Faculty Bibliography

Several significant legal, policy, and practical concerns are at issue in whether armed non-state actors (ANSAs) will ultimately be recognized—by all relevant institutions and actors—as bearing human-rights obligations in general under international law in a manner previously reserved primarily for states. In considering this set of issues, it is important to clarify what obligations, if any, the United Nations (U.N.) Security Council and the U.N. General Assembly recognize ANSAs as possessing under IHRL. This June 2017 Briefing Report with Annexes provides an overview of research conducted by HLS PILAC concerning modalities in which the U.N. Security Council and the U.N. General Assembly have addressed ANSAs with respect to human rights; ways in which these U.N. principal organs have distinguished between different types of ANSAs; and the consequences of these organs possibly establishing responsibility of ANSAs in relation to the protection and fulfillment—or, at least, the non-abuse—of human rights. While it is incontrovertible that the U.N. Security Council and the U.N. General Assembly have recognized, at a minimum, that the conduct of at least some ANSAs can amount to violations or abuses of human rights, it is not currently possible to state that either of these principal U.N. organs has taken sufficient steps to formally endow ANSAs with human-rights obligations in general under international law.

This Article examines the unrecognized origins and scope of the judicial presumption of police expertise: the notion that trained, experienced officers develop insight into crime sufficiently rarefied and reliable to justify deference from courts. That presumption has been widely criticized in Fourth Amendment analysis. Yet the Fourth Amendment is in fact part of a much broader constellation of deference, one that begins outside criminal procedure and continues past it. Drawing on judicial opinions, appellate records, trial transcripts, police periodicals, and other archival materials, this Article argues that courts in the mid-twentieth century invoked police expertise to expand police authority in multiple areas of the law. They certified policemen as expert witnesses on criminal habits; they deferred to police insights in evaluating arrests and authorizing investigatory stops; and they even credited police knowledge in upholding criminal laws challenged for vagueness, offering the officer’s trained judgment as a check against the risk of arbitrary enforcement. Complicating traditional accounts of judicial deference as a largely instrumental phenomenon, this Article argues that courts in the midcentury in fact came to reappraise police work as producing rare and reliable “expert” knowledge. And it identifies at least one explanation for that shift in the folds and interconnections between the courts’ many diverse encounters with the police in these years. From trials to suppression hearings to professional activities outside the courtroom, judges experienced multiple sites of unique exposure to the rhetoric and evidence of the police’s expert claims. These encounters primed judges to embrace police expertise not only through their deliberative content, but also their many structural biases toward police knowledge. This development poses important and troubling consequences for the criminal justice system, deepening critiques of police judgment in criminal procedure and raising novel concerns about the limits of judicial reasoning about police practices.

As the litigation over the travel ban moves to the Supreme Court, the most important passage in the Fourth Circuit’s en banc opinion may be a tangential footnote finding “yet another marker” of illegitimate purpose in the text of the Executive Order. Both the first version of the Executive Order (of January 27) and the […]

In recent decades, academics across multiple disciplines and policymakers in multiple institutions have searched for the economic, political, and institutional foundations for financial market strength. Promising theories and empirics have developed, including major explanations from differences in nations’ political economy. A common view among multiple academic observers is that, particularly because many pro-market corporate reforms occurred in Europe during the 1990s, when social democratic parties governed and financial markets deepened, basic left-right explanations fail to explain financial market depth. Hence, more complex political explanations are in play, and the correlation of left governments, market-oriented reforms and financial deepening presents an unexpected paradox. This finding might be interpreted to indicate that left-right orientation is unimportant in affecting financial development and that either nonpolitical institutional issues or different political considerations are more central. We show here, first, that conceptually it’s not relative local placement of the governing coalition on the nation’s left-right spectrum that counts, but whether the polity as a whole — i.e., its political center of gravity or its dominant governing coalition — is left or right on economic issues. If interests and opinion shift in a nation, such that its political center of gravity is no longer statist and anti-market, then even locally left parties could and would often implement pro-market reforms. (And conversely, in an earlier era when interests and opinions were statist and anti-market, one should not expect to see even locally right parties pushing pro-market financial reforms forward.) Second, we bring forward data showing substantial movement over recent decades of political parties and governing coalitions; these shifts must be accounted for in assessing the impact of left-right divisions on financial and securities markets. In large measure, these political shifts correlate with financial markets shifts. Leftright matters not only in the fixed-in-time cross-section, but also the left-right economic shifts over time make an often significant empirical difference. The result from this data and study, in our view, leads to results and correlations that comport with most observers’ intuitions about the impact of left-right politics on financial market depth. The results thereby further buttress the importance of a nation’s basic left-right political orientation in explaining financial market outcomes.

