Faculty Bibliography

To understand contemporary arguments about deconstructing and reconstructing the modern administrative state, we have to understand where that state came from, and what its futures might be. This introductory essay describes the traditional account of the modern administrative state’s origins in the Progressive era and more recent revisionist accounts that give it a longer history. The competing accounts have different implications for our thinking about the administrative state’s constitutional status, the former raising some questions about constitutionality, the latter alleviating such concerns. This introduction then draws upon the essays in this issue to describe three options for the future. Deconstructing the administrative state without adopting a program of across-the-board deregulation would entail more regulation by the legislature itself and would insist that Congress give clear instructions to administrative agencies. Tweaking would modify existing doctrine around the edges without making large changes. Reconstruction might involve adopting ever more flexible modes of regulation, including direct citizen participation in making and enforcing regulation.

The coronavirus pandemic has produced a public health debacle of the first-order. But, the virus has also propagated the kind of exogenous shock that can precipitate—and to a certain degree has precipitated—a systemic event for our financial system. This still unfolding systemic shock comes a little more than a decade after the last financial crisis. In the intervening years, much as been written about the global financial crisis of 2008 and its systemic dimensions. Considerable scholarly attention has focused on first devising and then critiquing the macroprudential reforms that ensued, both in the Dodd-Frank Act and the many regulations and policy guidelines that implemented its provisions. In this essay, we consider the coronavirus pandemic and its implications for the financial system through the lens of the frameworks we had developed for the analysis of systemic financial risks in the aftermath of the last financial crisis. While today’s pandemic differs in many critical respects from the events of 2008, systemic events in the financial sector have a common structure relevant to both crises. Reflecting back on responses to the last financial crisis also affords us an opportunity both to understand how financial regulators are currently responding to the coronavirus pandemic and also to speculate how the pandemic might lead to further reforms of financial regulation and other areas of public policy in the years ahead.

Executive Summary: In this paper, we evaluate the regulatory structure for risk management at U.S. banking institutions as compared to technology companies. We also evaluate the appropriate regulatory structure for cloud service providers to U.S. banking institutions, as banking institutions are increasing their reliance on cloud service providers for their data needs and effective risk management regulation can safely facilitate that transition.Part I of our paper provides a comprehensive review of the regulation of corporate governance and risk management at U.S. banking institutions with a focus on how the regulatory structure is tailored to address the business activities of U.S. banks. We find that the regulation of risk management processes by U.S. banking institutions is highly prescriptive and that U.S. banking regulators have centralized key risk management responsibilities with the board of directors and senior management.Part II of our paper reviews the regulation of corporate governance and risk management at U.S. technology companies. We find that the regulation of risk management at technology companies is principles-based and does not shift prescriptive responsibilities to technology companies’ board of directors.Part III of our paper considers whether the banking approach to the regulation of risk management or the technology approach to the regulation of risk management is better suited for cloud service providers to U.S. banks. In doing so, we consider key differences between the risks faced by U.S. banking institutions as compared to cloud service providers. We conclude that a principles-based and decentralized approach to the regulation and supervision of cloud service providers and other technology services providers to U.S. banking institutions would better address the risks inherent in such services and facilitate continued adoption of cloud services by U.S. banking institutions.

Under Delaware law, a securities issuance in which all existing investors may participate pro rata (a “rights offer”) is often seen as treating insiders and outsiders equally, making it difficult for nonparticipating outsiders to prevail on a claim that insiders sold themselves cheap securities. I show that insiders can use rights offers to sell themselves cheap securities, even if outsiders are sophisticated and well-capitalized. My analysis suggests courts applying Delaware law should more aggressively probe rights offers for substantive fairness. I conclude by describing red flags indicating a heightened risk of expropriation.

