Faculty Bibliography

Hyperlinks are a powerful tool for journalists and their readers. Diving deep into the context of an article is just a click away. But hyperlinks are a double-edged sword; for all of the internet’s boundlessness, what’s found on the web can also be modified, moved, or entirely disappeared. This often-irreversible decay of web content is commonly known as linkrot. It comes with a similar problem of content drift, or the often-unannounced changes––retractions, additions, replacement––to the content at a particular URL. Our team of researchers at Harvard Law School has undertaken a project to gain insight into the extent and characteristics of journalistic linkrot and content drift. We examined hyperlinks in New York Times articles starting with the launch of the Times website in 1996 up through mid-2019, developed on the basis of a dataset provided to us by the Times. We focus on the Times not because it is an influential publication whose archives are often used to help form a historical record. Rather, the substantial linkrot and content drift we find here across the New York Times corpus accurately reflects the inherent difficulties of long-term linking to pieces of a volatile web. Results show a near linear increase of linkrot over time, with interesting patterns emerging within certain sections of the paper or across top level domains. Over half of articles containing at least one URL also contained a dead link. Additionally, of the ostensibly “healthy” links existing in articles, a hand review revealed additional erosion to citations via content drift.

Congress is on the cusp of transforming American elections. The House recently passed a bill that would thwart voter suppression, end gerrymandering, and curb the undue influence of the rich. Something like this bill could soon become law. In this Article, I provide a multilayered foundation for such sweeping electoral legislation. From a theoretical perspective, first, I argue that Congress poses less of a threat to democratic values than do the states or the courts. It’s more difficult for a self-interested faction to seize control of federal lawmaking than to capture a state government or a judicial body. Second, surveying the history of congressional electoral regulation, I contend that it’s remarkably benign. Most federal interventions have advanced democratic values—in marked contrast to many of the states’ and the courts’ efforts. Third, I show that current law grants Congress the expansive electoral authority that, normatively, it ought to possess. In particular, the Elections Clause, the Guarantee Clause, and the Fourteenth Amendment’s Enforcement Clause combine to empower Congress over most electoral levels and topics. And fourth, returning to the House’s recently passed bill, I maintain that its most controversial elements are constitutional under the applicable doctrine. In fact, Congress could venture considerably further than, to date, it has tried to go. Together, these points should hearten legislators when they next turn to the project of electoral reform. Not only is aggressive federal action permissible in the American political system—it may be the only way to save it.

Collected here are nineteen responses to the question, “What 21st-century works will merit a close reading in 2050?” Clarifications of that question are provided in a foreword. This tranche represents responses from authors with last names beginning L through Z. The nineteen responses presented here are from Mitchell Langbert, Andrés Marroquín, Steven G. Medema, Alberto Mingardi, Paul D. Mueller, Stephen R. Munzer, Evan W. Osborne, Justin T. Pickett, Rupert Read and Frank M. Scavelli, Hugh Rockoff, Kurt Schuler, Daniel J. Schwekendiek, Per Skedinger, E. Frank Stephenson, Scott Sumner, Cass R. Sunstein, Slaviša Tasić, Clifford F. Thies, and Richard E. Wagner. Responses from authors A through K were provided in the previous issue of this journal

From a welfarist perspective, willingness to pay (WTP) is relevant only as a proxy for individual preferences or utilities. Much of the criticism levied against the WTP criterion can be understood as saying that WTP is a bad proxy for utility, or that WTP contains limited information about preferences. Specifically, critics of WTP claim wealth effects prevent it from serving as a good proxy for utility. I formalize and extend this critique by developing a methodology for quantifying the informational content of WTP. The informational content of WTP depends on how WTP is measured and applied. First, I distinguish between two types of policies: (i) policies that are not paid for by the individuals they affect and (ii) policies that are paid for by the individuals they affect. Second, I distinguish between two types of WTP measures: (i) individualized WTP and (ii) uniform, average WTP (like the value of a statistical life). When the cost of the policy is not borne by the affected individuals, individualized WTP has low informational content and increases wealth disparity. Uniform, average WTP has higher informational content and reduces wealth disparity, at least in the case of universal benefits. Therefore, when possible, a uniform, average WTP should be preferred in this scenario. When the cost of the policy is borne by the affected individuals, individualized WTP has high informational content but increases wealth disparity. Uniform, average WTP has lower informational content and indeterminate distributional implications. Here, the choice between individualized WTP and uniform, average WTP is more difficult. I briefly consider two extensions. The first involves time. I present a dynamic extension of the relationship between the informational content of WTP and the wealth distribution. The second extension emphasizes the effect of forward-looking rationality on the WTP measure. The question of rationality raises additional concerns about WTP-based policymaking.

