Faculty Bibliography

Same-sex couples, not unlike their heterosexual counterparts, would prefer having a genetically related child.However, assisted same-sex human reproduction has heretofore been deemed infeasible absent haploid cellularanalogs of human gametes. Recent developments, however, may have overcome this limitation through thederivation of haploid embryonic stem cells (hapESCs). Undifferentiated, pluripotent, self-renewing, and stablyhaploid, hESCs have also displayed germline competence. It is in this capacity that murine hESCs, doubling upas de facto gametes, gave rise to bimaternal and bipaternal progeny. Herein we argue that assisted same-sexhuman reproduction, although potentially attainable at this time, is still years away from the clinic. In support ofthis perspective, we note the significant technical, regulatory, statutory, and societal hurdles that stand in theway of near-term implementation.

The Roberts Court has sought to clarify the constitutional norms governing personal jurisdiction so as to give defendants greater certainty in arranging their business affairs. The Court’s effort has been guided by the implicit assumption that every personal jurisdiction case necessarily rises to the level of constitutional concern. But the only reason that most personal jurisdiction decisions raise constitutional concerns is because the vast majority of states maintain content-less long-arm statutes: in the complete absence of statutory norms, every instance of service of process poses a mini constitutional crisis. With no underlying statutory norms at issue, the Court’s constitutional decisions have long been legislating personal jurisdiction rules instead of adjudicating the constitutionality of legislatively enacted rules. The Court should fix this longstanding separation of powers problem by issuing a simple ruling: the Due Process Clause renders content-less long-arm statutes void for vagueness. That ruling would require state legislatures to enact laws specifying the situations in which service of process over non-residents was authorized. Personal jurisdiction litigation would then turn on statutory questions, with the Constitution held in reserve for particularly egregious power grabs. This approach would lead to differing outcomes in the two Ford Motor Company cases before the Court in the 2020-2021 Term: the Minnesota statute would fail for vagueness, while application of the Montana statute to Ford in the circumstances of that action would obviously not be so egregious as to rise to the level of a constitutional violation. One need not go so far as to say that the Due Process Clause has no role to play in the field of personal jurisdiction to appreciate that it should be cast in a supporting role far narrower than the leading part the Court has handed it for too long.

The Bush v. Gore fight has become the template of a disputed election, but many of the worst-case scenarios could end up before Congress, not the Court.

The role of a reckoning is to get beyond politics.

Cancel Culture is a defense of due process, free speech, and even-handedness in the application of judgment. It makes the case for restraint and care in decisions about whom and what to cancel, boycott, deplatform, and bar from public life, and offers recommendations for when, why, and to what degree these steps may be appropriate, as long as objective, fair-minded criteria can be determined and met. While Dershowitz argues against the worst excesses of cancel culture—the rush to judgment and the devastating results it can have on those who may be innocent, the power of social media to effect punishment without a thorough examination of evidence, the idea that historical events can be viewed through the same lens as actions in the present day—he also acknowledges that its defenders ostensibly try to use it to create meaningful, positive change, and notes that cancelling may itself be a constitutionally protected form of free speech. In the end, Cancel Culture represents an icon in the defense of free speech and due process reckoning with the greatest challenge and threat to these rights since the rise of McCarthyism. It is essential reading for anyone interested in or concerned about cancel culture, its effects on our society, and its significance in a greater historical and political context.

