Faculty Bibliography
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In its ideal form, arbitrariness review is an instrument for promoting “deliberative democracy”—a system that combines reason-giving with political accountability. Under arbitrariness review in its current form, courts tend to embrace the “hard look doctrine,” which has a procedural component, requiring agencies to offer detailed justifications, and also a substantive component, in which courts assess the reasonableness of agencies’ choices on the merits. These are serious constraints on the executive branch, and they also reduce the risk of large-scale instability in government, in which scientific and economic judgments are overridden by political considerations. With respect to regulatory policy, it is not enough to say that “elections have consequences.”
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The pathbreaking lawyer and “Civil Rights Queen” was the first Black woman to argue before the U.S. Supreme Court.
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As intuitive statisticians, human beings suffer from identifiable biases, cognitive and otherwise. Human beings can also be “noisy,” in the sense that their judgments show unwanted variability. As a result, public institutions, including those that consist of administrative prosecutors and adjudicators, can be biased, noisy, or both. Both bias and noise produce errors. Algorithms eliminate noise, and that is important; to the extent that they do so, they prevent unequal treatment and reduce errors. In addition, algorithms do not use mental short-cuts; they rely on statistical predictors, which means that they can counteract or even eliminate cognitive biases. At the same time, the use of algorithms, by administrative agencies, raises many legitimate questions and doubts. Among other things, they can encode or perpetuate discrimination, perhaps because their inputs are based on discrimination, perhaps because what they are asked to predict is infected by discrimination. But if the goal is to eliminate discrimination, properly constructed algorithms nonetheless have a great deal of promise for administrative agencies.
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The World Health Organization’s recent Report on Human Genome Editing departs from similar reports from other institutions in that it recognizes that ethical assessments of the technology are deeply complex, surprisingly fragile, and subject to practical and political considerations. The WHO report largely recommends that human genome editing, rather than being accepted in some circumstances and banned in others, should be handled with care. The report recommends some oversight mechanisms—such as intellectual property licensing—previously undiscussed or underexplored in sister reports, and it recognizes that others—like international law—may be impractical. This essay explores how the report has shifted global considerations of governing human genome editing to more pragmatic ends.
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How do legal texts determine legal content? A standard answer to this question—sometimes called “the standard picture”—is that legal texts communicate something and what they communicate is identical to legal content. Mark Greenberg criticizes the standard picture and offers in its place his own “moral impact theory.” My goal here is to respond to Greenberg by showing how the standard picture better explains legal practice than the moral impact theory does. To that end, I first clarify certain aspects of the moral impact theory. I then critique the theory, focusing on its inability to explain (i) why practitioners reason about legal content as they do and (ii) why they agree on legal content as often as they do. Finally, I refine the standard picture and demonstrate how it explains what the moral impact theory cannot.
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"What’s a tort? It’s a wrong that a court is prepared to recognize, usually in the form of ordering the transfer of money ("damages") from the wrongdoer to the wronged. The court is usually alerted to wrong by the filing of a lawsuit: anyone can walk through the courthouse doors and, subject to the limits explored in civil procedure, call someone else (or, if a company, some-thing) to account. We’ll discuss the sources that courts turn to in order to answer such questions. Rarely, in tort cases, are those sources the ones laypeople expect: statutes passed by legislatures. Without statutes to guide them, what are courts left with?"– Provided by publisher.
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Evolutionary explanations for behavioral findings are often both fascinating and plausible. But even so, they do not establish that people are acting rationally, that they are not making mistakes, or that their decisions are promoting their welfare. For example, present bias, optimistic overconfidence, and use of the availability heuristic can produce terrible mistakes and serious welfare losses, and this is so even if they have evolutionary foundations. There might well be evolutionary explanations for certain kinds of in-group favoritism, and also for certain male attitudes and actions toward women, and also for human mistreatment of and cruelty toward nonhuman animals. But those explanations would not justify anything at all. It is not clear that in Darwinia (a nation in which departures from perfect rationality have an evolutionary explanation), policymakers should behave very differently from Durkheimian policymakers (a nation in which departures from perfect rationality have a cultural explanation).
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The ninth edition of this classic casebook Administrative Law and Regulatory Policy: Problems, Text, and Cases is streamlined and updated while retaining the previous editions’ rigor, comprehensiveness, and contextual approach.
