Faculty Bibliography

In some circles, there is a misconception that within government, the only or principal uses of behavioral science consist of efforts to nudge individual behavior (sometimes described, pejoratively and unfairly, as “tweaks”). Nothing could be further from the truth. Behavioral science has been used, and is being used, to help inform large-scale reforms, including mandates and bans directed at companies (as, for example, in the cases of fuel-economy mandates and energy efficiency mandates). Behavioral science has been used, and is being used, to help inform taxes and subsidies (as, for example, in the cases of cigarette taxes, taxes on sugar-sweetened beverages, and subsides for electric cars). Behavioral science has been used, and is being used, to help inform nudges imposed on companies (with such goals as reducing greenhouse gas emissions, improving occupational safety, and protecting personal privacy). Some important interventions are indeed aimed at individuals (as with fuel economy labels, nutrition labels, and calorie labels, and automatic enrollment in savings plans); sometimes such interventions have significant positive effects, and there is no evidence that they make more aggressive reforms less likely. It is preposterous to suggest that choice-preserving interventions, such as nudges, “crowd out” more aggressive approaches.

Cement-truck drivers went on strike. A lawsuit by their company may pave the way for restricting workers’ rights.

This Viewpoint examines the future role of the Administration for Strategic Preparedness and Response in light of the COVID-19 pandemic.

This Viewpoint discusses a proposed DHHS rule to address discrimination in clinical algorithms and the need for additional considerations to ensure the burden of liability for biased algorithms is not disproportionately placed on health care professionals.

The lawyer who wrote Texas’s abortion ban has a bigger project—disempowering the judiciary—that may appeal to liberals, too.

Hutchinson's lawyer was paid by "Trump World" — and dangled job offers before her for "doing the right thing."

Third World Approaches to International Law (“TWAIL”) has aspirations to transform the tools and institutions of international law—which have served for centuries to construct, enact, and extend Western exploitation and domination—into tools and institutions for Global South empowerment, agency, and freedom. Characterizing itself as an intellectual and political movement, TWAIL promises to pave a path forward through a combination of scholarship and politics to achieve radical change. In this Article, I argue that TWAIL’s promise is unfulfilled—and that, if TWAIL’s current trajectory continues, its promise is likely to be unfulfillable. I first sketch TWAIL’s origin and key successes, including bringing awareness to the colonial roots and neo-imperial present of international law. Yet I contend that TWAIL’s diverse critical insights have not led to cohesive conceptual, doctrinal, or political positions, which would serve as tools to empower Global South-based actors. I propose that this is, at least partly, due to TWAIL’s ambivalence toward the Third World state, its absence of a theory of legitimate political violence in international law, its failure to identify a methodology of representing the ‘voices’ of the Global South, and the growing influence of an academic ethos I call ‘critique-as-wellness.’ For those motivated by TWAIL’s ambitions, I suggest three possible directions to take: the construction of a grassroots-centered campaign in the service of Global South peoples; the formation of a movement focused on empowering Global South states; or a coalition originating from the Global North aimed at reshaping Western attitudes and actions toward the Global South.

The "supreme law of the land" includes "this Constitution," and federal officers are "bound, by oath or affirmation, to support this Constitution." In recent years, some people have argued that these words require oath-takers to be originalists and to follow the Constitution's "original public meaning," properly understood. An understanding of this argument requires an exploration of the diverse forms and conceptions of originalism, which raise puzzles of their own. Whether or not we embrace some form of originalism, the broader point is this: the claim that the term "this Constitution" mandates a contested theory of interpretation, including a contested form of originalism, belongs in the same category with many other efforts to resolve controversial questions in law by reference to the supposed dictate of some external authority. Whether maddening or liberating, there is nothing that communication just is, nor is there any such dictate. The choice is ours.

Securities regulators seem to be more interested in protecting their turf than protecting investors.