In July 2020, the European Commission published the “Study on directors’ duties and sustainable corporate governance” by EY. The Report purports to find evidence of debilitating short-termism in EU corporate governance and recommends many changes to support sustainable corporate governance. In this paper, we point out deep flaws in the Report’s evidence and analysis. We recently submitted the content of this paper in response to the European Commission’s call for feedback. First, the Report defines the corporate governance problem as one of pernicious short-termism that damages the environment, the climate, and stakeholders. But the Report mistakenly conflates time-horizon problems with externalities and distributional concerns. Cures for one are not cures for the others and a cure for one may well exacerbate the others. Second, the Report’s main ostensible evidence for an increase in corporate short-termism is rising gross payouts to shareholders (dividends and stock repurchases). However, the more relevant payout measure to assess corporations’ ability to fund long-term investment is net payouts (gross payouts minus equity issuances), which is much lower and has left plenty of funds available for long-term and short-term investment. Third, when the Report turns to other evidence for short-termism, it selectively picks academic studies that support its views on short-termism, while failing to engage substantial contrary literature. Significant studies fail to detect short-termism and some substantial studies show excessive long-termism. Conceptually, some short-termism is an unfortunate but an inevitable side effect of effective corporate governance and may not be a first-order problem warranting wholesale reform. Finally, the Report touts cures whose effectiveness has little evidentiary support and, for some, there is real evidence that the cures could be counterproductive and costly.

Confirming Justice—Or Injustice? is an analysis of every aspect of the possible confirmation of Judge Amy Coney Barrett to fill the vacant seat left by the death of Ruth Bader Ginsburg. It includes timely commentary on the history and process of confirming justices to the Supreme Court, notes about what might happen if the process is changed—such as by court packing or instituting age or term limits for justices—and discussion of the roles of the various people and groups who might have input on the confirmation, from the president to the senate to the judiciary committee to the Constitution itself. In the end, Confirming Justice—Or Injustice? represents an icon in American law and politics reckoning with an increasingly politicized and polarized nomination-and-confirmation process for judges and what those shifts might mean for the country, both now and in days to come. It is essential reading for anyone interested in or concerned about Trump's nomination of Amy Coney Barrett and the process of her possible confirmation, the legacy of Ruth Bader Ginsburg, and the future and fate of the Supreme Court—and American democracy itself.

Beyond packing schemes, we need to diminish the high court’s power.

Investor-driven "short-termism'" is said to harm EU public firms' ability to invest for the long term, prompting calls for the EU to better insulate managers from shareholder pressure. But the evidence offered---in the form of rising levels of repurchases and dividends---is incomplete and misleading, as it ignores large offsetting equity issuances that move capital from investors to EU firms. We show that net shareholder payouts have been moderate, that both investment levels and investment intensity have been rising, and that cash balances have increased. In sum, the data provide little basis for the view that short-termism in the EU warrants corporate governance reforms.

The chapter examines the trade of live animals for slaughter, focusing on export from Australia to the Muslim-majority countries that are the main customers. Here, animals are shipped across boundaries of religion, culture, and norms of animal welfare. While the typical rules of international trade in goods apply, they do not really fit. In addition, the current legal regime governing live exports is insufficient to provide animals with an adequate standard of welfare, from the point of entering the ships in the country of origin to the moment of slaughter in the importing country. Stilt argues, however, that with the due involvement of religious authorities, the Islamic tradition of animal welfare could be harnessed to develop more widely accepted international transportation and slaughtering standards.

Informal social sanctions such as ostracism are most communities’ primary means of controlling deviance, with formal legal sanctions a costlier backup mechanism, but outside university laboratories, studies of ostracism barely exist. We construct a formal model and examine legal cases brought by targets of Japanese village ostracism. Villagers truly offending against social welfare do not bring these suits. Rather, much ostracism is opportunistic -- to extort property, hide communitywide malfeasance, or harass rivals. Typically, the objective is not to employ government’s coercive power, but to have the court publicly certify that the target of ostracism is not really culpable.

