Faculty Bibliography

On the eve of the financial crisis, a series of Delaware court decisions resulted in a radical change in law: creditors would no longer have the kind of common law protections from opportunism that helped protect their bargains for the better part of two centuries. In this Article, we argue that Delaware’s shift materially altered the way large firms approach financial distress, which is now characterized by a level of chaos and rent-seeking unchecked by norms that formerly restrained managerial opportunism. We refer to the new status quo as “bankruptcy hardball.” It is now routine for distressed firms to engage in tactics that harm some creditors for the benefit of other stakeholders, often in violation of contractual promises and basic principles of corporate finance. The fundamental problem is that Delaware’s change in law was predicated on the faulty assumption that creditors are fully capable of protecting their bargains during periods of distress with contracts and bankruptcy law. Through a series of case studies, we show how the creditor’s bargain is often, contrary to that undergirding assumption, an easy target for opportunistic repudiation and, in turn, dashed expectations once distress sets in. We further argue that the Delaware courts paved the way for scorched earth corporate governance. Fortunately, judges can help fix the problem with more rigorous application of existing legal doctrines.

In this paper, I explore how international legal scholarship about war, written at a time of war, ought to read. Can — and should — we demand doctrinal rigor and analytical clarity, while also expecting that scholarship makes us feel something, that it connects us to the author, that it captures the intimacy and emotion that human beings experience in relation to war? I use two eras of international legal scholarship on war — namely, the Vietnam era and the War on Terror — to illustrate key moments in the field that were typified by very different kinds of writing and the corresponding differences in thinking and feeling. I argue, in part, that — in contradistinction to passion-filled Vietnam-era scholarship — a particularly influential strand of contemporary scholarship on the United States’ War on Terror adopts a view that is aridly technical, acontextual, and ahistorical. In short, it lacks passion. (I use “passion” as a composite term in an attempt to capture diverse facets of a problem that I am attempting to diagnose.) The Introduction situates this project within broader writing on law and emotions. Part I provides a list of characteristics of what I consider passionate scholarship, using the Vietnam era as an example of that approach. Part II provides a mirrored list of the characteristics of abstract and bloodless scholarship, using the latter part of the War on Terror (2009 onward). The observations compare how scholars of each period contend with the sense of crisis and urgency of their time, the understanding that they (we) were living — and writing — through moments that would be seen as history-changing and law-shifting in the future. Part III examines possible explanations for differences where we ought to see similarities, for absences of scholarly connection where they should be plentiful, and for a seismic shift in the general tone and mood of international legal scholarship on war in less than two generations. Part IV concludes by discussing why we — international lawyers, scholars who feel strongly about war and peace — ought to care about and seek to reverse this shift.

In criminal courts, prosecutors have considerable discretion over defendant’s sentencing, suggesting skilled prosecutors may be able to reduce both incarceration and future crime. Leveraging the quasi-random assignment of low-level felonies in North Carolina Superior Court, we find that prosecutors vary in their effects on both incarceration and re-offense. Since differences across prosecutors in their re-offense effects cannot be fully explained by their incarceration effects, prosecutors vary in their “skill” — the degree to which they selectively incarcerate those defendants most likely to re-offend. Indeed, prosecutors who are one standard deviation above the mean achieve a 2pp (8%) lower rate of re-offense than one would expect given their incarceration effect.

How does the prospect of sale affect the seller’s incentive to investigate — to acquire socially valuable information about the asset? How do the disclosure rules of contract law influence the investigation decision? Shavell (1994) showed that, if sellers and buyers are symmetrically informed, at the pre-investigation stage, then a mandatory disclosure rule leads to a first-best outcome, and a voluntary disclosure rule leads to a suboptimal outcome. But in many real-world cases owners of assets have better information about their assets, even before they investigate. In such asymmetric information settings, we show, mandatory disclosure no longer attains a first-best outcome. And, under certain conditions, voluntary disclosure is the more efficient rule. We further enrich the analysis by introducing a third rule: the mandatory post-disclosure rule, which requires disclosure of material information, but only after the contract is concluded. We show that this rule can be more efficient than both voluntary disclosure and mandatory (pre-contract) disclosure.

