Faculty Bibliography

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.

So far, the evidence of what Trump didn’t do on January 6th holds the strongest potential for making a successful criminal case against him.

This Article presents a systematic consideration of how administrative law doctrines apply to banking supervision, an unusual form of administrative practice that rests on an iterative relationship between banks and supervisors. First, it describes the rationales for, and process of, bank supervision. Second, this Article uses recent administrative law arguments lodged by banking interests against key supervisory practices as the springboard for an analysis of why our largely “trans-substantive” administrative law can be problematic in the context of specific mandates given by Congress to administrative agencies. It argues that courts considering how administrative law doctrine applies to agency practices must contemplate more fully the substantive law the underpins the mission and organization of the agency. When these statutory provisions are taken appropriately into account, arguments that supervisory practices are consistent with administrative law requirements are substantially strengthened. Third, this Article demonstrates how even a more tailored application of contemporary administrative law doctrines would miss a critical feature of banking supervision—that it is premised on an ongoing relationship between banks and supervisors. Judicial review of agency action usually focuses on discrete agency actions, thereby eliding this critical fact. As a result, administrative law doctrines such as the “practically binding” test for agency guidance are peculiarly inapposite. Lastly, this Article offers a tentative proposal for shifting the administrative law review of supervisory actions to focus on how banking agency processes manage the iterative nature of the supervisory relationship.

Voice-based AI-powered digital assistants, such as Alexa, Siri, and Google Assistant, present an exciting opportunity to translate healthcare from the hospital to the home. But building a digital, medical panopticon can raise many legal and ethical challenges if not designed and implemented thoughtfully. This paper highlights the benefits and explores some of the challenges of using digital assistants to detect early signs of cognitive impairment, focusing on issues such as consent, bycatching, privacy, and regulatory oversight. By using a fictional but plausible near-future hypothetical, we demonstrate why an “ethics-by-design” approach is necessary for consumer-monitoring tools that may be used to identify health concerns for their users.

Mallory v. Norfolk Southern Railway Co. presents the question whether the Fourteenth Amendment’s Due Process Clause prohibits Pennsylvania from requiring corporations to consent to general jurisdiction in order to do business there. The answer to that question is no. Neither the Court’s precedent nor the original Fourteenth Amendment forbids Pennsylvania from requiring such consent, nor from exercising jurisdiction once consent is secured. What may invalidate Pennsylvania’s requirement, however, is the Court’s modern doctrine on the “dormant” component of the Commerce Clause, which is currently thought to restrict state laws imposing serious burdens on out-of-state economic actors. The difference between due process and dormant commerce matters: substantive requirements of the Fourteenth Amendment may not be relieved by Congress or by treaty, while dormant commerce restrictions might be. The Court should not limit state jurisdiction under a mistaken due process theory that in passing also limits the authority of Congress (and of the President and Senate). Instead, the regulation of interstate corporate activity should be left up to the Interstate Commerce Clause, to be addressed by the state courts on remand.

Platón tuvo una desafortunada experiencia personal de la cosa pública. Quizás por ello escribió las Leyes, diálogo en donde uno de los personajes, el ateniense, lleva continuamente el debate a la idea de que el objetivo de la ley es guiar a los ciudadanos hacia la virtud, hacerlos nobles y sabios. El gran filósofo griego insiste en que el buen gobierno no puede darse por sentado y en que la razón es la clave del avance: No puede ser una casualidad que el nombre de esta institución tan maravillosa, la ley (nomos), se relacione de forma tan sugerente con la razón (nous).