The claim that election fraud is a major concern with mail-in ballots has become the central threat to election participation during the COVID-19 pandemic and to the legitimacy of the outcome of the election across the political spectrum. President Trump has repeatedly cited his concerns over voter fraud associated with mail-in ballots as a reason that he may not abide by an adverse electoral outcome. Polling conducted in September 2020 suggests that nearly half of Republicans agree with the president that election fraud is a major concern associated with expanded mail-in voting during the pandemic. Few Democrats share that belief. Despite the consensus among independent academic and journalistic investigations that voter fraud is rare and extremely unlikely to determine a national election, tens of millions of Americans believe the opposite. This is a study of the disinformation campaign that led to widespread acceptance of this apparently false belief and to its partisan distribution pattern. Contrary to the focus of most contemporary work on disinformation, our findings suggest that this highly effective disinformation campaign, with potentially profound effects for both participation in and the legitimacy of the 2020 election, was an elite-driven, mass-media led process. Social media played only a secondary and supportive role. Our results are based on analyzing over fifty-five thousand online media stories, five million tweets, and seventy-five thousand posts on public Facebook pages garnering millions of engagements. They are consistent with our findings about the American political media ecosystem from 2015-2018, published in Network Propaganda , in which we found that Fox News and Donald Trump’s own campaign were far more influential in spreading false beliefs than Russian trolls or Facebook clickbait artists. This dynamic appears to be even more pronounced in this election cycle, likely because Donald Trump’s position as president and his leadership of the Republican Party allow him to operate directly through political and media elites, rather than relying on online media as he did when he sought to advance his then-still-insurgent positions in 2015 and the first half of 2016. Our findings here suggest that Donald Trump has perfected the art of harnessing mass media to disseminate and at times reinforce his disinformation campaign by using three core standard practices of professional journalism. These three are: elite institutional focus (if the President says it, it’s news); headline seeking (if it bleeds, it leads); and balance , neutrality, or the avoidance of the appearance of taking a side. He uses the first two in combination to summon coverage at will, and has used them continuously to set the agenda surrounding mail-in voting through a combination of tweets, press conferences, and television interviews on Fox News. He relies on the latter professional practice to keep audiences that are not politically pre-committed and have relatively low political knowledge confused, because it limits the degree to which professional journalists in mass media organizations are willing or able to directly call the voter fraud frame disinformation. The president is, however, not acting alone. Throughout the first six months of the disinformation campaign, the Republican National Committee (RNC) and staff from the Trump campaign appear repeatedly and consistently on message at the same moments, suggesting an institutionalized rather than individual disinformation campaign. The efforts of the president and the Republican Party are supported by the right-wing media ecosystem, primarily Fox News and talk radio functioning in effect as a party press. These reinforce the message, provide the president a platform, and marginalize or attack those Republican leaders or any conservative media personalities who insist that there is no evidence of widespread voter fraud associated with mail-in voting. The primary cure for the elite-driven, mass media communicated information disorder we observe here is unlikely to be more fact checking on Facebook. Instead, it is likely to require more aggressive policing by traditional professional media, the Associated Press, the television networks, and local TV news editors of whether and how they cover Trump’s propaganda efforts, and how they educate their audiences about the disinformation campaign the president and the Republican Party have waged.

Benkler describes the results of a large-scale study of the political media ecosystem duringthe 2016 US presidential campaign and the first year of the Trump presidency. The majorfinding is that the American political media ecosystem is asymmetrically polarized, with aninsular, well-defined right wing, and the rest of the media ecosystem, from the center-right to the far left,forming a single media ecosystem anchored by traditional media organizations like the NewYork Times or the Washington Post. The structure renders the American right moresusceptible to propaganda and disinformation than the left. The chapter then offers ananalysis of why political economy, rather than technology, was the source of thisasymmetry, outlining the interactions between political culture, law and regulation, andcommunications technology that have underwritten the emergence of the propaganda feedbackloop in the right wing of the American media ecosystem, and outlines the structural driversof the present epistemic crisis.

In County of Maui v. Hawaii Wildlife Fund, the U.S. Supreme Court held, 6-3, that the Clean Water Act requires a national pollutant discharge elimination system permit “when there is the functional equivalent of a direct discharge.” The Court also decided Atlantic Richfield Co. v. Christian, holding, 7-2, that landowners adjacent to a Superfund site were potentially responsible parties under the Comprehensive Environmental Response, Compensation, and Liability Act. Both of these decisions surprised many, particularly given the coalition of Justices who formed the majorities. Other cases were delayed or postponed, and for the first time, the Court heard oral arguments via teleconference due to the ongoing coronavirus pandemic. On June 12, 2020, the Environmental Law Institute hosted a panel of experts that discussed what this term’s decisions and the Court’s new way of operating might bode for the upcoming term. This Dialogue presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.