Startup founders, who generally must cede control to obtain VC financing, are widely believed to regain control in the event of IPO, à la Facebook’s Mark Zuckerberg. Indeed, the premise that founders expect to reacquire control if there is an IPO underlies the leading finance theory for why venture capital cannot thrive without a robust stock market: the existence of an IPO market enables VCs to give founders a “call option on control” exercisable if the firm is successful. But little is known about how frequently founders regain control via IPO. Using a sample of over 18,000 VC-backed firms that received their initial round of VC financing during 1990-2012, we show that founders generally do not reacquire control if there is an IPO. In almost 60% of firms that do go public, the founder is no longer CEO at IPO. In firms with a founder-CEO right after IPO, founders generally lack substantial voting power; 50% are no longer CEO of the firm within three years. Zuckerberg is not the norm. We also show that the ex ante likelihood of any given founder reacquiring control via IPO is extremely low, suggesting that the expected value of any call option on control is trivial. As of initial VC financing, the likelihood that a founder takes her firm public and retains the CEO position and voting control for three years is about 0.4%. Our results shed light on how control evolves in U.S. startups, and cast doubt on the plausibility of the “call option on control” theory linking stock and VC markets.

Abuse of power and obstruction of Congress have long been considered criminal and merit impeachment.

What should be the role of law in response to the spread of artificial intelligence in war? Fuelled by both public and private investment, military technology is accelerating towards increasingly autonomous weapons, as well as the merging of humans and machines. Contrary to much of the contemporary debate, this is not a paradigm change; it is the intensification of a central feature in the relationship between technology and war: double elevation, above one’s enemy and above oneself. Elevation above one’s enemy aspires to spatial, moral, and civilizational distance. Elevation above oneself reflects a belief in rational improvement that sees humanity as the cause of inhumanity and de-humanization as our best chance for humanization. The distance of double elevation is served by the mechanization of judgement. To the extent that judgement is seen as reducible to algorithm, law becomes the handmaiden of mechanization. In response, neither a focus on questions of compatibility nor a call for a ‘ban on killer robots’ help in articulating a meaningful role for law. Instead, I argue that we should turn to a long-standing philosophical critique of artificial intelligence, which highlights not the threat of omniscience, but that of impoverished intelligence. Therefore, if there is to be a meaningful role for law in resisting double elevation, it should be law encompassing subjectivity, emotion and imagination, law irreducible to algorithm, a law of war that appreciates situated judgement in the wielding of violence for the collective.

This Essay (the “Essay”) estimates the U.S. bankruptcy system’s ability to absorb an anticipated surge of financial distress among American consumers, businesses, and municipalities as a result of COVID-19. An increase in the unemployment rate has historically been a leading indicator of the volume of bankruptcy filings that occur months later. If prior trends repeat this time, the May 2020 unemployment rate of 13.3 percent will lead to a substantial increase in all types of bankruptcy filings. Mitigation, governmental assistance, the unique features of the COVID-19 pandemic, and judicial triage should reduce the potential volume of bankruptcies to some extent, or make it less difficult to handle, and it is plausible that the predictive power of the recent unemployment spike will be smaller than history would otherwise predict. We hope this will be so. Yet, even assuming that the worst-case scenario could be averted, our analysis suggests substantial, temporary investments in the bankruptcy system may be needed. Our model assumes that Congress would like to have enough bankruptcy judges to maintain the average bankruptcy judge’s caseload at no more than it was during the last bankruptcy peak in 2010, when the bankruptcy system was pressured and the public caseload figures indicate that judges worked 50 hour weeks on average. To keep the judiciary’s workload at 2010 levels, we project that, in the worst-case scenario, the bankruptcy system could need as many as 246 temporary judges—a very large number. But even in our most optimistic model, the bankruptcy system will still need 50 additional temporary bankruptcy judgeships, as well as the continuation of all current temporary judgeships. The optimistic model begins with the observation that an unusually large number of the unemployed believe that they are only temporarily furloughed and will be back at work soon. Accordingly, we (optimistically) removed the excess-from-baseline number of unemployed who believe they will be back at work shortly—as if they will be back at work shortly with no adverse impact on the economy’s channel to bankruptcies. That reduction yielded a projected need of between 50 and 69 fewer judges to maintain a judicial workload no greater than the one bankruptcy courts faced in the 2009 financial crisis. In other circumstances, the enormous uncertainty of what the bankruptcy caseload will be would warrant waiting to see what develops. And strong action probably will not occur until we see a major across-the-board rise in filings. (Large business filings are rising sharply now, but consumer filings are not rising.) The downside of a wait-and-see strategy is that full-scale bankruptcy court appointments need about a year to complete. The dilemma in what action to take now is that if bankruptcies do in fact rise by several-fold---a plausible but uncertain prospect, then waiting for the rise will lead to a large gap that will put the system one year behind where it ought to be if the filings had been anticipated as certain and acted upon. Hence, we recommend that the relevant players act on the optimistic estimation and re-assess bankruptcy needs as the economy evolves and more information develops. Judicial appointments need not be for the full term of a bankruptcy judge. Capacity can be added via temporary judges (of which there already are some in the bankruptcy court system) and by recalling recent retirees who are willing to serve.

