Faculty Bibliography

The Supreme Court’s recent decision in Star Athletica purported to tell us the circumstances under which copyright will protect creative features of useful articles, such as items of clothing or cars. Unfortunately, the decision announced only abstract principles that manage to be both internally inconsistent and generally unhelpful in dealing with three-dimensional designs. This Article explains some of the challenges presented by the opinion and argues that clearer attention to the differences between design patent and copyright could have helped—and might still be useful going forward.

Debates about statutory interpretation typically proceed on the assumption that statutes have linguistic meanings that we can identify in the same way that we identify the meaning of utterances in ordinary conversation. But that premise is false. We identify the meaning of conversational utterances largely based on inferences about what the speaker intended to communicate. With legislatures, as now is widely recognized, there is no unitary speaker with the sort of communicative intentions that speakers in ordinary conversation possess. One might expect this recognition to trigger abandonment of the model of conversational interpretation as a framework for interpreting statutes. Instead, interpreters invent legislative intentions—purportedly “objective” ones for textualists—or purposes. With those inventions in place, judges and theorists then carry on talking about what statutes mean, or would mean to a reasonable person, as if there were a linguistic fact of the matter even in intelligibly disputed cases. But this is a deep and systematic error. Mainstream thinking about statutory interpretation needs a major reorientation. Contrary to widespread impressions, debates about statutory interpretation are not about what statutes mean as a matter of linguistic fact, but about which grounds for the attribution of an invented meaning would best promote judicial and governmental legitimacy. Having recognized that the model of conversational interpretation cannot ground claims about statutes’ meanings in disputed cases, we also need to rethink the role of legislatures and courts in a political democracy. There are limits to what legislatures can reasonably be expected to accomplish. Courts need to play the role of helpmates to the legislature, not just faithful agents. In the interpretation of statutes, linguistic intuitions should matter, but primarily for normative reasons, involving justice and fairness in the coercive application of law, and not because they reveal the legislature’s linguistically clear dictates.

Although the US Constitution is quite short, it is also quite old. The structures it called forth – including the presidency, the bicameral Congress, the Supreme Court – survive, even as their relationships have evolved. Its brief provisions have also spawned a complex body of jurisprudence on many issues that has shifted over more than two centuries; there are now more than 560 volumes of the official ‘US Reports’, that is, of cases decided by the US Supreme Court.

The goal of this essay is to offer a brisk progress report about behaviorally informed policy and law, while also providing some conceptual clarifications. It identifies a diverse range of initiatives, focusing largely on experience in the United States, that involve nudging and uses of behavioral science. It also explores prominent objections, coming both from those who believe that nudges are unduly aggressive, and should be avoided, and from those who believe that they are too weak and timid, and should be replaced or supplemented with mandates and bans.

The market for patient data has never been more active. Technology companies, from startups to giants, are eager to access electronic health record (EHR) data to build the next generation of health-focused products. Medical artificial intelligence (AI) is particularly data-hungry; large, representative data sets hold promise for advancing not only AI companies’ growth, but also the health of patients. Companies’ overtures to major hospitals about data sharing have highlighted legal and ethical uncertainties as to whether and how to undertake these relationships. One such partnership is now being challenged in court. In June 2019, a patient sued the University of Chicago Medical Center and Google for alleged misuse of patient EHR data. This Viewpoint discusses the case and what it signals about the need for thoughtful governance of data sharing between health care organizations and technology companies.

As a young man, Jack Goldsmith revered his stepfather, longtime Jimmy Hoffa associate Chuckie O’Brien. But as he grew older and pursued a career in law and government, he came to doubt and distance himself from the man long suspected by the FBI of perpetrating Hoffa’s disappearance on behalf of the mob. It was only years later, when Goldsmith was serving as assistant attorney general in the George W. Bush administration and questioning its misuse of surveillance and other powers, that he began to reconsider his stepfather, and to understand Hoffa’s true legacy. In Hoffa’s Shadow tells the moving story of how Goldsmith reunited with the stepfather he’d disowned and then set out to unravel one of the twentieth century’s most persistent mysteries and Chuckie’s role in it. Along the way, Goldsmith explores Hoffa’s rise and fall and why the golden age of blue-collar America came to an end, while also casting new light on the century-old surveillance state, the architects of Hoffa’s disappearance, and the heartrending complexities of love and loyalty.

