Faculty Bibliography

This paper explores whether platform liability should be strict or negligence based. In the model, two-sided platforms get revenue from two sources: selling products or services to consumers and selling advertising (or information) to others. There are indirect network effects: higher consumer participation generates more revenue from advertising or data sales. Platforms may take costly and unobservable precautions to reduce risks of consumer harm. If network effects are weak (strong), the price charged to consumers is positive (zero). If the consumers’ price is positive, then both strict liability and negligence lead to efficient precautions and consumer participation. If the price is zero, then strict liability stimulates more user participation and higher social welfare than the negligence rule. Bilateral care (i.e., consumer precautions), third parties (e.g., government agencies, lawyers), and platform market power are also examined.

Jack Goldsmith explains the risks associated with pursuing criminal prosecutions against high-profile political figures.

In the midst of the #MeToo movement, California voters recalled a judge for being lenient on sexual assault. As a new documentary argues, that recall campaign had unintended results.

Although Israel will remain a vibrant democracy, it would be a far better democracy if the Supreme Court had the power to check and balance the majority regarding often unpopular basic rights.

In this chapter, Professors Okediji and Hughes discuss ways in which legal academics understand – and sometimes misunderstand – the negotiating environment in Geneva in which international intellectual property legal norms are developed. The chapter recognizes the insights of Professor Rochelle Dreyfuss and agrees with much of her analysis as to the best forum for developing new legal norms and the virtues of diversity and experimentation at the national level.

A federal official wrote a parody of Harvard’s attitude toward Asian Americans and shared it with the dean of admissions. Why did a judge try to hide that from the public?

What the success of federal-sector unions can teach us about private-sector labor law reform.

The rise of international criminal law (ICL) has undoubtedly contributed to the development and enforcement of international humanitarian law (IHL). Yet, there are also important and oft-overlooked ways in which it has done the opposite. By labeling certain violations of the laws of war as “criminal” and setting up dedicated mechanisms for prosecution and punishment of offenders, the content, practice, and logic of ICL are displacing those of IHL. With its doctrinal precision, elaborate institutions, and the seemingly irresistible claim of political and moral priority, ICL is overshadowing the more diffuse, less institutionalized, and more difficult to enforce IHL.But if ICL becomes the dominant lens through which battlefield activity is measured, it is not merely intellectually unsatisfying; it poses a serious risk to the attainment of the very same humanitarian values that ICL seeks to protect. Consider the fact that in many wars fought today, the majority of civilian deaths and injuries does not result from acts that could be classified as war crimes, but from the more “mundane” choices of means and methods of warfare that at most would lend themselves to IHL scrutiny.Rather than diminishing the importance of ICL, this essay calls for more attention to the ways in which ICL is impacting IHL as well as for a stronger commitment by states to the application and enforcement of IHL for its own sake.

This paper explores the converging roots of mobilization for World War I in China and French West Africa. It traces mobilization in both regions to growing state and elite support for labor emigration starting in the late 1870s. For more than a century, southern China and the Senegal River Basin had provided contract laborers for Western enterprises. As Western powers sought to exploit resources across the Americas, Asia, Africa and the Pacific in the late nineteenth century, they turned once again to Chinese and West African migrant labor. Although state officials and elites in both regions had opposed foreign labor recruitment due to reports of abuses, starting in the late 1870s and 1880s, they increasingly supported foreign recruitment and labor colonization schemes. Both Chinese and West African elites began touting the achievements of Chinese and West African laborers who built infrastructure and cultivated reclaimed land overseas as contributing to a global “civilizing mission.” These elites—including merchants, intellectuals, officials and leaders of migrant communities—claimed the achievements of migrant laborers as those of Chinese and French West African society, thereby defending the status of their home regions in a global “civilizational” hierarchy. The Qing and French imperial states thus assumed growing responsibility for laborers, treating them as instruments of state policy. This shift in the relationship between migrant laborers and their home nations lay the ground for China and French West Africa to support the Allied war effort by sending laborers to Europe during World War I.

In this chapter, the authors consider Professor Rochelle Dreyfuss’ thoughtful observations on the multilateral intellectual property system in light of their own experience in Geneva negotiations. The chapter discusses the structural advantages of WIPO over WTO for the negotiation of intellectual property issues, the practical differences in capacity among different national delegations, and the importance of recognizing that developing countries may make trade-offs between intellectual property norms and other market access issues that are difficult for legal scholars to judge from a distance.