This is Chapter 14 from the 2020 edition of Advertising & Marketing Law: Cases and Materials, a casebook by Rebecca Tushnet and Eric Goldman. This chapter examines the legal issues arising from featuring people in advertisements, including publicity rights and endorsement/testimonial guidelines.

Motor vehicle fuel-economy standards have long been a cornerstone of U.S. policy to reduce fuel consumption in the light-duty vehicle fleet. In 2010 and 2012, these standards were significantly expanded in an effort to achieve steep reductions in oil demand and greenhouse gas (“GHG”) emissions through 2025. In 2018, following a review of the standards, the Environmental Protection Agency and National Highway Traffic Safety Administration proposed instead to freeze the standards at 2020 levels, citing high program costs (and potential safety issues). The current debate over the future of U.S. fuel economy standards provides an opportunity to consider whether the existing approach could be improved to achieve environmental and other goals at a lower cost. The current policy prescribes standards that focus on fuel economy alone, as opposed to lifetime consumption, and treats vehicle categories differentially, meaning that it imposes unnecessarily high costs and does not deliver guaranteed GHG savings. On the basis of a commitment to cost-benefit analysis, which has defined U.S. regulatory policy for more than thirty years, we propose novel reforms with three main features: (1) the direct regulation of expected fuel consumption and GHG emissions without consideration of the type or size of the vehicle; (2) use of existing data to assign lifetime fuel consumption and GHG emissions to each model; and (3) creation of a robust cap-and-trade market for automakers to reduce compliance costs. We show that these reforms would reduce fuel consumption and GHG emissions in transportation with greater certainty and do so at a far lower cost per ton of GHG emissions avoided. We also show that the the Environmental Protection Agency and the Department of Transportation could implement such an approach within their existing statutory authority.

At the time he wrote, Wesley Hohfeld seemed to be of the view that longstanding conceptual confusions that had blocked progress in legal thought — particularly confusions about legal rights — would soon be put to rest. If so, rights have proved a tougher nut to crack than he expected. Indeed, the difficulty of providing an adequate account of rights has led many scholars, including scholars who share Hohfeld’s aptitude and aspirations for analytic philosophy, to lose sight of a distinction central to Hohfeld’s project, namely, the distinction between a right (or claim right) and a power. Or so we argue in Part I. Worse, confusions over rights and powers, when combined with a particular understanding of what constitutes clear-eyed analysis of legal issues, has contributed to the now-widely shared but mistaken supposition that common law reasoning must (or should) take the form of instrumental reasoning. We outline this claim in Parts II and III. Ultimately, we suggest that Hohfeld’s juristic legacy contains two profound ironies. His entirely sound insistence on the analytic separation of legal rights and legal powers has helped to obscure their deep substantive connection in certain bodies of law, especially tort and contract law. And his implicit acceptance of the idea that a commitment to conceptual clarity goes hand in hand with instrumentalism in legal analysis has indirectly led prominent courts — including most famously the California Supreme Court in landmark decisions such as Rowland v. Christian — to mangle how rights, duties, and powers are linked within private law.

