Faculty Bibliography

We measure the economic costs of the US pretrial system using several complementary approaches and data sources. The pretrial system operates as one of the earliest points of entry in the criminal justice system. It typically represents an individual’s first opportunity to be incarcerated, potentially leading to subsequent long-term damage in the form of family separation, work interruption, loss of housing, and so on. We find that individuals lose almost $30,000 in forgone earnings and social benefits when detained in jail while awaiting the resolution of their criminal cases. These adverse consequences are also present in aggregate measures of economic well-being, with increases in county pretrial detention rates associated with increases in poverty rates and decreases in employment rates. Counties with high levels of pretrial detention also exhibit significantly lower levels of intergenerational mobility among children, consistent with pretrial detention having an adverse impact on young children who may be the dependents of individuals affected by the pretrial system.

WITH A NEW AFTERWORD ABOUT THE 2020 ELECTION This urgent book offers not only a clear-eyed explanation of the forces that broke our politics, but a thoughtful and, yes, patriotic vision of how we create a government that’s truly by and for the people.”—DAVID DALEY, bestselling author of Ratf**ked and UnriggedIn the vein of On Tyranny and How Democracies Die, the bestselling author of Republic, Lost argues with insight and urgency that our democracy no longer represents us and shows that reform is both necessary and possible. America’s democracy is in crisis. Along many dimensions, a single flaw—unrepresentativeness—has detached our government from the people. And as a people, our fractured partisanship and ignorance on critical issues drive our leaders to stake out ever more extreme positions. In They Don’t Represent Us, Harvard law professor Lawrence Lessig charts the way in which the fundamental institutions of our democracy, including our media, respond to narrow interests rather than to the needs and wishes of the nation’s citizenry. But the blame does not only lie with “them”—Washington’s politicians and power brokers, Lessig argues. The problem is also “us.” “We the people” are increasingly uninformed about the issues, while ubiquitous political polling exacerbates the problem, reflecting and normalizing our ignorance and feeding it back into the system as representative of our will. What we need, Lessig contends, is a series of reforms, from governmental institutions to the public itself, including: A move immediately to public campaign funding, leading to more representative candidates; A reformed Electoral College, that gives the President a reason to represent America as a whole; A federal standard to end partisan gerrymandering in the states; A radically reformed Senate; A federal penalty on states that don’t secure to their people an equal freedom to vote; Institutions that empower the people to speak in an informed and deliberative way; A soul-searching and incisive examination of our failing political culture, this nonpartisan call to arms speaks to every citizen, offering a far-reaching platform for reform that could save our democracy and make it work for all of us.

Daniel I. Halperin proposes an innovative way to achieve realization, without any added tax burden at gift, death, or sale: collecting an equivalent tax in present value during the period the asset is held.

We propose a congruence principle for financial regulation. Application of this principle would enable regulators to use economically similar instruments across multiple domains to manage systemic risk. We present case studies of market malfunctions that occurred when congruence was ignored: nonprime mortgage finance (in 2008 and 2020) and United States Treasury securities (in 2020). In these cases, risk built up in non-bank financial institutions due in part to regulatory arbitrage. Under a congruence principle, regulators could mitigate this risk using a coordinated combination of capital requirements, minimum haircuts on repo transactions, and margining rules on futures exchanges and central clearing parties.

Without the reforms of H.R. 1, our precariously majoritarian system will become predictably minoritarian.

This sharp and engaging collection of essays by leading governmental scholar Cass R. Sunstein examines shifting understandings of what’s normal, and how those shifts account for the feminist movement, the civil rights movement, the rise of Adolf Hitler, the founding itself, the rise of gun rights, the response to COVID-19, and changing understandings of liberty. Prevailing norms include the principle of equal dignity, the idea of not treating the press as an enemy of the people, and the social unacceptability of open expressions of racial discrimination. But norms are very different from laws. They arise and change in response to individual and collective action. Exploring Nazism, #MeToo, the work of Alexander Hamilton and James Madison, constitutional amendments, pandemics, and the influence of Ayn Rand, Sunstein reveals how norms ultimately determine the shape of government in the United States, Europe, and elsewhere.

If he does, he must work with Congress and go well beyond narrowing old permission slips for conflict.

