Faculty Bibliography

In addition to “persons, houses, [and] papers,” the Constitution protects individuals against unreasonable searches and seizures of “effects.” However, “effects” have received considerably less attention than the rest of the categories in the Fourth Amendment. Recent Supreme Court opinions on Fourth Amendment searches reintroduced the word “effects,” and yet they did so without a definition of the word, an understanding of its history, or a clear doctrinal theory. In the absence of a coherent approach to “effects,” many lower courts apply the standard Fourth Amendment test: they ask whether the government has violated the claimant’s “reasonable expectation of privacy.” However, many lower courts protect or decline to protect personal property by examining the individual’s expectation of privacy in the property’s physical location. These courts hold that individuals have no expectations of privacy in personal property that is unattended in public space. This Article argues that personal property in public space should receive greater constitutional protection than is provided by these cases, because of the privacy and security interests inherent in ownership and possession. The history surrounding the Fourth Amendment provides evidence that the protection against unreasonable searches and seizures was connected to the law prohibiting interferences with another’s possession of personal property, including dispossession, damage, or unwanted handling. To restore this connection, this Article uses guidance from personal-property law to propose a framework for identifying Fourth Amendment interests in effects based on their qualities and environment. This intervention would grant effects the constitutional protection they deserve.

For a symposium marking the centenary of MacPherson v. Buick, we identify three common characterizations of Cardozo’s famous opinion that purport to explain its importance. Unfortunately, each of these characterizations turns out to be a myth. MacPherson is worthy of celebration, but not because it recognizes that negligence law’s duty of care is owed to the world, nor because it displays the promise of an instrumental, policy-oriented approach to adjudication, nor because it embraces a nascent form of strict products liability. These myths of MacPherson reflect deep misunderstandings of tort law, and of Cardozo’s distinctively pragmatic approach to adjudication. Ironically, although they have been largely fostered by progressives, the myths lend support to the cause of modern tort reform. By contrast, an accurate appreciation of MacPherson’s virtues permits an understanding of negligence, tort law, and common law adjudication that provides grounds for resisting regressive reforms.

In the early twenty-first century, public law is being challenged by a fundamental assault on the legitimacy of the administrative state, under the banner of “the separation of powers.” The challengers frequently refer to the specter of Stuart despotism, and they valorize a (putatively) heroic opponent of Stuart despotism: the common-law judge, symbolized by Edward Coke. The New Coke is a shorthand for a cluster of impulses stemming from a belief in the illegitimacy of the modern administrative state. Despite its historical guise, the New Coke is a living-constitutionalist movement, a product of thoroughly contemporary values and fears -- perhaps prompted by continuing rejection, in some quarters, of the New Deal itself, and perhaps prompted by a reaction by some of the Justices to controversial initiatives from more recent presidents. In two important decisions in 2015, however, a supermajority of the Court refused to embrace the New Coke, and properly so. Instead the Court issued the long-awaited Vermont Yankee II, insisting that courts are not authorized to add procedures to those required by the APA, and reaffirmed the validity of Auer deference to agency interpretations of their own regulations. The Court’s approach promises to honor the multiple goals of administrative and constitutional law without embracing novel, ungrounded claims that betray basic commitments of the public legal order. For now, the center holds.

"he Oxford Handbook of U.S. Health Law covers the breadth and depth of health law, with contributions from the most eminent scholars in the field. The Handbook paints with broad thematic strokes the major features of American healthcare law and policy, its recent reforms including the Affordable Care Act, its relationship to medical ethics and constitutional principles, and how it compares to the experience of other countries. It explores the legal framework for the patient experience, from access through treatment, to recourse (if treatment fails), and examines emerging issues involving healthcare information, the changing nature of healthcare regulation, immigration, globalization, aging, and the social determinants of health. This Handbook provides valuable content, accessible to readers new to the subject, as well as to those who write, teach, practice, or make policy in health law." --Publisher

The article discusses the principle of the malevolent hiding hand and the planning fallacy writ large. Particular focus is given on economist Albert O. Hirschman's ideas on social-scientific laws. Hirchman believes that social planners tend to be unrealistically optimistic, particularly in underdeveloped nations. He adds that their neglect of bad surprises is countered by a much happier surprise. He also believes that the hiding hand provides a spur and a remedy in the form of mechanism that makes the risk-averter take risks.

he article focuses on the history of execution of death penalty law in the U.S. It reports abolishment of death penalty in Michigan, Rhode Island, and Wisconsin. It also discusses the amendment regarding prohibition of death penalty law; history of African American slavery and lynch mob violence; and Tennessee's abolition of capital punishment.