Daniel Tarullo explores several proposed modifications to capital regulation (specifically, the eSLR and G-SIB capital surcharge) that could ease constraints on banks holding and trading Treasuries without endangering the foundations of the post-Global Financial Crisis reforms.

At the heart of Silicon Valley Bank’s failure are uninsured depositors — specifically startup companies who held far more than the insured limit of $250,000 and who couldn’t make payroll without access to their accounts. It’s tempting in light of SVB’s failure to assume that the insured deposit limit needs to be raised, but that solution creates new problems. A better approach would be for the U.S. to follow the example of other countries and create “payment banks” that take little-to-no risk, are highly regulated, and have access to the payment network. They would be a place where companies could park funds — like VC investment earmarked for payroll — without exposing themselves to the risks that normal banks create.

On 28th February, William Baude of the University of Chicago Law School delivered the annual Scalia Lecture at Harvard Law School,[2] titled “Beyond Textualism?”—with startling results. Startling but also welcome, as we will explain.

Lucian Bebchuk and Oliver Hart explain why Israel’s proposed legal transformation would undermine not only its democracy but also its economy.

In West Virginia vs. EPA, a conservative majority within the Supreme Court announced this past June a sweeping ruling, traceable to the opinions of former Justice Scalia, that seriously threatens environmental law’s ability to safeguard public health and welfare. In sustaining former President Trump’s repeal of the Clean Power Plan — an ambitious Obama administration rulemaking that regulated greenhouse gas emissions from existing fossil fuel-fired power plants — the West Virginia Court insisted that there must be “clear congressional authorization” to support any significant and important rule like the Clean Power Plan. Our nation’s environmental protection laws have been enormously successfully over the past 50 years. That half century of extraordinary success has depended on a partnership between the federal legislative and executive branches, long upheld by the courts, in which Congress enacts broad, capacious statutory language that authorizes agencies such as the Environmental Protection Agency to enact pollution controls that reflects the complexities presented by evolving environmental science, the nation’s economy and constant technological innovation. Congress deliberately chose to delegate lawmaking authority to expert agencies in appreciation of Congress’s own inability to anticipate and address all those complexities in the real-time basis.The West Virginia Court, however, has called into question the legal viability of that legislative and executive branch partnership by insisting that such a deliberate congressional decision to use capacious statutory language is no longer sufficient to support any significant and important rule like the Clean Power Plan. Congress must instead pass a second piece of legislation that meets the Court’s newly-coined “clear congressional authorization” standard, despite the obvious practical reality that the current Congress is incapable of doing so. The threatened upshot is the unraveling of the national government’s ability to safeguard the public health and welfare just as the United States, and all nations, faces the greatest environmental challenge of all: climate change. Under the ironic guise of promoting democracy, the branch of government least accountable to the voters has invented a sweeping doctrine of statutory interpretation — the “Major Questions Doctrine” —to place the equivalent of a constitutional straightjacket on the ability of Congress and the Executive Branch — both of which are more accountable to voters than courts — to enact laws necessary to address the nation’s most pressing public health and environmental problems. This article is divided into three parts. First the article describes the background of the West Virginia case and the Court’s ruling. Second, the article explains that, with the West Virginia ruling, Justice Scalia has achieved, six years after his passing, a degree of influence on the Court’s environmental law precedent that he never enjoyed during his three decades as a Justice on the Court. With Donald Trump’s three new appointees to the Court, the Court has finally become Scalia’s Court. Finally, the article focuses on the adverse implications of the West Virginia ruling on our nation’s ability to enact laws that can effectively address the kinds of serious threats to public health and the environment from pollution and natural resource destruction.

Even in a period of relative economic calm, a bank less than one-tenth the size of JPMorgan Chase was not allowed to fail without some special protection for one group of creditors — those large, uninsured depositors.