‪MC Stephenson‬, ‪Yale J. on Reg., 2021‬

In this essay, I show how developments and achievements in the field of environmental rights and specifically rights of nature can be instructive, intellectually and practically, to the cause of animal protection and animal rights. That instruction includes not only positive examples but also notes of caution, where animal law may face different and more formidable challenges.

One of Friedrich Hayek's most important arguments pointed to the epistemic advantages of the price system, regarded as an institution. As Hayek showed, the price system incorporates the information held by numerous, dispersed people. Like John Stuart Mill, Hayek also offered an epistemic argument on behalf of freedom of choice. A contemporary challenge to that epistemic argument comes from behavioral economics, which has uncovered an assortment of reasons why choosers err, and also pointed to possible distortions in the price system. But, even if those findings are accepted, what should public institutions do? How should they proceed? A neo-Hayekian approach would seek to reduce the knowledge problem by asking what individual choosers actually do under epistemically favorable conditions. In practice, that question can be disciplined by asking five subsidiary questions: (1) What do consistent choosers, unaffected by self-evidently irrelevant factors, end up choosing? (2) What do informed choosers choose? (3) What do active choosers choose? (4) When people are free of behavioral biases, including (say) present bias or unrealistic optimism, what do they choose? (5) What do people choose when their viewscreen is broad, and they do not suffer from limited attention? These questions are illustrated with reference to the intense controversy over fuel economy standards.

The fundamental reason for the productivity slowdown in the richest part of the world is that science and technology-intensive production devoted to permanent innovation - which we call the knowledge or innovation economy - remains confined in every sector; from product design and advanced manufacturing to precision agriculture, to fringes that exclude the overwhelming maj ority of workers and businesses. The timehonoured shortcut to economic growth - conventional industry: the mass production of standardised goods and services, on the basis of rigid machines, semi-skilled labour, and extreme job specialisation, as in an oldfashioned automobile plant or steel mill - has stopped working, as one country after another has deindustrialised. Some European countries, especially Germany and Switzerland, retain a large and vital manufacturing base, which they are now struggling to convert into its more advanced knowledge-intensive equivalent. The vast majority of activity in the UK’s service economy, meanwhile, remains confined to personal care, bricks-and-mortar retail, or iqth-century-style professions and trades, such as the plumbing, electrical, and building trades, disconnected from the front line of production.

Having left the EU, the United Kingdom must embark on a national programme of self-renewal.

Changes to the funding of congressional races could shake up the two-party monopoly.

The Limits of International Law received a great deal of criticism when it was published in 2005 but it has aged well. The skeptical, social-scientific methodology that it recommended has become a normal mode of international law scholarship. And the dominant idealistic view of international law that the book criticized is today in shambles, unable to explain the turmoil in international politics. This essay reflects on the book’s reception and corrects common misperceptions of its arguments.

The Enlightenment was a time of monetary turmoil and transformation in Europe. Change began with a riot of experimentation, including novel ideas about human agency and capacity to promote economic progress, efforts to reframe divinity in terms (like the providential) compatible with market exchange, new instruments of credit, and innovative institutions such as national banks and capital markets. Europeans, including the settler societies in North America, improvised frantically: people faced the task of everyday exchange in changing media; governments took up the project of creating currencies that supported their political power; artists and writers raced to represent new forms of wealth and interpret the issues they raised; and intellectuals struggled to conceptualize, and tame, patterns of monetary transformation. The result was a rich debate, still unsettled, about the sources of value, the morality of the market, and the very nature of money. Drawing upon a wealth of visual and textual sources, A Cultural History of Money in the Age of Enlightenment presents essays that examine key cultural case studies of the period on the themes of technologies, ideas, ritual and religion, the everyday, art and representation, interpretation, and the issues of the age.

Increasing the uptake of green energy use by households and businesses is a key step toward reducing environmental harm and combating climate change. In a new paper, Liebe et al.show that a non-monetary intervention can have massive effects on green energy consumption, leading to substantial reductions in carbon emissions.

