Faculty Bibliography

If the slur is mentioned in key court decisions, it should not be taboo in law schools.

Financial market turmoil from COVID highlighted continuing risks to financial stability posed by non-bank financial intermediaries. While there are grounds for optimism that the SEC will finally take the macroprudential regulatory role it has been reluctant to play in the past, obstacles remain.

The research staff of the Program on International Financial Systems (“PIFS”) has conducted a three-phase comparative analysis of international equity market structure regulation in the five major global equity trading markets. The five markets include the People’s Republic of China (including both the Mainland market and the Hong Kong Special Administrative Region), the European Union, Japan and the United States, which collectively represent 90% of global equity trading market volume. This report represents the third phase of our international equity market structure review. In Phase I, we reviewed the regulation of equity market structure in each of the five major jurisdictions. The purpose of this phase was to inform the public and policymakers as to key similarities and differences among the regulatory regimes. In Phase II, we set forth a quantitative analysis of equity trading in the five markets, including a summary of market characteristics, as well as an overview of the performance of each market for investors, measured primarily by institutional trading costs. The purpose of this phase was to assess the performance in each of the five major markets. We found that each of these markets performs well for institutional investors and demonstrates a positive five-year trend. We also noted certain cost differences among the markets. In Phase III, we will assess key similarities and differences between the regulatory structures outlined in Phase I and their impact on performance measures quantified in Phase II. Our goal is to provide policymakers with guidance as to best practices for regulating equity market structure. We list our policy recommendations at the end of the Executive Summary. The first part of Phase III describes the equity market regulations common across all five major markets, each of which contribute to their jurisdiction’s strong performance for investors. These regulations include (i) broker-dealer best execution obligations, (ii) regulation of trading venues, including exchange fees, (iii) public reporting requirements for executed trades, and (iv) volatility controls. We then review the performance of each of the five major markets, illustrating the relatively low transaction costs prevalent in each of the markets. In addition, we note the positive trend in each of the markets with respect to these performance measures. This part concludes by recommending that policymakers in other jurisdictions that lack these regulations implement the four core features of equity market regulation that are common across the five major trading markets. The second part of Phase III notes the differences in average transactions costs among the five major jurisdictions and then discusses key regulatory differences between the E.U. and U.S. markets and their counterparts in Mainland China, Hong Kong, and Japan, including: (i) market decentralization and competition among trading venues, (ii) dark trading as a complement to lit trading, and (iii) electronic, algorithmic and high frequency trading activity. Each of these discussions includes a literature review of empirical research on the link between the specific market characteristic and overall market performance. The E.U. and U.S. markets demonstrate that competition among trading venues, an appropriate balance of dark and lit trading and a framework that facilitates electronic, algorithmic and high frequency trading are key components of transparent, resilient and efficient equity markets. We therefore believe that policymakers should consider creating a regulatory framework to foster evolution of such trading activity. As demonstrated throughout PIFS’ series of reports on international equity market structure, regulations in place in the E.U. and U.S. can provide guidance as to the appropriate regulatory structure. Although certain emerging markets have low levels of liquidity and thus may not yet be sufficiently developed to fully benefit from an immediate transition to trading venue competition, dark trading (as a complement to lit trading) or electronic, algorithmic and high frequency trading, we believe that it is incumbent on policymakers in all jurisdictions to evaluate how their markets could benefit from a modernized regulatory framework that can enhance liquidity and investor outcomes.

Originalism in Austria means examining the historical materials associated with the adoption of the Austrian constitution; originalism in India means examining the historical materials associated with the adoption of the Indian constitution. A striking example is provided in the South African constitution. Many nations limit the time that a person can be held after arrest but before presentation to a judicial officer. Often these provisions state that the person must appear before a judge within a reasonable period. Scholars interested in the constitutional and nature see this as either a crystallization of inchoate ideas rattling around in other constitutional systems, or as foreshadowing a coming general recognition of ecological rights. Interpretations of identical substantive provisions also vary, though the case is complicated by questions of translation and contextual understanding. National political and social cultures determine the weight given to at least some constitutional values.

