policies. Universal adoption of standard quality and safety terms could drastically reduce food waste. Policy can drive food waste when there is a lack of clarity about how regulatory requirements apply to food donation. Cost is a significant barrier to food donation for businesses along the supply chain. Increasing awareness and providing guidance for the Emerson Act can reduce barriers to donation stemming from the fear of liability. The chapter focuses on federal policy and provides examples of important state and local policies.

The article presents an English translation of the Japan vs. Shimizu decision (信玄 公 旗 掛 松 事件 Shingen-kō hata kake matsu jiken), which is a central court decision in the history of Japanese civil law. With its decision in a tort law dispute over a historically significant tree, the Japanese Imperial Court of Justice has set a legal precedent for taking into account the principle of good faith. Lawsuits based on an "improper exercise of law" (権 利 の 濫用 kenri no ran'yō) have since played a major role in tort, contract and property law in Japan. The authors give an overview of the background of the case and discuss the legal and dogmatic significance of the decision, for which they reconstruct the historical facts and the process flow. In this way, they hope to expose an important area of ​​Japanese law.

Informational and reputational cascades often arise in the presence of four factors: (1) preference falsification; (2) diverse thresholds; (3) social interactions; and (4) group polarization. In the context of animal welfare, cascades have often occurred, and more consequential ones are possible. First: In this domain, preference falsification has run and is running rampant. Those who care about animal welfare, or are inclined to want to say or do something about it, often silence themselves. They know that if they speak or act, they might incur social disapproval or worse. Second: People have different thresholds for disclosing their views or for taking action. With respect to animal welfare, some people really will speak out or act, even if no one else does. Others need someone to follow – but only one. Still others need two, or three, or a hundred, or more. Third: Social interactions are and continue to be crucial to the movement for animal welfare. Who is seeing whom? When? Who is talking to whom? Are visible people speaking and acting in ways that support animal welfare? Are they credible? With whom? Fourth: In many times and places, believers in animal rights, animal welfare, or both have created communities of like-minded people. These communities can be highly effective. They create a commitment to a belief that might have been held tentatively. They make that belief salient, potentially part of people’s identity. They increase confidence and unity.

Effectively Representing is the primary guidebook for new tax practitioners, especially those representing low-income taxpayers in controversies with the IRS. Unless otherwise noted, each chapter is up to date as of the fall of 2020.

Some of our judgments are unstable, in the sense that they are an artifact of, or endogenous to, what else we see. This is true of sensory perception: Whether an object counts as blue or purple depends on what other objects surround it. It is also true for ethical judgments: Whether conduct counts as unethical depends on what other conduct is on people’s viewscreens. There are plausible evolutionary explanations for these findings. As behavior in general regresses, actions that were previously seen as bad or as terrible may come to be seen as fine or mildly bad. Call this “opprobrium contraction.” As behavior in general improves, actions that were previously seen as fine or as mildly bad may come to seem bad or terrible. Call this “opprobrium expansion.” Because law has a signaling function, it can heighten or diminish these phenomena.

Jonathan Zittrain’s testimony before Hearing of the Subcommittee on Competition Policy, Antitrust, and Consumer Rights on the Internet of Things.

We submit our letter to assist OCR in achieving its goal with this hearing, which is two-fold: to ensure that students are (1) allowed to pursue their education free from sexual harassment and assault and (2) treated fairly in the adjudicatory process—whether they are the complainant or the respondent—designed to investigate and resolve allegations of sexual harassment and sexual assault.

On March 9, 2021, the Election Law Journal hosted a panel on “Restoring Trust in the Voting Process.”

Both government regulators and private companies regularly assign a monetary value to human lives. A new book argues that the price is too low, and can entrench inequalities.

Traditional theories portray stockholders as fully focused on profits. But that’s not as true as it once was.

Something akin to what social psychologists call the “fundamental attribution error” underlies many discussions of the responsibility of politicians – from Donald Trump to Jacinda Ardern – or the bad or good outcomes the nations they led had with the COVID-19 pandemic. Observers saw what the leaders did, and saw the outcomes. The fundamental attribution error is a tendency to explain the outcome more by pointing to what the leader did than to the context in which she acted. This Essay argues that we have to understand social events as the interaction between human agency and the constraints under which people act. The widespread governance failures in responding to the coronavirus pandemic tend to generate accounts that overemphasize agency and underemphasize constraint. The very scope of the failures – that only a handful of governance mechanisms around the world generated policies that did a decent job of keeping COVID-19 under control – suggests that we should look more closely at the constraints under which policy-makers operated.This Essay uses the distinction between agency and constraint as a tool for helping us think about the policy responses that were available and likely to be used in early 2020, when the “novel” coronavirus came on the international scene. The bottom line is this: given the context within which policy-makers acted (the constraints they faced) as the crisis developed, the pandemic was quite likely to be a human catastrophe. It’s not that nothing could be done to stop it, or even that nothing could be done to make it “merely” a disaster instead of a catastrophe. And it’s not that no one came up with – and sometimes implemented – policies that helped limit the disaster’s scope. The constraints under which policy-makers operated, though, meant that the chances of really successful outcomes were quite low – a suggestion consistent with the fact that outcomes around the world were basically pretty bad.The Essay proceeds by first identifying major features of the context as of early 2020 – the constraints and context for policy-making. Part II then describes what we know now, or have strong reason to believe, were the policies that could have done the most to minimize the virus’s effects on life, health, and economies. Part III examines the choices that were actually made, focusing, for reasons to be discussed, on nations with generally democratic systems of governance. A brief Conclusion returns to the fundamental attribution error: context and constraint probably mattered more than agency in generating the bad outcomes around the world.

The article focuses on U.S. Supreme Court cases including Korematsu v. United States and Trump v. Hawaii on racism in the U.S. and travel restrictions of Japanese Americans and Muslims. Topics include saboteurs and terrorists posed threats of uncertain degrees to national security, former U.S. President Franklin D. Roosevelt’s decision to ban travel, and the role of men and women in a government of laws.