Faculty Bibliography

The present debate over the legal treatment of traditional knowledge (TK) and genetic resources tends to rationalize the precarious conditions in which Indigenous peoples and local communities live. The debate is organized around the question whether TK should be treated as part of the public domain or whether property rights should apply. Both sides presuppose either a robust utilitarianism or else a narrow conception of historical redress for past injustices. This Article argues that both property and the public domain depend on the disruption of places, people, and cultures that may stand in the way of the material conditions industrialized societies use as a proxy for human welfare. The TK debate tends to avoid fundamental moral and justice-related aspects of TK protection, including the centrality of TK to Indigenous peoples’ cultural identities and ways (and quality) of life, as well as their long-term socioeconomic development. The Article proposes a theological framework of “biblical stewardship” rooted in imago Dei—the foundational concept informing Jewish and Christian understandings of human nature and social interaction—to address the socio-moral dimensions that are constitutive of TK systems and the institutional context in which they unfold. The biblical stewardship framework focuses on the cooperative and kinship arrangements that enable and sustain productive capacity for TK. It centers the need for Indigenous peoples and local communities to be able to develop and protect their knowledge assets as a precondition for those communities’ thriving, both in the present and the future. Moreover, biblical stewardship supplies a basis for accountability by Indigenous peoples and local communities for how their TK is managed, shared, and utilized within a broader framework of progress and the public good—including obligations that foreclose access and benefit-sharing agreements that may undermine conditions for flourishing of plant, animal, or human life.

Why did the Beatles become a worldwide sensation? Why do some cultural products succeed, and others fail? On one view, the simplest and most general explanation is best, and it points to quality, appropriately measured: the Beatles succeeded because of the sheer quality of their music. On another view, timely enthusiasm or timely indifference can make the difference for all, including the Beatles, and informational cascades are often necessary for spectacular success. For those who emphasize informational cascades, success and failure are not inevitable; they depend on seemingly small or serendipitous factors. There is no question that the success of the Beatles, and the rise of Beatlemania, involved an informational cascade. We may doubt that in a counterfactual world there might have been Kinksmania or Holliesmania, but it would be reckless to rule out the possibility that some other band, obscure or unknown, might have taken the place of the Beatles.

This Article focuses on the power and corporate governance significance of the three largest index fund managers commonly referred to collectively as the "Big Three." We present current evidence on the substantial voting power of the Big Three and explain why it is likely to persist and, indeed, further grow. We show that, due to their voting power, the Big Three have considerable influence on corporate outcomes through both what they do and what they fail to do. We also discuss the Big Three's undesirable incentives both to underinvest in stewardship and to be excessively deferential to corporate managers. In the course of our analysis, we reply to responses and challenges to our earlier work on these issues that have been put forward by high-level officers of the Big Three and by a significant number of prominent academics. We show that these attempts to downplay Big Three power or the problems with their incentives do not hold up to scrutiny. We conclude by discussing the substantial stakes in this debate--the critical importance of recognizing the power of the Big Three, and why it matters.

Hospital-at-Home (HaH) is a home-based alternative for acute care that has expanded significantly under COVID-19 regulatory flexibilities. The post-pandemic policy agenda for HaH will require consideration of multistakeholder perspectives, including patient, caregiver, provider, clinical operations, technology, equity, legal, quality, and payer. Key policy challenges include reaching a consensus on program standards, clarifying caregivers’ issues, creating sustainable reimbursement mechanisms, and mitigating potential equity concerns. Key policy prescriptions include creating a national surveillance system for quality and safety, clarifying legal standards for care in the home, and deploying payment reforms through value-based models.