Interweaving American history, dramatic family chronicle, and searing episodes of memoir, Annette Gordon-Reed, the descendant of enslaved people brought to Texas in the 1850s, recounts the origins of Juneteenth and explores the legacies of the holiday that remain with us. From the earliest presence of black people in Texas—in the 1500s, well before enslaved Africans arrived in Jamestown—to the day in Galveston on June 19, 1865, when General Gordon Granger announced the end of slavery, Gordon-Reed’s insightful and inspiring essays present the saga of a “frontier” peopled by Native Americans, Anglos, Tejanos, and Blacks that became a slaveholder’s republic. Reworking the “Alamo” framework, Gordon-Reed shows that the slave-and race-based economy not only defined this fractious era of Texas independence, but precipitated the Mexican-American War and the resulting Civil War. A commemoration of Juneteenth and the fraught legacies of slavery that still persist, On Juneteenth is stark reminder that the fight for equality is ongoing.

Famously persistent, Senator Warren shares six perspectives that have influenced her life and advocacy, knowing that if we’re willing to fight for it, profound political transformation is possible., "Elizabeth Warren is a beacon for everyone who believes that real change can improve the lives of all Americans. Committed, fearless, and famously persistent, she brings her best game to every battle she wages. In Persist, Warren writes about six perspectives that have influenced her life and advocacy. She’s a mother who learned from wrenching personal experience why child care is so essential. She’s a teacher who has known since grade school the value of a good and affordable education. She’s a planner who understands that every complex problem requires a comprehensive response. She’s a fighter who discovered the hard way that nobody gives up power willingly. She’s a learner who thinks, listens, and works to fight racism in America. And she’s a woman who has proven over and over that women are just as capable as men. Candid and compelling, Persist is both a deeply personal book and a powerful call to action. Elizabeth Warren–one of our nation’s most visionary leaders–will inspire everyone to believe that if we’re willing to fight for it, profound change is well within our reach." – inside front jacket flap.

The Michigan Law Review is honored to have supported Professors Charles and Fuentes-Rohwer's Essay on the subjugated status of Puerto Rico as an "unincorporated territory." This Essay contextualizes Puerto Rico not as an anomalous colonial vestige but as fundamentally a part of the United States' ongoing commitment to racial economic domination. We are thrilled to highlight this work, which indicts our constitutional complacence with the second-class status of Puerto Rican citizens and demands a national commitment to self-determination for Puerto Rico.

The Harvard Law School Human Rights Program convened a Workshop in October 2020, for the purpose of exploring in a comparative and cross-disciplinary manner the concept of indirect discrimination (or practices with discriminatory impact) on the basis of sexual orientation or gender identity. This report presents a summary of the discussion, as well as five individual papers prepared for discussion at the Workshop, preventing divergent views on how arguments regarding indirect discrimination are best understood and best used in the context of sexual orientation or gender identity.

