Faculty Bibliography

If you're injuring someone, you should stop—and pay for the damage you've caused. Why, this book asks, does this simple proposition, generally accepted, not apply to climate change? In Climate Justice, a bracing challenge to status quo thinking on the ethics of climate change, renowned author and legal scholar Cass Sunstein clearly frames what's at stake and lays out the moral imperative: When it comes to climate change, everyone must be counted equally, regardless of when they live or where they live—which means that wealthy nations, which have disproportionately benefited from greenhouse gas emissions, are obliged to help future generations and people in poor nations that are particularly vulnerable. Invoking principles of corrective justice and distributive justice, Sunstein argues that rich countries should pay for the harms they have caused and that all of us are obliged to take steps to protect future generations from serious climate-related damage. He shows how “choice engines,” informed by artificial intelligence, can enable people to save money and to reduce the harms they produce. The book casts new light on the “social cost of carbon,”—the most important number in climate change debates—and explains how intergenerational neutrality and international neutrality can help all nations, crucially the United States and China, do what must be done.

In this response to a recent symposium on Common Good Constitutionalism in the American Journal of Jurisprudence, I principally take up themes related to democracy, disagreement, pluralism, and authority. I emphasize that the classical legal tradition is teleological, oriented to performance standards rather than design standards. Thus it does not attempt to prescribe an identical set of constitutional and institutional arrangements for all polities everywhere, but asks whether constitutional arrangements are ordered to the common good and (thus) compatible with natural and divine law. Subject to those conditions, political authority is natural, inevitable, inescapable, and good. The possibility of social and political disagreement is just a precondition for all law, not an objection to the classical legal framework. None of this entails judicial supremacism in any form, which the classical legal tradition squarely rejects.

Chapter 11 was widely viewed as a failure in the first decade of the Bankruptcy Code’s operation, the 1980s. Large firms were mired in bankruptcy for years; the process was seen as expensive, inaccurate, and subject to abuse. While basic bankruptcy still has its critics and few would say it works perfectly, the contrast with bankruptcy today is stark: bankruptcies that took years in the 1980s take months in the 2020s. Multiple changes explain bankruptcy’s success—creditor learning, statutory reform, better judging and lawyering, new techniques, fuller integration of the improved mechanisms that the 1978 Code added—and we do not challenge their relevance. But in our analysis, one major change is missing from the current understanding of bankruptcy’s success: bankruptcy courts and practice in the 1980s rejected market value; today bankruptcy courts and practice accept and use market value. This shift is a major explanation for bankruptcy’s success. It reduces opportunities for conflict in bankruptcy. It speeds up proceedings. It allows firms to be repositioned in market transactions. Deals among claimants and interests are more readily reached and the firm can ride through bankruptcy without the bankruptcy process materially scarring the enterprise. This switch to market values has multiple channels: more whole-firm sales, wider and deeper access to financing for bidders and bankrupts, growing judicial deference to market valuations, and a bigger and more sophisticated private equity and distressed debt industry that buys bankrupt companies and their securities. We argue that valuation improvements explain much of the increased speed and efficiency of Chapter 11 practice over the decades. We provide evidence that valuation conflicts narrowed and that the corporate reorganization process accelerated. This market-based-valuation result has implications for bankruptcy law reform around the world. Several European and Asian nations have looked to Chapter 11 to model their own restructuring laws. We urge caution. Chapter 11 works best in conjunction with institutions that facilitate market valuation and market transactions. The United States developed such institutions only in recent decades; many nations have not developed them yet. Chapter 11 went from being viewed by many as a deficient legal structure in the 1980s to a substantial success story by the twenty-first century. The switch to market thinking across the bankruptcy spectrum—in bankruptcy transactions, in judging, and in lawyering—goes far in explaining why.