Governments are increasingly adopting behavioral science techniques for changing individual behavior in pursuit of policy objectives. The types of “nudge” interventions that governments are now adopting alter people’s decisions without coercion or significant changes to economic incentives. We calculated ratios of impact to cost for nudge interventions and for traditional policy tools, such as tax incentives and other financial inducements, and we found that nudge interventions often compare favorably with traditional interventions. We conclude that nudging is a valuable approach that should be used more often in conjunction with traditional policies, but more calculations are needed to determine the relative effectiveness of nudging.

American election law litigation is unique in many ways. In this short essay, I highlight some of its distinctive aspects and show how they have manifested in a landmark partisan gerrymandering lawsuit in which I have been involved.

We analyze how the rise of institutional investors has transformed the governance landscape. While corporate ownership is now concentrated in the hands of institutional investors that can exercise stewardship of those corporations that would be impossible for dispersed shareholders, the investment managers of these institutional investors have agency problems vis-à-vis their own investors. We develop an analytical framework for examining these agency problems and apply it to study several key types of investment managers. We analyze how the investment managers of mutual funds - both index funds and actively managed funds - have incentives to under-spend on stewardship and to side excessively with managers of corporations. We show that these incentives are especially acute for managers of index funds, and that the rise of such funds has system-wide adverse consequences for corporate governance. Activist hedge funds have substantially better incentives than managers of index funds or active mutual funds, but their activities do not provide a complete solution for the agency problems of institutional investors. Our analysis provides a framework for future work on institutional investors and their agency problems, and generates insights on a wide range of policy questions. We discuss implications for disclosure by institutional investors; regulation of their fees; stewardship codes; the rise of index investing; proxy advisors; hedge funds; wolf pack activism; and the allocation of power between corporate managers and shareholders.

Human beings are often faced with a pervasive problem: whether to make their own decision or to delegate the decision task to someone else. Here, we test whether people are inclined to forgo monetary rewards in order to retain agency when faced with choices that could lead to losses and gains. In a simple choice task, we show that participants choose to pay in order to control their own payoff more than they should if they were to maximize monetary rewards and minimize monetary losses. This tendency cannot be explained by participants’ overconfidence in their own ability, as their perceived ability was elicited and accounted for. Nor can the results be explained by lack of information. Rather, the results seem to reflect an intrinsic value for choice, which emerges in the domain of both gains and of losses. Moreover, our data indicate that participants are aware that they are making suboptimal choices in the normative sense, but do so anyway, presumably for psychological gains.

Notwithstanding the increasing importance of technology, the practice of corporate law is—and is likely to remain for the foreseeable future—a human capital business. As a result, law firms must continue to attract, develop, and retain talented lawyers. Unfortunately, the traditional approach, which divides responsibility for professional development among law schools, which are supposed to teach students to think like a lawyer; law firms, which are expected to train associates to “be” lawyers; and corporate clients, whose job it is to foot the bill, is no longer well aligned to the current realities of the marketplace. In this Article, we document the causes for this misalignment and propose a new model of professional development in which law schools, law firms, and corporate clients collaborate to train lawyers to be lifelong learners in the full range of technical, professional, and network-building skills they will need to flourish throughout their careers. We offer specific proposals for how to achieve this realignment and confront the resistance that will inevitably greet any attempt to do so.

A sharp increase in web encryption and a worldwide shift away from standalone websites in favor of social media and online publishing platforms has altered the practice of state-level Internet censorship and in some cases led to broader crackdowns, the Internet Monitor project at the Berkman Klein Center for Internet & Society at Harvard University finds. This study documents the practice of Internet censorship around the world through empirical testing in 45 countries of the availability of 2,046 of the world’s most-trafficked and influential websites, plus additional country-specific websites. The study finds evidence of filtering in 26 countries across four broad content themes: political, social, topics related to conflict and security, and Internet tools (a term that includes censorship circumvention tools as well as social media platforms). The majority of countries that censor content do so across all four themes, although the depth of the filtering varies. The study confirms that 40 percent of these 2,046 websites can only be reached by an encrypted connection (denoted by the "HTTPS" prefix on a web page, a voluntary upgrade from "HTTP"). While some sites can be reached by either HTTP or HTTPS, total encrypted traffic to the 2,046 sites has more than doubled to 31 percent in 2017 from 13 percent in 2015, the study finds. Meanwhile, and partly in response to the protections afforded by encryption, activists in particular and web users in general around the world are increasingly relying on major platforms, including Facebook, Twitter, Medium, and Wikipedia.