In 1972, the California Supreme Court in People v. Anderson and the U.S. Supreme Court in Furman v. Georgia abolished the death penalty pursuant to state and federal constitutional law, respectively. Both decisions evoked enormous popular backlash in an era of rising violent crime rates, including the Charles Manson murders in California and an increased threat of airline hijacking nationwide (and worldwide). In California, the Anderson decision was superseded that same year by a ballot initiative that amended the California constitution to ensure the constitutionality of capital punishment. At the federal level, the U.S. Supreme Court revisited its Furman decision four years later in Gregg v. Georgia, re-authorizing the death penalty nationwide with its validation of new capital statutes that purported to guide the exercise of discretion by capital sentencers. Such speedy about-faces might be seen as evidence of the limits of constitutional intervention, at least with regard to topics as “hot” as the death penalty. Under this view, if the political branches of government are not ready to act, courts cannot get out too far ahead without facing backlash, as observers have often commented with regard to other hotbutton issues like school integration and abortion rights. And if the political branches are ready to act without a judicial mandate, then constitutional intervention by courts is superfluous. For the first few decades after Furman, the U.S. Supreme Court continued to refine procedures for new guided-discretion capital sentencing regimes but left the substance of the death penalty alone. State courts largely followed suit under their own state constitutions. Death sentences and executions surged as the political branches continued to embrace the death penalty, with death sentences and executions both reaching their nationwide modern-era (post-1976) highs during the late 1990s. Starting around 2000, however, the trend reversed. Death sentences and executions dramatically declined nationwide over the course of the next two decades. Prosecutors sought the death penalty less often, juries returned fewer death sentences when it was sought, some governors imposed moratoria on carrying out death sentences, and numerous states abolished capital punishment—most recently, Virginia, the first Southern state to do so and the state logging the largest number of executions in American history. This trend of radical diminution of the death penalty was so pronounced that many, ourselves included, predicted a hollowing out of the death penalty capped by a federal constitutional “Furman II” as a coup de grace that would sweep in outliers like Texas and Alabama. Despite the backlash that greeted the first generation of constitutional intervention, the newly weakened state of the American death penalty seemed to point to judicial abolition as the last, best hope for nationwide abolition. But broadening the lens beyond the U.S. Supreme Court, which at this point in time seems extremely inhospitable to federal constitutional challenges to the death penalty, reveals that the situation is more complex. Judicial constitutional (and sometimes statutory) intervention promoting death penalty abolition is neither hopeless (because of backlash) nor the only hope (to sweep in political resisters); rather, it interacts in complex ways with the work of the political branches. We can see this interaction most clearly at the state level, where intervention by state courts has played an important role in the nationwide decline of the death penalty, but in many different and sometimes unexpected ways. In what follows, we explore some of the myriad scenarios in which state court intervention—only rarely involving full-blown, Anderson– or Furman-style abolition—has interacted with political reform or repeal efforts to accelerate the recent massive decline in the use of the death penalty across the United States. Each one of these stories is unique, reflecting each state’s specific context and history. But these scenarios can also be seen as archetypes of dynamics that could play out in a broadly similar way in other contexts and, thus, provide important lessons for advocates in other jurisdictions. Moreover, the sum of the scenarios, when viewed in the aggregate, offers an important historical corrective. These dynamics between judicial and political action illuminate the importance of state court intervention in the story of the American death penalty’s precipitous decline, which has tended to foreground other institutional actors and to neglect the complex interactions among branches of government. State judicial rulings, though often highly technical and, therefore, less visible and accessible to the public, have been a pervasive and powerful force in the two-decade-long diminution of the practice of capital punishment across the United States. Although we label state court decisions that hasten the demise of the death penalty as “little Furmans,” it is important to emphasize that the state judicial interventions we describe below, though diverse in their details, differ strikingly in their dynamics from Furman. Furman arrived at a time when state legislatures had paid scant attention to the death penalty. In fact, Furman arrived in large part because of state legislative inattention. The NAACP Legal Defense insisted that the extraordinary pre-Furman decline in capital sentencing and executions revealed that prevailing state capital statutes did not accurately reflect societal attitudes about the death penalty. And the refusal of state legislatures to revisit their statutes suggested that those statutes had fallen into desuetude, relics of an outdated morality that was evident in the infrequent, haphazard, and discriminatory use of the death penalty. Litigants in Furman argued that judicial intervention was required to put an end to a practice that had for all practical purposes run its course. But several of the Justices necessary to the result in Furman were not fully convinced and were unwilling to embrace the claim that the death penalty was inconsistent with societal standards of decency. So, Furman’s intervention proved to be essentially procedural, highlighting the absence of efforts by state legislatures to ensure that the death penalty was rationally and consistently applied, leaving open the door to state legislative efforts to tame the death penalty through more refined capital statutes. Because Furman arrived at a time of legislative inactivity, it was widely perceived to be “counter-majoritarian”—imposing significant judicial limitations on (perhaps even abolition of) the death penalty despite scant political activity in that direction. Of course, that characterization could be disputed. Even though there was not a strong or successful political campaign to end the death penalty in the years before Furman, the manifest declines in death sentencing and executions suggested weakening political support. But whatever the valence of public or political support for the death penalty at the time, it is undoubtedly true that Furman was not building on or advancing the work of legislative bodies. In contrast, the myriad state judicial interventions described below arrived at a very different time in the life of the American death penalty, and they were deeply connected to and in conversation with the work of state political branches. In some cases, the state courts directly advanced moral commitments identified and embraced by the state legislatures (including legislative commitments to racial justice or even legislative efforts to move away from the death penalty). In other cases, the state courts imposed minimal restraints on the death penalty, leaving it to the state legislature to decide whether to navigate those restraints or to use the state court decision as an occasion to let the death penalty expire without the political visibility or costs of an outright legislative repeal. Unlike in Furman, the state courts in these scenarios acted after a period of extended public debate about the wisdom and appropriate shape of the death penalty and substantial engagement with the issue by the political branches. In this respect, the state court interventions are best understood as culminations of a dialogue with the political branches in contrast to the sudden, lightening-like, and widely unexpected intervention in Furman.