For at least a decade, States, humanitarian bodies, and civil-society actors have raised concerns about how certain counterterrorism measures can prevent or impede humanitarian and medical activities in armed conflicts. In 2019, the issue drew the attention of the world’s preeminent body charged with maintaining or restoring international peace and security: the United Nations Security Council. In two resolutions — Resolution 2462 (2019) and Resolution 2482 (2019) — adopted that year, the Security Council urged States to take into account the potential effects of certain counterterrorism measures on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with international humanitarian law (IHL). By implicitly recognizing that measures adopted to achieve one policy objective (countering terrorism) can impair or prevent another policy objective (safeguarding humanitarian and medical activities), the Security Council elevated taking into account the potential effects of certain counterterrorism measures on exclusively humanitarian activities to an issue implicating international peace and security. In this legal briefing, we aim to support the development of an analytical framework through which a State may seek to devise and administer a system to take into account the potential effects of counterterrorism measures on humanitarian and medical activities. Our primary intended audience includes the people involved in creating or administering a “take into account” system and in developing relevant laws and policies. Our analysis zooms in on Resolution 2462 (2019) and Resolution 2482 (2019) and focuses on grounding the framework in respect for international law, notably the U.N. Charter and IHL. In section 1, we introduce the impetus, objectives, and structure of the briefing. In our view, a thorough legal analysis of the relevant resolutions in their wider context is a crucial element to laying the conditions conducive to the development and administration of an effective “take into account” system. Further, the stakes and timeliness of the issue, the Security Council’s implicit recognition of a potential tension between measures adopted to achieve different policy objectives, and the relatively scant salient direct practice and scholarship on elements pertinent to “take into account” systems also compelled us to engage in original legal analysis, with a focus on public international law and IHL. In section 2, as a primer for readers unfamiliar with the core issues, we briefly outline humanitarian and medical activities and counterterrorism measures. Then we highlight a range of possible effects of the latter on the former. Concerning armed conflict, humanitarian activities aim primarily to provide relief to and protection for people affected by the conflict whose needs are unmet, whereas medical activities aim primarily to provide care for wounded and sick persons, including the enemy. Meanwhile, for at least several decades, States have sought to prevent and suppress acts of terrorism and punish those who commit, attempt to commit, or otherwise support acts of terrorism. Under the rubric of countering terrorism, States have taken an increasingly broad and diverse array of actions at the global, regional, and national levels. A growing body of qualitative and quantitative evidence documents how certain measures designed and applied to counter terrorism can impede or prevent humanitarian and medical activities in armed conflicts. In a nutshell, counterterrorism measures may lead to diminished or complete lack of access by humanitarian and medical actors to the persons affected by an armed conflict that is also characterized as a counterterrorism context, or those measures may adversely affect the scope, amount, or quality of humanitarian and medical services provided to such persons. The diverse array of detrimental effects of certain counterterrorism measures on humanitarian and medical activities may be grouped into several cross-cutting categories, including operational, financial, security, legal, and reputational effects. In section 3, we explain some of the key legal aspects of humanitarian and medical activities and counterterrorism measures. States have developed IHL as the primary body of international law applicable to acts and omissions connected with an armed conflict. IHL lays down several rights and obligations relating to a broad spectrum of humanitarian and medical activities pertaining to armed conflicts. A violation of an applicable IHL provision related to humanitarian or medical activities may engage the international legal responsibility of a State or an individual. Meanwhile, at the international level, there is no single, comprehensive body of counterterrorism laws. However, States have developed a collection of treaties to pursue specific anti-terrorism objectives. Further, for its part, the Security Council has assumed an increasingly prominent role in countering terrorism, including by adopting decisions that U.N. Member States must accept and carry out under the U.N. Charter. Some counterterrorism measures are designed and applied in a manner that implicitly or expressly “carves out” particular safeguards — typically in the form of limited exceptions or exemptions — for certain humanitarian or medical activities or actors. Yet most counterterrorism measures do not include such safeguards. In section 4, which constitutes the bulk of our original legal analysis, we closely evaluate the two resolutions in which the Security Council urged States to take into account the effects of (certain) counterterrorism measures on humanitarian and medical activities. We set the stage by summarizing some aspects of the legal relations between Security Council acts and IHL provisions pertaining to humanitarian and medical activities. We then analyze the status, consequences, and content of several substantive elements of the resolutions and what they may entail for States seeking to counter terrorism and safeguard humanitarian and medical activities. Among the elements that we evaluate are: the Security Council’s new notion of a prohibited financial “benefit” for terrorists as it may relate to humanitarian and medical activities; the Council’s demand that States comply with IHL obligations while countering terrorism; and the constituent parts of the Council’s notion of a “take into account” system. In section 5, we set out some potential elements of an analytical framework through which a State may seek to develop and administer its “take into account” system in line with Resolution 2462 (2019) and Resolution 2482 (2019). In terms of its object and purpose, a “take into account” system may aim to secure respect for international law, notably the U.N. Charter and IHL pertaining to humanitarian and medical activities. In addition, the system may seek to safeguard humanitarian and medical activities in armed conflicts that also qualify as counterterrorism contexts. We also identify two sets of preconditions arguably necessary for a State to anticipate and address relevant potential effects through the development and execution of its “take into account” system. Finally, we suggest three sets of attributes that a “take into account” system may need to embody to achieve its aims: utilizing a State-wide approach, focusing on potential effects, and including default principles and rules to help guide implementation. In section 6, we briefly conclude. In our view, jointly pursuing the policy objectives of countering terrorism and safeguarding humanitarian and medical activities presents several opportunities, challenges, and complexities. International law does not necessarily provide ready-made answers to all of the difficult questions in this area. Yet devising and executing a “take into account” system provides a State significant opportunities to safeguard humanitarian and medical activities and counter terrorism while securing greater respect for international law.