Trustees and other investment fiduciaries of pensions, charities, and personal trusts, and those who advise them, face increasing pressure to rely on ESG factors in the investment management of tens of trillions of dollars of other people’s money. At the same time, however, confusion abounds about the intersection of fiduciary principles and ESG investing. This article cuts through that confusion to provide guidance about when and how ESG investing by trustees and investment fiduciaries is permissible. We make four interrelated points: (1) we provide a clarifying taxonomy on the meaning of ESG investing, differentiating between risk-return ESG (i.e., using ESG factors to improve risk-adjusted returns) and collateral benefits ESG (i.e., using ESG factors for third-party effects); (2) we discuss the subjectivity inherent to identifying and applying ESG factors, which complicates assessment of ESG investing strategies; (3) we summarize the current theory and evidence on whether ESG investing can improve risk-adjusted returns, finding the results to be mixed and contextual; and (4) we show that American trust fiduciary law generally prohibits collateral benefits ESG, but risk-return ESG can be permissible if supported by a reasoned and documented analysis that is updated periodically.

Wikipedia has been a useful utopia for conceiving how people could cooperate productively without market relations and hierarchies. Despite the limitations of that vision and disappointments with recent history, Wikipedia remains a critical anchor for working alternatives to neoliberalism.

Textualists insist that judges should follow the ordinary meaning of a legal text, and sometimes texts have an ordinary meaning that judges can follow. But sometimes texts have no such thing, in the sense that they are reasonably susceptible to two or more interpretations. Some textualists fall victim to something like the duck-rabbit illusion. They genuinely see a duck; they insist that a duck is the only thing that reasonable people can see. Their perception is automatic, even though it might have been primed, or a product of preconceptions. But reasonable people might well see a rabbit. Various approaches are possible to determine whether we have a duck or a rabbit; most of them do not turn on the text at all.

"Once a mere appendage to constitutional law proper, research in comparative constitutional law has burgeoned in recent decades. Indeed, a growing tendency towards international borrowing and harmonization has been marked in many jurisdictions (even, tentatively, the United States), but it has not been uncontroversial, or uncontested. Now, this new collection from Routledge’s Critical Concepts in Law series meets the need for an authoritative reference work to help researchers and students navigate and make better sense of an abundance of scholarship in comparative constitutional law. The collection is made up of four volumes which bring together the best and most influential canonical and cutting-edge thinking. Topics include constitution-making and amendment; the different structural components of constitutional governance (such as the relationship of legislatures to courts and the effects of different methods of judicial oversight); the interaction of constitutional law with transnational sources of law; and theoretical and practical aspects of constitutional legitimacy. With a full index, and thoughtful introductions, newly written by the learned editor, Comparative Constitutional Law traces the field's development and highlights the challenges for future explorations. The collection will be valued by legal scholars—as well as by political philosophers and theorists—as a vital and enduring resource." -- Routledge

The left discovers the problems with "juristocracy."

Critics often contend that human rights litigation is not particularly useful in advancing human rights. Yet such critiques tend to miss the mark both because they demand too much of litigation—which is, of course, but one tool available to the human rights movement—and because they fail to understand the multiple goals, beyond court verdicts, of human rights plaintiffs and litigators.This article excavates those diverse goals, many of which have previously gone unexamined. It draws on insight gained from nearly a decade spent litigating a complex Alien Tort Statute suit that sought to hold corporations accountable for their role supporting and facilitating human rights violations in apartheid South Africa. This article also evaluates both successes and failures in the Apartheid case to explore the extent to which common critiques ring true.It would be foolhardy to claim that lawsuits alone can fundamentally improve respect for and protection of human rights. Still, this article concludes that litigation can be a powerful option for individuals or communities that have survived human rights abuse, particularly when deployed in tandem with other strategies, and that it played an important role for many stakeholders involved in the apartheid suit. In so doing, this article opens up fresh scholarly terrain and shares unique perspectives that may inform the work of other affected communities and human rights practitioners.