In The Rhetoric of Reaction, published in 1991, Albert Hirschman identified three standard objections to reform proposals: perversity, futility and jeopardy. In Hirschman’s account, these objections define reactionary rhetoric. A proposal would be “perverse” if it would aggravate the very problem it is meant to solve; it would be “futile” if it would not even dent the problem; it would produce “jeopardy” if it would endanger some other goal or value (such as liberty or economic growth). The rhetoric of reaction comes from both left and right, though in Hirschman’s account, it is a special favorite of the right. In recent years, the perversity, futility and jeopardy theses have often been invoked to challenge reforms, including nudges. While the three theses are sometimes supported by the evidence, they are often evidence-free speculations, confirming Hirschman’s suggestion that the rhetoric of reaction has “a certain elementary sophistication and paradoxical quality that carry conviction for those who are in search of instant insights and utter certainties.”

Os economistas fizeram grandes progressos na compreensão dos incentivos e do comportamento dos agentes que operam fora dos mercados econômicos tradicionais, incluindo eleitores, legisladores e burocratas. Os incentivos e o comportamento dos juízes, no entanto, permanecem em grande parte incertos. Os juízes atuam como executores neutros de decisões substantivas tomadas por terceiros? Os juízes são legisladores “comuns”, que dão sequência a quaisquer resultados favoráveis, sem qualquer consideração especial pela lei como tal? Estudos recentes começaram a explorar concepções com mais nuances de como o direito, as evidências e as preferências judiciais podem interagir para influenciar as decisões judiciais. Este trabalho desenvolve uma perspectiva de julgamento que pode ser entendida como a manifestação moderna do Realismo Jurídico Americano, um movimento jurisprudencial de advogados, juízes e professores de direito que floresceu no início do século XX. O objetivo deste ensaio é introduzir, de forma simplificada, o relato realista de decisões judiciais; contrastar esta visão com teorias alternativas sobre direito e julgamento; e esboçar como uma integração mais explícita dos insights conceituais dos Realistas sobre direito e comportamento judicial poderia enriquecer o trabalho econômico em rápida expansão neste campo.

In Bolling v. Sharpe, the Supreme Court struck down a federal statute segregating the schools in the District of Columbia. The Equal Protection Clause is inapplicable to the national government, and the Court relied on the Due Process Clause of the Fifth Amendment. Bolling v. Sharpe has been followed by many cases that find an “equal protection component” to the Due Process Clause of the Fifth Amendment (“reverse incorporation”). These cases are impossible to defend on originalist grounds, and they are exceptionally challenging to defend on textualist grounds. They are best understood as an embodiment of “living constitutionalism” or some related approach (potentially including common good constitutionalism). Dobbs v. Jackson Women’s Health Center, overruling Roe v. Wade, adopts an interpretation of the Due Process Clause of the Fourteenth Amendment, rooted in a combination of text, originalism, and tradition, that generally sets itself against living constitutionalism or related approaches, and that is incompatible with the approach in Bolling and successor cases. Under the approach in Dobbs, discrimination on the basis of race and sex, or on any other ground, should be subject to rational basis review (at most) – and should frequently be upheld. If this is an unacceptable conclusion, it is a strong point for Bolling and against the approach in Dobbs, at least under one view about how to choose a theory of constitutional interpretation.

