Faculty Bibliography

The article offers the author's insights on how to engage the liberal empire into Christianity. Topics include the structural hostility of liberalism to the Church and how the Church acts under different political conditions, the association between the Church and politics, and the different options of Christians to engage in politics.

In A Theory of Tort Liability, Allan Beever identifies a lacuna in modern tort theory and aims to fill it. In his view, it is correct but insufficient to assert that a tort suit involves a plaintiff seeking to establish that the defendant wrongfully injured her, such that she is entitled to redress for the wrong. What’s missing is an explanation of tort law’s substance—of why courts have recognised particular torts defined in particular ways. Even if one accepts, as Beever does, that the wrongs of tort law track and vindicate rights, one still needs an account of which rights, and of why it protects them on the terms that it does.

This book presents an in-depth exploration of the administration of justice during Islam’s founding period, 632–1250 CE. Inspired by the scholarship of Roy Parviz Mottahedeh and composed in his honor, this volume brings together ten leading scholars of Islamic law to examine the history of early Islamic courts. This approach draws attention to both how and why the courts and the people associated with them functioned in early Islamic societies: When a dispute occurred, what happened in the courts? How did judges conceive of justice and their role in it? When and how did they give attention to politics and procedure? Each author draws on diverse sources that illuminate a broader and deeper vision of law and society than traditional legal literature alone can provide, including historical chronicles, biographical dictionaries, legal canons, exegetical works, and mirrors for princes. Altogether, the volume offers both a substantive intervention on early Islamic courts and on methods for studying legal history as social history. It illuminates the varied and dynamic legal landscapes stretching across early Islam, and maps new approaches to interdisciplinary legal history.

Over the past 25 years, social science research in diverse fields has shifted its best explanations of innovation from (a) atomistic invention and development by individuals, corporate or natural, to networked learning; (b) market based innovation focused on material self interest to interaction between market and non market practices under diverse motivations; and (c) property rights exclusively to interaction between property and commons. These shifts have profound implications for how we must think about law and innovation. Patents, copyrights, non compete agreements, and trade secret laws are all optimized for an increasingly obsolete worldview. Strong intellectual property impedes, rather than facilitates, innovation when we understand that knowledge flows in learning networks, mixing market and non market models and motivations, and weaving commons with property are central to the innovation process.

This article translates and extends Becker (1968) from public law enforcement to private litigation by examining optimal legal system design in a model with private suits, signals of case strength, court error, and two types of primary behavior: harmful acts that may be deterred and benign acts that may be chilled. The instruments examined are filing fees or subsidies that may be imposed on either party, damage awards and payments by unsuccessful plaintiffs (each of which may be decoupled), and the stringency of the evidence threshold (burden of proof). With no constraints, results arbitrarily close to the first best can be implemented. Prior analyses of optimal damage awards, decoupling, and fee shifting are shown to involve special cases. More important, previous results change qualitatively when implicit assumptions are relaxed. For example, introducing a filing fee can make it optimal to minimize what losing plaintiffs pay winning defendants and to reduce the evidence threshold as much as possible — even though the direct effect of these adjustments is to chill desirable behavior, a key feature absent in prior work.

In many settings, there are preliminary or interim decision points at which legal cases may be terminated: e.g., motions to dismiss and for summary judgment in U.S. civil litigation, grand jury decisions in criminal cases, and agencies’ screening and other exercises of discretion in pursuing investigations. This article analyzes how the decision whether to continue versus terminate should optimally be made when (A) proceeding to the next stage generates further information but at a cost to both the defendant and the government and (B) the prospect of going forward, and ultimately imposing sanctions, deters harmful acts and also chills desirable behavior. This subject involves a mechanism design analogue to the standard value of information problem, one that proves to be qualitatively different and notably more complex. Numerous factors enter into the optimal decision rule – some expected, some subtle, and some counterintuitive. The optimal rule for initial or intermediate stages is also qualitatively different from that for assigning liability at the final stage of adjudication.