The desirability of a dual-class structure, which enables founders of public companies to retain a lock on control while holding a minority of the company’s equity capital, has long been the subject of a heated debate. This debate has focused on whether dual-class stock is an efficient capital structure that should be permitted at the time of initial public offering (“IPO”). By contrast, we focus on how the passage of time since the IPO can be expected to affect the efficiency of such a structure. Our analysis demonstrates that the potential advantages of dual-class structures (such as those resulting from founders’ superior leadership skills) tend to recede, and the potential costs tend to rise, as time passes from the IPO. Furthermore, we show that controllers have perverse incentives to retain dual-class structures even when those structures become inefficient over time. Accordingly, even those who believe that dual-class structures are in many cases efficient at the time of the IPO should recognize the substantial risk that their efficiency may decline and disappear over time. Going forward, the debate should focus on the permissibility of finite-term dual-class structures — that is, structures that sunset after a fixed period of time (such as ten or fifteen years) unless their extension is approved by shareholders unaffiliated with the controller. We provide a framework for designing dual-class sunsets and address potential objections to their use. We also discuss the significant implications of our analysis for public officials, institutional investors, and researchers.

Brophy expands the literature about pro-slavery thought by analyzing the “ideas in circulation” at southern colleges and literary societies before turning to the pro-slavery thought of several well-known southern jurists. These popular ideas are more fugitive, less formal, but probably more widely available in the aggregate and thus more influential than systematic treatises. Brophy’s theme is that as the years passed, slavery’s defenders were increasingly attracted to a utilitarian defense of the institution as beneficial for masters and slaves alike. Important to the utilitarian defense was an emphasis on the importance of attending to the specific circumstances of society, in contrast to what Brophy’s subjects described as the sterile abstractions of Enlightenment thought. Much of the pro-slavery thought that Brophy describes will be familiar to specialists, but his work’s strength lies in bringing to historians’ attention a set of previously neglected materials. Brophy’s discussion of cases dealing with the legal limits to masters’ power to free their slaves supplements the attention typically given to Thomas Ruffin’s opinion in State v. Mann. Two of his chapters—one about Brown University’s president Francis Wayland and one about the travails of Frederick A. P. Bernard at the University of Mississippi—may be of greater interest to historians of education than to historians of pro-slavery thought. The discussion of Wayland brings to the surface concerns about how to evaluate past actions known today to be evil that are only implicit elsewhere the book. Brophy’s discussion of Thomas R. R. Cobb of Georgia, author of a major pro-slavery legal treatise, counterposes “cold legal reasoning” in slavery’s defense to the “passionate … sympathy” expressed in anti-slavery arguments (227). These “cold calculations of utility … derived from a perception of hierarchy … evidenced by nature” (231). That juxtaposition also appears in Brophy’s discussion of Ruffin, William Gaston of North Carolina, and Joseph Henry Lumpkin, the first justice of Georgia’s Supreme Court. Again, the formulation is familiar in previous work about the law of slavery, but Brophy valuably brings it to a new set of readers. Brophy notes in passing that slavery’s defenders sometimes also relied on sympathy, especially in their arguments that slave owners treated the human beings that they owned better than capitalist employers treated the human beings who worked for them. A more complete discussion of pro-slavery thought, even in its watered-down form in faculty lectures and literary addresses, might lead to some tempering of Brophy’s characterization of such arguments as utilitarian. His stress on the importance of taking local conditions into account is one area in which he might have deepened his analysis. Yet, even as it stands, Brophy’s book is a well-crafted introduction to pro-slavery thought as expressed in venues that historians have not visited often enough.

Who will vote quadratically in large-N elections under quadratic voting (QV)? First, who will vote? Although the core QV literature assumes that everyone votes, turnout is endogenous. Drawing on other work, we consider the representativeness of endogenously determined turnout under QV. Second, who will vote quadratically? Conditional on turning out, we examine reasons that, in large-N elections, the number of votes that an individual casts may deviate substantially from that under pure, rational QV equilibrium play. Because turnout itself is driven by other factors, the same determinants may influence how voters who do turn out choose the quantity of votes to cast. Independently, the number of votes actually cast may deviate dramatically from pure QV predictions because of the complex and refined nature of equilibrium play. Most plausibly, voting behavior and outcomes would be determined predominately by social and psychological forces, would exhibit few of the features emphasized in the analysis of hyper-rational equilibrium play, and would have consequential properties that require a different research agenda to bring into focus. Some of our analysis also has implications for voting behavior under other procedures, including one person, one vote.