Private law—the background legal rules of contract, property, and tort—determines legal entitlements to the material goods dealt with by constitutionally guaranteed economic and social rights. Courts have struggled to determine whether and how the constitution applies to private law. The jurisdiction of constitutional courts sometimes leads them to “develop” private law in light of the constitution. Once we recognize that many of the questions that have puzzled courts and commentators about the application of the constitution to private law actually involve puzzles about the constitution’s substance, most of the analytic difficulties are transformed. The questions that remain arise from specific institutional arrangements, and in particular from the distribution of law-declaring authority between constitutional and ordinary courts.

In its current form, antitrust law is sometimes said to advance consumer welfare and to disregard economic inequality. In fact, because monopoly and monopsony benefit shareholders at the expense of workers and consumers antitrust law redistributes resources from (generally wealthier) shareholders to (generally less wealthy) workers and consumers. Antitrust enforcement agencies seeking to reduce inequality might adjust their priorities and target markets that are disproportionately important for low-income people. Agriculture and health care would be good places to start; food and medicine compose a larger share of the budget of low-income people than of others, and these goods are essential to basic well-being. Regulators should also give priority to labor markets, especially labor markets in which lower-income people participate, and especially where pay gaps based on race or gender are large. In some cases, it is also appropriate to consider sacrificing economic efficiency for distributional goals by introducing distributional weights into antitrust analysis; doing so can increase social welfare. At the same time, antitrust law’s contribution to reducing inequality is subject to substantial diminishing returns.

Professor Jennifer Hochschild’s Genomic Politics: How the Revolution in Genomic Science Is Shaping Society is a must-read for anyone interested in where our politics about genetics in America has been and where it is going. It is also an exemplar of how to do mixed-methods social science work: Hochschild combines theory with database searches and coding of congressional acts and social science journal articles, open-ended interviews with authors of leading peer-reviewed articles and other experts (semi-structured with genomic experts),1 and two sets of relatively lengthy online surveys (one administered in 2011 and one in 2017, nicely allowing some opportunity to detect change) to arrive at a much more complete picture than I have seen anywhere in the extensive literature. Part I summarizes the book and highlights its main contributions. Part II engages with three questions on which the book has something to say, but where I think a longer conversation is warranted: (1) What explains the lack of partisan politicization on these topics? (2) How should equality theorists think about obligations of justice that stem from genetic bad luck and the possibility of redistribution? (3) What would it mean to take seriously the critiques of race as a genetic category and what would that mean for equality discourse?

Reviewing ♣Joseph Fishkin & William E. Forbath, The Anti-Oligarchy Constitution♣ (2022).

Since 2014, viral images of Black people being killed at the hands of the police—Michael Brown, Eric Garner, Breonna Taylor, and many, many others—have convinced much of the public that the American criminal legal system is broken. In the summer of 2020, nationwide protests against police racism and violence in the wake of George Floyd’s murder were, according to some analysts, the largest social movement in the history of the United States.2 Activists and academics have demanded defunding the police and reallocating the funds to substitutes or alternatives.3 And others have called for abolishing the police altogether.4 It has become common knowledge that the police do not solve serious crime, they focus far too much on petty offenses, and they are far too heavy-handed and brutal in their treatment of Americans—especially poor, Black people. This is the so-called paradox of under-protection and over-policing that has characterized American law enforcement since emancipation.5 The American criminal legal system is unjust and inefficient. But, as we argue in this essay, over-policing is not the problem. In fact, the American criminal legal system is characterized by an exceptional kind of under-policing, and a heavy reliance on long prison sentences, compared to other developed nations. In this country, roughly three people are incarcerated per police officer employed. The rest of the developed world strikes a diametrically opposite balance between these twin arms of the penal state, employing roughly three and a half times more police officers than the number of people they incarcerate. We argue that the United States has it backward. Justice and efficiency demand that we strike a balance between policing and incarceration more like that of the rest of the developed world. We call this the “First World Balance.” We defend this idea in much more detail in a forthcoming book titled What’s Wrong with Mass Incarceration. This essay offers a preliminary sketch of some of the arguments in the book. In the spirit of conversation and debate, in this essay we err deliberately on the side of comprehensiveness rather than argumentative rigor. One of us is a social scientist, and the other is a philosopher and legal scholar. Our primary goal for this research project, and especially in this essay, is not to convince readers that we are correct—but rather to encourage a more explicit discussion of the empirical and normative bases of some pressing debates about the American criminal legal system. Even if our answers prove unsound, we hope that the combination of empirical social science and analytic moral and political philosophy we contribute can help illuminate what alternative answers to those questions might have to look like to be sound. In fact, because much of this essay (and the underlying book project) strikes a pessimistic tone, we would be quite happy to be wrong about much of what we argue here. In the first part of this essay, we outline five comparative facts that contradict much of the prevailing way of thinking about what is distinctive about the American criminal legal system. In the second part, we draw out the normative implications of those facts and make the case for the First World Balance.