What we ought to do, according to law, isn't always what we ought to do, given the existence of law. Sometimes we need to know what a legal system says we should do, under rules prevailing in a certain time and place. And sometimes we need to know what we should actually do, in the moral circumstances this legal system presents. Many fights between positivists and natural lawyers result from muddying these two inquiries. But we have good reasons, intellectual and moral, to keep them distinct. Even if prevailing social rules have no moral force of their own, those who make claims about them still owe their audiences a moral duty of candor. And the stronger our moral commitments, the more we ought to approach existing legal systems warily. Insisting that the law already reflects good morals can blind us to some very real flaws in our prevailing rules--and to the need for some very hard work in reforming them. To this extent, common-good-constitutionalist claims too often have all "the advantages of theft over honest toil": they can lead us to wish away precisely those disagreements and failings that make social and political institutions so necessary.

The number of public firms in the United States has halved since the beginning of the twenty-first century, causing consternation among corporate and securities law regulators. The dominant explanations, often advanced by Securities and Exchange commissioners when considering policy initiatives, come from over- or under- corporate regulation of the stock market. The central legal explanation is that corporate and securities law has made the cost of being public too high. Conversely, goes the second legal explanation, capital-raising rules for private firms were once very strict but have loosened up. Private firms can now raise capital nearly as well as small- and medium-sized public firms. Either way, these views see legal imperatives as explaining the sharp decline in the public firm.We challenge the implications of this thinking. While the number of firms has halved, public firms’ economic weight has not halved. To the contrary, the public firm sector is bigger by every other measure: total stock market capitalization is up greatly over the past three decades, profits are up, revenues are up, investment is up, and employment is up. Moreover, stock market capitalization, profits, revenues, and investment have not only increased but have all grown faster than the economy.The second challenge we pose is whether the explanation for the changing configuration of the public firm sector lies primarily in legal explanations. In other policy circles—at the Federal Trade Commission or the Justice Department’s Antitrust Division, for example—policymakers ask why American industry is so much more concentrated now, with fewer firms in most industries today than there were at the end of the twentieth century. Yet these policymakers bring forward antitrust and industrial organization explanations, not corporate or securities regulation. Little crossover exists between these two policymaking circles, one focusing on corporate and securities regulation (the SEC) and the other on competition (the FTC). We bring forward real economy changes that could readily explain the reconfiguration of the American public firm sector to one that is more profitable, more valuable, and with bigger but fewer firms. These real economy developments are largely tied to industrial organization via changes in antitrust enforcement or changes in the efficient scope of the firm. In a single article, this explanatory effort can only be exploratory. Multiple researchers in multiple efforts will be needed to explain which real economy forces have an impact and which do not. We begin this effort: There are fewer firms, but the firms are bigger, more profitable and often in more concentrated industries. We show why the legal explanation is unlikely to be the complete story for the package of changes over the past quarter-century and probably not even the most important one. Corporate policymakers should adjust appropriately.

In 1978, Congress created a new federal bankruptcy law that has since become a key part of the American capital markets. In this Article, I examine how large companies and their investors contract to make bankruptcy more or less likely, how distressed firms negotiate with creditors outside of bankruptcy and how companies plan for a Chapter 11 filing and navigate the bankruptcy system. I also survey the strategic moves, ranging from litigation to financing, that activist investors deploy to improve their bargaining power and to earn higher returns. The American bankruptcy system is constantly evolving and prevailing accounts of bankruptcy law quickly become stale, creating a constant need for new empirical research to establish a foundation for policy-making.

In some circles, there is a misconception that within government, the only or principal uses of behavioral science consist of efforts to nudge individual behavior (sometimes described, pejoratively and unfairly, as "tweaks"). Nothing could be further from the truth. Behavioral science has been used, and is being used, to help inform large-scale reforms, including mandates and bans directed at companies (as, for example, in the cases of fuel-economy mandates and energy efficiency mandates). Behavioral science has been used, and is being used, to help inform taxes and subsidies (as, for example, in the cases of cigarette taxes, taxes on sugar-sweetened beverages, and subsidies for electric cars). Behavioral science has been used, and is being used, to help inform nudges imposed on companies (with such goals as reducing greenhouse gas emissions, improving occupational safety, and protecting personal privacy). Some important interventions are indeed aimed at individuals (as with fuel economy labels, nutrition labels, calorie labels, and automatic enrollment in savings plans); sometimes interventions have significant positive effects and there is no evidence that they make more aggressive forms less likely. Choice-preserving interventions, such as nudges, do not "crowd out" more aggressive approaches.