Few decisions in the criminal justice process are as consequential as the determination of bail. Indeed, recent empirical research finds that pre-trial detention imposes substantial long-term costs on defendants and society. Defendants who are detained before trial are more likely to plead guilty, less likely to be employed, and less likely to access social safety net programs for several years after arrest. Spurred in part by these concerns, critics of the bail system have urged numerous jurisdictions to adopt bail reforms, which have led to growing momentum for a large-scale transformation of the bail system. Yet supporters of the current system counter that pre-trial detention reduces flight and pre-trial crime—recognized benefits to society—by incapacitating defendants. Despite empirical evidence in support of both positions, however, advocates and critics of the current bail system have generally ignored the real trade-offs associated with detention. This Article provides a broad conceptual framework for how policymakers can design a better bail system by weighing both the costs and benefits of pre-trial detention—trade-offs that are historically grounded in law, but often disregarded in practice. I begin by presenting a simple taxonomy of the major categories of costs and benefits that stem from pre-trial detention. Building from this taxonomy, I conduct a partial cost-benefit analysis that incorporates the existing evidence, finding that the current state of pre-trial detention is generating large social losses. Next, I formally present a framework that accounts for heterogeneity in both costs and benefits across defendants, illustrating that detention on the basis of “risk” alone can lead to socially suboptimal outcomes. In the next part of the Article, I present new empirical evidence showing that a cost-benefit framework has the potential to improve accuracy and equity in bail decision-making, where currently bail judges are left to their own heuristics and biases. Using data on criminal defendants and bail judges in two urban jurisdictions, and exploiting variation from the random assignment of cases to judges, I find significant judge differences in pre-trial release rates, the assignment of money bail, and racial gaps in release rates. While there are any number of reasons why judges within the same jurisdiction may vary in their bail decisions, these results indicate that judges may not be all setting bail at the socially optimal level. The conceptual framework developed in this Article also sheds light on the ability of recent bail reforms to increase social welfare. While the empirical evidence is scant, electronic monitoring holds promise as a welfare-enhancing alternative to pre-trial detention. In contrast, application of the conceptual framework cautions against the expanding use of risk-assessment instruments. These instruments, by recommending the detention of high-risk defendants, overlook the possibility that these high-risk defendants may also be “high-harm” such that they are most adversely affected by a stay in jail. Instead, I recommend that jurisdictions develop “net benefit” assessment instruments by predicting both risk and harm for each defendant in order to move closer toward a bail system that maximizes social welfare.

Over the course of his life, James Madison changed the United States three times: First, he designed the Constitution, led the struggle for its adoption and ratification, then drafted the Bill of Rights. As an older, cannier politician he co-founded the original Republican party, setting the course of American political partisanship. Finally, having pioneered a foreign policy based on economic sanctions, he took the United States into a high-risk conflict, becoming the first wartime president and, despite the odds, winning. In The Three Lives of James Madison, Noah Feldman offers an intriguing portrait of this elusive genius and the constitutional republic he created—and how both evolved to meet unforeseen challenges. Madison hoped to eradicate partisanship yet found himself giving voice to, and institutionalizing, the political divide. Madison’s lifelong loyalty to Thomas Jefferson led to an irrevocable break with George Washington, hero of the American Revolution. Madison closely collaborated with Alexander Hamilton on the Federalist papers—yet their different visions for the United States left them enemies. Alliances defined Madison, too. The vivacious Dolley Madison used her social and political talents to win her husband new supporters in Washington—and define the diplomatic customs of the capital’s society. Madison’s relationship with James Monroe, a mixture of friendship and rivalry, shaped his presidency and the outcome of the War of 1812. We may be more familiar with other Founding Fathers, but the United States today is in many ways Madisonian in nature. Madison predicted that foreign threats would justify the curtailment of civil liberties. He feared economic inequality and the power of financial markets over politics, believing that government by the people demanded resistance to wealth. Madison was the first Founding Father to recognize the importance of public opinion, and the first to understand that the media could function as a safeguard to liberty.