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Between 1880 and 1910, as barriers to Chinese emigration arose across the Pacific Rim, European colonial administrations and entrepreneurs in Africa increasingly sought to divert Chinese labor emigration toward Africa. These efforts met with only limited success. Yet the growing labor flows linking China and Africa also helped to spark new scholarly and diplomatic interest in Africa among Chinese officials and literati. This presentation explores how three types of Chinese-language sources on Africa, scholarly atlases, fictionalized personal accounts and the experiences of migrant laborers, influenced elite views of Africa and government policy toward labor migration to the continent. Although nineteenth-century Chinese-language sources on Africa drew primarily from European works, these works depicted Africa through analogies to tropical regions more familiar to Chinese audiences, notably Qing China's southern frontier and Southeast Asia. Atlases such as Xu Jiyu's Brief Account of the Maritime Circuit (Ying huan zhi lue) explicitly sought to reconcile historical Chinese knowledge of Africa with recent Euro-American geographic sources. In contrast, fictionalized travelogues such as Ding Lian's Record of Travels across Three Continents (San zhou you ji) translated European travel narratives as first-hand accounts of Chinese travelers. Still, both types of works "Sinicized" Euro-American sources on Africa by reformulating Euro-American colonial and racialist discourses into Chinese imperial and ethnographic tropes. Despite an increasing number of Chinese laborers with first-hand knowledge of Africa, laborer perspectives remained marginalized until the Chinese imperial government named a consul in Johannesburg, South Africa. As a result, new Chinese-language sources on Africa served less to provide an accurate description of the continent than to familiarize Chinese elites with Euro-American civilizational discourse. Armed with this new knowledge, Qing officials began to develop a narrative of Chinese migrant laborers as civilizing agents as a means to defend Qing China's own precarious place within contemporary Euro-American civilizational thought.
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Prior to the outbreak of Covid-19, corporate leaders pledged to look after all stakeholders, not just deliver value to shareholders. Did they live up to these promises? A new empirical study examines more than 100 major public company acquisitions that were announced during the pandemic and shows that corporate leaders failed to look after stakeholder interests.
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Mark Roe, Does stock market short-termism make capitalism irresponsible?, ECGI Blog (Feb. 22, 2022).
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The primary stock market characteristic driving climate issues is not a truncated time horizon. It’s the corporation’s capacity to externalize environmental and climate harms.
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n the past two decades, pioneering research has rekindled interest in the therapeutic use of psychedelic substances such as psilocybin, ibogaine, and dimethyltryptamine (DMT). Indigenous communities have used them for centuries, and researchers studied them in the 1950s and ‘60s. However, most psychedelics were banned in the ‘70s, when President Nixon launched the U.S. war on drugs. Fifty years later, rising rates of mental illness, substance use, and suicide are prompting researchers to revisit psychedelics, and some have gained permission to study them in limited quantities. Clinical trials are producing promising results, creating enthusiasm for commercializing and patenting psychedelics. This Essay analyzes the ethical, legal, and social implications of patenting these controversial substances. Patents on psychedelics raise unique concerns associated with their unusual qualities, history, and regulation. Because they were criminalized for decades, the U.S. Patent and Trademark Office (PTO) lacks personnel with expertise in the field, rendering more questionable the quality of its evaluation of psychedelic patents. Moreover, because Indigenous communities pioneered many aspects of modern psychedelic therapies, their patenting by Western corporations may promote biopiracy, the exploitation of Indigenous knowledge without compensation. Importantly, control of psychedelics by a small number of companies may stifle innovation and reduce access to these therapies. The Essay presents proposals to reduce the risk of biopiracy and the issuance of unwarranted psychedelic patents. Potential solutions include the implementation of psychedelic patent pledges, the creation of psychedelic prior art repositories, and the tightening of patentability requirements for novel drug therapies. The Essay concludes that ultimately, due to their importance to the advancement of science and public health, it may be appropriate to view psychedelics as tools of scientific discovery, eligible only for limited patent protection.
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Healthcare is increasingly provided in a patient’s home, with potential cost savings and clinical improvements. But the hospital-at-home also raises unique liability issues not only for physicians and hospitals but also for caregivers and patients.
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President Biden has promised to nominate a Black woman at the same moment when the Court is likely to ban most race-conscious selections.
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There was no denial that Alabama’s new map blatantly discriminated against Black voters.
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Can patients regain control over their health information?
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Book review of Just Pursuit by Laura Coates.
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Congressional and presidential records reveal a consistent pattern of political intercession with the regulatory authority of the Food and Drug Administration (FDA) over the approval and labeling of mifepristone (RU-486). This pattern is unlikely to abate any time soon. It is against this backdrop that we examine herein the ongoing legislative and legal disputes over mifepristone at a point in time which is just beyond the 20th anniversary of its approval by the FDA “for the medical termination of intrauterine pregnancy.”
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Constance Baker Motley had sterling qualifications. It didn’t matter to her critics.
