Faculty Bibliography

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.”

Constance Baker Motley had sterling qualifications. It didn’t matter to her critics.

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.

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?

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.

Nothing short of convicting Trump will disqualify him from running in 2024 — and claiming the mantle of the martyred hero while doing it.

Why it's important the 1960 Hawaii precedent be maintained.

The book shows that blaming short-termism overlooks the real causes of declining investment, R&D cutbacks, environmental deterioration, and workplace conflict.

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?

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?

The Times of London was wrong to report that I lobbied for a pardon for Ghislaine Maxwell.

Following are lightly edited remarks delivered at a panel on “Unwritten Law,” held at the annual meeting of the Association of American Law Schools on January 6, 2022. These informal remarks are of course not intended to be rigorous or comprehensive, merely suggestive. Many thanks to organizer Robert Leider and fellow panelists Jeremy Waldron, Steve Sachs and Ashraf Ahmed for their thoughts and contributions.

It would be a profound mistake for Congress to rush consideration of ECA reform.

With respect to climate change, the principal focus of both research and public policy has been on mitigation – on reducing greenhouse gas emissions so as to reduce anticipated adverse effects. But it is increasingly clear that adaptation must also be a high priority. Climate-related risks – including flooding, extreme heat, wildfires, droughts, and hurricanes – are quite serious and are likely to grow over time. Creative and not-so-creative measures to nudge, incentivize, and mandate adaptation may well have benefits far in excess of costs – and may, in fact, deliver higher net benefits than some efforts at mitigation. Because significant climate change is now occurring, and will almost certainly create increasing risks over time, adaptation is essential. It must be carefully assessed with attention to (a) its aggregate effects on social welfare and (b) its distributional impacts. Cost-benefit analysis can much help with (a), but it can run into serious concerns, not only because of (b), but also because of epistemic gaps and because of its failure, in some cases, adequately to capture welfare effects.

With gratitude for our commentators’ thoughtful and generous engagement with Recognizing Wrongs, we offer in this reply a thumbnail summary of their comments and responses to some of their most important questions and criticisms. In the spirit of friendly amendment, Tom Dougherty and Johann Frick suggest that a more satisfactory version of our theory would cast tort actions as a means of enforcing wrongdoers’ moral duties of repair. We provide both legal and moral reasons for declining their invitation. Rebecca Stone draws a particular link between civil recourse in private law theory and the right of self-defense as recognized in criminal law and moral theory. While we share Stone’s basic inclination, we argue for a different version of the link than the one that she draws. Veronica Rodriguez-Blanco provides a critique of our model of negligence law based on action theory. In response, we explain – in a way that we hope sheds light on debates over moral luck – how it is possible for the law to define negligence such that its commission depends simultaneously on the character of the defendant’s conduct and on the consequences that result from it. Though generally sympathetic to our approach, Stephen Smith faults us for failing satisfactorily to explain important remedial dimensions of tort law. Stubbornly, we insist that we can account for these, and indeed can do so on more satisfactory terms than corrective justice theorists. Finally, Erin Kelly challenges us to consider how our work might inform the analysis of two pressing issues of racial justice: overcriminalization and reparation payments. While we question whether our work to date has as much to offer on these matters as she suggests, we also maintain that the core principle of civil recourse theory – where there is a right there is a remedy – provides grounds for critiquing modern law’s failure to provide adequate accountability when police officers use excessive force against persons of color.

This essay offers my explication of what I understand to be the principle propositions that constitute American legal realism. “Explication,” because I do not intend to defend the propositions, and “my” because the essay is not an exegesis of the work of major legal realists but is instead my personal version of what I take to be those propositions. The core assertion is that a person seeking to understand what the law is in some jurisdiction must engage in an empirical inquiry into social facts. These facts include matters such as the organization of the legal profession, culturally prevalent ideologies about law, and more. American Legal Realism, that is, in my view is fundamentally a sociological account of law.

According to a theory that is gaining support among academics and practitioners, we should expect index fund managers to undertake the role of “climate stewards” and push companies into reducing their carbon footprint. In a new paper, Roberto Tallarita shows the limits of this theory and suggests that policymakers should not rely on index fund stewardship as a substitute for traditional climate regulation.