To understand where digital governance is going, we must take stock of where it’s been, because the timbre of mainstream thinking around digital governance today is dramatically different than it was when study of “Internet governance” coalesced in the late 1990s. Perhaps the most obvious change has been from emphasizing networked technologies’ positive effects and promise – couched around concepts like connectivity, innovation, and, by this author, “generativity” – to pointing out their harms and threats. It’s not that threats weren’t previously recognized, but rather that they were more often seen in external clamps on technological development and upon the corresponding new freedoms for users, whether government intervention to block VOIP services like Skype to protect incumbent telco revenues, or in the shaping of technology to effect undue surveillance, whether for government or corporate purposes. The shift in emphasis from positive to negative corresponds to a change in the overarching frameworks for talking about regulating information technology. We have moved from a discourse around rights – particularly those of end-users, and the ways in which abstention by intermediaries is important to facilitate citizen flourishing – to one of public health, which naturally asks for a weighing of the systemic benefits or harms of a technology, and to think about what systemic interventions might curtail its apparent excesses. Each framework captures important values around the use of technology that can both empower and limit individual freedom of action, including to engage in harmful conduct. Our goal today should be to identify where competing values frameworks themselves preclude understanding of others’ positions about regulation, and to see if we can map a path forward that, if not reconciling the frameworks, allows for satisfying, if ever-evolving, resolutions to immediate questions of public and private governance.

One way to evaluate various interventions in people’s lives is to ask whether they make choosers better off, “as judged by themselves.” This criterion can be understood to borrow from the liberal political tradition insofar as it makes the judgments of choosers authoritative. Giving ultimate authority to choosers might be taken to respect their autonomy and also promote their welfare (insofar as people are uniquely situated to know whether choices make them better off). But for certain decisions, the “as judged by themselves” criterion is indeterminate. In such cases, what people care about shifts, depending on their choice. Some choices change people’s preferences and values, and in this sense, change their identity. In these situations, sometimes involving transformative experiences, the criterion does not offer a unique solution. It is possible that welfarist criteria will resolve the indeterminacy, despite serious questions about incommensurability. Considerations of autonomy are also relevant to choice-influencing interventions that promote transformative experiences.

Beginning in the 1990s, India, Brazil, and China have each developed a distinct corporate legal "ecosystem," comprised of new (or newly repurposed) domestic "corporate" law firms, foreign law firms competing (on the ground or virtually) to serve both foreign and domestic clients, general counsel offices of both domestic and multinational companies, and law schools either designed or retooled to supply lawyers qualified to practice corporate law. In this Article, we utilize data from an unprecedented set of empirical studies to document the rise of this new corporate ecosystem in these three important emerging economies, and to develop grounded theory about the forces that have produced this transformation, and that help to explain differences among the three jurisdictions. Specifically, we argue that differences in what we call the "micro-level gearing" in the relative importance of the three key elements in the corporate legal ecosystems that have developed in India, Brazil, and China – law firms, clients, and legal education – can be explained, in part, by differences in what we will call the "macro-level gearing" in the relative power of the state, the market, and the bar – both between all three countries and the United States, and among the three jurisdictions. This difference has been most pronounced in China, where the dominance of the "state gear" in shaping the corporate legal market contrasts sharply with both the U.S. "market" driven model, and the influence of the "bar" in shaping the micro-level corporate ecosystems in India and Brazil. We conclude by offering some tentative thoughts about the implications of our findings for a rapidly globalizing corporate legal services market in which a growing number of states are beginning to exert greater control at the macro-level.