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This essay takes stock of the debate over common good constitutionalism and the revival of the classical legal tradition. In doing so, we suggest that several of the most common critiques of that revival are based on serious misconceptions and question-begging claims, especially for the superiority of originalism.Our hope is to clear away these myths so that actual engagement may occur. We hope to inaugurate a new phase of discussion, one in which critics of the classical legal tradition begin with a baseline comprehension of what it is they are criticizing. In a sense, despite all the sturm und drang, the real debate over common good constitutionalism has yet to begin.Part I sketches the largely ersatz debate so far. Part II introduces the essentials of the classical theory of law and of common good constitutionalism, which is nothing more than the core precepts of the classic legal tradition translated, adapted and applied to current constitutional debates. We do not purport to provide a comprehensive statement of the classical theory, but merely offer an introductory mini-primer, with references to more comprehensive literature. As we will see, the myths we will discuss beg even the elementary questions. Part III explains how the myths are incorrect—or, more precisely, beg the questions in controversy. In the conclusion, we invite genuine engagement with the classical legal tradition.
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Legal challenges to police misconduct often do their best to deny claims that police officers are “experts” in the field. But what if they are, and that’s part of the problem?
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The Article II treaty process has been dying a slow death for decades, replaced by various forms of “executive agreements.” What is only beginning to be appreciated is the extent to which both treaties and executive agreements are increasingly being overshadowed by another form of international cooperation: nonbinding international agreements. Not only have nonbinding agreements become more prevalent, but many of the most consequential (and often controversial) U.S. international agreements in recent years have been concluded in whole or in significant part as nonbinding international agreements. Despite their prevalence and importance, nonbinding international agreements are not currently subject to any of the domestic statutory or regulatory requirements that apply to binding agreements. As a result, they are not centrally monitored or collected within the executive branch, and they are not systematically reported to Congress or disclosed to the public.This Article focuses on three of the most important types of nonbinding international agreements concluded by the United States: (1) high-level formal agreements; (2) joint statements and communiques; and (3) nonbinding agreements concluded by administrative agencies. After describing these categories and their history, the Article presents the first empirical study of U.S. nonbinding agreements, drawing on two new databases that together include more than 2100 nonbinding agreements. Based on this study, the Article argues that many of the concerns that prompted Congress to regulate binding executive agreements starting in the 1970s also apply to nonbinding agreements. Finally, drawing in part on insights obtained from a comparative assessment of the practices and reform discussions taking place in other countries, the Article suggests legal changes designed to enhance coordination and accountability.
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Nothing short of convicting Trump will disqualify him from running in 2024 — and claiming the mantle of the martyred hero while doing it.
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Why it's important the 1960 Hawaii precedent be maintained.
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The book shows that blaming short-termism overlooks the real causes of declining investment, R&D cutbacks, environmental deterioration, and workplace conflict.
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Tomiko Brown-Nagin, Civil Rights Queen: Constance Baker Motley and the Struggle for Equality (2022).
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The first major biography of one of our most influential but least known activist lawyers that provides an eye-opening account of the twin struggles for gender equality and civil rights in the 20th Century. Born to an aspirational blue-collar family during the Great Depression, Constance Baker Motley was expected to find herself a good career as a hair dresser. Instead, she became the first black woman to argue a case in front of the Supreme Court, the first of ten she would eventually argue. The only black woman member in the legal team at the NAACP’s Inc. Fund at the time, she defended Martin Luther King in Birmingham, helped to argue in Brown vs. The Board of Education, and played a critical role in vanquishing Jim Crow laws throughout the South. She was the first black woman elected to the state Senate in New York, the first woman elected Manhattan Borough President, and the first black woman appointed to the federal judiciary. Civil Rights Queen captures the story of a remarkable American life, a figure who remade law and inspired the imaginations of African Americans across the country. Burnished with an extraordinary wealth of research, award-winning, esteemed Civil Rights and legal historian and dean of the Harvard Radcliffe Institute, Tomiko Brown-Nagin brings Motley to life in these pages. Brown-Nagin compels us to ponder some of our most timeless and urgent questions–how do the historically marginalized access the corridors of power? What is the price of the ticket? How does access to power shape individuals committed to social justice? In Civil Rights Queen, she dramatically fills out the picture of some of the most profound judicial and societal change made in twentieth-century America.
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For a third year in a row, we followed up with authors of several recent Comments and Perspectives in Nature Machine Intelligence about what happened after their article was published: how did the topic they wrote about develop, did they gain new insights, and what are their hopes and expectations for AI in 2022?
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Members of the group face seditious-conspiracy charges for their roles in the January 6th insurrection. Can a sincere belief that the election was stolen protect them?