This Essay considers a popular, deceptively simple argument against the lawfulness of Chevron. As it explains, the argument appears to trade on an ambiguity in the term “ambiguity”—and does so in a way that reveals a mismatch between Chevron criticism and the larger jurisprudence of Chevron critics.

Ady Barkan is one of "Time" magazine's 100 most influential people. An American lawyer and liberal activist, Ady is also a health care warrior. For him, getting up has become a chore harder than most could imagine. In 2016, Ady was diagnosed with ALS. Even as the disease has robbed him of movement and even the capacity to speak, he uses every last breath to stop drug and insurance companies from standing between Americans and the basic health care they need. And right now, during the COVID-19 crisis and the following economic collapse, Ady has been a powerful force for good: drawing attention to the broken health care system, supporting frontline health care workers, and pushing for relief for working people as they get sick and lose their jobs. In the fight for social justice, change never comes easy. But Ady and the movement he has behind him bring Americans closer while making health care in America a basic human right.

The melding of human genetics with clinical assisted reproduction, now all but self-evident, gave flight to diagnostic and therapeutic approaches previously deemed infeasible. Preimplantation genetic diagnosis, mitochondrial replacement techniques, and remedial germline editing are particularly noteworthy. Here we explore the relevant disruption brought forth by coalescence of these mutually enabling disciplines with the regulatory and legal implications thereof.

One of the most influential storytellers of the last sixty years was the exuberant Stan Lee, who helped create Spider-Man, the Fantastic Four, the Hulk, Daredevil, Iron Man, the Black Panther, and the X-Men. In a short burst of creativity in the early 1960s, Lee created most of his iconic characters, and changed popular culture in the process. This essay, a review of Liel Leibovitz’s Stan Lee: A Life in Comics (2020), explores Lee’s astonishing creativity and distinctiveness, which can be found in a combination of joyful ebullience, capacity to wink, delight in human diversity, wit, commitment to human rights, and understanding of the essentials of the hero’s journey, or the monomyth, as described by Joseph Campbell.

Many Americans fear the power of unelected, unaccountable bureaucrats – the deep state. Cass Sunstein and Adrian Vermeule seek to calm those fears by proposing a moral regime to ensure that government rulemakers behave transparently and don’t abuse their authority. The administrative state may be a Leviathan, but it can be a principled one.

The implications for law of new neuroscientific techniques and findings are now among the hottest topics in legal, academic, and media venues. Law and Neuroscience--a collaboration of professors in law, neuroscience, and biology--is the first and still only coursebook to chart this new territory, providing the world's most comprehensive collection of neurolaw materials. This text will be of interest to many professors teaching Criminal Law and Torts courses, who would like to incorporate the most current thinking on how biology intersects with the law.

June Medical Services v. Russo is the U.S.Supreme Court’s first abortion case since President Donald Trump appointed two new conservative justices—leading many to predict the end of Roe v. Wade. Yet Chief Justice John Roberts joined his four more liberal colleagues to strike down the restriction by a 5-4 majority. But the distinct reasoning of his separate opinion could give shelter to a wide range of abortion laws. Chief Justice Roberts may be playing the long game. His vote ensures that a woman's basic constitutional right to decide the fate of her pregnancy will live to fight another day. But his opinion should leave advocates wary of counting on the judiciary alone to protect against state restrictions on abortion access and providers. This article analyzes the Supreme Court's case and its multiple opinions, the significance of the Roberts concurrence for future abortion challenges, and next steps for both lower court judges and lawmakers at the state and federal level.