The Enlightenment was a time of monetary turmoil and transformation in Europe. Change began with a riot of experimentation, including novel ideas about human ag…

A reckoning for single-family zoning is underway. From Minnesota to California, cities and states are looking for ways to compel the densification of neighborhoods long devoted to large lots and detached homes. The bitter debates occasioned by these efforts expose a common source of homeowner opposition: worries about multifamily housing and, specifically, the apartment building. In that regard, little about land use law seems to have changed. The apartment was cited as an evil in the case that upheld zoning as a legitimate use of the state’s regulatory power nearly a century ago. Beginning the story there, however, misses an important chapter. For decades prior, judges routinely declined to consider apartments undesirable neighboring uses that existing owners could prevent through private law. The legal history of the apartment demonstrates the important interplay between private forms of land use law — nuisance and deed restrictions or covenants — and the ways that these private land use controls influence the evolution of public regulation. This Article uses a forgotten period in urban development to illustrate the critical interactions among forms of private and public law in identifying the proper subjects of land use control. In the early nineteenth century, a tool blending contract and tort proliferated: the nuisance covenant, a promise transmitted through deeds not to engage in specific noxious uses — an expanding list ranging from slaughterhouses to circuses to tenements — or any use deemed noxious in the future. This innovation offered benefits over covenant and nuisance law independently, as drafters were able to tailor the definition of nuisance while preserving flexibility to prevent unanticipated activities. And yet, the arrival of the apartment exposed the strong pull of traditional nuisance law: judges were hesitant to interpret restrictions to ban this new form of housing associated with the middle and upper classes. Lawyers and developers worked to identify apartments as problematic through newly drafted covenants and the concept of near-nuisance, paralleling arguments that would reemerge decades later as the proponents of zoning contended that it was within the state’s police power to limit apartment construction. Nuisance and covenant law influenced how judges and other parties came to see uses as harmful and anticipated debates about the appropriate scope of regulation. This dialogue between private and public law is echoing in the twenty-first century, and private law continues to form an important, lurking limitation on land use reform.

The Facebook Oversight Board should be mindful that Facebook is not a government—and that the platform’s decisions denying active accounts or taking down posts pose no threat of loss of liberty to any person.

The gender gap in corporate America is increasingly well documented, but the literature has not yet examined how a CEO’s political preferences might be associated with gender equality in the executive suite. Focusing on the US, this column compares the fraction of a CEO’s political contributions that went to Republican, rather than Democratic, candidates and the gender balance among top executives (excluding the CEO). Companies run by a CEO who only donates to Democrats employ a 15–25% higher fraction of women in the executive suite than those run by CEOs who only donate to Republicans.

In 1969-70 or thereabouts several Yale Law School students set up a “commune” in the courtyard between what were then residential halls. At roughly the same time David Trubek and Rick Abel were holding a reading group on law and development with a heavy dose of social theory, a harbinger of what became critical legal studies. The two events can be taken as representative of alternative paths to social transformation – roughly, the cultural path and the path to change through self-consciously directed political action. In this short paper, originally prepared for a conference on the intellectual history of critical legal studies at Princeton University in February 2020, I read two works as dialogues about those paths, Tom Stoppard’s play “Rock ‘n’ Roll,” which looks at Czechoslovakia from 1968 through 1989 – from the Prague Spring through the Soviet occupation to the collapse of the Soviet empire – and “Roll Over Beethoven,” a discussion between “Peter Gabel” and “Duncan Kennedy” about some controversies in the early years of critical legal studies.

Developments in capital markets have fueled a concentration of horizontal ownership across competing firms, and this has been linked to anticompetitive effects and economic underperformance. The debate about such ownership concentration has proven contentious and controversial. This symposium titled “Common Ownership: Illuminating a Great 21st Century Antitrust Debate” brings together key new works on the topic that confirm, extend, and illuminate the prior empirical findings and policy implications. Among other things, these contributions survey the recent empirical literature, provide new important empirical results about the extent and effect of horizontal ownership, offer a methodological critique, highlight concepts that address core capital market and labor market linkages, and articulate ideas for policy development to tackle emerging contingencies.

The protracted political dispute between South Korea and Japan over the wartime brothels called "comfort stations" obscures the contractual dynamics involved. These dynamics reflected the straightforward logic of the "credible commitments" so basic to elementary game theory. The brothel owners and potential prostitutes faced a problem: the brothel needed credibly to commit to a contractual structure (i) generous enough to offset the dangers and reputational damage to the prostitute that the job entailed, while (ii) giving the prostitute an incentive to exert effort while working at a harsh job in an unobservable environment. Realizing that the brothel owners had an incentive to exaggerate their future earnings, the women demanded a large portion of their pay upfront. Realizing that they were headed to the war zone, they demanded a relatively short maximum term. And realizing that the women had an incentive to shirk, the brothel owners demanded a contractual structure that gave women incentives to work hard. To satisfy these superficially contradictory demands, the women and brothels concluded indenture contracts that coupled (i) a large advance with one- or two-year maximum terms, with (ii) an ability for the women to leave early if they generated sufficient revenue.