Does trademark law cover noncommercial speech, defined as it is in First Amendment doctrine as speech that does more than merely propose a commercial transaction? This basic question has three different answers, all regularly used in any given jurisdiction. The answers are yes, no, and sometimes, a list both comprehensive and dismaying. The Supreme Court is presently considering a case that may require it to choose—or may leave the field more confused than ever. In response to the massive expansion of trademark’s scope over the last century, lower courts have implicitly devised a compromise by which trademark is pulled back to a more traditional anti-fraud-like scope when it is applied to noncommercial speech sold in the marketplace, such as movies, newspapers, songs, and visual art, or used as the name of an organization with dues-paying members, such as a political party or congregation. This compromise explains an otherwise surprising feature of the cases: Political speakers and religious speakers can expect worse outcomes than “commercial” publishers engaged in noncommercial speech, given the kinds of cases brought against them. Of particular note, churches can be prohibited from using names that their worshipers sincerely believe are accurate descriptions of their faith. Although the doctrines articulated by courts are confused and sometimes directly contradictory, the results approximate what would happen if First Amendment strict scrutiny were applied to trademark claims brought against noncommercial speech—as long as material deception, not consciousness of wrongdoing, is the standard for liability. We would be better positioned to understand the law and to decide future cases if courts were honest about their uses of the commercial/noncommercial line to police whether trademark law can be used for more than anti-fraud purposes. Understanding the relationship of noncommercial speech to trademark law also offers broader insights into the relevance of scienter and actual deception for speech regulation.

In “Playing God,” the journalist Mary Jo McConahay argues that an alliance of extremely conservative bishops and Catholic activists is exerting a profound impact on our national politics.

This Article proposes a new framework for evaluating doctrines that assign legal significance to whether a statutory text is “clear.” Previous scholarship has failed to recognize that such doctrines come in two distinct types. The first, which this Article calls evidence rules, instructs a court to “start with the text,” and to proceed to other sources of statutory meaning only if absolutely necessary. Because they structure a court’s search for what a statute means, the question with each of these evidence rules is whether adhering to it aids or impairs that search—the character of the evaluation is, in other words, mostly epistemic. The second type, which this Article calls decision rules, instead tells a court to decide a statutory case on some ground other than statutory meaning if, after considering all the available sources, what the statute means remains opaque. The idea underlying these decision rules is that if statutory meaning is uncertain, erring in some direction constitutes “playing it safe.” With each such doctrine, the question is thus whether erring in the identified direction really is “safer” than the alternative(s)—put differently, evaluation of these doctrines is fundamentally practical. With the new framework in place, this Article then goes on to address the increasingly popular categorical objection to “clear” text doctrines. As this Article explains, the objection that nobody knows how clear a text has to be to count as “clear” rests partly on a misunderstanding of how “clarity” determinations work—such determinations are sensitive to context, including legal context, in ways critics of these doctrines fail to account for. In addition, the objection that “clear” text doctrines are vulnerable to willfulness or motivated reasoning is fair but, as this Article shows, applies with equal force to any plausible alternative.

Republican state attorneys general are threatening action against pharmacies that dispense it, as a federal lawsuit challenges the F.D.A.’s authority to approve it.

During the COVID-19 pandemic, online dispute resolution (ODR) systems became a popular method for courts to dispense justice while, allegedly, minimizing cost. Observing this growth, proponents have argued that ODR increases litigants’ access to justice, mitigates risks of procedural error, and conserves judicial resources. This Essay argues that each contention is empirically uncertain. ODR’s purported benefits lack empirical proof and likely depend on the platform’s design.This Essay recounts the Access to Justice Lab’s efforts to conduct two randomized control trials (RCTs) evaluating court-based ODR. Frustrated in our desire to contrast ODR to no ODR, or the availability of ODR to no such availability, we instead randomized (i) supplemental information about an ODR platform on citations versus no such information, and (ii) postcard encouragements to use an ODR platform versus no postcards. We were not surprised when one RCT saw only a single participant enroll over several months before we closed the study; nor were we surprised that, in the second RCT, the postcard failed to encourage ODR usage. However, we discovered that the presence of ODR boosted the efficacy of encouragements for users to resolve their traffic citations, whether users did so with the ODR platform or not. This boost comfortably surpassed the expected magnitude of similar encouragements in the literature, leading us to hypothesize the possibility of an interaction effect between ODR and reminders that may exceed the effect of the latter alone. We encourage additional research into this effect, and the broader impacts of ODR platforms.