This book provides the first comprehensive analysis of the impact of globalization on the Indian legal profession.

This book provides the first comprehensive analysis of the impact of globalization on the Indian legal profession.

This book provides the first comprehensive analysis of the impact of globalization on the Indian legal profession.

This book provides the first comprehensive analysis of the impact of globalization on the Indian legal profession.

This chapter will examines places where law, religion, and reproductive technology conflict. It examines four particular intersections: The first involves religiously motivated denials of service, in particular as they pertain to single and gay and lesbian couples. The second involves embryo adoption, where the largest providers of the service in the United States are religious organizations. The third is a bit of a dog that didn’t bark (at least so far): the “personhood movement” and its attempts to gain state constitutional protection for zygotes, embryos, and fetuses. Finally, the chapter will close by discussing relatively new attempts by religious organizations to bring forward objections to embryo destruction in pre-embryo disposition disputes between private individuals, in particular a recent case in Missouri that is currently being litigated.

When the police in cities that prohibit sleeping in public spaces command that people on the streets “move along,” advocacy groups for the homeless have started a campaign that pointedly asks “move along to where?” This question seeks to highlight the reality that homeless persons are being subjected to an order with which they have no capacity to comply. In this instance, the state is defining and rigidly enforcing property rights without concern for the consequences of its doing so; it apparently is only after this exercise in definition and enforcement that the state can move to respect fundamental democratic values — such as dignity and equality — in the space that remains. Inspired by the work of André van der Walt, we here present the alternate thesis that property exists in service of the values that characterize our democracy. We advance this thesis through the lens of two stories of eviction — the leading cause of homelessness in the U.S. — in which our democratic values seemingly and, in our view, unacceptably are taking a backseat to property.

In recent years, governments have become keenly interested in behavioral science; new findings in psychology and behavioral economics have led to bold initiatives in areas that involve poverty, consumer protection, savings, health, the environment, and much more. Private institutions have used behavioral findings as well. But there is a pervasive and insufficiently explored question: when is it best to ask people to make active choices, and when is it best to use a default rule, which means that people need not make any choice at all? The answer depends on a form of cost–benefit analysis, which means that it is necessary to investigate whether choosing is a burden or a pleasure, whether learning is important, and whether a default rule would satisfy the informed preferences or all of most people.

An American nondelegation doctrine is flourishing. Contrary to the standard account, it does not forbid Congress from granting broad discretion to executive agencies. Instead it is far narrower and more targeted. It says, very simply, that executive agencies cannot make certain kinds of decisions unless Congress has explicitly authorized them to do so. In so saying, the American nondelegation doctrine promotes the central goals of the standard doctrine, by preventing Congress from shirking and by requiring it to focus its attention on central questions, and also by protecting liberty. The abstract idea of “certain kinds of decisions” is currently filled in by, among other things, the canon of constitutional avoidance; the rule of lenity; and the presumptions against retroactivity and extraterritoriality. More recent nondelegation canons, not yet firmly entrenched, require agencies to consider costs and forbid them from interpreting statutes in a way that produces a large-scale increase in their regulatory authority. The cost-consideration canon makes a great deal of sense, especially as a way of disciplining the modern regulatory state; the “major questions doctrine,” as it is sometimes called, is less obviously correct. and its proper provenance depends on the nature of the relevant statute.

As President Trump acknowledged in his February 16, 2017, press conference, the United States has robust procedures in place to vet refugees and asylum seekers. Any changes to the asylum and refugee processing system should thus promote the rule of law, safeguard the consistent application of screening measures, and ensure the fair and equitable treatment of applications for protection, without regard to an individual’s country of origin. The March 6, 2017 Executive Order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” however, attempts to suspend the refugee resettlement program and reduce the number of refugees admitted to the United States in direct contravention of U.S. legal and moral obligations to protect those fleeing persecution and fearing return to torture. This article first provides a brief history of this country’s long-standing commitment to refugee protection. Next, it describes the legal standard applied in determining whether an individual is eligible for refugee protection, including bars to protection under U.S. law. The article then provides an overview of the extensive screening procedures already in place to address national security concerns. Finally, the article concludes with a discussion of challenges related to credibility and corroboration, including issues with trust, translation, trauma, time, resources, and other hurdles, all of which must be considered as part of any effort to change the system.