Experimental research on judicial decision-making is hampered by the difficulty of recruiting judges as experimental participants. Can students be used in judges’ stead? Unfortunately, no. We ran the same high-context 2×2 factorial experiment of judicial decision-making focused on legal reasoning with 31 U.S. federal judges and 91 elite U.S. law students. We obtained diametrically opposed results. Judges’ decisions were strongly associated with one factor (sympathy, i.e., bias) but not the other (law). For students, it was the other way around. Equality between the two groups is strongly rejected. Equality of document-view patterns—a proxy for thought processes—and written reasons is also strongly rejected.

Benjamin Cardozo is associated with the common law, equity, judicial decision-making, and with a characteristic kind of proto-Realism. And in his day he was the most prominent expositor of the law of New York, a jurisdiction that had led the way in the merger of law and equity. So it is with equity. Equity pervades Cardozo’s work as a theme of the law and as a problem in judicial theory, in both his theoretical writings and in his decisions. In The Nature of the Judicial Process, Cardozo invokes equity when introducing the problem of reconciling the need for both certainty and flexibility in the law. And equity plays a large role in the modes of judicial decision-making he identifies—the philosophical, the historical, the customary, and the policy-oriented. This last, or sociological, method is the “arbiter” of the others in a way suggestive of equity’s role as meta-law. Because this approach to equity could only emerge from its application, it is not surprising that cases in the area of equity would receive his special attention as a judge. Most clearly in some headline equity cases but going far beyond them, Cardozo’s vision for the integration of equity and law was functional rather than primarily jurisdictional. Equity for Cardozo both kept the law to a high moral standard and supplemented and corrected the law in limited circumstances. Sometimes Cardozo’s reformulation of equity in this functional sense reformed the law so subtly as to be easy to miss. Seen in the light of later full-blown Legal Realism, Cardozo’s equity is easily mistaken for a version of Realism in its rhetoric but disappointingly cautious in its results. Cardozo’s equity was a genuine path not taken and one that perhaps still could bring equity into the modern age.

An unflinching look at a beautiful, endangered, tourist-pummeled, and history-filled American city. At least thirteen million Americans will have to move away from American coasts in the coming decades, as rising sea levels and increasingly severe storms put lives at risk and cause billions of dollars in damages. In Charleston, South Carolina, denial, boosterism, widespread development, and public complacency about racial issues compound; the city, like our country, has no plan to protect its most vulnerable. In these pages, Susan Crawford tells the story of a city that has played a central role in America’s painful racial history for centuries and now, as the waters rise, stands at the intersection of climate and race. Unbeknownst to the seven million mostly white tourists who visit the charming streets of the lower peninsula each year, the Holy City is in a deeply precarious position. Weaving science, narrative history, and the family stories of Black Charlestonians, Charleston chronicles the tumultuous recent past in the life of the city–from protests to hurricanes–while revealing the escalating risk in its future. A bellwether for other towns and cities, Charleston is emblematic of vast portions of the American coast, with a future of inundation juxtaposed against little planning to ensure a thriving future for all residents. In Charleston, we meet Rev. Joseph Darby, a well-regarded Black minister with a powerful voice across the city and region who has an acute sense of the city’s shortcomings when it comes to matters of race and water. We also hear from Michelle Mapp, one of the city’s most promising Black leaders, and Quinetha Frasier, a charismatic young Black entrepreneur with Gullah-Geechee roots who fears her people’s displacement. And there is Jacob Lindsey, a young white city planner charged with running the city’s ten-year "comprehensive plan" efforts who ends up working for a private developer. These and others give voice to the extraordinary risks the city is facing. The city of Charleston, with its explosive gentrification over the last thirty years, crystallizes a human tendency to value development above all else. At the same time, Charleston stands for our need to change our ways–and the need to build higher, drier, more densely-connected places where all citizens can live safely. Illuminating and vividly rendered, Charleston is a clarion call and filled with characters who will stay in the reader’s mind long after the final page.