We take two professions — police officers and doctors — and place their experiences with big data in dialogue. Policing and medicine, while naturally different in some obvious respects, actually both need to grapple with a lot of the same moral, social, and legal questions that come with adopting big data programs. This because, as we discuss below, both professions generally possess a monopoly over an acute societal vulnerability, be it safety or health, and have accordingly developed a set of settled internal norms to shape individual discretion in service of each respective function. We place the professions side-by-side and try to distill certain insights from the perspective of three key stakeholders — practitioners, policymakers, and the polity.

This article appropriates Ricardo and Marx as progenitors of one of the contemporary CLS approaches to law and political economy. In the first part I look at Ricardo and Marx through a presentist lens. I ignore their allegiance to the labor theory of value and restate what I think is important for “us” in neo-classical terms. What is left is a model in which a legal regime distributes a surplus helping some at the expense of others, setting in motion a chain of further distributional changes in a particular direction (e.g. stagnation or growth). Then I describe Ricardo’s legal presuppositions and Marx’s explicit understanding of law as seriously mistaken and restate their ideas in the “postrealist” mainstream language of contemporary American legal thought. The great question they help answer, restated, is how to decide when redistributive interventions will or will not, have or have not “hurt the people they are trying to help.” The last part introduces this approach, contrasting it with familiar liberal approaches. The normative orientation is to distribution in favor of subordinated groups rather than to efficiency and to work on transformable background rules of public and private law rather than to politically unattainable reform by tax and spend, large scale re-regulation or decommodification. A companion article applies the “neo-Ricardian” analytic to the dynamics of housing and credit markets in poor black neighborhoods.

There is concern that present-biased agents incur too much debt because of its deferred costs – concern that has influenced regulation of consumer credit. While this concern is valid when debt is used to finance current consumption, credit may increase efficiency when it is used to fund durable good purchases, which is the most common use of debt. Without debt, present-biased agents underconsume durable goods because of their deferred benefits. The deferred cost of debt can offset the deferred benefit from the durable good. We study the effects of purchase-financing on the demand for durable goods by present-biased agents.

If whatever counts as merit for some purpose is unevenly distributed, a decision procedure that accurately sorts people on that basis will “pick up” and reproduce the pre-existing pattern in ways that more random, less merit-tracking procedures would not. This dynamic is an important cause for concern about the use of predictive models to allocate goods and opportunities. In this article, I distinguish two different objections that give voice to that concern in different ways. First, decision procedures may contribute to future social injustice and other social ills by sustaining or aggravating patterns that undermine equality of status and opportunity. Second, the same decision procedures may wrong particular individuals by compounding prior injustices that explain those persons’ predicted or actual characteristics. I argue for the importance of the first idea and raise doubts about the second. In normative assessments and legal regulation of algorithmic decisionmaking, as in our thinking about anti-discrimination norms more broadly, a central concern ought to be the prospect of entrenching harmful and unjust patterns—quite apart from any personal wrong done to the individuals about whom predictions are made.

Expand the Court now.

Through webs of cross-cutting ties, groups can build "social capital" -- the ability to use the resulting access to information and collective punishment to enforce on each other their norms of appropriate behavior. Yet not all minorities maintain such networks. And groups without them sometimes find themselves manipulated by opportunistic entrepreneurs who capture private benefits for themselves while generating massive hostility and (statistical) discrimination against the group as a whole. As one adage puts it, sometimes the worst enemy of a minority group is its own leadership. Consider the Korean residents of Japan. Koreans had begun to migrate to Japan in the 1910s. They were poor, single, male, young, uneducated, and did not intend to stay long. As one might expect given those characteristics, they maintained only very low levels of social capital, and generated substantial (statistical) discrimination against themselves. After the Second World War, most Koreans returned to their homeland. Among those who stayed, however, a self-appointed core of fringe-left opportunists took control and manipulated the group toward their private political ends. Lacking the dense networks that would let them constrain the opportunists, the resident Koreans could not stop them. Those with the most talent, sophistication, and education simply left the group and migrated into Japanese society. The opportunistic leaders exploited the vulnerable Koreans who remained, captured private benefits for themselves, and generated enormous hostility and (statistical) discrimination against the rest.