The notion of stock-market-driven short-termism relentlessly whittling away at the American economy’s foundations is widely accepted and highly salient. Presidential candidates state as much. Senators introduce bills assuming as much. Corporate interests argue as much to the Securities and Exchange Commission and the corporate law courts. Yet the academic evidence as to the problem’s severity is no more than mixed. What explains this gap between widespread belief and weak evidence? This Article explores the role of narrative power. Some ideas are better at being popular than others. The concept of pernicious stock market short-termism has three strong qualities that make its narrative power formidable: (1) connotation — the words themselves tell us what is good (reliable long-term commitment) and what is not (unreliable short-termism); (2) category confusion — disparate types of corporate misbehavior, such as environmental degradation and employee mistreatment, are mislabeled as being truly and primarily short-termism phenomena emanating from truncated corporate time horizons (when they in fact emanate from other misalignments), thereby making us view short-termism as even more rampant and pernicious than it is; and (3) confirmation — the idea is regularly repeated, because it is easy to communicate, and often boosted by powerful agenda-setters who benefit from its repetition. The Article then highlights the real-world implications of narrative power — powerful narratives can be more certain than the underlying evidence, thereby leading policymakers astray. For example, a favorite remedy for stock-market-driven short-termism is to insulate executives from stock market pressure. If lawmakers believe that short-termism is a primary cause of environmental degradation, anemic research and development, employee mistreatment, and financial crises — as many do — then they are likely to focus on further insulating corporate executives from stock-market accountability. Doing so may, however, do little to alleviate the underlying problems, which would be better handled by, say, stronger environmental regulation and more astute financial regulation. Powerful narratives can drive out good policymaking.

The existing liability system in the United States and other countries can’t handle the risks relation to AI. That’s a problem because it will slow AI innovation and adoption. The answer is to revamp the system, which involves revising standards of care, changing who compensates parties when inevitable accidents occur via insurance and indemnity; changing default liability options; creating new adjudicators; and revamping regulations to prevent mistakes and exempt certain kinds of liability.

What information would people like to have? What information would they prefer to avoid? How does the provision of information bear on welfare? Representative surveys in eleven nations find that substantial percentages of people do not want to receive information even when it bears on health, sustainability, and consumer welfare. People’s willingness to pay for information, contingent on their wanting it, is mostly higher than people’s willingness to pay not to receive information, contingent on their not wanting it. We develop a model and estimate the welfare effects. We find substantial benefits and costs, with the former outweighing the latter.

The article presents an English translation of the Japan vs. Shimizu decision (信玄 公 旗 掛 松 事件 Shingen-kō hata kake matsu jiken), which is a central court decision in the history of Japanese civil law. With its decision in a tort law dispute over a historically significant tree, the Japanese Imperial Court of Justice has set a legal precedent for taking into account the principle of good faith. Lawsuits based on an "improper exercise of law" (権 利 の 濫用 kenri no ran'yō) have since played a major role in tort, contract and property law in Japan. The authors give an overview of the background of the case and discuss the legal and dogmatic significance of the decision, for which they reconstruct the historical facts and the process flow. In this way, they hope to expose an important area of ​​Japanese law.

Informational and reputational cascades often arise in the presence of four factors: (1) preference falsification; (2) diverse thresholds; (3) social interactions; and (4) group polarization. In the context of animal welfare, cascades have often occurred, and more consequential ones are possible. First: In this domain, preference falsification has run and is running rampant. Those who care about animal welfare, or are inclined to want to say or do something about it, often silence themselves. They know that if they speak or act, they might incur social disapproval or worse. Second: People have different thresholds for disclosing their views or for taking action. With respect to animal welfare, some people really will speak out or act, even if no one else does. Others need someone to follow – but only one. Still others need two, or three, or a hundred, or more. Third: Social interactions are and continue to be crucial to the movement for animal welfare. Who is seeing whom? When? Who is talking to whom? Are visible people speaking and acting in ways that support animal welfare? Are they credible? With whom? Fourth: In many times and places, believers in animal rights, animal welfare, or both have created communities of like-minded people. These communities can be highly effective. They create a commitment to a belief that might have been held tentatively. They make that belief salient, potentially part of people’s identity. They increase confidence and unity.

Effectively Representing is the primary guidebook for new tax practitioners, especially those representing low-income taxpayers in controversies with the IRS. Unless otherwise noted, each chapter is up to date as of the fall of 2020.

Some of our judgments are unstable, in the sense that they are an artifact of, or endogenous to, what else we see. This is true of sensory perception: Whether an object counts as blue or purple depends on what other objects surround it. It is also true for ethical judgments: Whether conduct counts as unethical depends on what other conduct is on people’s viewscreens. There are plausible evolutionary explanations for these findings. As behavior in general regresses, actions that were previously seen as bad or as terrible may come to be seen as fine or mildly bad. Call this “opprobrium contraction.” As behavior in general improves, actions that were previously seen as fine or as mildly bad may come to seem bad or terrible. Call this “opprobrium expansion.” Because law has a signaling function, it can heighten or diminish these phenomena.

