Faculty Bibliography

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.

There is a good argument that the foundations of modern administrative law were laid in 1980, with the disparate opinions of a sharply divided Court in Industrial Union Department v. American Petroleum Institute (commonly referred to as “the Benzene Case”). Consider four points. (1) The Benzene Case is now understood to be the first contemporary appearance of the Major Questions Doctrine. (2) The Benzene Case marked the return of the nondelegation doctrine, signaled most plainly by Justice William Rehnquist’s elaborate concurring opinion, but also by a favorable reference in the plurality opinion by Justice John Paul Stevens and an open-minded sentence from Justice Lewis Powell. (3) The Benzene Case is the origin of contemporary cost-benefit default principles, permitting or requiring agencies to exempt de minimis risks, to consider costs, and to engage in some form of cost-benefit balancing, unless Congress has squarely said otherwise. (4) The Benzene Case essentially defined “significant risk,” with a precise numerical definition (one in one thousand) that persists at the Department of Labor to this day. At the same time, a close analysis of the plurality opinion in the Benzene Case shows that it is best understood as a specification, above all, of the Absurdity Canon – a Church of the Holy Trinity v. United States for the modern administrative state. So understood, the Benzene Case had, and continues to have, an important and salutary effect on regulatory programs. Its significant current role, more than four decades after the opinions were issued, is an intriguing case study in doctrinal development, and in particular in how Supreme Court decisions can plant small seeds that become big trees.

In the United States, employers, schools, and governments can face two competing legal requirements regarding racial classifications: on the one hand, there are legal restrictions against conscious uses of racial classifications, and on the other hand, there are rules forbidding racially disparate impacts. Growing use of machine learning and other predictive algorithmic tools heightens this tension as employers and other actors use tools that make choices about contrasting definitions of equality and anti-discrimination; design algorithmic practices against explicit or implicit uses of certain personal characteristics associated with historic discrimination; and address inaccuracies and biases in the data and algorithmic practices. Justice Rosalie Abella’s approach to equality issues, highly influential in Canadian law, offers guidance by directing decision makers to (a) acknowledge and accommodate differences in people’s circumstances and identities; (b) resist attributing to personal choice the patterns and practices of society, including different starting points and opportunities; and (c) resist consideration of race or other group identities as justification when used to harm historically disadvantaged groups, but permit such consideration when intended to remedy historic exclusions or economic disadvantages.

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.

Racial residential segregation is a crucial aspect of the persisting racial inequality in the United States. We reexamine this enduring problem from a novel perspective, exposing the relationship between segregation and contract duration. In the housing context, the main contract duration decision involves the choice between buying (long duration) and renting (short duration). And this choice can affect, and be affected by, the racial composition of a neighborhood. If, because of discriminatory misperceptions based on mistaken stereotypes or discriminatory preferences, moving into a racially diverse neighborhood is perceived by some white people to be a riskier or otherwise less preferred alternative, then (i) a white person moving into such a diverse neighborhood would be more likely to rent than buy and (ii) a white person who is intent on buying would be likely to choose a less-diverse, predominantly white neighborhood. To empirically explore the relationship between contract duration and segregation, we apply two methodological approaches: First, we analyze rich survey data collected by the Bureau of Labor Statistics, which cover 8,984 individuals who were surveyed annually over a period of seventeen years, including about their housing decisions. Second, we run online, incentivized trust-game experiments (N = 763 across all experiments) to study the relationship between duration choices and partner choices. Our findings suggest that short-duration, rental contracts may help reduce discriminatory outcomes. The shorter duration and the lower perceived risk of renting may encourage white residents to move into more-diverse neighborhoods. And renting in a more-diverse neighborhood may help dispel discriminatory misperceptions that are based on mistaken stereotypes or even eradicate discriminatory preferences, such that when the time comes to buy a house (long-duration contract), the search will include more-diverse neighborhoods. If short-duration, rental contracts can be more conducive to racial integration, this provides a reason to soften the strong policy preference for homeownership. We also briefly explore the relationship between contract duration and other contractual design choices beyond the housing context.

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.

Chater & Loewenstein, superb and distinguished social scientists, have misfired. Their complaint is baseless: In the real world of policymaking, behavioral science is mostly being used to reform systems, not to alter individual behavior. Nor is there empirical support for the proposition that interventions aimed at helping individuals make systemic reform less likely. Chater & Loewenstein (C&L), superb and distinguished social scientists, have misfired. In the real world of policymaking, behavioral science is mostly being used to reform systems, not to alter individual behavior. Nor is there empirical support for the proposition that interventions aimed at helping individuals make systemic reform less likely. Some conspiracy theories are true, but theirs is groundless.