Does Congress have authority to pass legislation regulating the counting of electoral votes? This is a consequential question for the legal framework governing presidential elections. In 2022, Congress passed the Electoral Count Reform Act ("ECRA"), which overhauled the statutory regime governing the counting of electoral votes. The ECRA's predecessor statute, which had been in place since 1887, had long been criticized as ambiguous and unnecessarily convoluted. Those deficiencies were widely seen as a contributing cause of the attacks on the Capitol of January 6, 2021, and a rare bipartisan majority in Congress passed the ECRA to address the earlier statute's shortcomings. Yet it did so against a backdrop of unresolved questions about Congress's authority to legislate in this area. The scholarly literature, however, lacks a sustained defense of Congress's power to regulate the counting of electoral votes. This Article aims to fill that gap. It does so in two ways. First, it engages with the skeptics of Congress's authority on their traditional terrain, locating ample congressional authority grounded in the text, structure, and history of Article II and the Twelfth Amendment. The Article then seeks to expand the analytic framework by focusing on a constitutional provision that tends to stay out of the limelight: the Twentieth Amendment, which reconfigures the period between Election Day and Inauguration Day. In defending Congress's authority to pass laws regulating the counting of electoral votes, this Article provides the first scholarly treatment of the Twentieth Amendment's significance in this area.

Since the 1980s, the Supreme Court’s decisions involving the permissible uses of non–Article III federal tribunals have repeatedly invoked two competing theories. A “historical-exceptions” or “formalist” model would insist that only Article III judges can exercise federal adjudicative power except in three categories of cases that history marks as exceptional. A rival approach, often labeled “functionalism,” would allow further deviations from the historical norm if they are supported by sound practical justifications and do not threaten the fundamental role of the Article III judiciary within the separation of powers. This Article explores the relationship between theory and practice in explaining why neither the historical-exceptions nor the functionalist paradigm has prevailed entirely over the other despite the vastly greater appeal of the former, when viewed in the abstract, to an increasingly originalist Court.

The U.S. has one of the highest incarceration rates in the world, with over seven million admissions to jails each year. Incarcerated individuals are the only group in the U.S. that have a constitutional right to receiving "reasonably adequate" health care. Yet, there is little oversight and funding for health care accreditation to 44 jails across the U.S. Surveys of staff indicate that accreditation improves coordination between health and custody staff. We also find that accreditation improves quality standards and reduces mortality among the incarcerated, which is three times higher among control facilities than official estimates suggest. These health gains are realized alongside suggestive reductions in six-month-recidivism, such that accreditation is highly cost effective.

My topic is the perennial debate over universalism and nationalism, from the standpoint of classical law, political theory and political theology. I approach the topic through the lens of the concept of Empire, which I will equate to a “true world political authority” in the sense Benedict XVI and Francis have urged, and which I will argue is thesis or first-best, a regulative ideal. The classical understanding of Empire provides general principles that can be revived, translated and adapted to new circumstances, preserving the essence of those principles while their application changes. However, I also reject certain critiques of nationalism that I believe are simplistic. In particular, nationalism rightly ordered and understood is an understandable non-ideal or second-best response to badly ordered forms of universalism; nationalism is a temporarily valid hypothesis, relative to certain conditions. Proponents of universalism and nationalism often talk past one another, creating a mere illusion of disagreement — especially when and because one party defends universalism as ideal thesis, and the other defends nationalism as nonideal hypothesis.

A commonplace about revolutions, and counter-revolutions, is that however dramatic they may be in the short run, in the long run they often produce less change than their proponents hope and their opponents fear. Sometimes revolutions or counter-revolutions even serve to cement into place, or indeed augment, the very structures and norms that the revolutionaries found most objectionable. Such a thesis was suggested as to the most dramatic upheaval of them all, the French Revolution of 1789. In The Ancien Régime and The Revolution, written in 1856 after a long series of revolutions and counter-revolutions of varying description, Alexis de Tocqueville argued not only that the Revolution was as much an outgrowth of earlier laws, institutions, and norms as a departure from them, but also that those laws, institutions and norms largely survived the Revolution; indeed, they were in a sense confirmed and strengthened by it, albeit clothed in new outward forms. In what follows, I will suggest a similar thesis, of course on a much smaller scale, as to the Loper Bright “revolution” and indeed the administrative law “revolution” more generally. It is already possible to see how Loper Bright both grew out of pre-existing legal doctrines, principles and trends, and also to see how the chastening of the Loper Bright revolution could occur, leaving in place much of the old Chevron regime under different labels. Indeed, I will argue, the beginning of that process is already visible within the four corners of the majority opinion itself, and in subsequent lower-court decisions. In the long run, the Loper Bright revolution, and the larger movement of which it is the centerpiece, will have at most a marginal effect on administrative law. The laws and customs of the ancien regime will be (and already are being) reintroduced, in new forms and under new labels.