This article examines the public debate over net neutrality in the United States in 2014. We compiled, mapped, and analyzed more than 15,600 stories published on net neutrality, augmented by data from Twitter, Bitly, and Google Trends. Using a mixed-methods approach that combines link analysis with qualitative content analysis, we describe the evolution of the debate over time and assess the role, reach, and influence of different media sources and advocacy groups. By three different measures, we find that the pro-net neutrality forces decisively won the online public debate and translated this into a successful social mobilization effort. We conclude that a diverse set of actors working in conjunction through the networked public sphere played a pivotal role in turning around the Federal Communications Commission policy on net neutrality.

In its famous 1938 Erie decision, the U.S. Supreme Court deemed itself without power to make general common law. Yet while the rule of Erie remains, the Court has strayed from its spirit. Using two lines of cases as representative of a larger trend – one involving First Amendment limits on claims for defamation, invasion of privacy, and infliction of emotional distress, the other concerning the preemption of state products liability law – we explain how the Court has increasingly empowered federal courts to serve as fora in which repeat-player defendants are offered a ‘second bite at the apple.’ This is precisely the role for federal courts that Erie rejected.

Distressed firms with publicly issued bonds often seek to restructure the bonds’ payment terms to better reflect the firm’s weakened repayment capabilities and thereby avoid a bankruptcy. But Depression-era securities law bars the bondholders from agreeing via a binding out-of-bankruptcy vote to new payment terms, thus requiring individualized consent to the new payment terms, despite that such binding votes are commonplace now in bankruptcy and elsewhere. Recent judicial application of this securities law rule to bond recapitalizations has been more consistent than it had previously been, with courts striking down restructuring deals that twisted bondholders’ arms into consenting to unwanted deals. These coercive bond exchanges first became common in the 1980s, when many hostile tender offers for public companies had a similarly coercive deal structure. The coercive deal structure in these takeover offers was brought forward then to justify wide managerial countermeasures, but this structure disappeared in takeovers. However, it persisted in bond exchange offers. While these court decisions striking down the coercive bond exchanges faithfully apply Depression-era securities law to thwart issuers from twisting bondholders’ arms into exchanging, the bond market and distressed firms would be better served by exempting fair votes that bind all bondholders to new payment terms. The Securities and Exchange Commission now has authority to exempt fair restructuring votes from this now out-of-date securities law.

This article seeks to explain the role of the Tax Court both within the system of taxation and the system of tribunals of the United States.

"This chapter examines the challenges posed by the rise of China’s state capitalism to the multilateral trade regime. At the heart of the challenge is the fact that China’s economic structure is unique and has evolved in a manner largely unforeseen by those negotiating China’s accession to the WTO. This chapter discusses how WTO rules contemplate a variety of alternative economic structures besides market capitalism. It examines why, at the time of China’s WTO accession, these rules were considered sufficient for addressing the Chinese economy. Subsequent developments in China’s economic structure are generating a series of emergent tensions for the interpretation of WTO law as applied to the Chinese context. This chapter explores these tensions as well as a series of broader questions concerning the relationship between Chinese state capitalism and global trade governance. It suggests that China’s rise may well contribute to the growing fragmentation of the trade regime." --Publisher