In 1862, Lincoln broke with longstanding US policy by agreeing with Britain to establish international courts to suppress the Atlantic slave trade. Historians have previously neglected these courts because the illicit trade’s decline in the 1860s resulted in empty dockets. This article, however, shows how the two American commissioners on the court at Freetown took up a broader intervention in Africa based in part on British imperial practices that the commissioners viewed as consistent with federal policies back home. Most notably, they proposed a treaty system with African nations that would exchange American protection, trade, and “civilizing” reforms for commitments to end slavery and its trade. This lost international history of the Civil War thus extends the history of American antislavery expansionism in West Africa into the Civil War period and captures a revealing vision of American expansion during the war beyond the consolidation of a continental empire.

Muitos incentivos são monetários e, quando instituições públicas ou privadas buscam mudar de comportamento, é natural mudar os incentivos monetários. Mas muitos outros incentivos são resultantes de significados sociais, sobre os quais as pessoas podem não deliberar, mas que podem operar como subsídios ou tributos. Em alguns momentos e lugares, por exemplo, o significado social do tabagismo tem sido positivo, aumentando o incentivo ao fumo; em outros tempos e lugares, foi negativo e, portanto, serviu para reduzir o tabagismo. No que diz respeito à segurança e à saúde, os significados sociais mudam radicalmente ao longo dos anos e podem ser drasticamente diferentes a depender do lugar. Muitas vezes, as pessoas se manifestam de acordo com os significados que lamentam ou, pelo menos, desejam que seja de outra forma. Mas é extremamente difícil para os indivíduos alterar os seus próprios conceitos. A alteração de conceitos pode advir da lei, que pode, por meio de um mandato, transformar o significado da ação em um mero: "Eu cumpro a lei", ou em algo menos brando, como: "Sou um bom cidadão". A alteração de significados sociais também pode advir de ação privada em larga escala, projetada ou promovida por "empreendedores que ressignificam", que pode transformar o significado da ação de "Eu sou um excêntrico" para "Eu cumpro meu dever cívico" ou "Eu protejo outras pessoas de danos." Às vezes, subgrupos se rebelam contra significados novos ou alterados, produzidos pela lei ou por empreendedores que ressignificam, mas geralmente esses significados permanecem e produzem mudanças substanciais.

At least since the late eighteenth century, constitutions have been understood as emanations of the will of “the People,” as the ultimate expression of an inherent popular sovereignty. In the form of theories of constituent power, accounts of constitutional foundations blended notional or conceptual “descriptions” of the People, which anchored the political legitimacy of constitutional orders in the idea of hypothetical consent, with empirical claims that the nation’s actual people were represented in constitution-making processes through elected delegates and thereby were the authors of and gave consent to its fundamental law. As part of the third wave of democratization, there was an important shift in what popular participation consisted of—from indirect participation by elected representatives to direct, popular participation in the constitution-making process. As a matter of constitutional process, this led to the growing practice, and expectation, that major constitutional changes should be ratified through referenda.

Wesley Hohfeld’s scheme of jural relations possesses two fundamental strengths. First, the legal relations tend to correspond closely to potential legal results availing between individual persons – who can sue whom for what. Second, the system of “fundamental” relations possesses a symmetry and generality that made it attractive to the Realists as a springboard to their approach to law. In this paper we argue that Hohfeld’s scheme is incomplete: without more, the legal relations identified by Hohfeld do not scale up properly. Instead of being mere aggregates of more basic relations, complex relations and legal doctrines are structured and interact as a system. Activities that belong at the mid-level between the individual and large populations are most difficult to capture. What is required is a formulation of the legal relations that connects the micro of parties and the macro of the legal system at the level of society. The adoption by the Legal Realists of Hohfeld’s incomplete scheme built a gap between the micro and the macro into most subsequent American theorizing about private law. By contrast, other pre- and non-Realist versions of the broadly “Hohfeldian” program, and in particular that of Albert Kocourek, pay more attention to realistic, “economical” methods of delineating legal relations. These analytical but less reductionist formulations “scale up” better than the conventional picture, and can inspire new theories that explain more of the emergent properties of the legal system.