The Assembly Clause is the ugly duckling of the First Amendment. Brooding in the shadow of the heralded Free Speech Clause and the venerated Religion Clauses, the Assembly Clause has been described even by its advocates as “forgotten,” a “historical footnote in American political theory and law.” The clause protects “the right of the people peaceably to assemble”—a phrase the Supreme Court has interpreted only once over the past fifty years despite issuing hundreds of opinions interpreting its First Amendment siblings. From the moment it was included in the proposed federal bill of rights, observers have questioned who would bother turning to the Assembly Clause for assistance given the First Amendment’s other protections of free expression. This paper offers a surprising answer. After describing the historical context in which the “right to assemble” was first expressed, it argues that the right could be interpreted not as a narrow right of self-expression but rather as a broad right of self-government. In the decade preceding the American Revolution, advocates of “the right to assemble” used the phrase in response to attempts by royal and parliamentary officials to subordinate their town meetings and colonial legislatures—or, in the language of the day, to subordinate their local and general “assemblies.” This subordination came in various forms: Parliament passed laws disempowering New York’s general assembly until it enacted certain legislation; Parliament censured and then banned town meetings in Massachusetts from debating international affairs; and governors up and down the continent dissolved, changed the location of, and otherwise coerced general and local assemblies into repealing legislation they regarded as seditious. In response, town officials and colonial representatives complained that all people have an inherent right to participate in assembled governments, which in turn have the power to consult their constituents and seek a redress of their grievances—whether by enacting laws with their constituents’ consent or by petitioning other governments for their assistance. The historical context of the assembly clause’s origins suggest that the clause has been interpreted far too narrowly. Once the clause is understood as protecting not only the informal expressions of conventions, marches, and gatherings but also a right to meaningfully participate in effective government, the state and federal assembly clauses look like an important, “forgotten” limit on disenfranchisement and local disempowerment.

The idea that we should respond more severely to repeated wrongdoing than we do to first-time misconduct is one of our most deeply held moral principles, and one of the most deeply entrenched principles in the criminal law and sentencing policy. Prior convictions trigger, on average, a six-fold increase in the length of punishment in states that use sentencing guidelines. And most of the people we lock up in the U.S. have at least one previous conviction.This article shows that given the current law and policy of collateral consequences, and the social conditions they engender, judges and sentencing commissions should do exactly the opposite of what they currently do: impose a recidivist sentencing discount, rather than a premium. This thesis is counterintuitive and politically unpalatable. It goes against the grain of criminal law and policy dating back as far as we know it, virtually the entire scholarly literature, and millennia of social tradition. But this article shows that it follows logically from fairly ordinary moral premises.

The Internet, and the Web built on top of it, were intended to support an “entropic” physical and logical network map (Zittrain, 2013). That is, they have been designed to allow servers to be spread anywhere in the world in an ad hoc and evolving fashion, rather than a centralized one. Arbitrary distance among, and number of, servers causes no particular architectural problems and indeed ensures that problems experienced by one data source remain unlinked to others. A Web page can be assembled from any number of upstream sources, through the use of various URLs, each pointing to a different location. To a user, the page looks unified. Over time, however, there are signs that the hosting and finding of Internet services has become more centralized. We explore and document one possible dimension of this centralization. We analyze the extent to which the Internet’s global domain name resolution (DNS) system has preserved its distributed resilience given the rise of cloud-based hosting and infrastructure. We offer evidence of the dramatic concentration of the DNS hosting market in the hands of a small number of cloud service providers over a period spanning from 2011-2018. In addition, we examine changes in domains’ tendency to “diversify” their pool of nameservers – how frequently domains employ DNS management services from multiple providers rather than just one provider. Throughout the paper, we use the catastrophic October 2016 attack on Dyn, a major DNS hosting provider, to illustrate the cybersecurity consequences of our analysis.