Bankruptcy reformers advocate substituting relative priority for the prevailing absolute priority standard to promote a more consensual restructuring process. In deciding who does and does not get paid when there is not enough value to pay all creditors, bankruptcy’s prevailing absolute priority rule lines creditors up in rank-order, compensating highest ranking creditors in full before lower-ranking creditors get anything. By contrast, relative priority would account for the possibility that the firm could recover and become more valuable after the bankruptcy. Relative priority would compensate lower-ranking creditors for that chance of the debtor turning around, thereby reducing both their incentive to delay and seniors’ incentive to rush. Relative priority has these and other potential advantages, but we here show that it would also introduce valuation difficulties. Valuation difficulties are important because under either priority rule, the parties always have some Coasean incentive to come to a deal that maximizes the total value of the firm, and then assess how the rule would split that value; indeed, we show that the absolute priority conflict structure that relative priority seeks to mitigate could readily re-emerge under relative priority. Absolute priority requires point-estimate valuations of the enterprise, like valuing equity of a non-indebted enterprise. But relative priority would require judges, parties, and outside investors to make complex valuations needing additional information, because relative priority valuation requires that decisionmakers assess the chances of multiple future outcomes with substantial precision. Worse, the increased valuation uncertainty from relative priority’s added complexity would discourage quick settlement and full-firm sales. Indeed, in many instances relative priority would recreate the bargaining problems afflicting absolute priority. Relative priority would, moreover, work poorly with today’s population of large business bankruptcies, which increasingly are private firms, for which we show relative priority valuation would be particularly difficult. Today, financial professionals generally do not trade and offer for sale similar financial instruments: stock options requiring substantially similar valuation analyses exist for stable public firms, but rarely for distressed firms. True, relative priority has other advantages over absolute priority. These advantages, however, must outweigh the costs we identify here: namely that relative priority entails greater valuation uncertainty for the parties, the courts, and outside investors, leads to more valuation conflict than absolute priority, and, in this dimension, would increase bankruptcy’s cost.

Drawing upon Roman public law and the classical Western ius commune generally, I sketch a law-governed constitution of hierarchy, including its institutional form and its basic justification. Grounded in a popular delegation of sovereign authority and power (imperium and potestas) to the Roman emperors and subordinate officials, the constitution of hierarchy is pervasively shaped and constrained by law and legal norms, written and unwritten, that orient the lawful exercise of power to the public good; it includes subsidiary democratic mechanisms of petitioning, consultation, and local and provincial democracy. The alternative to the constitution of hierarchy is not political egalitarianism, but an alternative hierarchy of arbitrary and exploitative rule, dominated by an economic and social class of optimates.

Congress passed a law to clarify the electoral vote-counting process and prevent the next Jan. 6. It was well within its power to do so.

Dropout often threatens the validity of causal inference in longitudinal studies. While existing studies have focused on the problem of missing outcomes caused by treatment, we study an important but overlooked source of dropout, selective eligibility. For example, patients may become ineligible for subsequent treatments due to severe side effects or complete recovery. Selective eligibility differs from the problem of ``truncation by death'' because dropout occurs after observing the outcome but before receiving the subsequent treatment. This difference makes the standard approach to dropout inapplicable. We propose a general methodological framework for longitudinal causal inference with selective eligibility. By focusing on subgroups of units who would become eligible for treatment given a specific treatment history, we define the time-specific eligible treatment effect (ETE) and expected number of outcome events (EOE) under a treatment sequence of interest. Assuming a generalized version of sequential ignorability, we derive two nonparametric identification formulae, each leveraging different parts of the observed data distribution. We then derive the efficient influence function of each causal estimand, yielding the corresponding doubly robust estimator. Finally, we apply the proposed methodology to an impact evaluation of a pre-trial risk assessment instrument in the criminal justice system, in which selective eligibility arises due to recidivism.