Recently the literature on free expression has turned to the question, Should the law of free expression be adjusted because of the availability of new information technologies (hereafter NIT), and if so, how? The only thing about NIT that distinguishes them from traditional media is that disseminating expression via NIT is much less expensive than doing so via traditional media. The tenor of recent scholarship on NIT and free expression is that the invention of NIT does support some modification of free expression law. This Essay argues that that conclusion might be correct, but that many of the arguments offered in support move much too quickly. The Essay tries to slow them down and in so doing to suggest that the arguments require complex and contestable judgments about exactly how an expansion of expression might elicit new rules regulating it. My goal is to identify the lines of analysis that need to be pursued before we conclude that the existing law of free expression should be modified in response to NIT. In that somewhat limited sense the Essay is contrarian. The Essay examines and critiques Professor Tim Wu’s prominent version of the argument that the development of NIT should lead us to rethink the law of free expression. After laying out the paradigm underlying free expression law, that speech causes harm, the Essay examines two aspects of the argument that the more speech, the more harm, which might lead us to seek a new set of rules that jointly optimize speech and harm. One is that NIT should lead us to alter substantive First Amendment law because NIT lead us to reconsider the general balance we have struck among the values promoted by free expression. Section IV deals with that argument. The second is that NIT affect the mechanisms by which specific categories of speech cause specific harms. That argument calls for a more granular approach. To implement that approach the Essay looks at the mechanisms by which more speech might render the “rules in place” no longer socially optimal. It examines false statements that injure reputation (libel), expression that induces unlawful action (the subject of the traditional law of sedition); sexually explicit expression (obscenity and pornography); false statements that inflict no material harm (“fake news”); and threats (cyberstalking). A final section turns to arguments about the platforms used by NIT – Twitter, Facebook, and the like. (1) The platforms should be subject to the same limitations on speech regulation that apply to the government. These arguments sound in the state-action doctrine rather than in the First Amendment, and I have relatively little to say about them. (2) The platforms can be regulated through the application of antitrust or fiduciary law without violating the First Amendment. I discuss existing First Amendment doctrine about the application of “general” laws to the media and examine some issues that might arise in connection with tinkering with antitrust or fiduciary law as the vehicle for platform regulation. (3) The platforms should be held liable for the utterances they disseminate, holding constant the substantive rules of libel, threats, and the like. The Essay’s overall theme is that the First Amendment rules in place probably already accommodate the concerns that motivate arguments for adjusting the law of free expression. The First Amendment, that is, is not obsolete.

In the 1960s, Japanese women began asking temples to perform commemorative ceremonies for the fetuses or children they had aborted. They still do. Physicians have been able to perform abortions legally since 1952, and many women have had them. The ceremonies do not fit within the classic rituals offered by the temples, but many Japanese women find them helpful. They ask for the services. The temples respond. The temples charge for these memorial services. They rely on such fee-for-service arrangements for an increasingly important segment of their finances. Traditionally, priests had stood ready to offer their parishioners counseling and ritual as needed during the existentially troubling passages in their lives. In exchange, their local communities had effectively kept the temple on retainer. This no longer works. The temples stand in low levels of tension with the surrounding society (as Stark put it). As such, they cannot trust their parishioners to give voluntarily. Instead, they had counted on the constraining power of the tightly intertwined social network within the local community. Over the course of the 20th century, Japanese migrated out of these tightly structured villages to the often anomic cities. Without a coercive village structure to enforce giving, the low-tension temples found themselves without their effective retainer. With the first-best contract unavailable, many temples have turned to fee-for-service arrangements — of which the abortion-related ritual is merely the most notorious. Ironically, the new environment presents an entirely different challenge: temples now find themselves competing with internet-based priest-dispatch services.

takeholderism—granting corporate leaders discretion to give weight to the interest of all stakeholders—should not be expected to deliver its purported benefits to stakeholders. Furthermore, it could well impose substantial costs on shareholders, stakeholders themselves, and society at large, and therefore should be rejected, even by those who are deeply concerned about stakeholders.

With respect to the election of the U.S. President, the U.S. Constitution is vague and full of silences and gaps. When the vote is close, and when people disagree about who won, the Constitution does not sort out the respective roles of the states, the Electoral College, Congress, and the Vice President. The Electoral Count Act of 1887 is the closest thing to a roadmap for handling controversies after election day, and on many issues, it offers helpful guidance. At the same time, it is not at all clear that it is constitutional, or that it is binding, and in the face of a claim of serious mistakes and fraud, it contains silence and ambiguity. Taken together, the Constitution and the Electoral Count Act answer numerous questions, but they also leave important ones unanswered, including the role of the House and Senate amidst allegations of fraud and the proper role of the Vice President. This brief primer identifies the main answers and the principal open questions.