This Viewpoint looks at the lawsuits brought by pharmaceutical companies to challenge the Inflation Reduction Act of 2022, in particular claims under the First Amendment’s protection of free speech.

A workaround is a maneuver that seems, on its face, consistent with the formal rules, but that employs those rules in an unanticipated way to circumvent a legal obstacle. Though some workarounds are tolerated or even celebrated, workarounds (and proposed workarounds) often provoke instinctive skepticism or hostility. When, if ever, is such skepticism justified? Do workarounds raise distinctive legal or public policy concerns? This Article seeks to provide a systematic normative assessment of workarounds in American public law. We argue, first, that from a general public interest perspective, the desirability of a workaround depends primarily on the desirability of the rule that is being worked around. Put simply, workarounds will typically advance the public interest when the legal obstacle being worked around does more harm than good, while workarounds will set back the public interest when the obstacle being worked around serves an important public purpose. Other objections to workarounds—for example, that they will erode government legitimacy, weaken norms of self-restraint, undermine the credibility of government commitments, or sap energy for more substantial reforms—are either empirically implausible or relatively insignificant when compared to the first-order question of whether the obstacle being circumvented is itself in the public interest. Questions concerning the legality of workarounds raise different issues. While adjudicators who emphasize the primacy of legal text should have no intrinsic objections to workarounds as such, adjudicators who place significant weight on fidelity to the purposes or functions of legal rules (or rule systems) should embrace an anti-workaround presumption. But this presumption can and should be overcome in certain cases. Most significantly - and perhaps most controversially—we argue that the anti-workaround presumption should give way when the obstacle that the challenged workaround would sidestep is itself inconsistent with the larger purposes of the rule system. The question should not be whether the alleged workaround, viewed in isolation, is inconsistent with the purposes of the relevant rules, but whether the combination of obstacle and workaround, considered together, is more inconsistent with the purposes of those rules than the obstacle standing alone. Therefore, even strong purposivists might embrace certain workarounds—including workarounds to the Senate filibuster, the statutory debt ceiling, and the Electoral College.

While the literature on putting a “human in the loop” in artificial intelligence (AI) and machine learning (ML) has grown significantly, limited attention has been paid to how human expertise ought to be combined with AI/ML judgments. This design question arises because of the ubiquity and quantity of algorithmic decisions being made today in the face of widespread public reluctance to forgo human expert judgment. To resolve this conflict, we propose that human expert judges be included via appeals processes for review of algorithmic decisions. Thus, the human intervenes only in a limited number of cases and only after an initial AI/ML judgment has been made. Based on an analogy with appellate processes in judiciary decision-making, we argue that this is, in many respects, a more efficient way to divide the labor between a human and a machine. Human reviewers can add more nuanced clinical, moral, or legal reasoning, and they can consider case-specific information that is not easily quantified and, as such, not available to the AI/ML at an initial stage. In doing so, the human can serve as a crucial error correction check on the AI/ML, while retaining much of the efficiency of AI/ML’s use in the decision-making process. In this paper, we develop these widely applicable arguments while focusing primarily on examples from the use of AI/ML in medicine, including organ allocation, fertility care, and hospital readmission.

Machine learning algorithms are increasingly able to predict what goods and services particular people will buy, and at what price. It is possible to imagine a situation in which relatively uniform, or coarsely set, prices and product characteristics are replaced by far more in the way of individualization. Companies might, for example, offer people shirts and shoes that are particularly suited to their situations, that fit with their particular tastes, and that have prices that fit their personal valuations. In many cases, the use of algorithms promises to increase efficiency and to promote social welfare; it might also promote fair distribution. But when consumers suffer from an absence of information or from behavioral biases, algorithms can cause serious harm. Companies might, for example, exploit such biases in order to lead people to purchase products that have little or no value for them or to pay too much for products that do have value for them. Algorithmic harm, understood as the exploitation of an absence of information or of behavioral biases, can disproportionately affect members of identifiable groups, including women and people of color. Since algorithms exacerbate the harm caused to imperfectly informed and imperfectly rational consumers, their increasing use provides fresh support for existing efforts to reduce information and rationality deficits, especially through optimally designed disclosure mandates. In addition, there is a more particular need for algorithm-centered policy responses. Specifically, algorithmic transparency—transparency about the nature, uses, and consequences of algorithms—is both crucial and challenging; novel methods designed to open the algorithmic “black box” and “interpret” the algorithm’s decision-making process should play a key role. In appropriate cases, regulators should also police the design and implementation of algorithms, with a particular emphasis on the exploitation of an absence of information or of behavioral biases.