The use of Artificial Intelligence (AI), or more generally data-driven algorithms, has become ubiquitous in today's society. Yet, in many cases and especially when stakes are high, humans still make final decisions. The critical question, therefore, is whether AI helps humans make better decisions compared to a human-alone or AI-alone system. We introduce a new methodological framework to empirically answer this question with a minimal set of assumptions. We measure a decision maker's ability to make correct decisions using standard classification metrics based on the baseline potential outcome. We consider a single-blinded and unconfounded treatment assignment, where the provision of AI-generated recommendations is assumed to be randomized across cases with humans making final decisions. Under this study design, we show how to compare the performance of three alternative decision-making systems--human-alone, human-with-AI, and AI-alone. Importantly, the AI-alone system includes any individualized treatment assignment, including those that are not used in the original study. We also show when AI recommendations should be provided to a human-decision maker, and when one should follow such recommendations. We apply the proposed methodology to our own randomized controlled trial evaluating a pretrial risk assessment instrument. We find that the risk assessment recommendations do not improve the classification accuracy of a judge's decision to impose cash bail. Furthermore, we find that replacing a human judge with algorithms--the risk assessment score and a large language model in particular--leads to a worse classification performance.

This Viewpoint explores the various types of state laws establishing fetal personhood and the potential implications of these laws on health care, patients, and clinicians.

♦“Brown”♦—the case as it has been assimilated into U.S. constitutional culture—combines several stories of success and failure. One failure is familiar: the promise of integration that some found in ♦Brown♦ was betrayed in its implementation. This essay tells a different story. ♦Brown♦’s success lies in the inspiration its result provided organizers and participants in the civil rights movement and in a doctrinal accomplishment that was far superior to any available alternative. In this telling, its failure lies in its real-world effects on important elements in African American culture and in a politically unfortunate perpetuation, perhaps even creation, of the myth of U.S. courts as instruments for advancing progressive policy goals.

It has become common to view credit as problematic for present-biased consumers, who are tempted to incur too much debt because of its deferred costs. But while this view is generally valid when debt is used to finance current consumption, the picture becomes much more nuanced when credit is used to fund the purchase of durable goods—such as houses, cars, and education—which is the most common use of consumer credit. When bundled with the purchase of a durable good, the deferred cost feature of credit can be a feature, not a bug. The reason is that durable goods provide deferred benefits that are also undervalued by present-biased consumers. Moreover, people often need to save in advance to finance the purchase of a durable good, and present-bias makes it difficult to save. As a result, people with present bias tend to underconsume durable goods. We show that the deferred costs of purchase debt can offset these barriers to buying durable goods and make the present-biased consumer better off both by tempting her to buy something that she should—but would not otherwise—buy and by making it easier to save up for the purchase.

Researchers and practitioners are increasingly using machine‐generated synthetic data as a tool for advancing health science and practice, by expanding access to health data while—potentially—mitigating privacy and related ethical concerns around data sharing. While using synthetic data in this way holds promise, we argue that it also raises significant ethical, legal, and policy concerns, including persistent privacy and security problems, accuracy and reliability issues, worries about fairness and bias, and new regulatory challenges. The virtue of synthetic data is often understood to be its detachment from the data subjects whose measurement data is used to generate it. However, we argue that addressing the ethical issues synthetic data raises might require bringing data subjects back into the picture, finding ways that researchers and data subjects can be more meaningfully engaged in the construction and evaluation of datasets and in the creation of institutional safeguards that promote responsible use.

We study the labor market impacts of retroactively reducing felonies to misdemeanors in San Joaquin County, California, where criminal justice agencies implemented Proposition 47 reductions in a quasi-random order, without requiring input or action from affected individuals. Linking records of reductions to administrative tax data, we find employment benefits for individuals who (likely) requested their reduction, consistent with selection, but no benefits among the larger subset of individuals whose records were reduced proactively. A field experiment notifying a subset of individuals about their proactive reduction also shows null results, implying that lack of awareness is unlikely to explain our findings.

In the current era, product differentiation is increasing; it is often fueled by big data and artificial intelligence (AI). Whereas product differentiation is generally welfare enhancing when consumers are informed and fully rational, such differentiation might reduce welfare when consumers suffer from misperceptions, either because of a lack of information or because of behavioral biases. We show that the positive and normative implications of product differentiation depend on whether consumers over-or underestimate the benefits from some products. In particular, over-estimation of the benefits is a potential source of significant welfare losses. We also study sellers' incentives to promote, or combat, misperception. Our analysis can inform policymakers who are debating regulation that can make product differentiation more difficult (or easier), especially when the differentiation is instigated by AI algorithms powered by big data.