Republicans are busy undermining the next election. But giving up on democracy isn’t an option. We must fight back, and here’s how.

Total shareholder return (TSR) has become the definitive metric for gauging performance. Unlike accounting measures such as revenue growth or earnings per share that reflect the past, TSR is based on share price and thus captures investor expectations of what will happen in the future, which is its chief attraction. The problem is that TSR conflates performance associated with strategy and operations with that arising from cash distributions (dividends and buybacks). In this article, the authors discuss the distortions embedded in TSR and propose a new metric, core operating shareholder returns, that emphasizes operational performance. It also provides a comprehensive assessment of the buyback revolution—and the verdict is quite damning.

The Guide takes you step-by-step through the Innocent Spouse claim process, from information gathering, to administrative proceedings, to determination, to trial, and to refund relief.

The lenders that fund Chapter 11 reorganizations exert significant influence over the bankruptcy process through the contract associated with the debtor-in-possession (DIP) loan. In this Article, we study a large sample of DIP loan contracts and document a trend: over the past three decades, DIP lenders have steadily increased their contractual control of Chapter 11. In fact, today’s DIP loan agreements routinely go so far as to dictate the very outcome of the restructuring process. When managers sell control over the bankruptcy case to a subset of the creditors in exchange for compensation, we call this transaction a “bankruptcy process sale.” We model two situations where process sales raise bankruptcy policy concerns: (1) when a senior creditor leverages the debtor’s need for financing to lock in a preferred outcome at the outset of the case (“plan protection”); and (2) when a senior creditor steers the case to protect its claim against litigation (“entitlement protection”). We show that both scenarios can lead to bankruptcy outcomes that fail to maximize the value of the firm for creditors as a whole. We study a new dataset that uses the text of 1.5 million court documents to identify creditor conflict over process sales, and our analysis offers evidence consistent with the predictions of the model.

This article proposes the framework of Polarity Thinking to build the legal profession’s capacity for seeing and utilizing the power of interdependent opposites, particularly Stability and Change. The polarities model was developed by Barry Johnson, PhD. Part One explores the inherent tension between Stability and Change, identifying the failure to foster Change as a root cause of suffering in the legal profession. Part Two explains the Polarity Thinking framework, the relationship between the benefits and overuses of polarities, and key distinctions that separate polarities (which can be navigated but never resolved) from problems and dilemmas (which involve answers and choices). Part Three examines the connection between the legal profession’s overuse of Stability and its resistance to Change. Using the polarities framework, this section identifies three challenges facing the legal profession today; (A) a deepening generational divide that increasingly strains our professional culture, (B) the pervasive experience of burnout across all levels of seniority, and (C) an ongoing deficit of diversity. The article examines each through the lens of the Stability and Change polarity. Part Four reflects on the author’s own experience with Stability and Change in law firm governance and offers a path forward.

In criminal courts, prosecutors can adjust police officers' charges between arrest and sentencing -- and can therefore check unwarranted disparities in police arrests. Yet prosecutors are human and so may introduce more disparities than they offset. We use discontinuities in mandatory-prison laws to identify prosecutors' impacts on racial disparities in North Carolina state courts. We find that prosecutors' charging responses to mandatory-prison discontinuities initially compounded arrests disparities (1995-2007) but recently attenuated them (2015-2019). This reversal is concentrated in arrests typically initiated by police stops and absent from arrests typically initiated by victim reports, suggesting that prosecutors have increasingly questioned the police.

The Trump administration attempted to drastically curtail protections for asylum seekers in the United States through a series of regulatory changes, including a prohibition on the admission of certain stereotype-based evidence in asylum proceedings. While seemingly benign on its face, the provision would have made it difficult, if not impossible, for many asylum seekers to succeed in their claims. Given the challenges asylum seekers routinely face in gathering corroborating evidence, advocates often rely on stereotype-based evidence in support of asylum claims. Although courts enjoined the rule, preventing it from taking effect, the provision nonetheless offers an opportunity to rethink the role of stereotype-based evidence in refugee protection. By interrogating the type of evidence required to establish asylum eligibility, immigration advocates, scholars, and adjudicators alike can begin to push back against harmful cultural stereotype and return to a core principle of refugee law: the need to afford asylum seekers the benefit of the doubt.