Following the 2020 presidential election, health care reform discussions have centered on two competing proposals: Medicare for All and an individual public option (“Medicare for all who want it”). Interestingly, these two proposals take starkly different approaches to employer-provided health coverage, long the bedrock of the U.S. health care system and the stumbling block to many prior reform efforts. Medicare for All abolishes employer-provided coverage, while an individual public option leaves it untouched. This Article proposes a novel solution that finds a middle ground between these two extremes: an employer public option. In contrast to the more familiar public option proposal, which would offer government sponsored health insurance directly to individuals, our plan creates a public option for employers, who can select a public plan—based on Medicare and altered to meet the needs of working populations—instead of a private health plan for their employees. Employer-based private health coverage is in decline and increasingly leaves workers vulnerable. Our proposal offers a gradual way to loosen reliance on this system. We review the policy, regulatory, fiscal, and business arguments in favor of this form of public option, which we argue is less disruptive than Medicare for All but more impactful than an individual public option. Because employer take up would be gradual and voluntary, our plan has lower fiscal costs and should face less resistance from employees and vested interests than Medicare for All. Over time, if the plan meets employers’ and employees’ needs, more people would be covered by a public option, moving away from over-reliance on private employer plans and toward something akin to Medicare-for-Many in a less politically, legally, and fiscally fraught way.

For too long, giant tech companies have thrown around their weight to crush competition, exploit user data and spread disinformation. They may think they're too big to be held accountable, but Lina Khan is proving them wrong. Since Khan published her blockbuster Yale Law Journal article "Amazon's Antitrust Paradox" in 2017--written while she was still a law student, she has been the leading intellectual force in the modern antitrust movement. Her writings and advocacy have pushed scholars, lawyers, activists and public officials to think differently about Big Tech. Khan has also been a critical figure in government, providing advice to countless elected officials, working at the Federal Trade Commission and staffing the House Judiciary Committee's Subcommittee on Antitrust.

As health care becomes increasingly personalized to the needs and values of individual patients, informational interventions that aim to inform and debias consumer decision-making are likely to become important tools. In a randomized controlled experiment, we explore the effects of providing participants with published fact boxes on the benefits and harms of common cancer screening procedures. Female participants were surveyed about breast cancer screening by mammography, while male participants were surveyed about prostate cancer screening by prostate-specific antigen (PSA) testing. For these screening procedures, we expect consumers to have overly optimistic prior beliefs about the benefits and harms. We find that participants update their beliefs only modestly and change their stated preferences to seek screening even more modestly. Participants who scored higher on a numeracy test updated their beliefs and preferences about screening more in response to the fact boxes than did patients who scored lower on the numeracy test. More-numerate subjects also seem to become more anxious in response to the risk information.

In conjunction with the 50th anniversary of the creation of the Environmental Protection Agency, this book brings together leading scholars and EPA veterans to provide a comprehensive assessment of the agency’s key decisions and actions ...

Rosa Brooks gets a firsthand look at the complicated world of urban policing.

Do people from benefit from food labels? When? By how much? Public officials face persistent challenges in answering these questions. In various nations, they use four different approaches: they refuse to do so on the ground that quantification is not feasible; they engage in breakeven analysis; they project end-states, such as economic savings or health outcomes; and they estimate willingness-to-pay for the relevant information. Each of these approaches runs into strong objections. In principle, the willingness-to-pay question has important advantages. But for those who has that question, there is a serious problem. In practice, people often lack enough information to give a sensible answer to the question how much they would be willing to pay for (more) information. People might also suffer from behavioral biases (including present bias and optimistic bias). And when preferences are labile or endogenous, even an informed and unbiased answer to the willingness to pay question may fail to capture the welfare consequences, because people may develop new tastes and values as a result of information.

This short paper, building on previous discussions in the workshop series, begins in Part A with some general considerations on indirect discrimination law. Part B then discusses Hypothetical No. 7 on the differential effect of restaurant closings in light of some of these general considerations.

Many presidents have been interested in asserting authority over independent regulatory agencies, such as the Federal Trade Commission, the Federal Communications Commission, the Nuclear Regulatory Commission, the Securities and Exchange Commission, and the Federal Reserve Board. The underlying debates raise large constitutional questions, above all about the meaning and justification of the idea of a “unitary executive.” In the first instance, however, the president’s authority over independent agencies depends not on the Constitution, but on a common statutory phrase, which allows the president to discharge the heads of such agencies for “inefficiency, neglect of duty, or malfeasance in office.” This phrase – the INM standard – is best understood to create a relationship of presidential review — and a particular remedy for legal delinquency flowing from that review. It allows the president to discharge members of independent agencies not only for laziness and torpor (“inefficiency”) or for corruption (“malfeasance”), but also for neglect of their legal duty, which includes egregiously erroneous decisions of policy, law, or fact, either repeatedly or on unusually important matters. Connecting this understanding to the Take Care Clause, we reject both a minimalist approach, which deprives the president of any kind of decisionmaking authority over policy made by independent agencies, and also a maximalist approach, which would treat the independent agencies as essentially identical to executive agencies, in terms of presidential oversight authority. This approach has strong implications for how to understand the President’s directive authority over the independent agencies.

