Faculty Bibliography

In the face of rising rates of antibacterial resistance, many responses are being pursued in parallel, including ‘non-traditional’ antibacterial agents (agents that are not small-molecule drugs and/or do not act by directly targeting bacterial components necessary for bacterial growth). In this Perspective, we argue that the distinction between traditional and non-traditional agents has only limited relevance for regulatory purposes. Rather, most agents in both categories can and should be developed using standard measures of clinical efficacy demonstrated with non-inferiority or superiority trial designs according to existing regulatory frameworks. There may, however, be products with non-traditional goals focused on population-level benefits that would benefit from extension of current paradigms. Discussion of such potential paradigms should be undertaken by the development community.

We can’t cede social change to well-meaning experts. Especially in an era of hostile courts, politics, not law, is the only way forward.

Like many other elite athletes, National Football League (“NFL”) players typically have a short playing career, often leaving the league due to injury or lack of interest from teams before they have been able to prepare sufficiently for life after the league. This qualitative study examines the experiences of NFL players related to preparing for the transition out of professional sports. We completed interviews with a total of 25 players including both current and former players, as well as 27 family members of former and current players. Factors that affected their career preparation included features of the NFL work environment which necessitated an emphasis on football over other interests, identity foreclosure that made it difficult to consider other career options, limited exposure to other professions, and challenges with financial planning. Social contacts had both positive and negative effects on players’ preparation but family, particularly wives, provided important support. Our findings point to policies that might guide players in their preparation for life as former players including instituting mandatory training and counseling concerning these issues, beginning in a player’s rookie year, and continuing throughout players’ tenures in the league.

Comparative Capital Punishment offers a set of in-depth, critical and comparative contributions addressing death practices around the world. Despite the dramatic decline of the death penalty in the last half of the twentieth century, capital punishment remains in force in a substantial number of countries around the globe. This research handbook explores both the forces behind the stunning recent rejection of the death penalty, as well as the changing shape of capital practices where it is retained. The expert contributors address the social, political, economic, and cultural influences on both retention and abolition of the death penalty and consider the distinctive possibilities and pathways to worldwide abolition.

This statutory supplement (fall 2019 edition) is for the Corporations casebook by Holger Spamann and Guhan Subramanian. It contains excerpts from the Delaware General Corporation Law, the Securities Exchange Act of 1934, Rules & Regulations promulgated by the Securities Exchange Commission pursuant to authority granted under the 1934 Act, as well as short excerpts from the Restatement of the Law Third (Agency) and the Uniform Partnership Act of 1914. It is current as of August 1, 2019.

What are the limits of human rights, and what do these limits mean? This volume engages critically and constructively with this question to provide a distinct contribution to the contemporary discussion on human rights.

Alan Dershowitz has been called “one of the most prominent and consistent defenders of civil liberties in America” by Politico and “the nation’s most peripatetic civil liberties lawyer and one of its most distinguished defenders of individual rights” by Newsweek. Yet he has come under intense criticism for applying those same principles, and his famed “shoe‑on‑the‑other‑foot test,” to those accused of sexual misconduct. In Guilt by Accusation, Dershowitz provides an in‑depth analysis of the false accusations against him, alongside a full presentation of the exculpatory evidence that proves his account, including emails from his accuser and an admission of his innocence from her lawyer, David Boies. Additionally, he examines current attitudes toward accusations of sexual misconduct, which are today, in the age of #MeToo, accepted as implicit truth without giving the accused a fair chance to defend themselves and their innocence, and suggests possible pathways back to a society and legal system in which due process is respected above public opinion and the whims of social media mobs. This book is Alan Dershowitz’s plea for fairness for both accuser and accused, his principled stand for due process no matter the allegation, and his compelling assertion of his own innocence. It is essential reading for anyone who wants to know the inside story behind the accusations against him or who cares about the current societal debate over how we should handle accusations of sexual misconduct. The #MeToo movement has generally been a force for good, but as with many good movements, it is being exploited by some bad people for personal profit. Supporters of the #MeToo movement must not allow false accusers to hurt real victims by hiding behind its virtuous shield, turning it into an exploitive sword against innocent people.