This essay discusses the new report, Heritable Human Genome Editing, by the National Academy of Medicine, the National Academy of Sciences, and the Royal Society. After summarizing the report, we argue that the report takes four quite bold steps away from prior reports, namely (1) rejecting an omnibus approach to heritable human genome editing (HHGE) in favor of a case-by-case analysis of possible uses of HHGE, accepting that HHGE is acceptable in some cases; (2) recognizing that the interest in having children who are genetically related to both would-be rearing parents is one that the regulation of HHGE should honor; (3) patterning a regulatory model for HHGE on the United Kingdom's approach to regulating mitochondrial replacement techniques; and (4) conveying skepticism that international regulation is possible while showing a strong preference for a default into national regulatory regimes for HHGE.

Around the world governments characterized by observers as populist have taken power. Many of their actions have been incompatible with tenets of modern liberalism. This has generated commentary suggesting that populism is itself incompatible with constitutionalism. This Essay challenges that commentary. We agree that some variants of populism are incompatible with modern liberal constitutionalism but argue that the tension between populism as such and constitutionalism as such, though real, is significantly narrower than much commentary suggests. We begin in Section II by offering “barebones” definitions of populism and constitutionalism so that we can tease out precisely what the tension between them is. Section III turns to case studies of challenges to judicial independence, of the use of referendums, and of innovative methods of determining the public’s views. As with our discussion of defining populism and constitutionalism, here we attempt to identify whether (or the degree to which) the case studies demonstrate a tension between populism and constitutionalism. Our conclusion is that sometimes we can see such a tension and sometimes we cannot, and that the analysis of specific populisms and their policies in relation to constitutionalism must be highly sensitive to context. Section IV applies the argument to two developments in the United Kingdom: the Brexit referendum and the attempt by Boris Johnson to prorogue Parliament and the ensuing decision by the UK Supreme Court finding the prorogation unlawful. Here our conclusion once again that analysis of populism’s relation to constitutionalism must be sensitive to context: The referendum was flawed but not in ways that cast a bad light on populism as such, and the prorogation, while perhaps unlawful, was not clearly anti-constitutional. Overall we argue against generalized claims about populism as such and constitutionalism as such. There are many populisms and at least a few constitutionalisms, and scholars and observers should direct their attention to the questions posed by specific actions taken by individual populist governments. Sometimes populist governments will act in anti-constitutional ways, and sometimes they will not. We believe that this conclusion is appropriately deflationary.

The world is increasingly confronted with new challenges related to climate change, globalization, disease, and technology. Governments are faced with having to decide how much risk is worth taking, how much destruction and death can be tolerated, and how much money should be invested in the hopes of avoiding catastrophe. Lacking full information, should decision-makers focus on avoiding the most catastrophic outcomes? When should extreme measures be taken to prevent as much destruction as possible? Averting Catastrophe explores how governments ought to make decisions in times of imminent disaster. Cass R. Sunstein argues that using the “maximin rule,” which calls for choosing the approach that eliminates the worst of the worst-case scenarios, may be necessary when public officials lack important information, and when the worst-case scenario is too disastrous to contemplate. He underscores this argument by emphasizing the reality of “Knightian uncertainty,” found in circumstances in which it is not possible to assign probabilities to various outcomes. Sunstein brings foundational issues in decision theory in close contact with real problems in regulation, law, and daily life, and considers other potential future risks. At once an approachable introduction to decision-theory and a provocative argument for how governments ought to handle risk, Averting Catastrophe offers a definitive path forward in a world rife with uncertainty.

The civil rights era shows that taking a stand also helps the bottom line.

Direct-to-consumer medical artificial intelligence/machine learning applications are increasingly used for a variety of diagnostic assessments, and the emphasis on telemedicine and home healthcare during the COVID-19 pandemic may further stimulate their adoption. In this Perspective, we argue that the artificial intelligence/machine learning regulatory landscape should operate differently when a system is designed for clinicians/doctors as opposed to when it is designed for personal use. Direct-to-consumer applications raise unique concerns due to the nature of consumer users, who tend to be limited in their statistical and medical literacy and risk averse about their health outcomes. This creates an environment where false alarms can proliferate and burden public healthcare systems and medical insurers. While similar situations exist elsewhere in medicine, the ease and frequency with which artificial intelligence/machine learning apps can be used, and their increasing prevalence in the consumer market, calls for careful reflection on how to effectively regulate them. We suggest regulators should strive to better understand how consumers interact with direct-to-consumer medical artificial intelligence/machine learning apps, particularly diagnostic ones, and this requires more than a focus on the system’s technical specifications. We further argue that the best regulatory review would also consider such technologies’ social costs under widespread use.