Millions in the United States have criminal records. Many of these records are eligible for some sort of concealment from public view, commonly known as expungement or sealing. In this paper, we analyzed criminal records in four counties in Pennsylvania and several counties in Kansas to determine the number of records eligible for such remedies. In Pennsylvania, the analysis included both expungement, defined here as petition-based suppression of information, and sealing, defined here as suppression that the government (usually the judicial system) undertakes without petitions. Kansas law only allows for petition-based expungement. Our analysis found approximately 100,000 charges eligible for expungement in Kansas and 180,000 charges eligible for expungement in Pennsylvania, supporting prior research that identified a so-called “second chance gap.”Our primary contribution, however, is an analysis of which statutory reforms would provide the biggest bang for the buck, i.e., would render the largest number of cases or charges eligible for a record-clearing remedy. We found, for example, that elimination of criteria related to legally imposed financial obligations (“LIFOs”) would render a surprising number of files eligible for information suppression. In addition, our analysis identified approximately 200,000 charges that were eligible for sealing in Pennsylvania but were still available to the public online at the time of the data retrieval, suggesting that even when the government undertakes information suppression from its own databases, it finds the task challenging. Finally, our analysis examined why certain records were not eligible for expungement or sealing in each state. This additional analysis will inform legislatures and activists where their efforts can best be put to use.

The U.S. Constitution does not guarantee a right to health care. Yet since 1976, the Supreme Court has held that deliberate indifference to the serious medical needs of incarcerated people — a population that is disproportionately sick, poor, and from marginalized racial and ethnic groups — violates the Eighth Amendment’s prohibition against cruel and unusual punishment. What this right means in practice, however, is far from settled, given that the standards for “deliberate indifference” and “serious medical need” are subject to judicial interpretation. Lacking quality standards, robust monitoring, and funding from public medical insurance programs, correctional administrators must provide health care for incarcerated people with limited guidance and often scarce resources. Incarcerated people have little recourse for woefully inadequate medical care except litigation, but they face multiple barriers to accessing the legal system and counsel, and rare wins yield only incremental relief. In the wake of Dobbs v. Jackson Women’s Health Organization, it is particularly important to elucidate the relevant legal landscape and explore mechanisms for safeguarding the constitutional right to health care in correctional facilities.

The primary causal requirement that must be met for a negligent party to be held liable for a harm is a demonstration that the harm would not have occurred if the party had not been negligent. Thus, for a speeding driver to be found liable for harm done in a car accident, it must be shown that the accident would not have happened if the driver had driven at a reasonable speed. The main point made here is that this basic causal requirement may be difficult to satisfy and hence may interfere with the discouragement of negligence. Therefore, an alternative and usually easier-to-meet causal requirement is proposed — that the harm would not have occurred if the party had not been engaged in his activity (if the driver had not been driving).

In this interpretive note for the Harvard Law School Program on International Law and Armed Conflict, Radhika Kapoor, Dustin Lewis, and Naz Modirzadeh seek to support U.N. Member States’ initial efforts to understand and implement certain key aspects of the resolution, especially the humanitarian-related “carve-out” at its center.

The tort of trespass to land has proven to be controversial as applied to airplane overflights (and more recently to drones) as well as to oil and gas production using hydraulic fracking technology. The key to applying trespass to intrusions above and below the surface of land is to distinguish between possession of land and the right to possess land. Surface owners have the right to possess the column of space above and below the surface (a kind of option value), but only to the extent that this space is subject to possible effective possession. The Pennsylvania Supreme Court in Briggs v. Southwestern Energy Production concluded that fracking can result in physical intrusions that can be detected using available monitoring technology. The court further concluded that such physical intrusions should be subject to trespass liability. We argue that these conclusions are correct insofar as such intrusions interfere with a surface owner’s possible effective possession – the action of the intruder necessarily means that the surface owner could also find it economically advantageous to engage in production activity in this portion of subsurface space itself. The decision confirms the utility of the law of trespass to the architecture of property, in that it establishes an indispensable baseline against which exchanges of rights and regulatory modifications of rights can occur.

Despite the ringing dictum of Marbury v. Madison that “every right, when withheld, must have a remedy,” rights to remedies have always had a precarious constitutional status. For over one hundred years, the norm was that victims of ongoing constitutional violations had rights to injunctive relief. But the Constitution nowhere expressly prescribes that norm, and recent Supreme Court decisions, involving suits for injunctions and damages alike, have left the constitutional connection between rights and remedies more attenuated than ever before. This Article explores the conceptual and doctrinal connections between constitutional rights and entitlements to judicial remedies. Whole Woman’s Health v. Jackson — which largely vindicated Texas’s strategy for insulating an antiabortion law from judicial challenge via suits for injunctions — furnishes the Article’s primary window into the current doctrinal landscape. But the Article’s perspective is broadly historical. It assumes throughout that we cannot understand the present law without understanding the background from which it developed and, in increasingly important respects, from which it now deviates. The Article’s central thesis combines empirical and normative aspects: Although the modern Supreme Court has wielded separation of powers arguments to truncate constitutional remedies, the Court’s premises are mistaken. The Constitution frequently, though not invariably, requires effective remedies for constitutional rights violations. When Congress fails to authorize such remedies, nothing in the Constitution’s history or tradition precludes a role for the Supreme Court in devising remedies that are necessary to enforce substantive rights. If we have entered an era in which a majority of the Justices believe otherwise, the situation is a deeply regrettable one in which the concept of a constitutional right will be cheapened.