This Essay explores the shadow of administrative law. A good deal of government authority that is administrative for all intents and purposes is wielded by organizations and institutions that are not legally classified as administrative agencies. Some of these entities are private firms; some are hybrid organizations within the government. Others are traditional parts of the bureaucracy that have been deemed non-agencies for purposes of the Administrative Procedure Act (“APA”), as a matter of statutory or regulatory interpretation. Across a range of heterogenous contexts, federal courts often apply administrative law principles, derived primarily although not exclusively from the APA, as legal constraints on these actors, even though the law on its terms does not apply. Although formally outside the domain of administrative law proper, they remain covered by administrative law’s shadow. The Essay assembles and analyzes some of the cases in the shadows in an attempt to clarify the judicial practice, locate it in the context of conventional debates about administrative common law, and then offer some speculation about new contexts in which judging from the shadows may emerge.

In Arnold, Dobbie, and Yang (2018, ADY), we find that marginally released white defendants have higher rates of pre-trial misconduct than marginally released black defendants. We interpret these findings as evidence of racial bias against black defendants through the lens of the marginal outcome test originally developed by Becker (1957). Canay, Mogstad, and Mountjoy (2020, CMM) question the interpretation of our empirical findings and the logical validity of the marginal outcome test. However, CMM’s conclusions are based on an incomplete definition of racial bias that is different from the one used in ADY. Under ADY’s definition of bias, the marginal outcome test is logically valid and a useful tool for studying discrimination in real-world settings.

The mid-twentieth century witnessed a boom in policing against homosexual cruising, the practitioners of which relied on a set of robust defense tactics to avoid detection by strangers. Frustrated by the difficulties of catching suspected cruisers, police departments developed a variety of surreptitious, deeply intrusive surveillance tactics for monitoring public bathrooms. Yet while necessitated by the insularity of modern cruising culture, these surveillance tactics were legitimized in court partly through judges’ very skepticism of that culture. Weighing the utility of clandestine surveillance against its intrusion on innocent citizens, judges frequently justified surveillance by characterizing cruisers as sexual predators eager to expose themselves to innocent victims. From inception to conviction, the utility of clandestine surveillance thus depended partly on an epistemic lag between the arms of the criminal justice system: a disconnect between the police’s sensitivity to contemporary homosexual practices and judges’ continuing insistence on an older paradigm of perverse predation.

Reports that export taxes and other types of export restrictions remain widely used trade policy instruments, particularly in developing countries, and for agricultural products and extractive industries. Governments employ these policy instruments for different reasons, but whatever the rationale, the use of export restrictions can result in price distortions in world markets and harm neighboring countries. Contemporary export restrictions have contributed to spikes in international food prices and increased market instability in food. Export taxes, in particular, reduce global welfare, and their removal could lead to an overall welfare gain in excess of US$100 billion per year and expand world trade volumes by 2.8 percent. Except for the General Agreement on Tariffs and Trade (GATT) Article XI’s prohibition on quantitative exports, World Trade Organization (WTO) law includes few rules governing export restrictions, and some have called for the WTO to take a more aggressive stance in monitoring export taxes and other forms of export restrictions.

The debate about stakeholder capitalism should seek to learn from our experience with constituency statutes, which authorized corporate leaders to take into account stakeholder interests in considering a sale of the company. We document how, over the past two decades, these statutes utterly failed to produce the hoped-for stakeholder benefits: Corporate leaders used their bargaining power to secure benefits for shareholders, executives, and directors, but made little use of it to obtain protections for stakeholders.

