Faculty Bibliography

Technological progress can topple industry titans. But in the electricity industry, entrenched power can stymie disruptive change by setting rules that block competition and reinforce the status quo. In this paper, I chronicle how regional power sector governance — the decisionmaking processes and structures used to change industry rules — is impeding innovation that could challenge incumbent firms, business models, and technologies. I limit my inquiry to control over electric transmission, the channels of interstate commerce essential for keeping the lights on. Twenty-five years ago, amidst a seismic industry shift to competition, federal utility regulators (FERC) empowered new entities to coordinate the industry through interstate markets and integrated planning. To receive regulatory approval, these new Regional Transmission Organizations (RTOs) had to demonstrate that their governance was free from industry control. FERC believed that RTO “independence” was necessary to foster confidence in the fairness of RTO transmission service and attract investment to RTO-run markets. The RTO model of procuring reliable power through markets spread quickly. While RTOs have since rewritten industry rules and invented new markets, their governance is unchanged. I argue that RTO governance is now holding the industry back for the benefit of last century’s power players. The industry is in the early phase of a technological revolution, but the commercial interests and individual entities that held formal power and informal influence in regional decisionmaking processes are largely the same today as they were twenty-five years ago. As a result, regional rules tend to cater to incumbents’ interests, to the detriment of competition, consumers, and innovation. I explain why RTO governance stagnated, detail how the power industry changes its the rules, and outline a path for FERC reforms. Despite the drawbacks of RTOs, I contend that independent control over transmission operations and planning is indispensable for moving the industry forward.

The idea of judicial dialogue entered into scholarly discussion in the late twentieth century and is used in connection with different phenomena at the transnational and domestic levels. In the transnational context, it refers to exchanges among courts and judges that belong to different national and international legal regimes. In the domestic context, judicial dialogue refers to interaction between courts and other branches of government, particularly legislatures. Each phenomenon is associated with a form of politics. Transnational judicial dialogue occurs in a literal sense when judges communicate and network with each other, but it also occurs in a figurative sense when judges engage in comparative legal research and consider each other’s work. Either way, it can resemble a specialized form of international relations, in which courts seek to bolster their own standing by affiliating themselves with more prestigious peers, and to exercise soft power and influence over less prestigious peers. Transnational dialogue is often opaque or invisible to outsiders and usually lacks domestic political ramifications. In a handful of settings, however, judges who make conspicuous use of foreign law by explicitly citing it in high-profile or controversial opinions can expect to face normative criticism for doing so.Dialogue at the domestic level is associated with alternative forms of judicial review that give legislatures the power to override or avoid judicial rulings of unconstitutionality. Such institutional configurations are said to strike a balance between legislative and judicial supremacy, and to take the sting out of the charge that constitutional courts are inevitably ‘countermajoritarian.’ Scholarly use of the dialogue concept envisions a discursive form of constitutional politics that is differentiated from, and superior to, the usual politics surrounding judicial review. However, it is unclear whether such a distinctive and elevated species of politics can be achieved in practice. On the one hand, if ‘dialogue’ is defined in a thin fashion as including any back-and-forth on constitutional questions between legislatures and courts, the concept becomes so broad as to be indistinguishable from ordinary politics. On the other hand, if ‘dialogue’ is defined in a thick fashion as substantive exchange on the merits of constitutional questions, there may be no country capable of satisfying the definition. The case of Canada, often held up as the leading example of judicial dialogue, illustrates the severe definitional challenges surrounding the concept.

This article addresses the intersection of three important topics: sexual assault, police misconduct, and employer liability for employee torts. As to the last of these, while there have long been debates among jurists in the U.S. concerning the proper scope of respondeat superior liability, courts have mostly adhered to an approach that focuses on whether the employee acted for the purpose of serving the employer’s interests. The narrowness of this purpose-based test, as compared to available alternatives, makes it imperative for lawyers, judges, and scholars to be attentive to other, less well-known, bases for employer liability. In Sherman v Department of Public Safety, the Delaware Supreme Court applied a particular version of one such doctrine – the “aided-by-agency” doctrine – to hold a police department accountable for its officer’s sexual assault of an arrestee. By articulating this doctrine in a thoughtful and circumscribed manner, the Court affirmed its reputation as a leader in the development of agency law, while also providing a helpful framework that can be applied to hold certain employers liable when employees take advantage of their employment-based authority over their victims to perpetrate assaults.