Under the Administrative Procedure Act, courts review and set aside agency action that is "arbitrary [and] capricious." In a common formulation of rationality review, courts must either take a "hard look" at the rationality of agency decisionmaking, or at least ensure that agencies themselves have taken a hard look. We will propose a much less demanding and intrusive interpretation of rationality review-a thin version. Under a robust range of conditions, rational agencies have good reason to decide in a manner that is inaccurate, nonrational, or arbitrary. Although this claim is seemingly paradoxical or internally inconsistent, it simply rests on an appreciation of the limits of reason, especially in administrative policymaking. Agency decisionmaking is nonideal decisionmaking; what would be rational under ideal conditions is rarely a relevant question for agencies. Rather, agencies make decisions under constraints of scarce time, information, and resources. Those constraints imply that agencies will frequently have excellent reasons to depart from idealized first-order conceptions of administrative rationality. Thin rationality review describes the law in action. Administrative law textbooks typically suggest that the State Farm decision in 1983 inaugurated an era of stringent judicial review of agency decisionmaking for rationality. That is flatly wrong at the level of the Supreme Court, where agencies have won no less than 92 percent of the sixty-four arbitrariness challenges decided on the merits since the 1982 Term. The Court's precedent embodies an approach to rationality review that is highly tolerant of the inescapable limits of agency rationality when making decisions under uncertainty. State Farm is not representative of the law; beloved of law professors, and frequently cited in rote fashion by judges, State Farm nonetheless lies well outside the mainstream of the Supreme Court's precedent. To encapsulate the Court's approach to rationality review, the best choice would be the powerfully deferential opinion in Baltimore Gas, decided in the same Term as State Farm. Plausibly, rather than living in the era of hard look review or the State Farm era, we live in the era of Baltimore Gas.

This article presents a critique of the self-styled liberal group that has dominated child welfare policy in recent decades, arguing that the group’s policy goals unduly favor parent over child interests, and that its self-serving research fails to provide policy-makers with an understanding of how the group’s favored policies put children at risk. The article analyzes the dominant group’s problematic approach in the three most significant movements of recent decades -- intensive family preservation services, racial disproportionality, and differential response. It calls on true liberals to reject this group’s leadership, to recognize children as one of the ultimate powerless constituencies needing representation, and to fight for policies that will better serve child interests. Finally it calls for a new research culture, enabling truly independent social science to flourish so that it can guide policy makers about the pros and cons of different policy choices in terms that include child interests.

When a professional is negligent in providing services to her client or patient, third parties are sometimes harmed. “Triangular torts,” as we call them, are negligence claims brought against professionals by such third parties. One common example involves a father suing a therapist for inducing his daughter to have false memories of childhood abuse, thereby causing him emotional harm. Another involves a nephew suing a lawyer for incorrectly drafting his aunt’s will, thereby causing him financial loss. Despite the general decline of privity limits on negligence liability, courts frequently reject triangular tort claims, ruling that professionals do not owe duties of care to third parties. In this chapter, we explain when such rulings are warranted — and when they are not. The answer turns on whether the recognition of a duty of care to the third party is consistent with the professional’s fiduciary duty of loyalty to the client or patient.

From the 5th Koningsberger Lecture series, Utrecht University (2014): I will explore several ways people can be upstanders; reasons why people are not upstanders; and potential collective efforts that could make it easier or more likely that people become upstanders. I begin though with a story of stories — five stories actually — to make upstanding vivid, to honor courageous individuals and identify challenges for the rest of us, and to raise a question: does honoring upstanders and telling their stories increase the chances that others will follow in their paths, or suggest that only exceptional individuals with unusual qualities are upstanders? What would it take for the rest of us to stand up?

This essay discusses the importance of outreach and intake in the role that legal services providers fill in the current U.S. legal system, as well as how little is known about either subject.

Review of The Witch of Lime Street: Seance, Seduction, and Houdini in the Spirit World by David Jaher (2015).

Supreme Court justices have long relied on law clerks to help process the work of the Court. Yet few outside the Court are privy to the behind-the-scenes bonds that form between justices and their clerks. In Of Courtiers and Kings, Todd C. Peppers and Clare Cushman offer an intimate new look at the personal and professional relationships of law clerks with their justices. Going beyond the book’s widely acclaimed predecessor, I n Chambers, the vignettes collected here range from reflections on how serving as clerks at the Supreme Court impacted the careers of such justices as Stephen Breyer, Elena Kagan, William Rehnquist, John G. Roberts Jr., and John Paul Stevens to personal recollections written by parents and children who have both served as Supreme Court clerks. While individual essays often focus on a single justice and his or her corps of clerks—including how that justice selected and utilized the clerks—taken as a whole the volume provides a macro-level view of the evolution of the role of the Supreme Court law clerk. Drawing on a rich repository of such anecdotes, insights, and experience, the volume relates in a clear and accessible style how the clerking function has changed over time and what it is like for law clerks to be witnesses to history. Offering a rare glimpse into a normally unseen world, Of Courtiers and Kings reveals the Court’s increasing reliance on law clerks and raises important questions about the selection, utilization, and influence of law clerks.