Mrs. Clinton should take her hat off. Treating like cases alike is crucial to the equal protection of the law.

In the past few years, there has been a dramatic increase in shareholder support for proposals on political, environmental, ethical, and social issues, from climate change and employee diversity to animal welfare and corporate political spending (“social proposals”). But why do investors in a business corporation concern themselves with socially relevant issues? And how should corporate and securities law address this phenomenon? Based on the analysis of more than 2,900 social proposals submitted from 2010 to 2021, this Article argues that shareholder activism on socially relevant issues (“stockholder politics”) cannot be entirely explained by financial motives or by special interest capture, as the traditional theories hold. Rather, stockholder politics should be understood as a matchmaking enterprise in which a relatively small number of specialized actors (“stockholder politics specialists”) connect shareholders with prosocial and expressive motives on one side with corporate stakeholders, citizens, and social and policy activists on the other side. Specialists “sell” information, monitoring, and voting opportunities to shareholders interested in socially relevant issues, and they “sell” corporate voice externally to outside actors, including employees, consumers, and citizens concerned about corporate externalities. This complex phenomenon has both potential benefits and costs for corporate governance. On the one hand, it constrains managerial discretion and reduces managerial agency problems on socially relevant issues by monitoring corporate activities and eliciting shareholder preferences. On the other hand, it can engulf corporate decision-making with multidimensional decisions with no clear equilibrium, and it can exacerbate the agency problems of institutional investors.

If we are committed to freedom of speech, must we tolerate lies? This essay provides a framework for thinking about this and other questions regarding falsehoods. The framework focuses on four sets of issues: (1) the speaker’s state of mind, and the (2) magnitude, (3) likelihood, and (4) timing of harm. From this way of thinking about the problem, we can see that current constitutional law fails to strike the right balance. Public officials and public figures should be able to do far more than they are now permitted to do to respond to defamation, as should ordinary citizens subjected to damaging falsehoods. The government should be able to restrict and punish certain kinds of lies and falsehoods that pose serious threats to public health and safety. To protect the democratic process, the government should be able to regulate other kinds of even nondefamatory falsehoods. The essay draws attention to the sheer diversity of tools available to the government. The government need not censor or punish; it might, for example, require disclosure, labels, or warnings, or some form of choice architecture that reduces the likelihood that falsehoods will spread.

They’re good for just about everyone, including employees and shareholders as well as overpaid CEOs.

Why people do or do not change their beliefs has been a long-standing puzzle. Sometimes people hold onto false beliefs despite ample contradictory evidence; sometimes they change their beliefs without sufficient reason. Here, we propose that the utility of a belief is derived from the potential outcomes associated with holding it. Outcomes can be internal (e.g., positive/negative feelings) or external (e.g., material gain/loss), and only some are dependent on belief accuracy. Belief change can then be understood as an economic transaction in which the multidimensional utility of the old belief is compared against that of the new belief. Change will occur when potential outcomes alter across attributes, for example because of changing environments or when certain outcomes are made more or less salient.