DOI:10.1590/2179-8966/2020/59769. Ensino Jurídico e Reprodução da HierarquiaDuncan Kennedy Versão original: KENNEDY, Duncan. Legal Education and the Reproduction of Hierarchy. Journal of Legal Education, v. 32, n. 4, 591-615, dez. 1982.  TraduçãoSophia Vigário, bacharel em Direito e mestranda em Direito pela Universidade Federal do Pará. ORCID: https://orcid.org/0000-0001-8038-366X. E-mail: sophiavigario@gmail.com Vitória Sinimbu, bacharel em Direito pelo Centro Universitário do Pará e mestranda em Filosofia pela Universidade Federal de Santa Catarina. ORCID: https://orcid.org/0000-0001-7822-8433. E-mail: vitoriasinimbu@gmail.com

With the merger of law and equity almost complete, the idea of equity as a special part of our legal system or a mode of decision making has fallen out of view. This Article argues that much of equity is best understood as performing a vital function. Equity and related parts of the law solve complex and uncertain problems—including interdependent behavior and misuses of legal rules by opportunists—and do so in a characteristic fashion: as meta-law. From unconscionability to injunctions, equity makes reference to, supplements, and sometimes overrides the result that law would otherwise produce, while primary law operates without reference to equity. Equity operates on a domain of fraud, accident, and mistake, and employs triggers such as bad faith and disproportionate hardship to toggle into a “meta”-mode of more open-ended scrutiny. This Article provides a theoretical account of how a hybrid law, consisting of relatively simple and general primary-level law and relatively intense and directed second order equity can regulate behavior better through these specialized modes than would homogeneous law alone. The Article tests this theory on the ostensibly most unpromising aspects of equity, the traditional equitable maxims, as well as equitable fraud, defenses, and remedies. Equity as meta-law sheds light on how the fusion of law and equity spawned multifactor balancing tests, polarized interpretation, and led to the confusion of equity with standards, discretion, purely public law, and “mere” remedies. Viewing equity as meta-law also improves on the tradeoff between formalism and contextualism and ultimately promotes the rule of law.

Many people believe that the Chevron framework, calling for judicial deference to reasonable agency interpretations of ambiguous statutory provisions, is fatally inconsistent with section 706 of the Administrative Procedure Act. An investigation of the historical context shows that this belief is incorrect. There is no indication that the provision was generally understood, in the 1940s and 1950s, to require independent judicial judgments about questions of law.

Lying has been with us from time immemorial. Yet today is different-and in many respects worse. All over the world, people are circulating damaging lies, and these falsehoods are amplified as never before through powerful social media platforms that reach billions. Liars are saying that COVID-19 is a hoax. They are claiming that vaccines cause autism. They are lying about public officials and about people who aspire to high office. They are lying about their friends and neighbors. They are trying to sell products on the basis of untruths. Unfriendly governments, including Russia, are circulating lies in order to destabilize other nations, including the United Kingdom and the United States. In the face of those problems, the renowned legal scholar Cass Sunstein probes the fundamental question of how we can deter lies while also protecting freedom of speech. To be sure, we cannot eliminate lying, nor should we try to do so. Sunstein shows why free societies must generally allow falsehoods and lies, which cannot and should not be excised from democratic debate. A main reason is that we cannot trust governments to make unbiased judgments about what counts as "fake news." However, governments should have the power to regulate specific kinds of falsehoods: those that genuinely endanger health, safety, and the capacity of the public to govern itself. Sunstein also suggests that private institutions, such as Facebook and Twitter, have a great deal of room to stop the spread of falsehoods, and they should be exercising their authority far more than they are now doing. As Sunstein contends, we are allowing far too many lies, including those that both threaten public health and undermine the foundations of democracy itself.