Alibaba, the e-commerce giant that completed a record-setting IPO in the United States in 2014 and was valued at over $700 billion in early 2021, is one of hundreds of China-based firms listed in the United States whose controlling insiders are largely law-proof: the corporate and securities laws governing these firms are unenforceable because the firms’ insiders, records, and assets are in China. This casts doubt on the claim that foreign firms list in the United States to bond insiders to tough securities law. In fact, for China-based firms, listing in the United States but not in China effectively insulates insiders from any securities law. Yet U.S. securities law not only allows these firms to list, but also requires them to dis-close less than domestic firms. U.S. securities law thus favors foreign entrepreneurs and likely harms U.S. investors. We suggest ways to reduce this bias and better protect U.S. investors. More generally, we argue that enforceability is key to corporate governance.

The paper provides useful information about music consumption, but not about legal safe harbors, whose effects it cannot test because they did not change between periods.

A casebook to be used as the primary text for first-year law school contracts courses, written by a leading scholar in contract law.Renting a home, buying a ticket, downloading an app—humans enter into contracts constantly, often with little consciousness of the legal implications. We typically become alert to the consequences only when a problem arises. Contracting can increase our happiness by enabling us to do things that we would be otherwise unable to do, but heartbreak follows when things go wrong. This casebook, which can be used as a primary text for a first-year law school contracts course, covers a wide spectrum of quandaries that emerge in contract law, from problems of overreach and interpretation to enforcement and fraud. Taken together, these cases offer an exploration of contract pathology and introduce students to concepts that are essential to understanding the vast subject of Anglo-American contract law. This book is part of the Open Casebook series from Harvard Law School Library and the MIT Press.Primary text for a first-year law school contracts course Developed for use at Harvard Law School by a leading scholar in contract law Diverse cases show differing approaches to a range of problems within contractingClassroom tested

All over the world, private and public institutions have been attracted to “nudges,” understood as interventions that preserve freedom of choice, but that steer people in particular directions. The most effective nudges are often “defaults,” which establish what happens if people do nothing. For example, automatic enrollment in savings plans is a default nudge, as is automatic enrollment in green energy. Default rules are in widespread use, but we have very little information about how people experience them, whether they see themselves as manipulated by them, and whether they approve of them in practice. In this book, Patrik Michaelsen and Cass R. Sunstein offer a wealth of new evidence about people’s experiences and perceptions with respect to default rules. They argue that this evidence can help us to answer important questions about the effectiveness and ethics of nudging. The evidence offers a generally positive picture of how default nudges are perceived and experienced. The central conclusion is simple: empirical findings strongly support the conclusion that, taken as such, default nudges are both ethical and effective. These findings, and the accompanying discussion, have significant implications for policymakers in many nations, and also for the private sector.

The striking thing about medieval Islamic criminal law is that it featured a jurisprudence of doubt and lenity facing off against political practices of control and severity. Principles of Islamic criminal law placed interpretive authority in the group of scholar-jurists who gained expertise to read divine texts to say what the Law is (sharīʿa). Practices of Islamic criminal law authorized executive authorities—caliphs, sultans, and their agents—power over law enforcement (siyāsa). Principles informed the task of expert jurists and state-appointed judges in defining legitimate punishment derived from Islam’s foundational texts. Practices informed the wide array of severe punishment that law enforcement officials meted out regularly, with a justification that it was “in the public interest” (maṣlaḥa). Principles often justified limited punishment by means of “deterrence” (zajr) and “spiritual rehabilitation” (kaffāra). Practices often justified unrestrained punishment as a means of maintaining law and order, social control, or might as right. The principles of punishment, practices of punishment, and justifications for punishment typically operated in siloes separated by a wide plain. This chapter explores the ground where they met.Examining both principles and practices of medieval Islamic criminal law can shed light on some of the most pressing questions of old criminal law (Islamic and otherwise): What is the extent of convergence or divergence between Islam’s principles and practices? How, from juristic or social-political accounts of criminal justice, can we explain the types of punishments we see on the books and in the world as we know it?To answer these questions, I will explore the principles-practices divergence by first examining the legal sources. Then I will review them alongside narratives of social-political practices. For the legal principles, I draw on previous work outlining medieval Islamic criminal law and the expansive role of doubt in substantive law and in criminal procedure. To explore the practices, I canvas Maḥmūd Shaljī’s seven-volume Encyclopedia of Punishment (Mawsūʿat al-ʿadhāb), in which he collects all mentions of “punishment” from a well-known set of historical chronicles and other literary sources from the eighth century onward. I supplement his sources with the less-covered Seljuq, Mamlūk, and Ottoman-era accounts of punishment that Christian Lange (2012), Carl Petry (2008), and others have collected in their studies. By combining views of criminal law from the pens of medieval jurists together with accounts of contemporaneous acts reporting on their less verbose executive counterparts, I offer depictions of how each side tended to approach crime and punishment.