To allow Donald Trump to appear on the 2024 presidential ballot, the courts will need to explain why any ruling that keeps the former president in the running doesn't itself betray the Constitution.

Throughout the history of capitalism law has been a major component of the social and material context that structured social relations of production, creating and legitimating a distinct combination of freedom and coercion, opportunity and imperative, that has been the driving dynamic of capitalism ever since. It did so by structuring access to natural resources for purposes of subsistence and market-oriented production, coordination and cooperation in labor and investment processes, access to means of payment and credit, and the allocation of risk and uncertainty attendant to production. It also differentially constrained market access to labor roles, training, and credit along lines of gender and race, leveraging gendered roles in reproduction and gendered and racialized status subordination into hyper-exploitative gendered and racialized class relations, in turn reinforcing atavistic status subordination even under a veil of juridical equality. Over the past three centuries, it has done so through a series of power struggles among competing groups and ideas, within and outside the legal profession, and structured asymmetric power in social relations along dimensions of class, gender, and race. This article analyzes the role of law and legal theory at major transition points in capitalism, particularly the Gilded Age and the rise of neoliberalism. Repeatedly, in all these battles, academics and judges harnessed legal theory and transposed the broader emerging ideological trends of the professional and managerial class to legitimate and contest the newly emerging, often more exploitative relations. The article ends with implications for the design and justification of a post-neoliberal regime.

Scholars and policy makers have long debated whether securities firms should be allowed to bundle the cost of execution services with the cost of research. Investor advocates condemn the practice whereas industry representatives defend it. In 2018, as part of the Markets in Financial Instruments Directive II (MiFID II) legislative regime, the EU forced the unbundling of commission charges, diverging from US legal standards which still allow ‘soft dollar’ payments for research. The EU’s unbundling regime has challenged global financial services firms, which must now comply with conflicting rules across national boundaries. For more than five years, the US Securities and Exchange Commission provided temporary no-action relief to facilitate compliance with MiFID II, but that relief expired in July 2023, presenting an opportunity to reconsider the impact of MiFID II’s unbundling regime and its implications for US regulators and investors. While this article takes a critical view of soft dollar practices, the story of MiFID II presents contested issues of policy analysis as the agency costs inherent in bundled commissions could be offset by the public benefits of additional research. Unbundling also offers a noteworthy example of an innovation in capital markets regulation flowing from Europe to the United States rather than the other way around.

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Public companies have increasingly embraced environmental, social and governance (ESG) factors in the course of everyday business. However, these ESG considerations are virtually non-existent in merger and acquisition (M&A) transactions. Elon Musk’s recent acquisition of Twitter provides an illustration of this stark disconnect. Prior to the transaction, Twitter pursued numerous ESG goals. In contrast, Musk had taken a skeptical, if not hostile, stance toward ESG. In negotiating the sale, the Twitter board succumbed to “ESG amnesia”—overlooking its ESG commitments in favor of the high-premium all-cash offer from Musk. Twitter is not alone: ESG amnesia is a widespread phenomenon in M&A. We argue that corporate boards have the legal and practical ability to consider ESG in their dealmaking. We examine three of the most significant barriers that might prevent a corporate board from incorporating ESG objectives into transactions—fiduciary duties, negotiation leverage, and contractual feasibility—and demonstrate that, outside of the Revlon context, none of these barriers offers a compelling justification for ESG amnesia. Rather, boards that consider ESG objectives in their dealmaking can be acting entirely consistent with their fiduciary duties. Moreover, boards often have the negotiation leverage and capability to incorporate ESG protections into their contractual agreements. As a result, we argue that ESG considerations should pervade all aspects of managerial decision-making, including decisions about the sale of the company. We conclude with specific recommendations for corporate actors in M&A deals

The bloc of conservative justices on the Supreme Court have dismantled many of the legal precedents on their hit list. What’s in store for the new term?