In Kansas v. Glover, the United States 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 is that the registered owner has a suspended license. Professor Crespo authored this amicus brief on his own behalf urging affirmance of the Kansas Supreme Court.

The purpose of this brief is to correct and respond to two arguments in Petitioner-Appellee Altera’s petition for rehearing en banc and briefs of amici supporting the petition for rehearing. First, Treasury’s regulation requiring cost sharing of stock-based compensation and the Ninth Circuit panel’s decision are entirely consistent with longstanding precedents, practices and understandings regarding the meaning of the arm’s length standard. Second, reversal of the U.S. Tax Court by a Court of Appeals is an ordinary occurrence that reflects the federal courts’ hierarchy and is not a basis for granting en banc review.

While financial crises can be triggered by a number of causes, runs on short-term liabilities are at the heart of all financial crises with the recent 2007-2009 financial crisis being no exception. Given the unpredictability of crisis triggers and the overwhelming predictability of short-term funding’s role in financial crises, legislative and regulatory responses to the recent financial crisis should focus on controlling the problem of short-term funding in the financial system. However, in addressing the problem of short-term funding in the financial system, it is important to recognize the social benefits afforded by short-term liabilities and not simply the costs. To this end, this Article provides a brief overview of short-term funding in the U.S. financial system, while also highlighting the tradeoff between the costs and benefits of short-term liabilities. The Article proceeds with an analysis of various proposals aimed at addressing the short-term funding issue.

Despite decades of research on mechanism design and on many practical aspects of cost-benefit analysis, one of the most basic and ubiquitous features of regulation as actually implemented throughout the world has received little theoretical attention: exemptions for small firms. These firms may generate a disproportionate share of harm due to their being exempt and because exemption induces additional harmful activity to be channeled their way. This article analyzes optimal regulation with exemptions where firms have different productivities that are unobservable to the regulator, regulated and unregulated output each cause harm although at different levels, and the regulatory regime affects entry as well as the output choices of regulated and unregulated firms. In many settings, optimal schemes involve subtle effects and have counterintuitive features: for example, higher regulatory costs need not favor higher exemptions, and the incentives of firms to drop output to become exempt can be too weak as well as too strong. A final section examines the optimal use of output taxation alongside regulation, which illustrates the contrast with the mechanism design approach that analyzes the optimal use of instruments of a type that are not in widespread use.

The Chief Justice of the Delaware Supreme Court begins by invoking the New Deal, and expressing admiration for the way its goals and some of its social programs have been put into practice by Northern European social democracies. Most important are their protections for workers and the unemployed—protections the Judge finds deplorably absent in U.S. law and corporate labor practices. Nevertheless, when contemplating how corporate boards in the U.S. might respond to the growing demand for U.S. public companies to address social problems like the environment and economic inequality, the Delaware judge falls back on the prescription of Adolph Berle, who, though one of the framers of the New Deal, insisted that companies “stick to their knitting” by putting shareholders first as the only way of ensuring the accountability of corporate managements and boards. Harvard Law's Mark Roe responds with a defense of corporate America against the charge of corporate short‐termism by noting that, although U.S. capital expenditures have declined in the past 15–20 years, corporate investment in R&D and other intangible assets have both grown sharply. Corporate distributions in the form of dividends and stock buybacks are rising, but so have the net borrowings of the companies making the distributions, leaving the cash balances of U.S. companies also near record levels. And the remarkably high valuations of successful high tech companies are themselves forceful rebuttals of the idea that pressure from the stock market for current earnings is a serious deterrent to investment and innovation. The University of Pennsylvania's Jill Fisch follows Roe's dismissal of the short‐termism argument with even more forceful questioning of whether corporate America in fact has a major governance problem. U.S. companies have been taking voluntary measures to address environmental problems—in some cases even in the face of federal deregulatory initiatives—and many have raised their workers’ wages, without any challenges (and often with encouragement) from their shareholders. And echoing Justice Strine's concerns, Fisch also ends up questioning the premise that companies can be asked to define a single social purpose (other than maximizing shareholder value) that would be appropriate for, and end up satisfying, all their different stakeholders. Columbia Business School's Bruce Kogut closes with the suggestion that our greatest problems today may be coming not from the shortsightedness and other failings of corporations and corporate law, but from “deep distrust of the competence of the state.” Kogut's main prescription is that to take advantage of the enormous potential gains from effective arm's‐length collaboration between business and the public sector, governments at all levels should find ways to strike “Coasian bargains” with the private sector that makes the best possible uses of the core competencies and resources of each.