As Benjamin Franklin famously put it, Americans have a republic, if we can keep it. Preserving the Constitution and the democratic system it supports is the public’s responsibility. One route the Constitution provides for discharging that duty—a route rarely traveled—is impeachment. Cass R. Sunstein provides a succinct citizen’s guide to an essential tool of self-government. He illuminates the constitutional design behind impeachment and emphasizes the people’s role in holding presidents accountable. Despite intense interest in the subject, impeachment is widely misunderstood. Sunstein identifies and corrects a number of misconceptions. For example, he shows that the Constitution, not the House of Representatives, establishes grounds for impeachment, and that the president can be impeached for abuses of power that do not violate the law. Even neglect of duty counts among the “high crimes and misdemeanors” delineated in the republic’s foundational document. Sunstein describes how impeachment helps make sense of our constitutional order, particularly the framers’ controversial decision to install an empowered executive in a nation deeply fearful of kings. With an eye toward the past and the future, Impeachment: A Citizen’s Guide considers a host of actual and imaginable arguments for a president’s removal, explaining why some cases are easy and others hard, why some arguments for impeachment have been judicious and others not. In direct and approachable terms, it dispels the fog surrounding impeachment so that Americans of all political convictions may use their ultimate civic authority wisely.

What, if anything, legitimates the administrative state? In this Essay, for the Harvard Law Review’s special issue celebrating the bicentennial of Harvard Law School, I examine three attempts to solve the administrative state’s legitimation problem, offered respectively by James Landis, by Louis Jaffe, and by Elena Kagan. The solutions have a common theme and a common structure: each appeals more or less explicitly to “independence.” Each attempts to find a remedy for distrust of unchecked administrative power, and each attempts to do so by identifying “independent” institutions that will monitor and oversee the bureaucracy. However, each compromises their claims in institutional circumstances where the force of competing values becomes particularly strong. The result is that each theorist ends up adopting a kind of roughly optimizing pluralism of values for the administrative state, a pluralism in which “independence” falls out of the picture as such, and in which the benefits of expertise, political accountability, and legalism all have some claims. Happily, this pluralist, rough, and imperfectly-optimizing approach seems adequate to legitimate the administrative state, at least in the sociological sense of legitimation as public acceptance.

What is the significance of legal education? “Plato tells us that, of all kinds of knowledge, the knowledge of good laws may do most for the learner. A deep study of the science of law, he adds, may do more than all other writing to give soundness to our judgment and stability to the state.” So explained Dean Roscoe Pound of Harvard Law School in 1923, and his words resonate nearly a century later. But missing are three other possibilities regarding the value of legal education: To assess, critique, and improve laws and legal institutions; To train those who pursue careers based on legal training, which may mean work as lawyers and judges; leaders of businesses, civic institutions, and political bodies; legal academics; or entrepreneurs, writers, and social critics; and To advance the practice in and study of reasoned arguments used to express and resolve disputes, to identify commonalities and differences, to build institutions of governance within and between communities, and to model alternatives to violence in the inevitable differences that people, groups, and nations see and feel with one another. The bicentennial of Harvard Law School prompts this brief exploration of the past, present, and future of legal education and scholarship, with what I hope readers will not begrudge is a special focus on one particular law school in Cambridge, Massachusetts.

Three Harvard Law School alumni — James Bradley Thayer, Oliver Wendell Holmes, Jr., and Louis D. Brandeis — have had outsized impacts on judicial review, how it is conducted and conceived. Part I of this Essay provides a brief overview of Thayer’s theories of judicial deference, Holmes’s value skepticism and deference to “dominant opinion,” and Brandeis’s efforts, through improved understandings of facts, to bring “legal justice” closer to “social justice.” Their influences endure in (at least) rhetorical commitments to judicial deference to legislatures and a certain “value skepticism” that, as Part II suggests, help explain why “proportionality review,” though widely used in other constitutional democracies, has not been adopted here. Part III argues that proportionality review, in some areas, would improve the transparency of constitutional analysis and enable constitutional law to better approach constitutional justice. It further argues that, in an age of “truthiness,” “fake news,” and “kabuki theater” in legislative hearings, courts are most likely, among major institutions of government, to provide publicly transparent and impartial decisionmaking about facts relevant to the constitutionality of laws, whether under proportionality review or other doctrines. Deference may be appropriate, as Thayer, Holmes, and Brandeis in different ways urged, but it should be deployed in ways responsive to the social facts about different governmental decisionmaking processes.

