Faculty Bibliography

This essay explores Marc Blitzstein’s 1937 labor opera, The Cradle Will Rock, as an assault on legal legitimacy. Since its famous first production—a pared-down performance in which actors delivered their parts from the house, improvised when the WPA canceled the scheduled opening of the controversial project—critics have emphasized Cradle’s indebtedness to the German playwright Bertolt Brecht, to whom Blitzstein dedicated the work. Consistent with Brecht’s Verfremdungseffekt, Blitzstein distances the audience from Cradle’s characters, substituting rational understanding for unreflective empathy. Like Brecht, he employs this theatrical device to expose the cultural and economic underpinnings of familiar social practices, including capitalism. Imported to the US context, the Brechtian reimagining of theatrical conventions resonated with a corresponding attack on formal legal justice. At the height of the New Deal’s crisis of legal legitimacy, Cradle depicts a judicial system baldly beholden to wealth and property. The anti-union steel magnate at the show’s center bribes and manipulates journalists, professionals, and public officials to promote his concept of “liberty,” namely, freedom from organized labor. By amplifying the effects of economic interests on legal outcomes while undermining empathy with the characters who facilitate and legitimate repression, Cradle invites the audience to consider its own complicity in law’s injustice.

Groups of people, outraged by some real or imagined transgression, often respond in a way that is wildly disproportionate to the occasion, thus ruining the transgressor’s day, month, year, or life. To capture that phenomenon, we might repurpose an old word: lapidation. Technically, the word is a synonym for stoning, but it sounds much less violent. It is also obscure, which makes it easier to enlist for contemporary purposes. Lapidation plays a role in affirming, and helping to constitute, tribal identity. It typically occurs when a transgressor is taken to have violated a taboo, which helps account for the different people and events that trigger left-of-center and right-of-center lapidation. One of the problems with lapidation is that it often accomplishes little; it expresses outrage, and allows people to signal their identity, but does no more. Victims of lapidation might be tempted to apologize, but apologies can prove ineffective or even make things worse, depending on the nature of the lapidators.

Crawford v. Washington, 542 U.S. 36 (2004), is the latest in a series of misconceived confrontation holdings. Its 'testimonial' hearsay standard has created endless confusion and done nothing to protect the rights of defendants nor the needs of fair jury trials. Constitutional confrontation requires legal sufficiency of proof. A crime may not be proved by hearsay alone. This is not a rule about the admissibility of hearsay evidence. It is a rule responsive to the injustice done to Sir Walter Raleigh mandating proof of criminal guilt by live-witness, personal-knowledge testimony sufficient to warrant conviction. Overruling Crawford and replacing it with a proper judicial understanding of the Sixth Amendment will rationalize confrontation law and restore the centrality of jury process to American criminal justice.

Class action law is built on a model that assumes a large group of individuals have similar legal claims of such small value that no one of them has the incentive or ability to litigate alone. Rule 23 resolves that collective action problem by enabling one class member to represent the group, with a common fund fee award sharing the costs across the class. The Constitution guarantees class members the options of opting out (exit) or objecting (voice), but given the small stakes, most do nothing (loyalty). While elegant, this model does not capture the reality of all class suits. In many cases, some class members have significant enough legal claims that they are capable of litigating alone. The group dynamics accordingly change, with everything turning on the decisions of the large claimants: in some securities cases, they step forward to perform a monitoring function (voice) and often they simply remain passive (loyalty), but the central question is whether they will opt out and litigate separately in the hopes of maximizing their recovery (exit). The risk that they might deters defendants from settling the class’s small claims, lest they then have to litigate the large claimants’ valuable claims. But the risk simultaneously creates an opportunity: if the class could present a united front, a defendant would likely pay a premium to settle the whole package of claims. Heterogeneous classes can therefore suffer a problem akin to a prisoner’s dilemma: every class member might be best off if they could work together, but lacking a mechanism to do so, coordination costs render the option elusive. The tragedy of this commons is that, built on a different template, class action law offers class members only the three options of exit, voice, or loyalty. In this Article, we offer heterogeneous class members a fourth option: cooperation. Our proposed mechanism for harnessing claimants’ cooperative instincts is a new form of class certification that we call “negotiation class certification.” Under this approach, class members would work together to generate a metric for distributing a lump sum settlement across the class. They would then ask the court to certify a “negotiation class” and to direct notice to the class members informing them that counsel will negotiate a lump sum settlement and that, if achieved, the lump sum amount would be put to a vote, with a supermajority vote binding the class; the notice would also explain the distributional metric. Any class member that did not want to bind itself to either the distributional metric or the supermajority voting process could opt out. By establishing the contours of the class prior to settlement discussions, negotiation class certification would provide the defendant with a precise sense of the scope of finality a settlement would produce, hence encouraging a fulsome offer. The proposal is a novel use of Rule 23, but it is, in many ways, a less ambitious one than certification of a settlement class, although the latter approach, controversial at its inception, has been a “stock device” in class action practice for nearly a quarter century. And while novel, negotiation class certification is consistent with the requirements of both Rule 23 and the Constitution. Indeed, engaging large class members in the settlement negotiation process ex ante improves on a system that delegates that authority to agents and involves the class only ex post.