In Saving the News, Martha Minow takes stock of the new media landscape. She focuses on the extent to which our constitutional system is to blame for the current parlous state of affairs and on our government's responsibilities for alleviating the problem. As Minow shows, the First Amendment of the US Constitution assumes the existence and durability of a private industry. Although the First Amendment does not govern the conduct of entirely private enterprises, nothing in the Constitution forecloses government action to regulate concentrated economic power, to require disclosure of who is financing communications, or to support news initiatives where there are market failures. Moreover, the federal government has contributed financial resources, laws, and regulations to develop and shape media in the United States. Thus, Minow argues that the transformation of media from printing presses to the internet was shaped by deliberate government policies that influenced the direction of private enterprise. In short, the government has crafted the direction and contours of America's media ecosystem. Building upon this basic argument, Minow outlines an array of reforms, including a new fairness doctrine, regulating digital platforms as public utilities, using antitrust authority to regulate the media, policing fraud, and more robust funding of public media. As she stresses, such reforms are not merely plausible ideas; they are the kinds of initiatives needed if the First Amendment guarantee of freedom of the press continues to hold meaning in the twenty-first century.

Jonathan Zittrain’s testimony before Hearing of the Subcommittee on Competition Policy, Antitrust, and Consumer Rights on the Internet of Things.

We submit our letter to assist OCR in achieving its goal with this hearing, which is two-fold: to ensure that students are (1) allowed to pursue their education free from sexual harassment and assault and (2) treated fairly in the adjudicatory process—whether they are the complainant or the respondent—designed to investigate and resolve allegations of sexual harassment and sexual assault.

On March 9, 2021, the Election Law Journal hosted a panel on “Restoring Trust in the Voting Process.”

Both government regulators and private companies regularly assign a monetary value to human lives. A new book argues that the price is too low, and can entrench inequalities.

Traditional theories portray stockholders as fully focused on profits. But that’s not as true as it once was.

Something akin to what social psychologists call the “fundamental attribution error” underlies many discussions of the responsibility of politicians – from Donald Trump to Jacinda Ardern – or the bad or good outcomes the nations they led had with the COVID-19 pandemic. Observers saw what the leaders did, and saw the outcomes. The fundamental attribution error is a tendency to explain the outcome more by pointing to what the leader did than to the context in which she acted. This Essay argues that we have to understand social events as the interaction between human agency and the constraints under which people act. The widespread governance failures in responding to the coronavirus pandemic tend to generate accounts that overemphasize agency and underemphasize constraint. The very scope of the failures – that only a handful of governance mechanisms around the world generated policies that did a decent job of keeping COVID-19 under control – suggests that we should look more closely at the constraints under which policy-makers operated.This Essay uses the distinction between agency and constraint as a tool for helping us think about the policy responses that were available and likely to be used in early 2020, when the “novel” coronavirus came on the international scene. The bottom line is this: given the context within which policy-makers acted (the constraints they faced) as the crisis developed, the pandemic was quite likely to be a human catastrophe. It’s not that nothing could be done to stop it, or even that nothing could be done to make it “merely” a disaster instead of a catastrophe. And it’s not that no one came up with – and sometimes implemented – policies that helped limit the disaster’s scope. The constraints under which policy-makers operated, though, meant that the chances of really successful outcomes were quite low – a suggestion consistent with the fact that outcomes around the world were basically pretty bad.The Essay proceeds by first identifying major features of the context as of early 2020 – the constraints and context for policy-making. Part II then describes what we know now, or have strong reason to believe, were the policies that could have done the most to minimize the virus’s effects on life, health, and economies. Part III examines the choices that were actually made, focusing, for reasons to be discussed, on nations with generally democratic systems of governance. A brief Conclusion returns to the fundamental attribution error: context and constraint probably mattered more than agency in generating the bad outcomes around the world.