Democratic governance in societies around the world faces serious challenge today. Education sits at the crossroads of the information revolution and widening inequalities. The frailties of education increase the fragility of democracy. Strengthening each is critical to the other.

Remarks, Towards a Heterodox Policy Analytics, Inst. Global Law & Pol’y (IGLP) Policy Workshop, Almsdorf, Austria (Oct. 7, 2017).

Bankruptcy Code § 546(e) contains a safe harbor that prevents avoidance of a securities settlement payment, e.g., as a preferential or constructively fraudulent transfer. This amicus brief was filed in Merit Mgmt. Grp. v. FTI Consulting, Inc., No. 16-784 (U.S.). The brief explains how § 546(e) rationally constrains its scope via the statutory specification that the safe harbor only applies (because it need only apply) if the “transfer” sought to be avoided was allegedly “made by or to (or for the benefit of)” a protected securities market intermediary, such as a stockbroker or a financial institution. Ascertaining the meaning and function of that determinative scope language requires an understanding of (1) the concept of a “transfer” as the fundamental analytical transaction unit throughout the Code’s avoidance provisions, and (2) the relationship between that avoidable “transfer” concept and the inextricably interrelated concepts of who that “transfer” is “made by or to (or for the benefit of).” By its express terms, § 546(e) only shields a challenged “transfer” from avoidance if (1) that transfer was “made by” a debtor-transferor who was a qualifying intermediary, “or” (2) a party with potential liability — because the challenged transfer allegedly was made “to or for the benefit of” that party — was a protected intermediary.

In recent years, China has enacted export restrictions on a range of minerals and other raw materials. They include export quotas, export duties, export licenses, and other administrative actions. Although such export restrictions have already been found to be inconsistent with China's WTO obligations, the practice persists. This article advances an explanation for why this is the case. It argues that the problem lies with the lack of retrospective remedies in WTO dispute settlement. Consequently, China is able to breach its WTO obligations temporarily with minimal consequence. Although such restrictions may have negative consequences for upstream extraction firms, China is able to implement the restrictions because several upstream firms are state-owned enterprises. As a result, China is able to utilize export restrictions on minerals and other raw materials effectively to foster the development of strategic emerging industries downstream. Given existing negotiating standoffs and domestic political constraints, this article suggests that it is unlikely that any potential WTO legal reforms will be enacted any time soon to address this problem.

The article discusses obesity-related health care costs in America in relation to a debate about whether the U.S. government should allow consumers to purchase sugar-sweetened beverages (SSBs) and other unhealthy food products through food assistance programs such as the Supplemental Nutrition Assistance Program (SNAP) as of 2017. A choice architecture concept involving decision making by consumers is examined, along with supermarkets and American public health.

The article discusses issues involving U.S. President Donald Trump. The behavior of President Trump can have an impact on American democracy. Other information including the initial executive order on immigration, Russia investigation, and customs of civilian-military relations and the attempt to leverage popular admiration for the military into backing for his policies are also discussed.