In a pre-registered 2 × 2 × 2 factorial between-subject randomized lab experiment with 61 federal judges, we test if the law influences judicial decisions, if it does so more under a rule than under a standard, and how its influence compares to that of legally irrelevant sympathies. Participating judges received realistic materials and a relatively long period of time (50 min) to decide an auto accident case. We find at best weak evidence that the law matters or that rules constrain more than standards, and no evidence of a sympathy effect. (JEL K00, K13, K40, K41)

If Trump or any of the likely Republican nominees win in 2024, they will immediately move to protect those who attempted to overturn the 2020 election

We appreciate the comments by Dr Genzen and colleagues about our recent Viewpoint1 on SARS-CoV-2 LDTs. The FDA has long asserted its authority to regulate LDTs even while using its enforcement discretion to largely leave LDTs alone. Although many FDA law scholars believe the FDA’s authority to regulate at least some LDTs is well supported by the relevant statutory language,2,3 Dr Genzen and colleagues are correct that this view is not universally shared and that the issue has never been resolved in court. Although there have been past attempts to clarify this question through acts of Congress, the aftermath of the COVID-19 pandemic may underscore the importance of doing so.

Bankruptcy and Article 9: 2022 Statutory Supplement is offered in two versions. Both are smaller, lighter, and more portable than competing Supplements. Each version includes: UCC Article 1, UCC Article 9, key excerpts from UCC Article 2 and UCC Article 8, Uniform Fraudulent Transfer Act, Uniform Voidable Transactions Act, Uniform Motor Vehicle Certificate of Title and Anti-Theft Act, Bankruptcy Code, selections from the Bankruptcy Rules Title 18 and Title 28 of the United States Code, Fair Debt Collection Practices Act, and Federal Tax Lien Act. This year’s Supplements contain numerous changes to the Bankruptcy Code. Notably, many of the amendments from the COVID-19 Bankruptcy Relief Extension Act of 2021 sunsetted and have been removed. The Bankruptcy Code includes a provision for readjustment of certain dollar figures at three-year intervals. All of those amounts changed this year. The changes were effective April 1, 2022. In the course of a career, the number of state and federal statutes that a serious practitioner of commercial law would likely consult must surely reach into the hundreds. Not many practitioners would try to carry such statutes around, either in books or in their heads. But a few statutes are used over and over. Together, those few form the core of two basic subjects in commercial law, secured transactions and bankruptcy. Those core statutes are reproduced in this slender volume.

Through its "comfort women" framework, the World War II Japanese military extended its licensing regime for domestic prostitution to the brothels next to its overseas bases. That regime imposed strenuous health standards, which the military needed to control the venereal disease that had debilitated its troops in earlier wars. These "comfort stations" recruited their prostitutes (we limit this article to women recruited through Korea and Japan) through variations on the standard indenture contracts that the licensed brothels had used in Korea and Japan. Some women took the jobs because they were tricked by fraudulent recruiters. Some took them under pressure from abusive parents. But the rest seem to have taken the jobs for the money. The notion that the comfort stations were anything else dates from the 1980s. In 1983, a Japanese writer published a memoir in which he claimed to have led a posse of soldiers to Korea and conscripted women at bayonet-point. Soon, several women sued the Japanese government for compensation. The government apologized (the Kono statement), and the U.N. issued two scathing reports. In fact, the Japanese author had made up the story. By the end of the century, historians and journalists (in both Japan and South Korea) had determined that he had fabricated the entire memoir. In the meantime, however, an apparently corrupt organization (its leader is currently on trial for embezzlement) with close ties to North Korea (the leader's husband served prison time for passing documents to a North Korean agent) took control of the comfort-women movement. Steadily, it inflamed the ethno-nationalism within South Korea and stalled rapprochement with Japan. All this took place while North Korea steadily developed its nuclear weapons arsenal. Given the close ties between North Korea and the organization running the comfort women movement, that may be the point. Under pressure from the South Korean left, however, the government continues to launch criminal prosecutions against scholars who point out the genesis of the movement in the fabricated memoir. Readers in the Anglophone world need to realize that scholars who contest the fabricated comfort women story in South Korea face potential prison time for doing so.

Nations around the world are facing various crises of ineffective government. Basic governmental functions, including rights-protection and securing material well-being, including education and healthcare, are compromised, leading to declines in general welfare, in enjoyment of rights, and even of democracy itself. This innovative collection, featuring analyses by leaders in the fields of constitutional law and politics, highlights the essential role of effective government in sustaining democratic constitutionalism. The book explores 'effective government' as a right, principle, duty, and interest, situating questions of governance in debates about negative and positive constitutionalism. In addition to providing new conceptual approaches to the connections between rights and governance, the volume also provides novel insights on government institutions, including courts, legislatures, executives, and administrative bodies, as well as the media and political parties. This is an essential volume for anyone interested in constitutionalism, comparative law, governance, democracy, the rule of law, and rights.