Why are take up rates incomplete or low when the relevant opportunities are unambiguously advantageous to people who are eligible for them? How can public officials promote higher take up of opportunities? All over the world, these are challenges of the first order. There are three primary barriers to take up: learning costs, compliance costs, and psychological costs. These costs lower the net expected benefit of opportunities, and reduce participation in otherwise advantageous programs. Fully rational agents would consider these costs in their take up decisions, and in light of behavioral biases, such costs loom especially large and may seem prohibitive. Experimental and other evidence suggest methods for reducing the barriers to take up and the effects of behavioral biases. Use of such methods has the potential to significantly increase access to a wide range of opportunities that would increase individual well-being and social welfare.

We study the labor market impacts of retroactively reducing felonies to misdemeanors in San Joaquin County, CA, 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.

The Medicare Advantage Program, home to nearly half of the eligible Medicare population, has recently come under increased scrutiny. The Government Accountability Office called on the Centers for Medicare & Medicaid Services to monitor “disenrollment of MA beneficiaries in the last year of life, validate MA-provided encounter data, and strengthen audits used to identify and recover improper payments to MA plans.” The House Subcommittee on Oversight and Investigations of the Committee on Energy & Commerce, dedicated a hearing to “Protecting America’s Seniors: Oversight of Private Sector Medicare Advantage Plans.” In addition, a recently conducted audit of the Office of the Inspector General of the Department of Health and Human Services raised concerns over “denials of prior authorization requests” and “beneficiary access to medically necessary care.” In this article we consider the backdrop for the growing scrutiny of the MA program and the implications thereof to its future trajectory.

An unprecedented account of social stratification within the US legal profession. How do race, class, gender, and law school status condition the career trajectories of lawyers? And how do professionals then navigate these parameters? The Making of Lawyers’ Careers provides an unprecedented account of the last two decades of the legal profession in the US, offering a data-backed look at the structure of the profession and the inequalities that early-career lawyers face across race, gender, and class distinctions. Starting in 2000, the authors collected over 10,000 survey responses from more than 5,000 lawyers, following these lawyers through the first twenty years of their careers. They also interviewed more than two hundred lawyers and drew insights from their individual stories, contextualizing data with theory and close attention to the features of a market-driven legal profession. Their findings show that lawyers’ careers both reflect and reproduce inequalities within society writ large. They also reveal how individuals exercise agency despite these constraints.

Rules are needed for human research in commercial spaceflight.

In March 2023 Silicon Valley Bank, the 16th largest bank in the United States, was forced into FDIC-administered receivership and sold to a private acquirer after it experienced a bank run of a size and speed that were unprecedented in U.S. banking history. Its failure set off runs on two other large U.S. banks, Signature and First Republic, which were also forced into receivership and sold to private acquirers. Though each bank sought liquidity from the Federal Reserve as the lender of last resort, in no case was the lender of last resort successful in averting the bank’s collapse. This article seeks to understand why. We document operational, procedural, and policy flaws in the design of the lender of last resort function and the manner in which it was deployed by banking agencies. We find that these flaws rendered the lender of last resort function ineffective in preventing contagion arising from a liquidity crisis, the very purpose for which it was intended. We then make eleven recommendations for how policymakers can improve the lender of last resort function so that it can prevent the recurrence of similar crises.