Harvard Law Professor Mark Wu discusses the inevitable structural changes taking place in U.S.-China trade relations and how President Donald Trump has impacted these shifts.

Women’s rights lawyer Kathryn Kolbert argued the pro-choice case last time a serious attempt was made to overturn Roe v Wade. She explains her concerns that the Supreme Court might soon side with those keen to restrict access to abortion.

Merger and acquisition deals are governed by merger clauses which are negotiated between the bidder and target in order to communicate deal terms, specify risk sharing between the parties, and describe dispute management provisions in case of litigation. In a large sample of manually collected U.S. deal contracts involving publicly traded bidders and targets, we construct merger clauses indices based on legal scholars’ ex-ante prediction and examine the relationship between announcement returns and different types of merger clauses. We find that bidder protective clauses correlate with higher bidder returns while target protective clauses and pro-competition clauses correlate with higher target returns. We also find that bidder and target protective indices have larger impacts on announcement abnormal returns for “bad” deals than for “good” deals. Finally, we find that the inclusion of more bidder protective clauses leads to lower deal completion rates while the inclusion of more target protective clauses and pro-competition clauses has no impact on deal completion rates. These results are consistent with the expert lawyer/efficient contracting view of Cain, Macias, and Davidoff Solomon (2014), and Coates (2016), and against merger contracts as boilerplate agreements.

Two risk‐averse litigants with different subjective beliefs negotiate in the shadow of a pending trial. Through contingent contracts, the litigants can mitigate risk and/or speculate on the trial outcome. Contingent contracting decreases the settlement rate and increases the volume and costs of litigation. These contingent contracts mimic the services provided by third‐party investors, including litigation funders and insurance companies. The litigants (weakly) prefer to contract with risk‐neutral third parties when the capital market is transaction‐cost free. However, contracting with third parties further decreases the settlement rate, increases the costs of litigation, and may increase the aggregate cost of risk bearing.

How do human beings make decisions when, as the evidence indicates, the assumptions of the Bayesian rationality approach in economics do not hold? Do human beings optimize, or can they? Several decades of research have shown that people possess a toolkit of heuristics to make decisions under certainty, risk, subjective uncertainty, and true uncertainty (or Knightian uncertainty). We outline recent advances in knowledge about the use of heuristics and departures from Bayesian rationality, with particular emphasis on growing formalization of those departures, which add necessary precision. We also explore the relationship between bounded rationality and libertarian paternalism, or nudges, and show that some recent objections, founded on psychological work on the usefulness of certain heuristics, are based on serious misunderstandings.

Some information is beneficial; it makes people’s lives go better. Some information is harmful; it makes people’s lives go worse. Some information has no welfare effects at all; people neither gain nor lose from it. Under prevailing executive orders, federal agencies must investigate the welfare effects of information by reference to cost-benefit analysis. Federal agencies have (1) claimed that quantification of benefits is essentially impossible; (2) engaged in “breakeven analysis”; (3) projected various endpoints, such as health benefits or purely economic savings; and (4) relied on private willingness to pay for the relevant information. All of these approaches run into serious objections. With respect to (4), people may lack the information that would permit them to make good decisions about how much to pay for (more) information; they may not know the welfare effects of information. Their tastes and values may shift over time, in part as a result of information. These points suggest the need to take the willingness-to-pay criterion with many grains of salt, and to learn more about the actual effects of information, and of the behavioral changes produced by information, on people’s experienced well-being.

A funny thing about the U.S. Constitution is that it’s written down. Words might seem like an obvious feature of a constitution, but they're notably missing from much of the constitution of the United Kingdom, the country from which the United States seceded. Historians have often assumed that the quirky American practice of putting constitutions into single documents has its origins in the corporate charters of the seventeenth-century trading companies that founded more than half of the thirteen original states. But, as historian Mary Bilder has written, it is surprisingly difficult to explain the change from corporate charter to modern constitution with precision and persuasive power. This Article attempts to do just that, telling the story of an eighty-year lawsuit that forced the Massachusetts Bay Company to treat its charter's terms as Gospel. Relying on original research of thousands of primary sources from the United States and United Kingdom spanning from 1607 through 1793, the Article presents an account of how a corporate charter evolved into a “Charter Constitution” in America while the British Constitution remained intangible. The Article demonstrates that written words became a defining feature of American constitutionalism a century before the American Revolution, and that this distinction between the American and British understanding of constitutions contributed to American independence. It also demonstrates that charter constitutionalism emphasized text but also included methods of interpretation that today might be described as purposivist or living constitutionalist.