Online peer production communities such as Wikipedia typically rely on a distinct class of users, called administrators, to enforce cooperation when good faith collaboration fails. Assessing one’s intentions is a complex task, however, especially when operating under time-pressure with a limited number of (costly to collect) cues. In such situations, individuals typically rely on simplifying heuristics to make decisions, at the cost of precision. In this paper, we hypothesize that administrators’ community governance policy might be influenced by general trust attitudes acquired mostly out of the Wikipedia context. We use a decontextualized online experiment to elicit levels of trust in strangers in a sample of 58 English Wikipedia administrators. We show that low-trusting admins exercise their policing rights significantly more (e.g., block about 81% more users than high trusting types on average). We conclude that efficiency gains might be reaped from the further development of tools aimed at inferring users’ intentions from digital trace data.

Stock-market short-termism—stemming from rapid trading and activists looking for quick cash—is, a widespread view has it, hurting the American economy. Because stock markets will not support corporate long-term planning, the thinking goes, companies fail to invest enough, do not do enough research and development, and buy back so much of their stock that their coffers are depleted of cash for their future. This widespread view has induced proposals for remedy. One major proposal is for corporate “loyalty shares,” whereby stockholders who own their stock for longer periods would get more voting power than those who trade their stock quickly. That voting boost would, it’s hoped, support stability and sound long-term planning. Venture capitalists have already obtained the go-ahead from the Securities and Exchange Commission to found the “Long-Term Stock-Exchange,” as it is called—whose centerpiece has been loyalty shares and their concomitant voting boost for companies on the new exchange. In this article, we show why loyalty shares promoters’ thinking is overly optimistic. Facilitating insider control will be loyalty shares’ dominant motive and effect. Long-term thinking, planning, and investing will be weaker motivations and effects. Indeed, loyalty shares will at times undermine long-term planning at companies that use them.Loyalty share voting boosts would shift voting power in those U.S. public companies that adopt them, but they will not shift voting power toward shareholders most likely to promote the long-term. Instead, we should expect loyalty shares to empower conflicted corporate players who seek not more corporate focus on the long-term but to better protect themselves and their corporate positions. Controller-insider self-interest will dominate their motivation, not fighting short-termism, because insiders have self-interested reasons to lock in control and shut down outsiders, even if doing so fails to improve corporate time horizons. Policymakers with a bona fide long-term vision will find themselves frustrated by the outcome. Existing data from Europe, where loyalty shares are more extensively used thus far than in the United States, supports this structural analysis. Control motivations dominate; long-term motivations are pale or absent from the on-the-ground practice. Other reasons—as yet undiscussed as far as we can tell—may well justify opening corporate law to loyalty share programs. We introduce to the loyalty share analysis the ex ante value to the entrepreneur of retaining control—i.e., loyalty shares can help to motivate founders and thereby induce new entry, new start-ups, and new, original entrepreneurial activity. Weighing the value of continued control in fostering start-ups and original entrepreneurial activity against its later costs is not easy and it is not obvious which weighs more but, if there is economy-wide value to loyalty shares, that motivational value is where it is likely to reside. For short-termism, policymakers should be skeptical that promoting sound corporate long-termism will be a major result of facilitating loyalty shares in the American corporation.

‪C Wathne, MC Stephenson, 2021‬ - ‪Cited by 1‬

As a rule, regulation is not acquired by “the industry,” and it is not designed and operated primarily for its benefit. The mechanisms behind the promulgation of regulations are multiple, and almost all of the time, it greatly matters whether regulators believe that regulations will, all things considered, have good consequences. In terms of understanding the sources of regulations, it would therefore be valuable to obtain more clarity about the sources of the beliefs of regulators — about what information they receive and find credible, and why.