Once upon a time, Carolene Products provided an inspiring charter for the exercise of the power of judicial review. Intervene to correct flaws in the political process, Carolene instructed courts, but otherwise allow American democracy to operate unimpeded. In this Article, I use the Supreme Court’s recent decision in Rucho v Common Cause to argue that the current Court flips Carolene on its head. It both fails to act when the political process is malfunctioning and intercedes to block other actors from ameliorating American democracy. Rucho is the quintessential example of judicial apathy when, under Carolene, judicial engagement was sorely needed. The Court acknowledged that partisan gerrymandering offends democratic values like majoritarianism, responsiveness, and participation. But the Court didn’t take the obvious next step under Carolene and hold that extreme gerrymanders are unlawful. Instead it went in exactly the opposite direction, announcing that partisan gerrymandering claims are categorically nonjusticiable. Rucho, however, is only the tip of the current Court’s anti-Carolene spear. Past cases have compounded (and future cases will likely exacerbate) the democratic damage by preventing non-judicial institutions from addressing defects in the political process. Looking back, the Court’s campaign finance decisions have struck down regulation after regulation aimed at curbing the harms of money in politics. Looking forward, the Court may well nullify the main non-judicial response to gerrymandering: independent redistricting commissions adopted through voter initiatives. What can possibly explain this doctrinal pattern? Conventional modes of analysis — originalism, judicial restraint, respect for precedent, and so on — all fail as justifications. They’re riddled by too many exceptions to be persuasive. What does seem to run like a red thread through the current Court’s rulings, though, is partisanship. The anti-Carolene Court may spurn pro-democratic judicial review in part because, at this historical juncture, it often happens to be pro-Democratic.

This article, which draws upon material from my book, "The Framers’ Coup: The Making of the United States Constitution" (Oxford University Press 2016), investigates how and why the Philadelphia Convention of 1787 wrote a constitution that was far more nationalizing and antipopulist than most Americans probably anticipated or desired. The article also seeks to shed light on how the Federalists managed to convince the nation, through a reasonably democratic ratifying process, to approve a constitution that was, in significant part, designed to reduce popular influence upon the federal government.

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.

Federal regulators have often required environmental labels, which may be designed to help consumers to save money or to reduce externalities. Under prevailing executive orders, regulators are required to project the benefits and costs of such labels, and also to show that the benefits justify the costs. These projections can be extremely challenging, partly because of the difficulty of knowing how consumers will respond to labels, partly because of the challenging of converting behavioral changes into monetary equivalents. The benefits of environmental labels should include (1) the monetary value of the reduced externalities and (2) the monetary benefit to consumers, measured by willingness to pay. It may be difficult for regulators to know (1), and even if they can figure out (2), willingness to pay may not capture the welfare benefit to consumers, at least if consumers are not adequately informed (or if they suffer from some kind of behavioral bias). In principle, agencies should include, as part of (2), the moral convictions of people who care about environmental goods, at least if those convictions are backed by willingness to pay. In the face of the evident epistemic difficulties, sometimes the best that agencies can do is to engage in breakeven analysis, by which they explore what the benefits would have to be in order to justify the costs. Technical as they might seem, these claims raise fundamental questions about valuation of environmental goods and the possible disconnect between willingness to pay and welfare.

Vaccine refusal is a serious public health problem, especially in the context of diseases with potential to spark global pandemics, such as Ebola virus disease in the Democratic Republic of the Congo. This article examines whether and when compelling vaccination through mandates and criminalization, for example, are appropriate. It argues that some legal approaches are ethical when they preserve social stability, trust in government, therapeutic research opportunities, or when they diminish disease severity.