In the absence of owners, how effective are the constraints imposed by the state in promoting effective organization governance? This paper develops state-level indices of the governance environment facing not-for-profits and examines the effects of these rules on not-for-profit behavior. Stronger provisions aimed at detecting and punishing managerial misbehavior are associated with significantly greater charitable expenditures, increased foundation payouts, and lower managerial compensation. The paper also examines how governance influences an alternative metric of not-for-profit performance—the provision of social insurance. Stronger governance measures are associated with intertemporal smoothing of resources in response to economic shocks.

Should law encourage people to forgive one another—and should law be used to forgive people for wrongdoing? Or is it a mistake to promote greater connections between law, with its need for predictability, and forgiveness, with its dependence on emotions and moral judgments? Before exploring these questions, I will discuss what I mean by forgiveness in Part I. Then, in Part II, I will turn to the possible roles law can play in relation to forgiveness in the contexts of criminal law—international and domestic—and debt, both of sovereign nations and consumers. When I first turned to some of these issues, South Africa’s Truth and Reconciliation Commission (TRC) was just getting started. In the twenty years since, and in no small measure because of the TRC effort, forgiveness has attracted global attention and debate in law, psychology, and politics well beyond its traditional home in religious and philosophical discussions. So I will also consider in Part II what we have learned from the TRC about the promises and limitations of joining forgiveness and law—both for law and for forgiveness. In Part III, I will raise some questions about the inquiry myself. Finally, in Part IV, I will provide closing thoughts and suggestions for incorporating forgiveness into existing domestic and international legal frameworks. Finding room for forgiveness through law or alongside law can draw upon a non-depletable resource, thereby enhancing human relationships without forgoing the accountability so important to social order.

In recent years, several judges on the nation’s most important regulatory court -- the United States Court of Appeals for the District of Columbia Circuit -- have given birth to libertarian administrative law, in the form of a series of judge-made doctrines that are designed to protect private ordering from national regulatory intrusion. These doctrines involve nondelegation principles, protection of commercial speech, procedures governing interpretive rules, arbitrariness review, standing, and reviewability. Libertarian administrative law can be seen as a second-best option for those who believe, as some of the relevant judges openly argue, that the New Deal and the modern regulatory state suffer from basic constitutional infirmities. Taken as a whole, libertarian administrative law parallels the kind of progressive administrative law that the same court created in the 1970s, and that the Supreme Court unanimously rejected in the Vermont Yankee case. It should meet a similar fate. Two cases to be decided next Term provide an opportunity for the Court to repudiate libertarian administrative law.

By easing the difficulty of the Japanese bar-exam equivalent, recent changes increased the quality of young lawyers. The result is counterintuitive, but a relaxation in a licensing standard can have this effect if it lowers the costs to taking a test enough to increase the number and quality of the people willing to go to the trouble of sitting for it. We explore the theoretical circumstances under which this phenomenon can occur and discuss the evidence that this is indeed what happened in Japan.

Verifiable proxies for social capital potentially provide an empirically tractable way to identify environments where social norms both constrain behavior and substitute for judicial enforcement. Using regression and factor analysis with Japanese prefecture-level data, I explore several aspects of this possibility. I first note that people in prefectures with high levels of social capital more readily comply with a wide range of low-level legal mandates. Conditional on levels of economic welfare, I further find that: (i) firms in prefectures with low levels of social capital are more likely to default on their contracts, (ii) residents in low social-capital prefectures are more likely to litigate, (iii) creditors of distressed debtors in low social-capital prefectures are more likely to petition a court for enforcement orders, and (iv) distressed debtors in low social-capital prefectures are more likely to file in court for bankruptcy protection.