This Article advances a novel theory of the political question doctrine by locating its foundations in a conundrum about ultra vires action, exemplified by the ancient question: Who will guard the guardians? The political question doctrine marks some questions as ultra vires the judicial power, or beyond the jurisdiction of courts to resolve. Correspondingly, designation of a question as political typically identifies it as lying within the jurisdiction of a nonjudicial institution to settle. Even after denominating a question as political, however, courts retain a responsibility to check actions by other institutions that overreach those institutions’ authority and thus are themselves ultra vires. The need for the judiciary to press to the outer limits of its jurisdiction to rein in ultra vires action by other institutions renders political question rulings less categorical, and also less distinct from merits decisions, than both judges and commentators have often imagined. The inescapable role of the courts in identifying ultra vires action by other branches also highlights the possibility of ultra vires action by the courts themselves. The paired risks of ultra vires action by the courts and ultra vires action by other branches if the courts could not assert jurisdiction to restrain them—both made vivid by the political question doctrine—define what this Article calls the ultra vires conundrum. The ultra vires conundrum, in turn, gives rise to what we might think of as ultimate political questions: What happens if courts err in their determination of the outer bounds of their own power? If the courts act ultra vires, do their decisions bind conscientious officials of other branches? And if not, who gets to decide when judicial action is ultra vires? Besides formulating the ultra vires conundrum and answering the questions that define its core, this Article solves a number of more traditional, interrelated puzzles about the political question doctrine that appear in a new light once the ultra vires conundrum lies exposed. It also traces previously unexplored connections between political questions and the ideal of the rule of law.

Grégoire Webber and his colleagues in the jointly authored collection, Legislated Rights, have produced an important book whose central purpose is to reorient constitutional theory to the role of legislatures in protecting rights. They open the book by saying, “[t]he legislature is well placed to secure and promote human rights. That is this book's central thesis.” I am in considerable agreement with the general idea of expanding constitutional theory to include more of a focus on legislators and legislatures. The role of legislators in positively promoting constitutionalism and protecting rights has been neglected in constitutional theory; too often legislation is viewed as presumptively problematic when evaluated through the lens of principled judicial decision-making, and what Jeremy Waldron calls the “dignity of legislation” ignored or undervalued. This review is thus primarily an appreciation of several points made in the book, including its effort at a balanced presentation in some chapters of the relative roles of courts and legislatures in the protection of rights. Along the way, I will note some disagreements, including with their argument about the nature of rights. Many of the book’s arguments for giving legislatures a more central role in constitutional theory and in the protection of rights hold, I suggest, even if rights are conceptualized differently from the view of rights as, in a sense, categorically absolute. In closing, I will extend the authors’ arguments to suggest that if legislatures are to be viewed as playing a more central role in fulfilling rights guarantees in constitutions, then we need to develop a richer and more nuanced set of conceptions and discourse around the role obligations of legislators in constitutional democracies.

The conflict between external and internal perspectives in private law is both exaggerated and underplayed. Both external and internal perspectives pay too little attention to how the ‘micro’ level of individual, even bilateral, interaction relates to the ‘macro’ level of society and the law as a whole. We will show that both perspectives overlook the resources they could employ to explain how the micro and macro are connected; in their different ways, external and internal perspectives do not draw out the connection between local simplicity and generalization. By treating law as a complex system, both perspectives could converge on a picture of private law in which locally simple structures of bilateral rights and duties scale up to produce emergent properties at the level of society. We suggest that functionalists should take seriously the moral norms immanent in private law – these norms are central to the functioning of private law as a system. Without these modular components, private law can be intractably complex. Accordingly, we propose an inclusive functionalism, one that takes these moral norms at face value. These moral norms perform a crucial function of managing the otherwise intractable complexity of the interactions between parties governed by private law. We also propose an inclusive internalism, which is more open to functional considerations involving simplicity. Private law must avoid intractable complexity if it is to function properly, and this calls for a simplicity criterion: internalists should look for moral norms that are both simple and generalizable. Resolving private law’s conceptual structure at the middle level focuses debate where it is needed. Important questions about the role of public values and the ultimate grounding of private law remain open and are sharpened by recognizing the role that complexity plays in the way that private law operates as a system.