Disclosure-based nudges are increasingly utilized by governments around the world to achieve policy goals related to health, safety, employment, environmental protection, retirement savings, credit, debt, and more. Yet, a critical aspect of these nudge-type policy interventions—the mode of communication—remains unexplored. We study the effects of the communication medium on debt collection procedures, using a policy experiment conducted in cooperation with the Israeli Ministry of Justice. Debtors often lack adequate information about the debt, the judgment, and the enforcement and collection procedures. As a result, the process of debt collection is often harmful to the debtor and ineffective in securing repayment. We manipulate the choice of medium--telephone, regular mail, text message, and video message--holding fixed the content of the communication. We find that digital communication strategies, in particular, communicating via text message, were the most cost-effective, significantly improving the outcomes for both debtors and creditors.

A guiding principle of regulation of communications in the United States has been the public interest, but what does the concept of the public interest mean today, a time when the sheer amount of misinformation can drown out accurate information? This essay, presented as a discussion, explores the problems of misinformation in the age of digital media. Though the authors do not agree on all elements of their proposed reforms, they propose ideas such as the articulation of a core set of journalistic principles for anything major media companies label “news”; increasing support for public libraries, media literacy education, and public media; establishing a nonprofit public internet; requiring large internet platforms, which arguably function like a public square, to publicize their community standards for removing content and to adopt policies to at least slow the distribution of content that incites imminent violence; and staying abreast of international ideas that might be of use in the United States.

In what follows, I offer a short response to a review by William Baude and Stephen Sachs of Common Good Constitutionalism (Polity 2022). The response is by no means exhaustive, but focuses on the central and crippling deficiencies of the review, deficiencies that specialists in jurisprudence have previously pointed out in their work. Baude and Sachs confidently imagine that their particular, highly idiosyncratic versions of positivism and originalism provide the yardstick against which all public law theories should be measured. They present as unquestioned axioms of legality and legal interpretation in our legal order what are, in fact, highly controversial views, which do not correspond to or derive from any recognized version of positivism in jurisprudence. Indeed they go so far as to imply at several points that agreement with their nonstandard approach is the sine qua non of genuine scholarship. Baude and Sachs’ approach in effect tries to pass off as a deep sociolegal consensus claims that are highly contestable and contested, claims for which they provide essentially no evidence.The main consequence of these errors is that Baude and Sachs silently assume away the non-positivist premises of the classical legal tradition. This fundamental error infects all the subsidiary points in the review, which repeatedly misconceive the claims of the classical legal tradition by treating those claims as erroneous or unnecessary positivist arguments, rather than trying to understand them on their own very different terms. Unless and until Baude and Sachs learn to learn, as it were, they will remain unable to engage in any interesting way with the rich variety of American legal theory.

Secessionists typically have several goals. One is getting out from under rule by an oppressive “foreign” center, where the oppression takes the form of violations of what the secessionists and objective observers reasonably understand to be their basic rights. This paper, to be appear in a collection “Constitutional Law and Politics of Secession” edited by Antoni Abat i Ninet (Routledge), deals with secessionist movements in relatively prosperous regions that haven’t suffered from the effects of classical nineteenth century colonialism, whose residents aren’t in general grossly mistreated by the policies adopted by the larger nation of which they are part. The paper focuses on two goals other than relief from gross oppression. The first is policy autonomy, meaning the ability of the secessionist region/nation to determine for itself a wide range of policy goals without requiring the approval of the center/nation of which they were a part. The second is recognition in Charles Taylor’s sense, meaning the acknowledgement by the international community that the secessionist region/nation has a distinctive national identity (which is different from the formal idea of recognition in international public law). The paper is fundamentally Coasean. It rests on propositions about the bargaining power of the secessionist region/nation in a world in which modern technologies of multi-level governance are available. The most important of those technologies are asymmetrical federalism (within the nation in which the secessionist region is located) and networks of bilateral and multilateral treaties in which the newly independent secessionist nation and its “parent” both participate, along with older technologies such as confederation. With those technologies in hand, the parent nation and the secessionist region/nation will reach accommodations about both domestic and non-domestic policy that reflect their relative bargaining power. The Coasean point is that relative bargaining power needn’t (and probably doesn’t) change merely upon the achievement of independence by the secessionist nation.