The political environment and legal decisions in the United States (US) can impact lives around the globe. A recent attack on women’s sexual and reproductive health and rights (SRHR) occurred in June 2018 when former US Attorney General Jeff Sessions reversed a decision (Matter of A-R-C-G-) in which domestic violence was recognized as a basis for asylum. Domestic violence is one form of gender-based violence, encompassing sexual and physical assault and reproductive coercion, which disproportionately harm women. Given the global epidemic of gender-based violence, we argue that Sessions’ reversal of this decision and efforts to rollback protection for domestic violence survivors could have far-reaching impacts on women around the world. This article will provide some recommendations for medical and legal professionals in response to this affront on SRHR.

In surveys, majorities of Americans disapprove of twelve hypothetical nudges (seven involving default rules, five involving education campaigns or disclosure requirements). These results provide an illuminating contrast with majority support for twenty-two nudges that were also tested, and that are much more realistic examples of the kinds of nudges that have been adopted or seriously considered in democratic nations. In general (and with some interesting exceptions), there is a strikingly broad consensus, across partisan lines, about which nudges do and do not deserve support. The best understanding of the data is that people dislike those nudges that (a) promote what people see as illicit ends, or (b) are perceived as inconsistent with either the interests or values of most choosers.

This Introduction summarizes the contributions of the chapters and introduces the main themes of the edited volume Transparency in Health and Health Care in the United States: Law and Ethics (Holly Fernandez Lynch, I. Glenn Cohen, Carmel Shachar, Barbara J. Evans, eds., Cambridge University Press 2019). It also provides the front matter for the volume, including its table of contents.

We live in an era of tribalism, polarization, and intense social division—separating people along lines of religion, political conviction, race, ethnicity, and sometimes gender. How did this happen? In Conformity, Cass R. Sunstein argues that the key to making sense of living in this fractured world lies in understanding the idea of conformity—what it is and how it works—as well as the countervailing force of dissent. An understanding of conformity sheds new light on many issues confronting us today: the role of social media, the rise of fake news, the growth of authoritarianism, the success of Donald Trump, the functions of free speech, debates over immigration and the Supreme Court, and much more. Lacking information of our own and seeking the good opinion of others, we often follow the crowd, but Sunstein shows that when individuals suppress their own instincts about what is true and what is right, it can lead to significant social harm. While dissenters tend to be seen as selfish individualists, dissent is actually an important means of correcting the natural human tendency toward conformity and has enormous social benefits in reducing extremism, encouraging critical thinking, and protecting freedom itself. Sunstein concludes that while much of the time it is in the individual’s interest to follow the crowd, it is in the social interest for individuals to say and do what they think is best. A well-functioning democracy depends on it.

In recent years, the study of fiduciary law has undergone a paradigm shift. Rather than treat fiduciary principles as subsidiary elements of legal fields, 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 both 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. To this end, the newly published Oxford Handbook of Fiduciary Law provides a near-encyclopedic survey of the terrain, focusing primarily on U.S. jurisprudence but also incorporating perspectives from other legal traditions. In its breadth and depth of coverage, the Handbook stands alone as a uniquely authoritative guide to the current state of the law and scholarship in the field. This essay, which is the Introduction to the Handbook, explores fiduciary law’s emergence as a general field of study and explains the Handbook’s ambitious contributions to the field. These contributions are grouped thematically into four parts. First, the Handbook surveys fiduciary principles across diverse contexts, ranging from agency law and the law of investment advice, to family law and the law of lawyering, to public offices and public international law. Second, the Handbook identifies and synthesizes several fundamental principles of fiduciary law that apply across these contexts, including the core fiduciary duties of loyalty and care. Third, the Handbook explores how fiduciary principles have developed across time and in different legal traditions around the world. Lastly, the Handbook considers how different legal theories, interdisciplinary approaches, and social institutions may contribute to the academic study and development of fiduciary law. The Handbook thus furnishes a single source to which readers can turn for guidance on fiduciary principles across a host of substantive fields, jurisdictions, and epochs.