In the last two decades, there has been an extraordinary outpouring of careful historical work on two of the most fundamental questions in constitutional law: (1) whether Congress may delegate open-ended discretionary power to the executive branch (or others) and (2) whether Congress may restrict the president’s power to remove high-level officials in the executive branch. The best reading of the new evidence is that there was no robust nondelegation doctrine at the founding period, if there was a nondelegation doctrine at all. Though the issue is closer, the best reading of the new evidence is that during the founding period, the Constitution was understood to authorize Congress to restrict the president’s power of removal, even over principal officers (with important qualifications). Understood in terms of its original public meaning, the Constitution almost certainly allowed Congress to grant very broad discretion to the executive branch and also permitted Congress to limit the president’s removal authority over (some) principal officers. What is remarkable is that in both contexts, no originalist on the Court has been convinced by the relevant evidence, or even seriously grappled with it. Any explanation of the apparent impotence of historical evidence in this context (or others) would be speculative, but there are three plausible accounts. The first points to a simple lack of awareness of the relevant evidence and the crucial role of epistemic communities in constitutional law. The second is Bayesian and spotlights rational updating. The third points to motivated reasoning. All three accounts offer lessons for lawyers and others seeking to marshal historical evidence to disrupt engrained judicial beliefs.

Other courts do not strike down the decisions of duly elected and appointed executive officers on the grounds of unreasonableness, even extreme unreasonableness.

This Viewpoint reviews how the recent US Supreme Court decision regarding affirmative action affects extant medical school admission policies seeking to enhance diversity of the national medical student body and its derivative national health care workforce.

At some point in the growth of successful economies, informal customary rules of contract, tort, and property are replaced by or supplemented by formal private laws. These transitions sometimes succeed and sometimes fail. Yet little research has examined why. What scholarship exists often asserts that success requires new formal private law rules to have evolved organically and incrementally from within a society. Japan’s successful private law transition at the end of the 19th century suggests otherwise. Japan’s transition was sudden and derived from exogenous legal traditions, but it was highly successful. Japan’s example suggests that what matters most to the success of a private law transition is how well the new private law rules integrate with preexisting business customs. True—organic, incremental change is more likely to integrate well, and so is more likely to succeed. But it is the harmony of integration that matters, not the source of the new rules. Figuring out these ingredients for success matters, because getting private law transitions right enormously impacts the well-being of persons throughout society.

Equity can be defined as the use of a more flexible, morally judgmental, and subjective mode of legal decision making that roughly corresponds with historical equity. This Element presents a simple contracting model that captures the role of equity as a safety valve, and shows how it can solve problems posed by opportunists–agents with unusual willingness and ability to take advantage of necessary imperfections in the law. In this model, a simple but imperfect formal legal regime is able to achieve first best in the absence of opportunists. But when opportunists are added, a more flexible regime (equity), can be preferred. However, equity is also vulnerable to being used opportunistically by the parties it intends to protect. Hence, the Element shows that it is often preferable to limit equity, reserving it for use only against those who appear sufficiently likely to be opportunists.

Despite strong scholarly interest in explainable features in AI (XAI), there is little experimental work to gauge the effect of XAI on human-AI cooperation in legal tasks. We study the effect of textual highlighting as an XAI feature used in tandem with a machine learning (ML) generated summary of a legal complaint. In a randomized controlled study we find that the XAI has no effect on the proportion of time participants devote to different sections of a legal document, but we identify potential signs of XAI's influence on the reading process. XAI attention-based highlighting may change the spatio-temporal distribution of attention allocation, a result not anticipated by previous studies. Future work on the effect of XAI in legal tasks should measure process as well as outcomes to better gauge the effects of XAI in legal applications.

The Legislature continues its Jim Crow tradition and actually goes a step further by defying a direct Supreme Court order.

This article discusses the opportunities and costs of AI in behavioural science, with particular reference to consumer welfare. We argue that because of pattern detection capabilities, modern AI will be able to identify (1) new biases in consumer behaviour and (2) known biases in novel situations in which consumers find themselves. AI will also allow behavioural interventions to be personalised and contextualised and thus produce significant benefits for consumers. Finally, AI can help behavioural scientists to “see the system,” by enabling the creation of more complex and dynamic models of consumer behaviour. While these opportunities will significantly advance behavioural science and offer great promise to improve consumer outcomes, we highlight several costs of using AI. We focus on some important environmental, social, and economic costs that are relevant to behavioural science and its application. For consumers, some of those costs involve privacy; others involve manipulation of choices.