The myriad uncertainties common to the process of adjudication—concerning evidence that opposing parties will present, legal issues that will become relevant, illness of witnesses, and the like—lead to two social problems. First, when unanticipated events occur, the information that parties will be able to provide courts may be inadequate. And second, preparation effort invested by parties may be wasted: whereas parties will tend to prepare for numerous possible events in adjudication, many will not come to pass and thus much effort will be for nought. Both of these problems are addressed by the granting of continuances. Inability to present evidence for want of time will be directly remedied by the giving of continuances; and wasted preparation effort will be reduced because the ability to obtain continuances when uncertain events occur will lessen the need to prepare for them. But the use of continuances involves various costs of delay, meaning that the decision to grant continuances should be guided by an economic calculus. That calculus is developed in the theory presented in this article and the actual use of continuances is discussed.

The objective function of managers in the presence of overlapping shareholding may differ from the traditional own-firm profit maximization, as they may internalize the externalities their strategies impose on other firms. The dominant formulation of the objective function in such cases has, however, been criticised for yielding counter-intuitive profit weights when the ownership of non-overlapping shareholders is highly dispersed. In this paper, we examine this issue. First, we make use of a probabilistic voting model (in which shareholders vote to elect the manager) to microfound an alternative formulation of the objective function of managers, which solves the above-mentioned criticism. Second, we apply the two formulations to the set of S&P 500 firms. We show that ownership dispersion of non-overlapping shareholders is, in fact, a relevant empirical issue, which may induce an over-quantification of the profit weights computed from the dominant formulation, particularly under a proportional control assumption.

Economies grow when people make ever-more productive use of the assets and skills they control. Growth requires shifting those resources and that labor to ever-more-productive uses. Before the industrial revolution, economies grew steadily, but very slowly. As they grew, people did shift resources and labor, but without much urgency. By the 20th century, however, most large economies were accelerating from linear to exponential rates of growth. With that change, people faced large incentives to shift their resources more rapidly. That shift was often a prerequisite to exponential growth--but more profitable uses also resulted from the exponential growth. Where an economy grows slowly, people need not worry much about their ability to shift resources to higher valued uses. After all, the slow rates of growth mean that they are not likely to want to move assets to new uses very often. So, if they worry others in their village might try to expropriate their wealth, it may make sense for them to opt for an unanimity requirement for decisions about resource transfer. Where growth is slow, in other words, it may be rational to prioritize protection from opportunistic claimants over flexibility. Sometimes, however, multiple veto players delay shifts in the asset use, for protection from exploitive claims comes with diminished flexibility as a trade-off. An unanimity requirement makes every claimant a veto holder. This problem is exacerbated as increasing growth makes transfer of resources more frequently incentivized. In this essay, we explore several examples from early 20th century Japanese property law that gave multiple parties a veto over changes in asset use. We illustrate how these unanimity rules dampened the pace of economic change, and we discuss how courts and legislators responded.

Judges and lawyers sometimes act as if a constitutional or statutory term must, as a matter of semantics, be understood to have a particular meaning, when it could easily be understood to have another meaning, or several other meanings. When judges and lawyers act as if a legal term has a unique semantic meaning, even though it does not, they should be seen to be drawing extravagant inferences. Some constitutional provisions are treated this way; consider the idea that the vesting of executive power in a president of the United States necessarily includes the power to remove, at will, a very wide range of people who are involved in execution of the laws. Some statutory provisions are also treated this way; consider the idea that the term “air pollutant” necessarily includes greenhouse gases. Those who draw extravagant inferences might be engaged in a form of motivated reasoning; their (unarticulated) values and preferences might be responsible for the particular inferences they draw. Alternatively, they might be engaged in an unacknowledged form of Dworkinian reasoning, in which they are attempting to make the best constructive sense out of a legal term. There is a relationship between extravagant inferences and the perception of having been subject to "constitutional gaslighting."