Taiwan has gone through a number of important stages in its modern history, including the 1945 resumption of governance by the Republic of China succeeding Japanese colonialism, the Nationalist central government’s 1949 move to Taiwan, the horrendous abuse of many fundamental rights during four decades of martial law, and the termination of martial law beginning 1987. The issues discussed in this chapter mostly concern the recent stages. They include: the gradual transition to a constitutional regime protecting human rights; the role of Confucian tradition in the transition process; human rights related institutional arrangements (including the Constitutional Court, the Control Yuan, and the yet-to be- created National Human Rights Commission); Taiwan’s adoption of human rights treaties through implementation legislation and constitutional interpretation; the roles of NGOs in human rights protection; and Taiwan’s problems relating to: civil and political rights (including the death penalty, personal liberty, freedoms of expression, privacy, and fair trial), economic, social, and cultural rights (including the rights to health, a clean environment, and adequate housing and food) and the protection of vulnerable groups (including indigenous people, women, LGBT individuals, the disabled, and foreigners). Thus this chapter offers background to other chapters in this book concerning Taiwan’s human rights performance.

Taiwan’s early law (1980) regarding disability presumed a medical model—i.e., seeing disability as an individual problem rather than a societal responsibility. Facing considerable discrimination and inspired by the social model embodied elsewhere, including in the United Nations Convention on the Rights of Persons with Disabilities (CRPD), citizen activists, including disabled persons organizations, have pressed for legislative reform. Following the earlier support of the administration of President Ma Ying-jeou for incorporation of the United Nations Human Rights Covenants into domestic law (owing to Taiwan’s being barred from formal accession), the Legislative Yuan in 2014 passed a bill designed to incorporate the CRPD into Republic of China (R.O.C) law. That measure not only retained all key provisions of the CRPD but also called on the Executive Yuan to conduct a comprehensive review of existing legal measures for compliance and pro-actively to engage persons with disabilities in implementing the new law, while also establishing innovative reporting and monitoring mechanisms intended to parallel the requirements of the CRPD. Much progress has been achieved but serious challenges remain regarding discrimination, especially with respect to employment and reasonable accommodations, while some scholars have questioned the suitability of a highly individual-focused rights-based model for Taiwanese society. Disabled persons organizations continue to play an active role both in policy and legal advocacy and in seeking to educate the public more broadly about disability.

The first-ever image of a black hole was a monumental scientific achievement. Harvard physicist Andrew Strominger talks about what the discovery means for the present and future.

Abortion remains one of the most divisive controversies in the United States, and few states restrict the practice more than Alabama. In 2018, Alabama voters passed an amendment to the state’s constitution that “recognize[s] and support[s] the sanctity of unborn life and the rights of unborn children.” Kansas, Missouri, and Louisiana have enacted similar language into their constitutions. These clauses variously classify fertilized eggs, zygotes, embryos, and fetuses as “persons” entitled to unspecified legal protections from the moment of conception. They have the potential for sweeping consequences. It is unclear whether and how these measures would lead to criminal penalties against pregnant women for activities like drug use that risk harming the fetus, as well as prohibitions on in vitro fertilization (IVF), stem cell research, or other practices that involve the destruction of human embryos

The word “Socialism” is often demonized in American politics, but is that criticism warranted? Professor Sean Wilentz of Princeton University walks us through the history of American socialism and how the ideas behind it became so warped.

Law students randomly assigned to represent one side in a legal argument in the classroom exhibit substantial role-induced prediction bias for their side within only 40 minutes of their role assignment. Reminding students that prediction requires a more neutral perspective than advocacy does not attenuate the bias. The bias occurs evenly in male and female participants, who also report equal confidence in their predictions.

The Internet moves in phases, and we are entering the third in 20 years. In this keynote, using a framework drawn from the Law of the Horse, I describe the phase we are entering - the surveillance phase - and the threat it presents to society generally, and democracy in particular. Along the way, I offer an understanding of the Net circa 1999, and the phase that followed it, circa 2009. At each stage, our inability to govern has been a significant liability. In the phase we are entering, it will be devastating.

Historian and author Khalil Gibran Muhammad discusses the state of criminal justice and prisons in America and whether the country should take drastic steps toward reform.

Professor Adam Winkler’s recent history of corporate rights, We the Corporations, showed that folk wisdom about corporate personhood is exactly backwards: businesses have won their rights not by asserting their own personhood, but by purporting to represent the real, rights-bearing people behind the corporate veil. In this review, Professor Nikolas Bowie elaborates on this second framework –– what he calls “corporate statehood.” If this metaphor has had pathological consequences, Bowie argues, the problem isn’t necessarily intrinsic to the metaphor. Drawing on a narrative from the Lochner era, Bowie urges reformers to “make the metaphor true,” and in doing so convert “industrial oligarchies” into representative, accountable institutions.

Historian Kathleen Belew discusses the modern history of the white power movement and the often overlooked connection between incidents like Charlottesville and the Oklahoma City bombing.

"This volume honours the work and writings of Professor Sir John Baker over the past fifty years, presenting a collection of essays by leading scholars on topics relating to the sources of English legal history, the study of which Sir John has so much advanced." -- Cambridge University Press