[...]this peculiarity of Estrellita’s case, added to the fact that it was the first writ of habeas corpus filed on behalf of an animal in Ecuador, explains our initial uncertainty about the scope of the case. The 2008 Ecuadorian Constitution recognizes nature as a rights holder, so any person or community can request a court or public authority to protect the rights of nature or Pachamama, the Quechua word for Mother Earth. [...]the Constitutional Court’s ruling in Estrellita’s case, the rights of nature had only referred to the protection of animals considered as species, not as individuals. [...]we may be killing animals belonging to different families, destroying the group’s genetic diversity, and leaving only siblings who may not mate. [...]we argued that if the Ecuadorian Constitutional Court decided to exclude individual animals from the protection of the rights of nature, then it would be forced to answer an impossible question:

We review experimental research on judicial decision-making with a focus on methodological issues. First, we argue that only experiments with relatively high realism, in particular real judges as study subjects, plausibly generalize to judicial decision-making in the real world. Most experimental evidence shows lay subjects to behave very differently from expert judges in specifically legal tasks. Second, we argue that studying the effects of non-law is not a substitute for studying the effects of law since large unexplained residuals could be attributed to either. Direct experimental studies of the law effect are few and find it to be puzzlingly weak. Third, we review the substantive findings of experiments with judges, distinguishing between studies investigating legal and non-legal factors and paying close attention to the nature of the experimental task.

Experiments of Living Constitutionalism urges that the Constitution should be interpreted so as to allow both individuals and groups to experiment with different ways of thinking, whether we are speaking of religious practices, family arrangements, political associations, civi associations, child-rearing, schooling, romance, or work. Experiments of Living Constitutionalism prizes diversity and plurality; it gives pride of place to freedom of speech, freedom of association, and free exercise of religion; it cherishes federalism; it opposes authoritarianism in all its forms. While Experiments of Living Constitutionalism has considerable appeal, my purpose in naming it is not to defend it, but to contrast it to Common Good Constitutionalism, with the aim of specifying the criteria on which one might embrace or defend any approach to constitutional law. My central conclusion is that we cannot know whether to accept or reject Experiments of Living Constitutionalism, Common Good Constitutionalism, democracy-reinforcing approaches, moral readings, originalism, or any other proposed approach without a concrete sense of what it entails--of what kind of constitutional order it would likely bring about or produce. No approach to constitutional interpretation can be evaluated without asking how it fits with the evaluator's "fixed points," which operate at multiple levels of generality. The search for reflective equilibrium is essential in deciding whether to accept a theory of constitutional interpretation.

A central function of the central bank is to act as the lender of last resort. Why did it fail to do so?

In the current ESG debate, one leading theory argues that diversified investors have a financial incentive to reduce negative corporate externalities, such as greenhouse gas emissions, because they internalize those externalities within their investment portfolio. This Essay examines how this “portfolio primacy” theory interacts with the multiple layers of fiduciary duties of investment and corporate managers. Using a hypothetical emissions reduction in ExxonMobil as a paradigmatic case, I show that portfolio primacy creates a fiduciary deadlock: a situation in which multiple fiduciary relationships—between investment advisers and fund investors, between corporate managers and shareholders, and between controlling and minority shareholders—come into conflict with each other. I argue that, within the existing structure of fiduciary law, portfolio primacy will prove ineffective in promoting ambitious social and environmental goals. Indeed, the only way to solve the fiduciary deadlock is to abandon the central tenet of portfolio primacy.