In this report, the Committee on Capital Markets Regulation (the “Committee”) describes the turmoil in the U.S. Treasury market during March 2020, with a focus on the unexpected rise in Treasury yields, the illiquidity in the Treasury market and the subsequent intervention by the Federal Reserve to stabilize the market. We then describe the market structure for trading U.S. Treasuries as well as trade reporting requirements and public information regarding the owners of Treasuries. We find that policymakers and the public lack the transaction data to comprehensively determine the source of selling in March 2020 that drove the volatility in the U.S. Treasury market. Policymakers have sought to identify the source of the selling pressure in the Treasury market in March 2020 because holders of U.S. Treasuries, including large financial institutions and foreign investors, rely on the assumption that Treasuries are cash-like instruments.1 For U.S. Treasuries to continue to function as a global safe haven asset, Treasuries must retain their value and trade efficiently during market crises. Identifying the source of the selling pressure in March 2020 would enable policymakers to determine whether changes to regulation or market structure are necessary to allow the Treasury market to better accommodate such selling in the future. In-deed, understanding the potential sources of fragility in the Treasury market remains important, as periodic bouts of volatility persist—most recently in February 2021.2 In Part I of our report, we summarize the volatility in the U.S. Treasury market in March 2020 and the Federal Reserve’s role in stabilizing the market. In Part II, we provide a comprehensive overview of the market structure for trading U.S. Treasuries (so-called “cash Treasury” markets), including the respective role of broker-dealers, proprietary trading firms, institutional inves-tors and trading venues. Part II then describes the trade information for U.S. Treasuries available to regulators from the Financial Industry Regulatory Authority’s Trade Reporting and Compliance Engine (“FINRA’s TRACE database”). Finally, in Part III we evaluate public disclosures of ownership information and trade data for U.S. Treasuries, including data provided by the Federal Reserve and U.S. Treasury Department regarding institutional investors, foreign investors and foreign official investors (such as central banks and sovereign wealth funds). We also review public disclosures regarding the U.S. Treasury holdings of hedge funds and mutual funds. We conclude that policymakers and the public lack the trade and ownership information necessary to comprehensively determine the source of selling in the Treasury market in March 2020. We therefore recommend that policymakers exercise caution before reaching conclusions or enacting regulations related to the March 2020 spike in Treasury yields. An appropriate first step for policymakers would be to consider whether expanded reporting obligations for participants in the U.S. Treasury market are warranted. In addition, policymakers should continue to study activity in the U.S. Treasury market to determine whether other reforms could enhance its efficiency, resiliency and transparency.

We experimentally study the decision-making process of judges in China, where judges are specifically prohibited to cite prior decisions as the basis for their judgments, and where, in past surveys, most judges explicitly stated that precedent played at most a marginal role in their decisions. In an experiment resembling real-world judicial decision making, we find, however, that precedent seems to have a significant influence on the decisions of the participating Chinese judges. Indeed, judges spend more time reading prior cases than statutes, and they typically read precedents before they access the statutes. On the other hand, judges rarely mention the precedent in their reasons. Our findings suggest that the Chinese judiciary operates much more similarly to its homologues in the U.S. and elsewhere than their written opinions and much folklore would suggest.

Power and productivity mediate economic outcomes across markets–both product markets and labor markets. We develop a neoclassical economic framework that combines productivity and power, and presents the balance between them as an equilibrium outcome determined by strategic investments–by firms, consumers and workers–in law, technology, (mis)perceptions and ideology. An actor’s choice of investment–most important, the choice between a productivity-increasing investment and a power-increasing investment–can be explained by the relative marginal return from the different investments. Whereas the incentives of firms and consumers and those of firms and workers are roughly aligned with respect to productivity-increasing investments, they are diametrically opposed with respect to power-increasing investments. Since investments affect surplus and thus the resources available for future investment, the model features multiple equilibria and path dependence. Policy intervention may be needed to shift the market from a bad equilibrium, with low productivity and adverse distributive consequences, to a more efficient and more equitable equilibrium. Policy intervention may also be needed to control welfare-reducing, power-seeking investments. While some degree of market power may be needed to support long-term efficiency, innovation and economic growth, firms will often seek excessive market power that will reduce overall welfare. Policymakers should strive to optimize power structures across different markets, e.g., by influencing the relative return from different power-increasing and productivity-increasing investments. The explanatory power of our theoretical framework is demonstrated through a series of detailed case studies–from the home broadband and net neutrality wars and the antitrust battles of Microsoft and now Google to the struggles between firms and unions during 19th century industrialization and the evolving story of Uber and the gig economy. Our framework informs ongoing debates in antitrust law, labor and employment law, intellectual property law, and consumer protection law, and in any other area of law that regulates, directly or indirectly, product or labor markets.