New technologies have profoundly changed the way content is produced, shared, and disseminated. Some commentators argue that the ubiquity of digitized content means that libraries have become superfluous in the digital age. This presentation presents evidence to the contrary. It will discuss challenges for libraries arising from globalized copyright, including issues related to fake news and threats to fair use. The presentation will also highlight the strategic ways libraries are being embedded in the design of copyright law nationally and globally, exploring whether these developments–that are sometimes conflicting–are good for libraries and the public in the long term.

In Kansas v. Glover, the Supreme Court will consider whether a police officer has reasonable suspicion to believe that a vehicle is being driven by its registered owner — as opposed to some other authorized driver — when the sole fact known to the officer at the time of the stop is that the registered owner is not, in fact, lawfully allowed to drive any vehicle at all. This essay, adapted from an amicus brief filed in the Glover case, argues that the proper Fourth Amendment analysis in that case is unavoidably empirical in nature: The key question in the case can and should be resolved by real-world data, which the State in Glover was well-positioned to collect and present. Because it failed to do so, the State did not satisfy its burden of proof, and injected a narrow but significant error into the case that requires suppression, even if that result would not necessarily obtain in other cases arising in similar circumstances.

With insight and urgency, Harvard law professor and author of the bestselling Republic, Lost Lawrence Lessig argues both that our government does not represent us and that how we are represented doesn’t represent us—both flaws yield a democracy in crisis, and both demand reform that is both essential and possible. America’s democracy is in crisis. Along many dimensions, a single flaw—unrepresentativeness—has detached our government from the people. And as a people, our fractured partisanship and ignorance on critical issues drives our leaders to stake out ever more extreme positions. In They Don’t Represent Us, Harvard Law professor Lawrence Lessig charts the way in which the fundamental institutions of our democracy, including especially our media, respond to narrow interests rather than to the needs and wishes of the nation’s citizenry. But the blame does not only lie with “them”—Washington’s politicians and power brokers, Lessig argues. The problem is also “us.” “We the people” are increasingly uninformed about the issues, while ubiquitous political polling exacerbates the problem, reflecting and normalizing our ignorance and feeding it back into the system as representative of our will. What we need, Lessig contends, is a series of reforms, from governmental institutions to the public itself, including: A move immediately to public campaign funding, leading to more representative candidates; A reformed Electoral College, that gives the President a reason to represent America as a whole; A federal standard to end partisan gerrymandering in the states A radically reformed Senate; A federal penalty on states that don’t secure to their people an equal freedom to vote; Institutions that empower the people to speak in an informed and deliberative way. A soul-searching and incisive examination of our failing political culture, this nonpartisan call to arms speaks to every citizen, offering a far-reaching platform for reform that could save our democracy and make it work for all of us.

Lawyers have techniques to persuade decision-makers about what the law should be. Their normative toolkit uses arguments based on common values, storytelling, and framing to help us see our own values in a new light. These tools of reasoned argument enable us to engage in civil debate about divisive issues and to justify decisions in hard cases. Persuasion: Getting to the Other Side categorizes the arguments that lawyers use in debates about ambiguous or contested legal questions. It also explains how judges justify their decisions about what the law should be when the case involves competing values and there are plausible arguments on both sides. The goal is to provide law students with a toolkit to help them engage in reasoned arguments about what the law should be.

Disclosure mandates are pervasive. Though designed to inform consumers, such mandates may lead consumers to draw false inferences – for example, that a product is harmful when it is not. When deciding to require disclosure of an ingredient in or characteristic of a product, regulators may be motivated by evidence that the ingredient or characteristic is harmful to consumers. But they may also be motivated by a belief that consumers have a right to know what they are buying or by interest-group pressure. Consumers who misperceive the regulator’s true motive, or mix of motives, will draw false inferences from the mandated disclosure. If consumers think that the disclosure is motivated by evidence of harm, when in fact it is motivated by a belief in a right-to-know or by interest-group pressure, then they will be inefficiently deterred from purchasing the product. We analyze this general concern about disclosure mandates. We also offer survey evidence demonstrating that the risk of false inferences is serious and real. Our framework has implications for the ongoing debate over the labeling of food with genetically modified organisms (GMOs); it suggests that the relevant labels might prove misleading to some or many consumers, producing a potentially serious welfare loss. Under prevailing executive orders, regulators must consider that loss and if feasible, quantify it.