Rationale: An increasing number of automated and artificially intelligent (AI) systems make medical treatment recommendations, including “personalized” recommendations, which can deviate from standard care. Legal scholars argue that following such nonstandard treatment recommendations will increase liability in medical malpractice, undermining the use of potentially beneficial medical AI.  However, such liability depends in part on lay judgments by jurors: When physicians use AI systems, in which circumstances would jurors hold physicians liable? Methods: To determine potential jurors’ judgments of liability, we conducted an online experimental study of a nationally representative sample of 2,000 U.S. adults. Each participant read one of four scenarios in which an AI system provides a treatment recommendation to a physician. The scenarios varied the AI recommendation (standard or nonstandard care) and the physician’s decision (to accept or reject that recommendation). Subsequently, the physician’s decision caused a harm. Participants then assessed the physician’s liability. Results: Our results indicate that physicians who receive advice from an AI system to provide standard care can reduce the risk of liability by accepting, rather than rejecting, that advice, all else equal. However, when an AI system recommends nonstandard care, there is no similar shielding effect of rejecting that advice and so providing standard care. Conclusion: The tort law system is unlikely to undermine the use of AI precision medicine tools and may even encourage the use of these tools.

The knowledge economy is today’s road to greater and more inclusive prosperity.

The United States Supreme Court closed the courthouse door to federal litigation to narrow educational funding and opportunity gaps in schools when it ruled in San Antonio Independent School District v. Rodriguez in 1973 that the Constitution does not guarantee a right to education. Rodriguez pushed reformers back to the state courts where they have had some success in securing reforms to school funding systems through education and equal protection clauses in state constitutions, but far less success in changing the basic structure of school funding in ways that would ensure access to equitable and adequate funding for schools. Given the limitations of state school funding litigation, education reformers continue to seek new avenues to remedy inequitable disparities in educational opportunity and achievement, including recently returning to federal court. This book is the first comprehensive examination of three issues regarding a federal right to education: why federal intervention is needed to close educational opportunity and achievement gaps; the constitutional and statutory legal avenues that could be employed to guarantee a federal right to education; and, the scope of what a federal right to education should guarantee. A Federal Right to Education provides a timely and thoughtful analysis of how the United States could fulfill its unmet promise to provide equal educational opportunity and the American Dream to every child, regardless of race, class, language proficiency, or neighborhood.

A popular research design identifies the effects of corporate governance by (changes in) state laws, clustering standard errors by state of incorporation. Using Monte-Carlo simulations, this paper shows that conventional statistical tests based on these standard errors dramatically overreject: in a typical design, randomly generated “placebo laws” are “significant” at the 1/5/10% level 9/21/30% of the time. This poor coverage is due to the extremely unequal cluster sizes, especially Delaware's concentration of half of all incorporations. Fixes recommended in the literature fail, including degrees-of-freedom corrections and the cluster wild bootstrap. The paper proposes a permutation test for valid inference.

Market democracies struggle with economic insecurity and growing inequality, presenting new threats to democracy. The revival of “political economy” offers a frame for understanding the relationship between productivity and justice in market societies. It reintegrates power and the social and material context — institutions, ideology, and technology — into our analysis of social relations of production, or how we make and distribute what we need and want to have. Organizations and individuals, alone and in networks, struggle over how much of a society’s production happens in a market sphere, how much happens in nonmarket relations, and how embedded those aspects that do occur in markets are in social relations of mutual obligation and solidarism. These struggles involve efforts to shape institutions, ideology, and technology in ways that trade off productivity and power, both in the short and long term. The outcome of this struggle shapes the highly divergent paths that diverse market societies take, from oligarchic to egalitarian, and their stability as pluralistic democracies.

In the late twentieth century constitution-designers came to understand that, in addition to the three classic Montesquiean functions of law-making, law-applying, and law-interpreting, constitutional institutions had to perform an additional function, that of protecting the constitution itself. That function is performed by constitutional courts, but also by agencies concerned with elections and with corruption. A case study of an important anti-corruption inquiry in South Africa illustrates the proposition that institutions protecting the constitution must combine independence from other political actors with some degree of accountability to them. Following the case study, the Article examines some general characteristics of these institutions, sketching some of the questions about independence and accountability that constitution-designers must consider. Among those questions are the possibility of too much independence, with the institutions having a greater impact on political outcomes than is appropriate, too much responsiveness to non-political but professional concerns such as legality and the details of accounting conventions, and of course too much accountability to the very political institutions that these agencies are designed to regulate. Throughout the Article emphasizes the role of conflicts of interest both in setting the agenda for these agencies and in posing the risk that the agencies will undermine rather than protect the constitution.