Medical devices diagnose disease, prolong life, and improve health. But when defective, they can injure, disable, and kill. To successfully sue manufacturers for injuries caused by medical devices, patients must overcome the defense that federal law preempts, or displaces, state law claims. The Supreme Court has provided a framework for answering this question with respect to most devices. However, it has never confronted how it would apply the framework to an innovative but growing class of devices—de novo devices—that may incorporate novel technologies like artificial intelligence and machine learning. This Essay tries to answer this question as a predictive and normative matter. From a predictive perspective, the Essay argues that the Court’s increasingly textualist orientation suggests it will reject preemption of claims against manufacturers of de novo devices, though the result is not certain. From a normative perspective, the Essay argues that allowing claims against de novo device manufacturers forces risk internalization, provides a regulatory failsafe for innovative technology, and preserves innovation without sacrificing patient health.

Madiba K. Dennie argues that “originalism deliberately entombs historically marginalized groups’ legal claims to liberation.”

The federal judge’s ruling in the Trump document case is a travesty.

The anxiety about distinguishing a President from a king, which framed this Court term, is inextricably intertwined with the end-of-democracy theme of the 2024 Presidential race.

Court’s troubling rulings on presidential immunity and regulatory power make it clear that change is an ethical essential.

If Joe Biden doesn’t willingly resign, there’s another solution, which would allow Democrats to unite around a new incumbent.

We show that intergenerational mobility changed rapidly by race and class in recent decades and use these trends to study the causal mechanisms underlying changes in economic mobility. For white children in the U.S. born between 1978 and 1992, earnings increased for children from high-income families but decreased for children from low-income families, increasing earnings gaps by parental income (“class”) by 30%. Earnings increased for Black children at all parental income levels, reducing white- Black earnings gaps for children from low-income families by 30%. Class gaps grew and race gaps shrank similarly for non-monetary outcomes such as educational attainment, standardized test scores, and mortality rates. Using a quasi-experimental design, we show that the divergent trends in economic mobility were caused by differential changes in childhood environments, as proxied by parental employment rates, within local communities defined by race, class, and childhood county. Outcomes improve across birth cohorts for children who grow up in communities with increasing parental employment rates, with larger effects for children who move to such communities at younger ages. Children’s outcomes are most strongly related to the parental employment rates of peers they are more likely to interact with, such as those in their own birth cohort, suggesting that the relationship between children’s outcomes and parental employment rates is mediated by social interaction. Our findings imply that community-level changes in one generation can propagate to the next generation and thereby generate rapid changes in economic mobility.

An analysis of two different knowledge institutions that serve democracies.

The Research Handbook on Health, AI and the Law explores the use of AI in healthcare, identifying the important laws and ethical issues that arise from its use. Adopting an international approach, it analyses the varying responses of multiple jurisdictions to the use of AI and examines the influence of major religious and secular ethical traditions.

Efforts to prosecute them constitute election interference.

This book is a primer on corporate law for law students and anyone else desiring a first course in 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 eco-system, 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.

Kicking the emergency abortion issue down the road as a national election looms is convenient for the court’s reactionary majority.

Congressional hearings and public reports have drawn attention to problems afflicting Medicare Advantage (MA), the privatized version of Medicare. Private plans became a staple of Medicare through the passage of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA). Congress passed this law during a furor of privatization, when think tanks and powerful financial interests emphasized the power of corporations’ profit incentive to improve the efficiency and quality of social enterprise. Yet the surging criticism of MA suggests a misalignment between the financial interest of some MA plans and the well-being of their patient populations. The criticisms range from deceptive marketing, ghost networks, and patient cherry-picking to unethical prior authorization denials and defrauding the government. In total, MA plans cost the federal government 22% more per patient than if these patients in question were enrolled in traditional Medicare. Moreover, it is not clear that this additional funding is producing proportional benefits. These developments raise questions about the presence of a profit incentive in Medicare, and perhaps health care more broadly.

Rep. Marjorie Taylor Greene might like it, but no one else should take this idea as anything other than what it appears to be — a political ploy with serious negative ripple effects.

In this Viewpoint, the authors refute recent suggestions that the US Food and Drug Administration (FDA) is not accountable for its decisions, pointing out the legal, legislative, and executive checks and balances on the agency.