In a paper published in the JFE in 2013, we provided evidence that market participants perceive staggered boards to be on average value-reducing. In a recent response paper, Amihud and Stoyanov (2015) “contest” our results. They advocate using alternative methods for estimating risk-adjusted returns and excluding some observations from our sample. Amihud and Stoyanov claim that making such changes renders our results not significant (though retaining their direction) and conclude that staggered boards have no significant effect on firm value. This paper examines and replies to the Amihud-Stoyanov challenge. We question their methodological claims, study the consequences of following their suggestions, and conduct additional robustness tests. Our analysis shows that the evidence is overall consistent with the results and conclusions of our JFE paper.

Development officials and scholars routinely argue that land reform can raise productivity. It may not always do so, they write, but it can—and during 1947–1950 in Japan it did. Land reform may sometimes raise productivity, but it did not raise it in Japan. The claim that it did is a fable, a tale people tell and re-tell only because they wish it were true. A lease is a credit transaction—a way for local elites (tied to local information networks in ways that banks can never be) to extend funds to farmers. Elites could lend money directly, but would need to create a security interest to protect their loans. Doing so requires legal procedures, however, and most local elites in prewar Japan lacked the university education necessary to manipulate those procedures. By contrast, a lease lets local elites protect their funds simply by retaining the right to evict tenants who fail to pay. As such, it represents a way for investors and farmers jointly to economize on credit market costs. The Japanese land reform program effectively banned this transaction-cost economizing credit-market strategy, expropriated the wealth of the investors who used it—and cut the rate of growth in agricultural productivity.

This article for the first time compares the Federal Reserve's powers as lender of last resort (LLR') and its ability to fight contagion, with its three major peers, the Bank of England (the BOE'), the European Central Bank (the ECB') and the Bank of Japan (the BOJ'). It concludes that the Federal Reserve (the Fed') is currently the weakest of the four, largely due to a hostile political environment for LLR powers, which are equated with bailouts, and restrictions placed by the 2010 Dodd-Frank Act on the Fed's ability to loan to non-banks, whose role in the financial system is ever-increasing. This is a concern for the global as well as the US financial system, given the economic importance of the United States and the use of the dollar as a reserve currency.

"This nutshell offers a general introduction to comparative law that includes both an overview of the methods of comparative law as well as of the two most widespread legal traditions in the world: civil (or Romano-Germanic) law and common law. For both legal traditions, this expert discussion covers their history; legal structures, including constitutional systems, courts, and judicial review; the roles of central legal actors, including lawyers, judges, and scholars; an overview of civil and criminal procedure; the principal sources of law and divisions of substantive law; and the judicial process. Throughout, the discussion also includes references to the place and the importance of supranational law and institutions and their impact on the civil law and common law traditions in Europe"--Publisher.

Just over five years ago we testified together before a subcommittee of the House of Representatives’ Judiciary Committee to comment on the Administrative Conference of the United States (“Conference”). The occasion was the resumption of the Conference’s activities—under the able leadership of the then recently appointed Conference Chairman, Paul R. Verkuil—after a fifteen-year period of dormancy that began in 1995 when the agency lost its funding. Our testimony was largely informed by our own experiences with the Conference during its previous incarnation—one of us as its Chairman, the other as its long-time Liaison from the Judicial Conference of the United States. As our contribution to this special issue of The George Washington Law Review, marking the Conference’s fiftieth anniversary, we are pleased to share with its readers the prepared statements we submitted to the Judiciary Committee.

Where Black Lives Matter meets the innocence movement.

The Supreme Court has looked to the rights of corporate shareholders in determining the rights of union members and non-members to control political spending, and vice versa. The Court sometimes assumes that if shareholders disapprove of corporate political expression, they can easily sell their shares or exercise control over corporate spending. This assumption is mistaken. Because of how capital is saved and invested, most individual shareholders cannot obtain full information about corporate political activities, even after the fact, nor can they prevent their savings from being used to speak in ways with which they disagree. Individual shareholders have no “opt out” rights or practical ability to avoid subsidizing corporate political expression with which they disagree. Nor do individuals have the practical option to refrain from putting their savings into equity investments, as doing so would impose damaging economic penalties and ignore conventional financial guidance for individual investors.