The 13th edition of this comprehensive casebook draws from its history and current debates to create a lively and rich set of materials appropriate for introductory as well as advanced courses. It contains a substantial chapter on legislative process and statutory interpretation so that the casebook can be used for an introductory legislation and regulation course as well as for administrative law classes. With one new editor (Eloise Pasachoff, Georgetown University), this latest edition makes a number of changes: Pares down existing material from the current edition and supplement, with shorter excerpts and consolidated notes throughout. Includes the latest administrative law decisions from the Supreme Court, often as lead cases, such as West Virginia v. EPA, United States v. Arthrex, Seila Law v. CFPB, FCC v. Prometheus Radio, Wooden v. United States, Concepcion v. United States, Carr v. Saul, TransUnion v. Ramirez, and more. Includes relevant new cases from the courts of appeals and district courts, addressing topics such as the constitutionality of SEC ALJ adjudications, decisionmaker bias, length of comment periods, application of Kisor v. Wilkie, Chevron waiver, and more. Replaces some teaching cases with material that is more accessible to students, including a new case for “logical outgrowth” and new materials on exceptions to notice-and-comment rulemaking. Updates transparency materials to cover the latest Supreme Court decisions on FOIA exemptions, address current events and disputes (including over the Presidential Records Act and various privileges), and show how the mandates from the 2016 FOIA Amendments have been litigated. Discusses the end of the Trump Administration and first 20 months of the Biden Administration, including firings or forced resignations of agency leaders, reversals in presidential directives and agency policies, rulemaking trends, the COVID-19 pandemic, and more. Adds new material on public administration and budgeting. Updates factual, legal, and policy materials throughout the book, with a focus on current issues and examples that appeal to students. The casebook continues to incorporate primary materials outside of judicial decisions (including statutes, administrative materials, IG and GAO reports, and proposed legislation). It also uses a wide range of secondary materials, from law review articles (classic and recent) to social science studies to think tank reports. And it considers strategic choices by agencies and challengers to agency action, not only in the courts but also in the White House and Congress. The new edition retains many of the casebook's classic cases and commentary as well as its modular approach, allowing instructors to choose the order of topics. Although there is considerable new material, the casebook's arrangement remains stable, facilitating continued use by those who have adopted the 12th edition. Adopters have access to slides, writing assignments, examination questions, and more. As occurred with the prior edition, the casebook will be updated annually through a free online supplement for students.

Algorithms are designed to learn user preferences by observing user behaviour. This causes algorithms to fail to reflect user preferences when psychological biases affect user decision making. For algorithms to enhance social welfare, algorithm design needs to be psychologically informed.

Disqualification after impeachment prevents the return of unfit leaders to power by barring their re-election—but for how long? This article examines international human rights decisions on the duration of post-impeachment disqualification, including an important 2022 opinion of the European Court of Human Rights, along with the experience of impeachment in the United States. The neglected history of impeachment in U.S. states adds dimensions to the thinner narrative of impeachment at the U.S. federal level. The European insistence on keeping disqualification proportionate resonates with a minority practice of partial disqualification in the states. Nonetheless, the European Court’s prohibition of irreversible lifelong disqualification may be too rigid for democracies under threat.

Dobbs v. Jackson Women’s Health Organization radically revised the constitutional “right to privacy,” declaring that such a right does not protect the decision to have an abortion. Less appreciated is that it expressly left intact the constitutional right to “informational privacy.” In so doing, Dobbs became the next in a line of cases establishing constitutional protections for privacy alongside, and distinct from, both the substantive due process caselaw on intimate decision-making and the Fourth Amendment. This right to informational privacy has deep roots in our legal order, notwithstanding its vaguer history at the Supreme Court. It appears in the jurisprudence of all but one federal circuit as well as most state courts, and in an array of doctrinal settings, reflecting its intuitive cultural and normative force. This Article explores the surprisingly robust constitutional right to informational privacy post-Dobbs, and in particular its implications for abortion-related medical records—a particularly potent source of potential evidence, and deep privacy concerns, in a post-Dobbs world. Whatever else Dobbs is, it is also an invitation to take this value seriously—and for scholars and advocates to press the development of an “informational privacy” jurisprudence that survives, and to some extent counteracts, the erosion of decisional privacy.