The question of interpreting Donald Trump’s election, in liberal discourse, is mainly “how can he have won, given that he is racist and sexist?” The answer of many of my friends is that he won because his racism and sexism appealed to a shockingly large part of the electorate, confirming that “our whole society is sexist and racist.” According to the liberal conception, this is particularly true of the non-college part of the electorate, which had more “traditional” (racist and sexist) values and less cognitive ability to figure out that he was going to screw them. If they were not racist and sexist, they would have rejected him outright, no matter how much they didn’t like Hillary. I think class, race and sex were key to everything, but in a different way than in that account.

This comprehensive report, published as part of the Football Players Health Study at Harvard University, highlights areas in which the player health related policies and practices of the NFL could potentially be improved by considering steps taken by other professional sports leagues. While the report concludes that the NFL’s player health provisions are generally the most protective of player health among the relevant comparators, there are still important opportunities for improvement. The report is unprecedented both in scope and focus. This is the first comprehensive comparison of the health-related policies and practices of elite professional sports leagues: the National Football League (NFL); Major League Baseball (MLB); National Basketball Association (NBA); National Hockey League (NHL); Canadian Football League (CFL); and, Major League Soccer (MLS). After analyzing the leagues, the report compares each one to the NFL on the following health-related issues: (1) Club Medical Personnel (including discussion of conflicts of interest); (2) Injury Rates and Policies (including detailed comparisons of concussion rates); (3) Health-Related Benefits (including health insurance and retirement benefits for current and former players); (4) Drug and Performance-Enhancing Substance Policies; (5) Compensation (including guaranteed compensation); and, (6) Eligibility Rules (including discussion of the “readiness” of athletes for professional play). The areas in which the NFL can potentially learn from other leagues are: 1. Pre-season physicals performed by a neutral physician (CFL). 2. Concussion-specific short-term injury list (MLB). 3. Injury reporting policies that do not require disclosure of the location of a player’s injury (MLB, NHL, and CFL). 4. Health insurance to players for life (MLB, NBA, and NHL). 5. Retirement plan payments higher than the NFL (MLB, NBA, and NHL). 6. Players vested in pension plans on their first day in the league (MLB and NHL). 7. Treatment for players who violated performance-enhancing substance policies (NBA and CFL). 8. More guaranteed compensation than in the NFL (MLB, NBA, and NHL). 9. Less restrictive eligibility rules (MLB, NBA, NHL, and MLS).

"This Palgrave Pivot offers comprehensive evidence about what people actually think of “nudge” policies designed to steer decision makers’ choices in positive directions. The data reveal that people in diverse nations generally favor nudges by strong majorities, with a preference for educative efforts – such as calorie labels - that equip individuals to make the best decisions for their own lives. On the other hand, there are significant arguments for noneducational nudges – such as automatic enrollment in savings plans - as they allow people to devote their scarce time and attention to their most pressing concerns. The decision to use either educative or noneducative nudges raises fundamental questions about human freedom in both theory and practice. Sunstein's findings and analysis offer lessons for those involved in law and policy who are choosing which method to support as the most effective way to encourage lifestyle changes." -- Palgrave

Many nudges are designed to make people better off, as judged by themselves. This criterion, meant to ensure that nudges will increase people’s welfare, contains some ambiguity. It is useful to distinguish among three categories of cases: (1) those in which choosers have clear antecedent preferences, and nudges help them to satisfy those preferences (often by increasing “navigability”); (2) those in which choosers face a self-control problem, and nudges help them to overcome that problem; and (3) those in which choosers would be content with the outcomes produced by two or more nudges, or in which ex post preferences are endogenous to nudges, so that without additional clarification or work, the “as judged by themselves” criterion does identify a unique solution for choice architects. Category (1) is self-evidently large. Because many people agree that they suffer self-control problems, category (2) is large as well. Cases that fall in category (3) create special challenges, which may lead us to make direct inquiries into welfare or to explore what informed, active choosers typically select.

All over the world, nations are using “health nudges” to promote healthier food choices and to reduce the health care costs of obesity and non-communicable diseases. In some circles, the relevant reforms are controversial. On the basis of nationally representative online surveys, we examine whether Europeans favour such nudges. The simplest answer is that majorities in six European nations (Denmark, France, Germany, Hungary, Italy, and the UK) do so. We find majority approval for a series of nudges, including educational messages in movie theaters, calorie and warning labels, store placement promoting healthier food, sweet-free supermarket cashiers and meat-free days in cafeterias. At the same time, we find somewhat lower approval rates in Hungary and Denmark. An implication for policymakers is that citizens are highly likely to support health nudges. An implication for further research is the importance of identifying the reasons for cross-national differences, where they exist.