Ibram X. Kendi writes of being influenced by racist ideas — and how to get rid of them.

This article studies the political preferences of chief executive officers (CEOs) of public companies. We use Federal Election Commission records to compile a comprehensive database of the political contributions made by more than 3800 individuals who served as CEOs of Standard & Poor’s 1500 companies between 2000 and 2017. We find a substantial preference for Republican candidates. We identify how this pattern is related to the company’s industry, region, and CEO gender. In addition, we show that companies led by Republican CEOs tend to be less transparent to investors with respect to their political spending. Finally, we discuss the policy implications of our analysis.

An important milestone often reached in the life of an activist engagement is entering into a “settlement” agreement between the activist and the target’s board. Using a comprehensive hand-collected dataset, we analyze the drivers, nature, and consequences of such settlement agreements. Settlements are more likely when the activist has a credible threat to win board seats in a proxy fight and when incumbents’ reputation concerns are stronger. Consistent with incomplete contracting, face-saving benefits and private information considerations, settlements commonly do not contract directly on operational or leadership changes sought by the activist but rather on board composition changes. Settlements are accompanied by positive stock price reactions, and they are subsequently followed by changes of the type sought by activists, including CEO turnover, higher shareholder payouts, and improved operating performance. We find no evidence to support concerns that settlements enable activists to extract rents at the expense of other investors. Our analysis provides a look into the “black box” of activist engagements and contributes to understanding how activism brings about changes in target companies.

This update applies to the Seventh Edition (2013) of Areeda, Kaplow & Edlin, Antitrust Analysis: Problems, Text, and Cases.

In Gundy Justice Gorsuch offered two characterizations of the facts in the Schechter case: (1) “Kosher butchers such as the Schechters had a hard time following [the rules that required ‘straight-killing’ of chickens].” (2) “Yet the government apparently singled out the Schechters as a test case; inspectors repeatedly visited them and, at times, apparently behaved abusively toward their customers.” Justice Gorsuch relied upon Amity Shlaes’s book The Forgotten Man to support these assertions. In a blog post I criticized Shlaes’s account, and used Justice Gorsuch’s reliance upon it to illustrate what I called epistemic closure in the construction of the law – by which I meant the reliance upon a closed set of sources written by authors who generally shared a specific outlook on the way the world works. Josh Blackman and Shlaes responded to my criticism. But, as I show here, their responses are largely mistaken and (or perhaps because) undertheorized because of their failure (or perhaps inability – an inability that may be intrinsic to the process) to recognize the existence of epistemic closure.

Law of Asylum in the United States is an authoritative presentation of U.S. asylum law, long considered a must-have publication for practitioners, students, researchers, and teachers. It is frequently relied upon and cited by practitioners and decision makers. Law of Asylum describes and interprets U.S. statutes, regulations, and cases, as well as numerous international sources, providing an up-to-date analysis of all aspects of asylum law. This edition has been thoroughly updated to capture recent developments in asylum law and policy, including the Trump Administration's policy changes, children's credibility, formulation of particular social groups, the material support bar to asylum eligibility, the one-year filing deadline, ongoing Safe Third Country Act litigation, and reinstatement of removal. The extensive Procedures Appendix has been expanded and thoroughly updated to provide an invaluable resource for practitioners and researchers interested in U.S. asylum processes. In addition, this edition includes numerous unpublished Board of Immigration Appeals and immigration judge decisions In addition, this edition includes numerous unpublished Board of Immigration Appeals and immigration judge decisions and asylum officer training materials in accessible perma.cc format to guide practitioners and researchers. Law of Asylum also addresses fundamental issues such as: The meaning of "well-founded fear" and "persecution" The five grounds for asylum (race, religion, nationality, social group membership, and political opinion) Withholding of removal protection and protection under the Convention Against Torture Claims based on childhood status and gender-based persecution When nonstate actors can be considered agents of persecution Extensive coverage of gang membership/opposition to gangs Elements of proof Credibility determinations Recent changes in statutory language enacted with the REAL ID Act BIA cases on social distinction and particularity