Investor‐driven ’short‐termism’ is said to harm EU public firms’ ability to invest for the long term, prompting calls for the EU to better insulate managers from shareholder pressure. But the evidence offered—rising levels of repurchases and dividends—is incomplete and misleading: it ignores large offsetting equity issuances that move capital from investors to EU firms. We show that, over the last 30 years and the last decade, net shareholder payouts have been moderate and investment and cash balances have increased. In sum, the data provide little basis for the view that short‐termism in the EU warrants corporate governance reforms.

The Eleventh Amendment might be the most misunderstood amendment to the Constitution. Both its friends and enemies have treated the Amendment’s written text, and the unwritten doctrines of state sovereign immunity, as one and the same— reading broad principles into its precise words, or treating the written Amendment as merely illustrative of unwritten doctrines. The result is a bewildering forest of case law, which takes neither the words nor the doctrines seriously.

The power balance in the stock market changed when Robinhood and other brokerages realized could make money by selling access to their users’ lack of information.

Over the last century, Japanese consumers have steadily lost their taste for sake. Several large producers dominate the mass market through economies of scale, but the regional brewers have gradually gone out of business. In this environment, a small group of enterprising regional brewers began to create a market for premium sake with the environmental variations so important to French terroir. To produce this terroir sake, brewers must convince local farmers to grow high-risk and high-cost varieties of rice optimized for premium sake. The challenge involves unusually complex incentive and informational requirements. Yet the parties almost never draft elaborate contracts with verifiable terms, and rarely vertically integrate. Instead, they build dense and refined networks of social capital among themselves and combine short-term renewable (and hence terminable) contracts, extremely high (efficiency-wage level) prices, and close monitoring by the brewer. In the process, they give the farmers strong incentives to let the brewers intervene as needed in the farming. The brewers and farmers neither draft elaborate contracts nor vertically integrate for a simple reason: they do not need to do so. The combination of dense networks of social capital, terminable short-term contracts, and high prices gives them all the flexibility they need.

This essay explores the contradictory coexistence between two approaches to law that have been dominant in all major legal traditions: law as the normative order chosen by the legitimate and effective holders of power in the state and law ...

In July 2020, the European Commission published the “Study on directors’ duties and sustainable corporate governance” by Ernst & Young (EY). The Report purports to find evidence of debilitating short-termism in EU corporate governance and recommends many changes to support sustainable corporate governance. In this paper, we point out deep flaws in the Report’s evidence and analysis. We recently submitted the content of this paper in response to the European Commission’s call for feedback. Parallel issues have arisen in American discourse, although none has reached the incipient lawmaking level that it has in Europe. First, the Report defines the corporate governance problem as one of pernicious short-termism that damages the environment, the climate, and stakeholders. But the Report mistakenly conflates time-horizon problems with externalities and distributional concerns. Cures for one are not cures for the others and a cure for one may well exacerbate the others. Second, the Report’s main evidence for an increase in corporate short-termism is rising gross payouts to shareholders (dividends and stock repurchases). However, the more relevant payout measure to assess corporations’ ability to fund long-term investment is net payouts (gross payouts minus equity issuances), which is much lower and has left plenty of funds available for long-term and short-term investment. Third, when the Report turns to other evidence for short-termism, it selectively picks academic studies that support its views on short-termism, while failing to engage substantial contrary literature. Significant studies fail to detect short-termism and some substantial studies show excessive long-termism. Conceptually, some short-termism is an unfortunate but an inevitable side effect of effective corporate governance and may not be a first-order problem warranting wholesale reform. Finally, the Report touts cures whose effectiveness has little evidentiary support and, for some, there is real evidence that the cures could be counterproductive and costly.

The Delta Directions Consortium is an interdisciplinary network of individuals, academic institutions, non-profit organizations, and foundations that work together to create positive social change in the multi-state Mississippi Delta Region. Goals include improving public health and promoting socioeconomic development. The Consortium is not an independent non-profit organization but, rather, an alliance of partners committed to collaborative and innovative problem-solving. This document provides a summary of pathways for partners in the Delta Directions Consortium, with emphasis on substantive topics and projects. It should be read as a living document to frame ideas and approaches that will be adapted in response to the needs and interests of core partners and diverse stakeholders.

This interview was conducted by Intisar Rabb (Editor-in-Chief). This interview is part of the Islamic Law Blog’s Roundtable on Islamic Legal History & Historiography, edited by Intisar Rabb.

Robert Shiller argues for the power of stories in shaping economics.

The Senate will retain the constitutional power — and duty — to conduct an impeachment trial of Trump even when he is no longer president.

As academics, we are used to dealing with exaggerations. We are not used to finding that the story is pure fiction. But that is the nature of the comfort-women-sex-slave story.