On May 5, 2019, Indiana became the first state to legislate against a doctor’s failure to obtain his fertility patient’s consent before inseminating her using his own sperm. Less than a month later, Texas passed an even stricter law against fertility fraud, as the practice is called. The explosion of at-home DNA testing has recently uncovered dozens of doctors who conceived scores of offspring using their own sperm instead of the samples provided by a spouse, an unknown donor, or a donor that the patients had selected. This revelation has upended families, revealed webs of biological half-siblings, and confounded the legal system. Fertility fraud is a pressing case study about the demands of informed consent and modern struggles between patient wellbeing and autonomy in the clinical practice of obstetric and fertility medicine. The answers to these hard questions are also giving rise to new criminal and civil penalties that are codifying those developments in medical ethics into law.

Medical crowdfunding has raised many ethical concerns, among them that it may undermine privacy, widen health inequities, and commodify health care. One motivation for medical crowdfunding has received particular attention among ethicists. Recent studies have shown that many individuals are using crowdfunding to finance access to scientifically unsupported medical treatments. Recently, GoFundMe prohibited campaigns for antivaccination groups on the grounds that they “promote misinformation about vaccines” and for treatment at a German clinic offering unproven cancer treatments due to “the need to make sure people are equipped to make well-informed decisions.” GoFundMe has not taken any additional actions to regulate the much larger presence of campaigns seeking to fund unproven medical interventions on the platform. In this article, we make the ethical case for intervention by GoFundMe and other crowdfunding platforms.

Sex robots are here. Created specifically to allow individuals to simulate erotic and romantic experiences with a seemingly alive and present human being, sex robots will soon force lawmakers to address the rise of digisexuality and the human-robot relationship. The extent to which intimacy between a human and robot can be regulated depends on how we characterize sex with robots--as a masturbatory act, an intimate relationship, or nonconsensual sexual contact-- and whether sexual activity with robots makes us see robots as more human or less human. A robot sex panic may be driven primarily by the idea that robots are servile by nature. Critics argue that an inherently nonreciprocal dynamic between humans and robots will translate into exploitative relationships that may fuel abuse of human partners, or that sex robots may further social isolation and retreat from human intimacy. Conversely, sex robots may function as safe--and otherwise unavailable--sexual and emotional outlets for those who may otherwise harm others. They may even train individuals to be more respectful in human relationships. At this point, we do not know how our relationships with robots will inform our relationships with humans, for better or for worse. This Essay explores the consequences of sex robots on society and argues that questions of how sex robots will improve or worsen humans' treatment of one another is the key to regulation to come. What is clear is that sex robots will require us to grapple with our vulnerabilities in relationships, reconsider fundamental rights, and question what it means to be intimate and to be human.

The Supreme Court’s constitutional regulation of the American death penalty has yielded a plethora of doctrines that have shaped an alternative criminal justice process that is (mostly) limited to capital cases. Many of these doctrines offer a vision and practice of “roads not taken” in the ordinary criminal justice process that would be attractive improvements in that larger system. We consider three of these doctrines: (1) more searching review of the proportionality of sentencing outcomes; (2) imposition of a requirement of individualized sentencing that has led to the investigation and presentation of in-depth evidence in mitigation; and (3) greater regulation of the adequacy of defense counsel that has moved closer to a “checklist” model of mandated practices. Each of these doctrines was born and developed under the Court’s “death is different” regime of constitutional regulation, and each of them has to some limited extent moved beyond the strictly capital context into the broader criminal justice process. We explain how these alternative models present attractive improvements for the broader noncapital system—a view that casts the Court’s regulation of the American death penalty as a progressive laboratory that can yield alternative, more protective, and more idealized processes for the ordinary criminal justice system. Yet we also caution that the “differentness” of death—and of juvenile offenders, the noncapital context to which the Court is most likely to import its death penalty innovations—can also serve to normalize and entrench the less protective, less idealized practices that exist outside of these realms.