The Logocratic Method, and the Logocratic theory that underwrites it, provide a philosophical explanation of three purposes or goals that arguers have for their arguments: to make arguments that are internally strong (the premises follow from the conclusions, to a greater or lesser degree—greatest degree in valid deductive arguments), or that are dialectically strong (win in some forum of argument competition, as for example in litigation contests of plaintiffs or prosecutors on the one hand, and defendants, on the other), or that are rhetorically strong (effective at persuading a targeted audience). This article presents the basic terms and methods of Logocratic analysis and then uses a case study to illustrate the Logocratic explanation of arguments. Highlights of this explanation are: the use of a (non-moral) virtue (and vice) framework to explicate the three strengths and weaknesses of arguments that are of greatest interest to arguers in many contexts (including but not limited to the context of legal argument), the Logocratic explication of the structure of abduction generally and of legal abduction specifically, the concept of a system of arguments, and the concept of the dynamic interactive virtue (and vice) of arguments—a property of systems of arguments in which the system of arguments as a whole (for example, the set of several arguments typically offered by a plaintiff or by a defendant) is as virtuous (or vicious) as are the component arguments that comprise the system. This is especially important since, according to Logocratic theory (and as illustrated in detail in this paper), some arguments, such as abduction and analogical argument, are themselves comprised of different logical forms (for example, abduction always plays a role within analogical argument, and either deduction or defeasible modus ponens, always plays a role within legal abduction).

This supplement brings the principal text current with recent developments in the law.

In the modern era, the statements and actions of public figures are scrutinized with great care, and it often emerges that they have said or done things that many people consider objectionable, hurtful, offensive, or despicable. A persistent question is whether public figures should apologize for those statements or actions. Suppose that an apology has a purely strategic motivation: helping a politician to be elected or reelected, helping an executive to keep his job, helping a nominee to be confirmed by the U.S. Senate. Empirical work presented here suggests that an apology might well turn out to be futile or even counterproductive. One reason is Bayesian; an apology produces updating that can be unfavorable to the apologizer (by, for example, resolving doubts about whether the apologizer actually said or did the objectionable thing, and about whether what the apologizer did was actually objectionable). Another reason is behavioral; an apology triggers the public’s attention, makes the public figure’s wrongdoing more salient, and can help define him or her. But many open questions remain about the reasons why apologies by public figures fail, and about the circumstances in which they might turn out to be effective.

This article argues that Calabresi and Melamed’s “Cathedral” framework of property rules, liability rules, and inalienability rules needs to be extended using the tools of complex systems theory in order to capture important institutional features of the law. As an applied field, law and economics looks to law in choosing the appropriate analytical tools from economics—something that Calabresi has identified (in strong form) as law and economics as opposed to economic analysis of law. Recognizing law as a complex system requires a rethinking of some Realist-inspired assumptions that underpin economically inspired analysis of law. These assumptions include a preference for narrow, concrete concepts and a skepticism about traditional doctrines and baselines—and ultimately Legal Realism’s extreme nominalism and the strong bundle of rights picture of property. The article shows how the Calabresi and Melamed (C&M) framework exhibits gaps that can be addressed by systems theory; these include narrow entitlements to engage in specific activities, liability rules that allow an affected party to buy out an activity (Rule 4), opportunistic behavior by parties that destabilizes liability rules, and the role of equity as an institutional response. Extending the C&M framework to treat it as a system helps prevent the C&M framework from flattening the law out. If we supplement the C&M framework to take account of law as a system, we can bring it closer to Calabresian law and economics.