The COVID-19 pandemic has had an enduring effect across the entire spectrum of law and policy, in areas ranging from health equity and racial justice, to constitutional law, the law of prisons, federal benefit programs, election law and much more. This collection provides a critical reflection on what changes the pandemic has already introduced, and what its legacy may be. Chapters evaluate how healthcare and government institutions have succeeded and failed during this global 'stress test,' and explore how the US and the world will move forward to ensure we are better prepared for future pandemics. This timely volume identifies the right questions to ask as we take stock of pandemic realities and provides guidance for the many stakeholders of COVID-19's legal legacy. This book is also available as Open Access on Cambridge Core.

Two-way discussions and a strategy used by mediators can lead to better outcomes.

Abstract Accounts of the post-Lateran IV period tend to emphasize the different procedural paths taken by English courts, which adopted jury trial for felony cases, and continental European courts, which turned toward inquisitorial methods and a greater reliance on confession. This article argues that the fact-finding strategies of the two systems had more in common than may appear at first glance due, in part, to a shared cultural reservoir exemplified by the strategy of circumstantial inquiry employed by confessors. Rather than focusing on the point of greatest difference, the trial jury, this article examines pre-trial investigative processes to emphasize shared jurisprudential priorities.

In medieval English texts, a common refrain, drawn from scripture, urged that only God could search the mind and heart of a sinner, and that those who judge others might face their own grave judgment on the last day. This sits uneasily with the task of issuing a felony verdict, a burden placed squarely upon the shoulders of lay jurors after the Fourth Lateran Council's effective abolition of trial by ordeal in 1215. Nevertheless, jurors did sit in judgment upon their neighbors, and evidence suggests that they were not merely assessing outward conduct but also the state of a defendant's heart and mind which, like the hand of a proband in the era of trial by ordeal, might be declared fair or foul. This essay explores how techniques for unearthing intentionality through circumstantial inquiry—techniques developed in the context of classical rhetoric and adapted for priests hearing confessions—were put to use by coroners and others tasked with investigating crimes. This, in turn, aided jurors in the perilous, even audacious, task of judging alleged felons, ultimately determining who should be acquitted and who should face the gallows.

Among theorists of legal liberalism, a common assumption is that the rule of law, rightly understood, entails some version of the separation of powers — especially the separation of adjudication from the making or enforcement of law. Classical legal theory, by contrast, remains generally agnostic about the separation of powers, but holds that a combination of powers is entirely consistent in principle with a profound commitment to the rule of law and legal justice. On the classical view, no particular institutional technology, including the separation of powers, is defined into the rule of law, so long as the constitutional order as a whole is rationally and adequately ordered to the proper end of law, the general welfare or common good.

A symposium on great torts cases of the twenty-first century must include Intel Corp. v. Hamidi, the canonical case about whether unwanted e-mail spam sent to a company’s server could give rise to a trespass to chattels claim. While much has been written about Intel, in this Essay, we argue that Intel is as much of a classic for what it reveals about the old-fashioned tort as it is for its more closely examined ruling on “cybertrespass.” The dueling personal property analogies chosen by the majority and dissenting opinions in Intel reveal basic and fundamental disagreements about what sorts of conduct the traditional tort prohibits: specifically, when a plaintiff may obtain nominal damages or an injunction against a defendant’s contact with personal property when that contact does not have lasting physical effects. As we point out, this question arose in cases long before Intel and generated some discussion during the drafting of the First and Second Restatements of Torts. Now, the same question arises in Fourth Amendment law and the law of Article III standing, areas in which recent Supreme Court decisions have elevated trespass-to-chattels analyses to renewed significance. Our Essay indicates the need for further development on open questions in the law of trespass to chattels, suggesting some ways that central tort-law notions like intentionality and custom might provide firmer bases for recognizing the harm in unwanted contact with things.