In the face of rising rates of antibacterial resistance, many responses are being pursued in parallel, including ‘non-traditional’ antibacterial agents (agents that are not small-molecule drugs and/or do not act by directly targeting bacterial components necessary for bacterial growth). In this Perspective, we argue that the distinction between traditional and non-traditional agents has only limited relevance for regulatory purposes. Rather, most agents in both categories can and should be developed using standard measures of clinical efficacy demonstrated with non-inferiority or superiority trial designs according to existing regulatory frameworks. There may, however, be products with non-traditional goals focused on population-level benefits that would benefit from extension of current paradigms. Discussion of such potential paradigms should be undertaken by the development community.

We can’t cede social change to well-meaning experts. Especially in an era of hostile courts, politics, not law, is the only way forward.

Like many other elite athletes, National Football League (“NFL”) players typically have a short playing career, often leaving the league due to injury or lack of interest from teams before they have been able to prepare sufficiently for life after the league. This qualitative study examines the experiences of NFL players related to preparing for the transition out of professional sports. We completed interviews with a total of 25 players including both current and former players, as well as 27 family members of former and current players. Factors that affected their career preparation included features of the NFL work environment which necessitated an emphasis on football over other interests, identity foreclosure that made it difficult to consider other career options, limited exposure to other professions, and challenges with financial planning. Social contacts had both positive and negative effects on players’ preparation but family, particularly wives, provided important support. Our findings point to policies that might guide players in their preparation for life as former players including instituting mandatory training and counseling concerning these issues, beginning in a player’s rookie year, and continuing throughout players’ tenures in the league.

Comparative Capital Punishment offers a set of in-depth, critical and comparative contributions addressing death practices around the world. Despite the dramatic decline of the death penalty in the last half of the twentieth century, capital punishment remains in force in a substantial number of countries around the globe. This research handbook explores both the forces behind the stunning recent rejection of the death penalty, as well as the changing shape of capital practices where it is retained. The expert contributors address the social, political, economic, and cultural influences on both retention and abolition of the death penalty and consider the distinctive possibilities and pathways to worldwide abolition.

This statutory supplement (fall 2019 edition) is for the Corporations casebook by Holger Spamann and Guhan Subramanian. It contains excerpts from the Delaware General Corporation Law, the Securities Exchange Act of 1934, Rules & Regulations promulgated by the Securities Exchange Commission pursuant to authority granted under the 1934 Act, as well as short excerpts from the Restatement of the Law Third (Agency) and the Uniform Partnership Act of 1914. It is current as of August 1, 2019.

What are the limits of human rights, and what do these limits mean? This volume engages critically and constructively with this question to provide a distinct contribution to the contemporary discussion on human rights.

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 for applying those same principles, and his famed “shoe‑on‑the‑other‑foot test,” to those accused of sexual misconduct. In Guilt by Accusation, Dershowitz provides an in‑depth analysis of the false accusations against him, alongside a full presentation of the exculpatory evidence that proves his account, including emails from his accuser and an admission of his innocence from her lawyer, David Boies. Additionally, he examines current attitudes toward accusations of sexual misconduct, which are today, in the age of #MeToo, accepted as implicit truth without giving the accused a fair chance to defend themselves and their innocence, and suggests possible pathways back to a society and legal system in which due process is respected above public opinion and the whims of social media mobs. This book is Alan Dershowitz’s plea for fairness for both accuser and accused, his principled stand for due process no matter the allegation, and his compelling assertion of his own innocence. It is essential reading for anyone who wants to know the inside story behind the accusations against him or who cares about the current societal debate over how we should handle accusations of sexual misconduct. The #MeToo movement has generally been a force for good, but as with many good movements, it is being exploited by some bad people for personal profit. Supporters of the #MeToo movement must not allow false accusers to hurt real victims by hiding behind its virtuous shield, turning it into an exploitive sword against innocent people.