The article focuses on U.S. Supreme Court cases including Korematsu v. United States and Trump v. Hawaii on racism in the U.S. and travel restrictions of Japanese Americans and Muslims. Topics include saboteurs and terrorists posed threats of uncertain degrees to national security, former U.S. President Franklin D. Roosevelt’s decision to ban travel, and the role of men and women in a government of laws.

Ross will soon have our summary of the Court’s decision in Cedar Point, holding that a California regulation granting unions limited access to agricultural employers’ property is a per se physical taking. I write to make a basic point, one which is flagged briefly in Justice Breyer’s dissent. In short, today’s holding – as bad […]

Federal law presumes that false advertising harms competition. Federal law also presumes that false advertising is harmless or even helpful to competition. Contradiction is not unknown to the law, of course. This contradiction, though, is acute. For not only are both regimes at issue designed to protect competition, but they are both enforced by the same agency: the Federal Trade Commission, which targets “unfair competition” through antitrust and consumer protection enforcement. Courts’ treatment of false advertising in antitrust cases makes no sense. While courts have reasonably evidenced concern that not all false advertising violates antitrust law, the remedy is not to abandon the false advertising/antitrust interface. Instead, the solution is to focus on the actors most likely to harm the market: monopolists and attempted monopolists. This Essay proposes an antitrust framework for false advertising claims. It introduces a presumption that monopolists engaging in false advertising violate antitrust law and a rebuttal if the false advertising is ineffective. The framework also applies to attempted monopolization by incorporating factors such as falsity, materiality, and harm inherent in false advertising law, along with competition-centered issues like targeting new market entrants. Antitrust has dismissed false advertising that entrenches monopoly power for too long. This Essay seeks to resolve the contradiction in the law by showing how false advertising threatens the proper functioning of markets. Such an approach promises benefits for false advertising law, antitrust law, and consumers.

Gordon-Reed explains that the story of Africans on this continent is longer and more varied than the version taught in school. The two origin stories that American children are most often taught are those of Jamestown VA, an English colony founded in 1607 as a moneymaking venture, and Plymouth MA, where people escaped religious persecution in 1620. The latter narrative is more inspirational and more in keeping with Americas sense of moral exceptionalism than the former, which is perhaps why it has tended to loom larger in the American mind. Both origin stories emphasize the triumph of amity over enmity between Indigenous people and English settlers, something very different from what actually happened. But Black people are absent in the story of Plymouth, and the role of Jamestown as a hub of chattel slavery is often minimized. For Black Americans, neither origin story is sufficient.

What would happen if states stopped equalizing districts’ total populations and started equalizing their citizen voting age populations (CVAPs) instead? This is not a fanciful question. Conservative activists have long clamored for states to change their unit of apportionment, and the Trump administration took many steps to facilitate this switch. Yet the question remains largely unanswered. In fact, no published work has yet addressed this issue, though it could be the most important development of the upcoming redistricting cycle. In this Article, we harness the power of randomized redistricting to investigate the representational effects of a different apportionment base. We create two sets of simulated maps—one equalizing districts’ total populations, the other equalizing their CVAPs—for ten states with particularly small CVAP shares. We find that minority representation would decline significantly if states were to equalize CVAP instead of total population. Across the ten states in our dataset, the proportion of minority opportunity districts would fall by a median of three percentage points (and by six or more percentage points in Arizona, Florida, New York, and Texas). On the other hand, the partisan impact of changing the unit of apportionment would be more muted. Overall, the share of Republican districts would rise by a median of just one percentage point. This conclusion holds, moreover, whether our algorithm emulates a nonpartisan mapmaker or a gerrymanderer and whether it considers one or many electoral environments. In most states—everywhere except Florida and Texas—switching the apportionment base simply does not cause major partisan repercussions.

Since the nineteenth century, presidents have largely relied on recommendations from the Office of the Pardon Attorney when granting pardons and commutations. The current process for making clemency recommendations usually takes more than a year. It is governed by Justice Department regulations that outline the factors for consideration of petitions and set forth multiple stages of review. While reliance on pardon attorney recommendations has long been the norm, presidents are not required to use this process. Presidents before Donald Trump had circumvented the pardon attorney. However, no prior president had made the evasion of this process the norm. This article details what appears to be the pardon attorney’s rare involvement in President Trump’s clemency grants.