Ingestible electronic sensors are a promising technology for improving health outcomes that may, for example, be useful in monitoring and promoting the taking of medication. However, these sensors also raise ethical and legal challenges that need to be considered by all stakeholders—notably, the creators of such products—at the earliest stages of the development process. Here, we examine selected ethical and legal issues related to ingestible electronic sensors. We first briefly describe sensors that are already available on the US and European markets as well as potential future sensor combinations. We then focus on ethical aspects, discussing patient, provider, and social issues. Finally, we provide a comparative analysis of legal regulation of ingestible electronic sensors in the US and Europe.

The Football Players Health Study at Harvard University (FPHS) is a unique transdisciplinary, strategic initiative addressing the challenges of former players’ health after having participated in American style football (ASF). The whole player focused FPHS is designed to deepen understanding of the benefits and risks of participation in ASF, identify risks that are potentially reversible or preventable, and develop interventions or approaches to improve the health and wellbeing of former players. We are recruiting and following a cohort of former professional ASF players who played since 1960 (current n = 3785). At baseline, participants complete a self‐administered standardized questionnaire, including initial reporting of exposure history and physician‐diagnosed health conditions. Additional arms of the initiative are addressing targeted studies, including promising primary, secondary, and tertiary interventions; extensive in‐person clinical phenotyping, and legal and ethical concerns of the play. This paper describes the components of the FPHS studies undertaken and completed thus far, as well as those studies currently underway or planned for the near future. We present our initiatives herein as a potential paradigm of one way to proceed (acknowledging that it is not the only way). We share what we have learned so that it may be useful to others, particularly in regard to trying to make professional sports meet the needs of multiple stakeholders ranging from players to owners, to fans, and possibly even to parents making decisions for their children.

As financial institutions move their operations, including core functions, to the cloud, financial regulators have begun to issue regulations and informal guidance addressing the use of cloud services in the financial sector. These are typically based on the regulator’s existing framework for outsourcing by a financial institution to third-party technology providers, under which the risks associated with outsourcing and the supervision of third-party providers are primarily the responsibility of the financial institution. This report provides background on the use of cloud computing in the financial sector, reviews existing regulatory and supervisory frameworks for cloud use by financial institutions, and recommends improvements to those frameworks that could reduce obstacles to more widespread cloud adoption by financial institutions.

In this paper, we examine the actual and potential roles of silence as an element of jus ad bellum treaty law and customary international law. By silence, we mean a lack of a publicly discernible response either to conduct reflective of a legal position or to the explicit communication of a legal position. We focus here on the silence of States and the United Nations Security Council as the primary actors who are positioned to shape, interpret, and apply jus ad bellum. We evaluate how silence has been employed by various scholars in making legal arguments in this field, and how silence may have the potential to affect the formation, identification, modification, and termination of various doctrines. We submit that there is no quantum of silence that has clear doctrinal force. We argue that, at least in relation to jus ad bellum, only certain forms of qualified silence — whether of States or of the Security Council — may be capable of contributing to legal effects. We further contend that, due in part to the nature and status of the norms underlying this field, those forms of qualified silence ought not to be lightly presumed. Arguably, there is a strong, if rebuttable, presumption that silence alone does not constitute acceptance of a jus ad bellum claim. Still, States and other international actors should be aware of the possible role that their silence could play in the identification and development of this field. We complement our analysis with an Annex that offers the most comprehensive catalogue to date of communications made by U.N. Member States to the Security Council of measures taken in purported exercise of the right of self-defense. The catalogue records over 400 communications made since the founding of the United Nations in late October 1945 through 2018. These communications reflect the views of the submitting State(s) on the scope of the right to employ force on the purported basis of self-defense.