Edição ampliada e definitiva de um dos maiores clássicos sobre tomada de decisão, escrito por Richard H. Thaler, ganhador do prêmio Nobel de economia, e Cass R. Sunstein, professor de Harvard. * Best-seller do New York Times * Mais de ...

Many consumers suffer from inadequate information and behavioral biases, which can produce internalities, understood as costs that people impose on their future selves. In these circumstances, “Choice Engines,” powered by Artificial Intelligence (AI), might produce significant savings in terms of money, health, safety, or time. Consider, for example, choices among motor vehicles or appliances. Choice Engines might also take account of externalities, and they might nudge or require consumers to do so as well. Different consumers care about different things, of course, which is a reason to insist on a high degree of freedom of choice, even in the presence of internalities and externalities. It is important to emphasize that Choice Engines and AI might be enlisted by insufficiently informed or self-interested actors, who might exploit inadequate information or behavioral biases, and thus reduce consumer welfare. It is also important to emphasize that Choice Engines and AI might show behavioral biases, perhaps the same ones that human beings are known to show, perhaps others that have not been named yet, or perhaps new ones, not shown by human beings, that cannot be anticipated.

Do people like algorithms? In this study, intended as a promissory note and a description of a research strategy, we offer the following highly preliminary findings. (1) In a simple choice between a human being and an algorithm, across diverse settings and without information about the human being or the algorithm, people in our tested groups are about equally divided in their preference. (2) When people are given a very brief account of the data on which an algorithm relies, there is a large shift in favor of the algorithm over the human being. (3) When people are given a very brief account of the experience of the relevant human being, without an account of the data on which the relevant algorithm relies, there is a moderate shift in favor of the human being. (4) When people are given both (a) a very brief account of the experience of the relevant human being and (b) a very brief account of the data on which the relevant algorithm relies, there is a large shift in favor of the algorithm over the human being. One lesson is that in the tested groups, at least one-third of people seem to have a clear preference for either a human being or an algorithm – a preference that is unaffected by brief information that seems to favor one or the other. Another lesson is that a brief account of the data on which an algorithm relies does have a significant effect on a large percentage of the tested groups, whether or not people are also given positive information about the human alternative. Across the various surveys, we do not find persistent demographic differences, with one exception: men appear to like algorithms more than women do. These initial findings are meant as proof of concept, or more accurately as a suggestion of concept, intended to inform a series of larger and more systematic studies of whether and when people prefer to rely on algorithms or human beings, and also of international and demographic differences.

The only question is whether American citizens today can uphold that commitment.

This Viewpoint discusses the maternal mortality crisis in the US, the need for an extension of Medicaid postpartum coverage, and the residual challenges across the US related to maternal health.

Critics of the Supreme Court think it has lost its claim to legitimacy. But proposals for reforming it must strike a balance with preserving its power and independence, which remain essential to our constitutional system.

Doing so would intrude on Georgia’s right and obligation to defend its own laws and choose its own presidential electors.

It has been suggested that the use of gendered language reinforces gendered stereotypes and influences behaviour. This column investigates whether the performance of women was affected when more gender-neutral language was introduced to Israeli standardised college entrance exams. The use of more gender-neutral language is associated with a significant improvement in performance on quantitative questions, where women are stereotypically perceived as underperforming, without negative effects on the performance of men.

The U.S. Supreme Court has eliminated the right to abortion and is revisiting all sorts of other fundamental questions today—about voting rights, affirmative action, gun laws, and much more. Once-arcane theories of constitutional interpretation are profoundly affecting the lives of all Americans. In this brief and urgent book, Harvard Law School professor Cass Sunstein provides a lively introduction to competing approaches to interpreting the Constitution—and argues that the only way to choose one is to ask whether it would change American life for the better or worse. If a method of interpretation would eliminate the right of privacy, allow racial segregation, or obliterate free speech, it would be unacceptable for that reason. But some Supreme Court justices are committed to “originalism,” arguing that the meaning of the Constitution is settled by how it was publicly understood when it was ratified. Originalists insist that their approach is dictated by the Constitution. That, Sunstein argues, is a big mistake. The Constitution doesn’t contain instructions for its own interpretation. Any approach to constitutional interpretation needs to be defended in terms of its broad effects—what it does to our rights and our institutions. It must respect those rights and institutions—and safeguard the conditions for democracy itself.

Trump has no serious first amendment defense in a court of law. Here’s why Laurence H Tribe and Dennis Aftergut Words that criminal defendants have written or spoken are used against them all the time. Perhaps you’ve heard of a confession?