After the amendment became effective, bankruptcy judges could only authorize bonuses for senior managers if they were linked to specific performance goals, such as increasing revenue or moving the firm through the bankruptcy process. [...]key employee incentive plans (KEIPs) became an important part of the chapter 11 landscape, displacing the earlier era of KERPs. [...]the institutions of bankruptcy law have struggled to administer the law. For each of these cases, the author, along with a team of research assistants, examined all of the significant pleadings filed in the case, with special attention to the pleadings discussing bonus plans, as well as the firm's financial statements and subsequent filings in the bankruptcy case and with the Securities and Exchange Commission to determine whether the bonus goals were achieved. In a regression analysis in the Ellias article, the author controls for some observable aspects of each chapter 11 debtor - firm size, firm industry and the law firm advising the debtor - and still finds a negative association between the reform and the likelihood that a chapter 11 debtor would seek court permission to pay bonuses to senior managers during their time in bankruptcy. [...]when bonus plans were proposed, they were nearly always "incentive" plans tied to performance goals.

The fusion of law and equity in common law systems was a crucial moment in the development of the modern law. Common law and equity were historically the two principal sources of rules and remedies in the judge-made law of England, and this bifurcated system travelled to other countries whose legal systems were derived from the English legal system. The division of law and equity – their fission – was a pivotal legal development and is a feature of most common law systems. The fusion of the common law and equity has brought about major structural, institutional and juridical changes within the common law tradition. In this volume, leading scholars undertake historical, comparative, doctrinal and theoretical analysis that aims to shed light on the ways in which law and equity have fused, and the ways in which they have remained distinct even in a 'post-fusion' world. Brings together comparative, doctrinal, historical and theoretical analyses of equity in a single volume, providing multiple perspectives on the issue. Analyses the fusion of law and equity in various jurisdictions, including Australia, Canada, England, Scotland, and the U.S. allowing readers to gain insights into their domestic legal systems by contrasting developments in others. Provides insights into the experiences of fusion, merger and fission of law and equity in different jurisdictions and discusses the misunderstandings about the modern relation of law to equity.

Where do dogs come from? Where do human beings come from? Recent research suggests a single answer: domestication. The various characteristics of dogs, distinguishing them from wolves, appear to be byproducts of domestication and (as recently shown by Richard Wrangham) a reduction in “reactive aggression.” It has long been thought that human beings domesticated dogs, but it is more plausible to think that that dogs domesticated themselves. As dogs are to wolves, so is the less robust but more docile Homo sapiens to various other, now extinct human species, including Homo erectus, Neanderthals, and Denisovans. Homo sapiens can be seen as the dog of the various human species. Homo sapiens survived in part because a reduction in reactive aggression made it possible for us to display significant increases in social learning and cooperation.

As the information gap between experts and non-experts narrows, it is increasingly important that experts learn to give advice to non-experts in a way that is effective, and that respects their autonomy and agency. We surveyed 508 participants using a hypothetical medical scenario in which participants were counseled on the risks and benefits of taking antibiotics for a sore throat in circumstances in which antibiotics were inappropriate. We asked participants whether they preferred: (1) to make their own decision based on the information or, (2) to make their decision based on the doctor’s opinion, and then randomized participants to receive “information only”, “opinion only”, “information first, then opinion”, or “opinion first, then information.” Participants whose stated preference was to follow the doctor’s opinion had significantly lower rates of antibiotic requests when given “information first, then opinion” compared to “opinion first, then information.” Our evidence suggests that “information first, then opinion” is the most effective approach. We hypothesize that this is because it is seen by non-experts as more trustworthy and more respectful of their autonomy.

This statement presents my views on buybacks and my general reactions to provisions in four pieces of legislation relating to stock buybacks. Part I describes the role of stock buybacks in the economy and offers some “investor-benign” explanations for firms’ use of repurchases rather than dividends to distribute cash to investors. Part I then explains that the overall level of shareholder payouts (that is, the total amount of dividends and repurchases) does not appear to be too high; in fact, it may well be too low. Part II describes the current regulation of buybacks, which I believe is too lax and enables their abuse by corporate executives. In particular, I will explain how current regulation can enable executives to use buybacks to enrich themselves at the expense of public investors, through (1) indirect insider trading, (2) the manipulation of the stock price and EPS metrics in compensation arrangements, and (3) “false signaling:” announcing repurchases that executives do not intend to carry out, solely to boost the stock price before executives unload shares. Part III suggests a disclosure rule that would reduce executives’ ability to engage in the above-mentioned abuses, and therefore, better protect public investors: requiring public firms (like their insiders) to disclose trades in firm stock within two business days. I also describe additional measures that could be taken if this disclosure rule turns out be insufficient. Part IV offers initial reactions to key provisions in these four pieces of legislation.