The American administrative state has become a cost-benefit state, at least in the sense that prevailing executive orders require agencies to proceed only if the benefits justify the costs. Some people celebrate this development; others abhor it. For defenders of the cost-benefit state, the antonym of their ideal is, alternately, regulation based on dogmas, intuitions, pure expressivism, political preferences, or interest-group power. Seen most sympathetically, the focus on costs and benefits is a neo-Benthamite effort to attend to the real-world consequences of regulations, and it casts a pragmatic, skeptical light on modern objections to the administrative state, invoking public-choice theory and the supposed self-serving decisions of unelected bureaucrats. The focus on costs and benefits is also a valuable effort to go beyond coarse arguments, from both the right and the left, that tend to ask this unhelpful question: “Which side are you on?” In the future, however, there will be much better ways, which we might consider neo-Millian, to identify those consequences: (1) by relying less on unreliable ex ante projections and more on actual evaluations; (2) by focusing directly on welfare and not relying on imperfect proxies; and (3) by attending closely to distributional considerations – on who is helped and who is hurt.

Preserving records of what user content is taken down—and why—could make platforms more accountable and transparent.

Governments in rich countries need to show moral courage and political will to redesign global intellectual property rules. A Covid-19 vaccine waiver is just the start, writes Ruth L. Okediji.

Is it wrong for professors to quote epithets — especially “nigger” and "fag" — in class or other educational settings? This question has often been in the news in recent years, both as to law schools and as to other departments. This article discusses the matter, building on a closely related practice: how judges and lawyers deal with epithets in litigation and opinion writing.

We conducted a field experiment in which 311 low-income individuals seeking a divorce were randomly assigned to receive access to a pro bono lawyer (versus minimal help) to assist with filing for divorce. Examining court records, we found that assignment to an attorney made a large difference in whether participants filed for and obtained a divorce. Three years after randomization, 46% of the treated group had terminated their marriages in the proper legal venue, compared to 9% of the control group. Among “compliers”—participants who obtained representation only if assigned to receive it—those with lawyers were far more likely to file for and obtain a divorce than those not assigned lawyers. Because divorce implicates fundamental constitutional interests and can be effectuated only by resort to the courts, the US Constitution requires that dissolution of marriage be made achievable regardless of ability to pay. Yet, we observed few low-income individuals who were able to initiate divorce suits on their own. Through interviews and archival research, we identified barriers that low-income litigants faced in navigating the divorce system, including mandatory wait times, limited hours at important facilities, and burdensome paperwork sometimes requiring access to photocopiers and typewriters. This study therefore documents a salient instance in which a civil legal process was inaccessible to those without lawyers, even though their legal issues were straightforward, involving few if any matters for courts to adjudicate.

How has feminism shaped US asylum law? Why and how is the Trump administration trying to undo feminist gains? In this episode of Ask a Feminist, asylum- and refugee-law expert Deborah Anker discusses the history and present of gender in the US asylum system. Anker is the founder and director of the Harvard Law School Immigration and Refugee Law Clinical Program and is one of the most widely known asylum scholars and practitioners in the United States. She speaks to Aziza Ahmed, professor of law at Northeastern University School of Law, and takes us through the key cases and arguments that have led to the current moment, the transformations the system is currently undergoing, and why she is less pessimistic than might be expected.

There are many ways to describe Justice Ginsburg’s historic achievements. This essay considers one enduring descriptor. When President Bill Clinton nominated her to the Supreme Court, he noted that some called Ginsburg the “Thurgood Marshall” of the women’s movement. Through this essay, I engage with and complicate that comparison. I do so to celebrate Justice Ginsburg’s pathbreaking career as a litigator and contextualize claims that her approach was insufficiently progressive. Properly contextualized, Ginsburg’s career highlights a fact too often overlooked: the civil rights movement inspired a “movement of movements” that reverberated throughout society to the benefit of women and a range of marginalized groups. The loss of Ginsburg—the last civil rights lawyer on the Court—deprives the institution of that historical legacy and the invaluable perspective on law and society that it cultivated within her.

[...]the landscape is changing rapidly so issues that yesterday were only peripheral today are taking on greater importance. [...]a coordinated global disclosure system has great potential benefits, but achieving one will take careful attention to institutional design. [...]companies generally are mandated to make disclosures as needed to prevent other disclosures from being materially misleading. Funding needs to be reliable and adequate, both now and over a reasonable time period into the future, and should not detract from other essential elements of the system for public company disclosures.

In a recent statement,[1] Acting Chief Accountant Paul Munter highlighted a number of important financial reporting considerations for SPACs.[2] Among other things, that statement highlighted challenges associated with the accounting for complex financial instruments that may be common in SPACs.