Zero rating, which allows users to access select Internet services and content without incurring mobile data charges, is not a new concept. But it has become an object of debate as mobile carriers and major app providers have used it in the developing world to attract customers, with the goal of increasing Internet access and adoption. While some feel these programs violate net neutrality and create the potential for a two-tiered Internet, others argue that zero rating programs bring the developing world online and could be modified to uphold, rather than violate, net neutrality principles. At the same time, little research evaluating zero rating programs exists, and many different program formulations are lumped under the term “zero rating,” some of which are more compatible with net neutrality than others. In March of 2016, the Berkman Klein Center for Internet & Society gathered a diverse group of stakeholders from academia, the media, the government sector, industry, and the open software community to discuss the use of zero rating as a means to improve Internet adoption in the developing world and how and when it could be an effective tool, if at all. This paper captures the resulting dialogue and recommendations. The workshop summary is followed by a collection of briefing papers representing the viewpoints of many of the workshop participants. Key Findings: Many different models of industry initiatives currently fall into the loose definition of zero rating. Creating a better defined taxonomy of program parameters, technical mechanisms, and impacts may allow for greater nuance and understanding in the field, as well as more targeted regulatory responses. Universal Internet access and adoption is a common goal but one that requires significant investment in global infrastructure. Some assert that zero rating programs may serve as a helpful stopgap measures to increase access, while others argue that these programs contribute to the creation of a tiered Internet ecosystem without providing meaningful benefits to the targeted beneficiaries. Zero rating initiatives may be employed in pursuit of goals other than Internet adoption, such as an emergency services messaging system or security updates. The goals of a particular zero rating program may make it more or less controversial. More empirical research is required to fully assess the impact of specific zero rating initiatives, as well as zero rating generally, on Internet adoption in the developing world. This research will sometimes require access to usage information held by mobile carriers and zero rating service providers that should be handled with user privacy in mind.

A great many Americans, especially African Americans, are in a mood of despair upon witnessing a president of the United States winking at neo-Confederates, neo- Nazis, and Ku Klux Klansmen, and doing everything in his power to expunge the achievements of his predecessor, a man who came to be known less for his race than for his decency, dignity, and honor. Far too little notice, for example, was given to the remarkable May 19 speech by Mayor Mitch Landrieu explaining the decision of the New Orleans municipal government to remove from places of public honor three monuments celebrating Confederate generals and one celebrating the violent overthrow of the state's multiracial Reconstruction government. Folks numbering in the millions and of all complexions are selfconsciously engaging in countless acts of protest: marching, organizing study groups, volunteering legal expertise, donating money to institutions dedicated to the preservation of threatened values-the NAACP, the ACLU, the Southern Coalition for Social Justice-and resolving in numberless diverse ways to become more active, informed, influential.

In 2015, Laura Kipnis, a film-studies professor at Northwestern University, published a polemic in The Chronicle of Higher Education titled “Sexual Paranoia Strikes Academe.” Kipnis argued that students’ sense of vulnerability on campus was expanding to an unwarranted degree, partly owing to new enforcement policies around Title IX, which prohibits sex discrimination at educational institutions that receive federal funds. The new Title IX policies on sexual misconduct which were then sweeping campuses perpetuated “myths and fantasies about power,” Kipnis wrote, which enlarged the invasive power of institutions while undermining the goal of educating students in critical thinking and resilience. “If you wanted to produce a pacified, cowering citizenry, this would be the method,” she concluded.

An essay by Jeannie Suk Gersen. Over the summer, anticipation over what the Education Department might do about campus sexual assault heightened as the Education Secretary, Betsy DeVos, held high-profile meetings with groups advocating for the interests of universities, sexual-assault victims, and accused students—including one men’s-rights group accused of harassing women online. DeVos’s civil-rights head, Candace Jackson, alarmingly, told the Times that “90 percent” of campus accusations are over drunk or breakup sex. As the new school year began in earnest, widespread fears of a “rollback” of Title IX enforcement accompanied DeVos’s long-awaited policy speech, which was delivered on Thursday, at George Mason University.

Some people believe that nudges are an insult to human agency; that nudges are based on excessive trust in government; that nudges are covert; that nudges are manipulative; that nudges exploit behavioral biases; that nudges depend on a belief that human beings are irrational; and that nudges work only at the margins and cannot accomplish much. These are misconceptions. Nudges always respect, and often promote, human agency; because nudges insist on preserving freedom of choice, they do not put excessive trust in government; nudges are generally transparent rather than covert or forms of manipulation; many nudges are educative, and even when they are not, they tend to make life simpler and more navigable; and some nudges have quite large impacts.