A large academic literature discusses the nondelegation doctrine, which is said to bar Congress from enacting excessively broad or excessively discretionary grants of statutory authority to the executive branch or other agents. The bulk of this literature accepts the existence of the doctrine, and argues only about the terms of its application or the competence of the courts to enforce it. In this essay, we argue that there is no such nondelegation doctrine: A statutory grant of authority to the executive branch or other agents never effects a delegation of legislative power Agents acting within the terms of such a statutory grant are exercising executive power, not legislative power. Our argument is based on an analysis of the text and history of the Constitution, the case law, and a critique of functional defenses of the nondelegation doctrine that have been proposed by academic.

Judges perform very different analyses when investors ask for protection. When the petitioning party is a shareholder, the court will deploy broad equitable doctrines with an eye towards reaching a fair result. On the other hand, creditors typically find a much less sympathetic ear, as courts typically march through technical analyses such as examining whether the offending party violated a contract term, with far less concern for whether the outcome is fair. In an era where many firms are highly leveraged, the end result is that the role of the courts in regulating investor opportunism and creating boundaries for “market” conduct has been greatly diminished, with consequences for both real-world corporate behavior and the development of the law.

This chapter discusses the practical challenges to scaling up restorative justice in the United States. Existing restorative justice programmes handle only a tiny fraction of the criminal docket. The chapter focuses on two related problems – the need to recruit enough facilitators to handle the increased caseload, and the difficulty of avoiding bureaucratisation and centralisation. It seems unlikely (and probably impossible) for programmes to meet the increased demand without abandoning a volunteer model and becoming dependent on state funding. Yet any shift towards professionalisation would appear to threaten the central premise of restorative justice, which is to return control over conflicts to stakeholders and local communities. I argue that this is a false choice. This chapter argues that recruiting part-time paid facilitators from the local community would improve restorative justice programming by making facilitators more representative and responsive to the local community. Using community-centred public defender services as a model, this chapter also argues that community-based programmes can accept state funding without sacrificing independence, flexibility and local responsiveness. Those designing restorative justice programmes should focus on safeguarding the core restorative justice principles of stakeholder control and informal, flexible and locally responsive processes rather than resisting all forms of professionalisation and institutionalisation.

Microdosing psychedelic substances (“microdosing”) is a growing trend that has gained significant media and scientific attention. The practice typically involves consuming low doses of psychedelics, such as psilocybin or lysergic acid diethylamide (“LSD”), two or three times per week, over the course of weeks or months. Many claim that microdosing improves attention, creativity, or mood. Some say it reduces pain as well as symptoms of anxiety, depression, and migraine or cluster headaches. Others fear it has not been proven safe or effective by randomized controlled trials. Nevertheless, the microdosing trend is growing against the backdrop of a broader psychedelic renaissance characterized by increasing interest in researching, legalizing, consuming, and commercializing psychedelics. This Article is the first to address the legal status of microdosing under local, state, and federal law. It analyzes the national trend toward psychedelic legal reform and how it affects the legal status of people who microdose. Since 2019, over a dozen U.S. cities have decriminalized psychedelics, making their possession in each city a low priority for law enforcement. The following year, during the 2020 presidential election, the psychedelic renaissance reached a turning point. Through ballot initiatives, the District of Columbia partially decriminalized psychedelics, and Oregon became both the first state to decriminalize psychedelics and the first to legalize the production, sale, and supervised adult use of psilocybin. In 2022, Colorado became the second state to partially decriminalize psychedelics and create a legal market for their supervised administration. Related legislation has been proposed in about a dozen other states, including California, New York, Massachusetts, Illinois, and New Hampshire. However, despite the growing popularity of microdosing, these jurisdictions have largely overlooked the practice and thus raised numerous equity and public health concerns. This Article analyzes available scientific evidence for microdosing, summarizes its risks and benefits, and analyzes how existing and proposed legislation affect the practice. It concludes with recommendations for the safe and equitable integration of microdosing into existing, proposed, and future psychedelics regulation. As more jurisdictions decriminalize or legalize psychedelics, they can use the Article as a resource and guide.