When firms collude and charge supracompetitive prices, consumers can bring antitrust lawsuits against the firms. When the litigation cost is low, firms accept the cost as just another cost of doing business, whereas when the cost is high, the firms lower the price to deter litigation. Class action is modeled as a mechanism that allows plaintiffs and attorneys to obtain economies of scale. We show that class actions, and the firms' incentive to block them, may or may not be socially desirable. Agency problems, settlement, fee-shifting, treble damages, public enforcement, and sustaining collusion through repeat play are also considered.

Do foreign lives matter? When? How much? If one nation damages another, what are its obligations, as a matter of law and policy? These questions can be approached and understood in diverse ways, but they are concretized in debates over the “social cost of carbon,” which is sometimes described as the linchpin of national climate policy. The social cost of carbon, meant to capture the damage done by a ton of carbon emissions, helps to determine the stringency of regulations in many domains, including emissions limits on motor vehicles and on stationary sources. In determining the social cost of carbon, agencies must decide whether to use the global number (as chosen by Presidents Barack Obama and Joe Biden) or instead the domestic number (as chosen by President Donald Trump). Use of the global number should be seen as a form of climate change cosmopolitanism, whether the grounding is moral, strategic, or otherwise. Within the constraints of governing statutes, there are four central arguments in favor of using the global figure. (1) The epistemic argument: experts do not know a great deal about the purely domestic harms from climate change, which makes it impossible to generate a purely domestic number. (2) The interconnectedness argument: harms done to U.S. citizens by domestic emissions are not limited to those directly brought about by the incremental increase in temperatures within the territorial boundaries of the United States; they include an assortment of harms to U.S. citizens living abroad and harms to U.S. citizens and interests that come as a result of the cascading effects of harm done to foreigners (including governments, companies, and individuals), which are ultimately felt by U.S. citizens or within the United States. (3) The moral cosmopolitan argument: in deciding on the scope of its regulations, the United States has a moral obligation to take account of the harms it does to non-Americans. (4) The reciprocity argument: if all nations used a domestic figure, all nations would lose; a successful approach to the climate problem requires nations to treat greenhouse gas emissions as a global, and not merely domestic, externality. Neither the epistemic argument nor the incompleteness argument justifies the choice of the global number. The moral cosmopolitan and reciprocity arguments stand on much stronger grounds, though they both run into plausible objections.

Heyes and Saberian (2019) estimate from 2000–2004 data that outdoor temperature reduces US immigration judges’ propensity to grant asylum. This estimate is the result of coding and data errors and of sample selection. Correcting the errors reduces the point estimate by two-thirds, with a wide 95 percent confidence interval straddling zero. Enlarging the sample to 1990–2019 flips the point estimate’s sign and rules out the effect size reported by Heyes and Saberian with very high confidence. An analysis of all criminal sentencing decisions by US federal district judges from 1992 to 2003 yields no evidence of temperature or other weather effects either.

The way that Americans understand their Constitution and wider legal tradition has been dominated in recent decades by two exhausted approaches: the originalism of conservatives and the "living constitutionalism" of progressives. Is it time to look for an alternative? Adrian Vermeule argues that the alternative has been there, buried in the American legal tradition, all along. He shows that US law was, from the founding, subsumed within the broad framework of the classical legal tradition, which conceives law as "a reasoned ordering to the common good." In this view, law's purpose is to promote the goods a flourishing political community requires: justice, peace, prosperity, and morality. He shows how this legacy has been lost, despite still being implicit within American public law, and convincingly argues for its recovery in the form of "common good constitutionalism." This erudite and brilliantly original book is a vital intervention in America's most significant contemporary legal debate while also being an enduring account of the true nature of law that will resonate for decades with scholars and students.