Professor Nicholas (Nick) Barber’s learned and intelligent book on The Principles of Constitutionalism is best understood as an exercise in Aristotelian naturalism and moral and constitutional realism, of a sort much more characteristic of the classical law than of modern positivism. In view of the book’s implicitly classical approach, it would have benefited, at a number of key junctures, from drawing upon the rich and enduring tradition of the ius commune. Barber often speaks in the register of the classical law, perhaps without knowing it. Doing so more often, and more explicitly, would have improved an already impressive work.

The article looks at the story of Africans in North America which is longer and more varied that the version most people were taught in school. Topics discussed include the story of former slave and Moroccan explorer Estebanico, the role played by the Black people who came to the Americas with the Spanish in exploring Mexico, Central America and South America, and the reality of Black history of American history.

This paper lays a foundation for a new theory of manipulation, based on the misprioritization of (truthful) information. Since consumers review only a subset of all available information, firms can harm consumers by prioritizing information that maximizes firms’ profits but has a smaller impact on the utility that consumers stand to gain from the purchase. Moreover, the distortions due to misprioritized information can arise not only from firms’ boastful disclosures, but also from the warnings and disclosures mandated by lawmakers. The paper identifies the product and market characteristics that determine the optimal prioritization of information and, correspondingly, the incidence of harm when the wrong information is prioritized for disclosure—either voluntarily by sellers or by legal mandate. It provides a framework for optimal legal intervention.

Race and law scholars almost uniformly prefer antisubordination to anticlassification as the best way to understand and adjudicate racism. In this short Essay, we explore whether the antisubordination framework is sufficiently capacious to meet our present demands for racial justice. We argue that the antisubordination approach relies on a particular conception of racism, which we call pathological racism, that limits its capacity for addressing the fundamental restructuring that racial justice requires. We suggest, in a manner that might be viewed as counterintuitive, that targeted universalist remedies might be more effective to address the long term racial inequality but might also be the more radical approach to addressing racial discrimination.

Introduction: Some Groundwork Departmentalist constitutional theory asserts that members of each branch have the authority to use their own understandings of the Constitution when they act within their prescribed domain.1 Specifically, departmentalists claim that neither the President nor members of Congress are required to accept the interpretations of the Constitution offered by the courts, either in evaluating possible courses of action beforehand or bowing to a judicial decision after the event as a matter of principle.2 Sometimes departmentalists confine their claims to constitutional interpretation of provisions about each department’s scope of authority.3 So, for example, a departmentalist president might claim that Article II gives her the power to remove at will any principal officer of the government from office even though Congress has purported to limit the removal power in ways that seem consistent with Supreme Court precedent.4 Individual rights cut across all three branches.5 Assume that Congress is exercising one of its enumerated powers. For present purposes, I mean by "legal" rights those that can be enforced in court.7 That a right is associated with a constitutional provision means (a) that it is not something the courts would find required by the Constitution itself,8 (b) that it advances the values underlying the judicially enforced right, and (c) that the associated right falls within a range of reasonable interpretation of some constitutional provision even though the courts have adopted a different interpretation.9 With the notions of "legal rights" "associated with" constitutional rights in hand, what can be said about the President and individual rights? Section B then turns to the case where the President and her appointees agree with the courts about the content of an individual right.13 Administrative constitutionalism in this mode means that executive officials act within their jurisdiction to protect the legal rights the courts would recognize.14 It retrieves an argument made decades ago by Bernard Meltzer, that a world with more remedies for the same rights violations might not be better-from a rights-protective point of view-than a world with fewer such remedies.15 A brief Conclusion summarizes the argument.16 I. The President’s Discretionary Powers One standard example offered in defense of departmentalism is President Thomas Jefferson’s decision to pardon those who had been convicted of violating the Federalist-inspired Sedition Act of1798.17 Jefferson did so because he believed that the Sedition Act was unconstitutional on federalism and freedom-of-expression grounds.18 And he did so in the face of lower court decisions upholding the statute against constitutional challenges.19 Another standard example is President Andrew Jackson’s veto of a bill rechartering the Bank of the United States.20 Jackson’s veto invoked policy and constitutional (federalism) objections to the rechartering.21 Notably, the Supreme Court here had rejected the constitutional challenges.22 Finally, presidents can recommend that Congress enact a statute providing more protection to individual privacy from government surveillance than the Supreme Court has or would hold constitutionally guaranteed.23 These three examples involve exercises of discretionary presidential powers.24 The key point about discretionary decisions is that before, and sometimes even after, they are made they necessarily create no legal rights.25 No one convicted of violating the Sedition Act had a right to a pardon-even in the form of a right to have a President who believes the Act unconstitutional issue a pardon.26 Or consider United States v. Lovettvphantom1 There Congress had directed the President to withhold pay from three named government officials.28 President Franklin Roosevelt signed the bill, stating, "I have been forced to yield, to avoid delaying our conduct of the war. Constitutional rights either trump other non-rights social values, in Dworkin’s terms, or compete against those other values.34 In the first case the contours of the constitutional right are defined with reference to those other values.35 So, for example, the right to free expression trumps the values of social stability, but the right does not encompass (in the United States) utterances that (to oversimplify) are intended to and are likely to incite imminent lawless action.36 In the second case, the values associated with the right are balanced against other social values such as stability or, in the usual example, the ability of people to use streets and parks for their ordinary purposes.37 In either version, a President’s discretionary action that takes into account the values associated with a constitutional right might bump up against other social values.38 In the usual case this simply produces an ordinary policy judgment that, in the policymaker’s view (here, the President’s), public policy is better advanced by the decisionmaker’s preferred course of action.39 Sometimes, though, the other social values are also associated with individual rights.