Many are surprised to learn that crime-based deportations do not necessarily make intuitive sense. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), a misdemeanor drug offense for which probation was imposed 20 years ago can be an “aggravated felony,” a category reserved for the presumably most serious offenses that result in detention, deportation, and denial of most forms of immigration relief. But a felony conviction for kidnapping may have no consequences at all. The crime of “child abuse, child neglect, or child abandonment” removal ground created by IIRIRA similarly leads to illogical results. This deportability ground, first created in 1996 by IIRIRA, is causing federal circuit courts (and arguably the Board of Immigration Appeals itself) to split over whether this deportability ground is narrow or broad. We contend that the narrow interpretation, best defended by the Tenth Circuit, is the proper one. Not only does the legislative history support a narrow reading, but the ground’s broad interpretation adopted by the Second Circuit improperly includes civil actions (not just crimes) and does not even require acts that cause injury to a child. As a result, the broad interpretation sweeps too far. It includes parents with civil violations for leaving their child unattended, either out of circumstances arising from the lack of child care for the working poor or from deliberate parenting choices known as “free-range” parenting in which children are encouraged to function independently and with limited parental supervision. The deportability ground should be interpreted narrowly—as intended by Congress—to trigger deportation only for those who are harming and preying on children. We contend that Congress meant to attach immigration consequences to the narrow definition and limit its reach to crimes involving harm to a child when enacting IIRIRA. It may at first seem counterintuitive to defend those who have committed crimes from deportation. After all, isn’t the threat of immigration, at least as explained by President Trump, the fact that “rapists” and “murderers” are crossing the border to harm U.S. citizens? But just as the fear of rape was wrongfully used to justify slavery and segregation, so too is the fear of rape being used to wrongfully defend the deportation of immigrants, even those who have committed crimes. This is true, as we will explain, even for those accused of child abuse crimes.

In recent years, the study of fiduciary law has undergone a paradigm shift. Rather than treat fiduciary principles as subsidiary elements of various fields of law, such as trust law or corporate law, a burgeoning group of scholars has undertaken to study fiduciary law as a coherent, general field of study that encompasses aspects of private and public law. Case law and academic commentary have progressed to the point that it is now possible to generate a detailed mapping of the field.

In the formative years of the modern First Amendment, civil liberties lawyers struggled to justify their participation in a legal system they perceived as biased and broken. For decades, they charged, the courts had fiercely protected property rights even while they tolerated broad-based suppression of the “personal rights,” such as expressive freedom, through which peaceful challenges to industrial interests might have proceeded. This article focuses on three phases in the relationship between the American Civil Liberties Union (ACLU) and the courts in the period between the world wars: first, the ACLU’s attempt to promote worker mobilization by highlighting judicial hypocrisy; second, its effort to induce incremental legal reform by mobilizing public opinion; and third, its now-familiar reliance on the judiciary to insulate minority views against state intrusion and majoritarian abuses. By reconstructing these competing approaches, the article explores the trade-offs – some anticipated and some unintended – entailed by the ACLU’s mature approach.

There are two distinct problems about bystander effects raised by organ donor intervention research. The first is the problem of “bystander organs”—sometimes called “non-target organs”—which Kimmelman discusses in his case presentation. How do we treat the recipients of organs that are not the subject of the intervention research but nonetheless might be directly affected by the research? The second problem is not about altering the organ but the pattern of distribution of organs. Each of these cases shows bystander effects that matter for real people. This article examines how research ethics should approach each of these cases.

Time series data analysis is increasingly important due to the massive production of such data through the internet of things, the digitalization of healthcare, and the rise of smart cities. As continuous monitoring and data collection become more common, the need for competent time series analysis with both statistical and machine learning techniques will increase. Covering innovations in time series data analysis and use cases from the real world, this practical guide will help you solve the most common data engineering and analysis challengesin time series, using both traditional statistical and modern machine learning techniques. Author Aileen Nielsen offers an accessible, well-rounded introduction to time series in both R and Python that will have data scientists, software engineers, and researchers up and running quickly.