This Paper uncovers a striking feature of statutory interpretation that joins the rise of “new new new” textualism on today’s Supreme Court and elsewhere. It reveals the increasing sway of the now infamous canons of construction across two very different legal systems: American law and Islamic law. These two systems of law share many of the same legal canons despite the radically different institutional structures, origins, and commitments of each system historically and today. They are perhaps maximally different. Probing each system individually then juxtaposing the two reveals shared, ‘meta’ features of legal canons between them. To be sure, such comparison may seem improbable, difficult, or meaningless at first blush. But after overcoming hurdles of the improbable, it becomes clear that the existence, continued use, and recent resurgence of legal canons in both systems suggest that the common features of their shared canons—metacanons—play out in almost every interpretation. This Article explores the nexus between the two. The idea of metacanons, beyond showing the value of comparison, helps delineate how and why the current U.S. Supreme Court must choose between using legal canons to bolster rule-of-law coherence or to mediate democratic values. My basic argument is twofold. First, I argue that courts demonstrably have abandoned the notion of court-congress dialogue in applications of legal canons today in ways that resonate closely with the differing structures of Islamic law Muslim jurists in older systems of Islamic law had initially adopted a similar notion but recognized as fictive long ago. Second, I argue that the facts of similar legal canons in disparate legal systems, both lacking in institutional dialogue, meaningfully informs the raging debates about both the means and the ends of statutory interpretation. These facts call for resolution and new approaches to the judicial use of legal canons, with an eye on metacanonical inquiries. In the end, I argue that our era of declining (or fictitious) institutional dialogue between Courts and Congress mean that legal canons in today’s Supreme Court are once again interpretive tools solely for judicial interpreters, who now face a choice. Judges who have dispensed with the myth of dialogue should seek more coherent use of canons to bolster rule-of-law values. Identifying the universal features of metacanons can aid that path. Or, judges should re-open the channels of dialogue and deploy the canons to mediate the ongoing cases and controversies about changing values in light of constitutional norms and congressional preferences. This is a path that Islamic law judges did not (and could not) pursue. But thrown into relief by metacanons, this path offers a unique prospect for advancing American democracy.

This chapter is an essay, literally an attempt, to present and solve a puzzle about Wesley Newcomb Hohfeld. In addition to being a doctrinal legal scholar, he was – and is justly renowned for his work as – a legal theorist, legal philosopher, and logician operating without, but anticipating, the formal grammar of logic (deontic logic, specifically1). Given the huge influence of his work, he had surprisingly few publications, resulting in a high yield of impact per page – and, indeed, per year of his short life.2 Wesley Hohfeld was also a law professor who had difficulty getting his students to see the value of his method as a tool for learning and mastering legal argument.

Bounded rationality recognizes that human behavior departs from the perfect rationality assumed by neoclassical economics. In this book, Sanjit Dhami and Cass Sunstein explore the foundations of bounded rationality and consider the implications of this approach for public policy and law, in particular for questions about choice, welfare, and freedom. The authors, both recognized as experts in the field, cover a wide range of empirical findings and assess theoretical work that attempts to explain those findings. Their presentation is comprehensive, coherent, and lucid, with even the most technical material explained accessibly. They not only offer observations and commentary on the existing literature but also explore new insights, ideas, and connections. After examining the traditional neoclassical framework, which they refer to as the Bayesian rationality approach (BRA), and its empirical issues, Dhami and Sunstein offer a detailed account of bounded rationality and how it can be incorporated into the social and behavioral sciences. They also discuss a set of models of heuristics-based choice and the philosophical foundations of behavioral economics. Finally, they examine libertarian paternalism and its strategies of “nudges.”

We were lucky last time. A multitude of law-abiding individuals and fortunate events stopped the “quiet” phase of the coup to keep Donald Trump in power. That could well change in 2024.

On June 24, 2002, the US Supreme Court ended the constitutional right to abortion in Dobbs v Jackson Women’s Health Organization. The Court’s majority decision authored by Justice Samuel Alito was substantially the same as a draft opinion leaked a month earlier. The regulation of abortion will now be decided by the states. In this Viewpoint, we explain the Dobbs ruling and what it means for physicians, public health, and society.

Originalism, textualism and judicial restraint all got short shrift in this term’s major environmental-regulations decision.

But what if their big and fast moves, eviscerating some constitutional rights and inflating others, are bound for collision?