The Supreme Court is conspicuously uneasy about its Chevron framework, which requires courts to defer to agency interpretations of law, so long as those interpretations are “reasonable.” One of the principal manifestations of its uneasiness is the “major question” doctrine, which makes Chevron inapplicable to questions of great “economic and political significance.” But the major question doctrine is actually two separate doctrines. The weak version is a kind of “Chevron carve-out,” meant to ensure that courts exercise independent judgment, and so do not defer to agencies, with respect to the meaning of statutes as applied to especially important questions. By contrast, the strong version flatly prohibits agencies from interpreting ambiguous statutes so as to assert broad authority over the private sector. Both versions of the major question doctrine can claim a connection to the nondelegation doctrine. The arguments on behalf of the weak version are very different from the arguments on behalf of the strong version.

Thomas Jefferson: A Modern Prometheus by Wilson Jeremiah Moses is reviewed.

Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., the foundation for much of contemporary administrative law, is under siege. Several members of the Supreme Court have suggested that they would like to overrule it. Under standard principles of stare decisis, doing that would be a serious mistake. Even if Chevron was wrongly decided, overruling it would create an upheaval—a large shock to the legal system, producing a great deal of confusion, more conflicts in the courts of appeals, and far greater politicization of administrative law. For example: What would happen to the countless regulations that have been upheld under the Chevron framework? Would they be newly vulnerable? More fundamentally,, a predictable effect of overruling Chevron would be to ensure a far greater role for judicial policy preferences in statutory interpretation and far more common splits along ideological lines. There is also the question of reliance interests: For decades, Congress has legislated against the background set by Chevron, and the resulting statutes reflect an understanding that the Court’s framework will apply. Though the argument for overruling Chevron is unconvincing, its critics have legitimate concerns. Those concerns should be addressed by (1) insisting on a fully independent judicial role in deciding whether a statute is ambiguous at Step One; (2) invalidating arbitrary or unreasonable agency interpretations at Step Two; and (3) deploying canons of construction, including those that are designed to serve nondelegation functions and thus to cabin executive authority. The result would not quite be Zombie Chevron, but it would be close to that, and the most reasonable path forward.

Although empirical studies show that common shareholding affects corporate conduct and that common horizontal shareholding lessens competition, critics have argued that the law should not take any action until we have clearer proof on the causal mechanisms. I show that we actually have ample proof on causal mechanisms, but that antitrust enforcement should focus on anticompetitive market structures, rather than on causal mechanisms. I debunk claims that every type of causal mechanism that might produce anticompetitive effects is either empirically untested or implausible. I also show that critics are wrong in claiming that common shareholders lack incentives to influence corporations to increase portfolio value by lessening competition. Finally, I show that preventing anticompetitive horizontal shareholding need not restrict diversification or discourage desirable institutional investor influence on corporate conduct.