Faculty Bibliography

Concepts are the building blocks of legal doctrine. All legal rules and standards, in fact, are formed by combining concepts in different ways. But despite their centrality, legal concepts are not well understood. There is no agreement as to what makes a legal concept useful or ineffective—worth keeping or in need of revision. Social scientists, however, have developed a set of criteria for successful concepts. Of these, the most important is measurability: the ability, at least in principle, to assess a concept with data. In this Essay, we apply the social scientific criteria to a number of concepts and conceptual relationships in American constitutional law. We show that this field includes both poor and effective concepts and conceptual links. We also explain how the examples of poor concepts could be improved.

During the lifetime of the Prophet Muḥammad and the expansion of the young Islamic empire immediately after his death, a number of land tracts were distributed to his Companions and Family members. One of them was a fertile farm called Yanbuʿ, located northwest of Medina. Having acquired the land, the Prophet’s cousin, son-and-law, caliph-to-be ʿAlī b. Abī Ṭālib discovered a spring that he named Bughaybigha, which fed what was to become a much-coveted date-palm orchard. He immediately turned it into a charitable endowment to be managed by his heirs. But when ʿAlī was killed in a struggle for the caliphate, chaos and confusion ensued—one feature of which was a generations-long battle over the land. For the next one hundred fifty years, Umayyad and ʿAbbāsid rulers episodically wrested the land from ʿAlī’s descendants each time the latter succeeded in securing its return. At one point in the midst of the political contestation, the affair ended up in court. There, the case turned on the judge’s creative interpretation of and choice between conflicting procedural rules. The outcome was a split decision that gave only a partial win to the caliph and a partial win to the ʿAlid descendant who had been cultivating the land. Judicial discretion and procedure, it turns out, was instrumental to resolving hotly contested issues of Islamic law, land, and legitimate rule. In fact, the case vividly displays how judges like the one at the center of this case helped construct Islamic law through their interpretive approaches to such issues that lay at the heart of disputes like Bughaybigha.

In a trust decanting, a trustee who under the terms of a trust (the first trust) has a discretionary power over distribution uses that power to distribute the trust property to a new trust (the second trust) with updated provisions, leaving behind the sediment of the first trust’s stale provisions. This article canvasses the rise of trust decanting in American trust practice, taking notice of its common law origins, its contrast with traditional American doctrine on trust modification and termination, the proliferation of state trust decanting statutes, and several areas of doctrinal divergence across the states.

It is not uncommon for multiple clinical trials at the same institution to recruit concurrently from the same patient population. When the relevant pool of patients is limited, as it often is, trials essentially compete for participants. There is evidence that such a competition is a predictor of low study accrual, with increased competition tied to increased recruitment shortfalls. But there is no consensus on what steps, if any, institutions should take to approach this issue. In this article, we argue that an institutional policy that prioritises some trials for recruitment ahead of others is ethically permissible and indeed prima facie preferable to alternative means of addressing recruitment competition. We motivate this view by appeal to the ethical importance of minimising the number of studies that begin but do not complete, thereby exposing their participants to unnecessary risks and burdens in the process. We then argue that a policy of prioritisation can be fair to relevant stakeholders, including participants, investigators and funders. Finally, by way of encouraging and helping to frame future debate, we propose some questions that would need to be addressed when identifying substantive ethical criteria for prioritising between studies.

In enacting the G.I. Bill of Rights in 1944, Congress made available an unprecedented slate of benefits to nearly all returning servicemembers, establishing a broad eligibility standard that excluded only those whose conduct in service was “dishonorable.” This move revoked from the Department of Veterans Affairs (VA) its authority to choose the standards for receiving benefits but preserved agency authority to evaluate the facts of each case. Yet today, former servicemembers whose conduct was not “dishonorable” are nevertheless excluded from receiving basic services at the VA because agency regulations have drifted from the statutory standard. At the same time, military discharge practices have changed in ways that exacerbate the gap between statutory intent and regulatory outcomes. These changes have led to a historically unprecedented rate of exclusion from basic veteran services and a failure to enact the statutory standard Congress prescribed. This article uncovers the history of the VA’s “other than dishonorable conditions” eligibility standard and uses traditional tools of statutory interpretation to rediscover its true meaning and argue for revisions to the VA’s present implementing regulations and policies. Restoring the clarity and purpose of this law would re-establish the proper balance between Congress and the VA, and better fulfill our nation’s promise to care for those who have served our country in uniform.

The ubiquity of systems using artificial intelligence or "AI" has brought increasing attention to how those systems should be regulated. The choice of how to regulate AI systems will require care. AI systems have the potential to synthesize large amounts of data, allowing for greater levels of personalization and precision than ever before|applications range from clinical decision support to autonomous driving and predictive policing. That said, common sense reasoning [McCarthy, 1960] remains one of the holy grails of AI, and there exist legitimate concerns about the intentional and unintentional negative consequences of AI systems [Bostrom, 2003, Amodei et al., 2016, Sculley et al., 2014]. There are many ways to hold AI systems accountable. In this work, we focus on one: explanation. Questions about a legal right to explanation from AI systems was recently debated in the EU General Data Protection Regulation [Goodman and Flaxman, 2016, Wachter et al., 2017], and thus thinking carefully about when and how explanation from AI systems might improve accountability is timely. Good choices about when to demand explanation can help prevent negative consequences from AI systems, while poor choices may not only fail to hold AI systems accountable but also hamper the development of much-needed beneficial AI systems. Below, we briefly review current societal, moral, and legal norms around explanation, and then focus on the different contexts under which explanation is currently required under the law. We find that there exists great variation around when explanation is demanded, but there also exists important consistencies: when demanding explanation from humans, what we typically want to know is how and whether certain input factors affected the final decision or outcome. These consistencies allow us to list the technical considerations that must be considered if we desired AI systems that could provide kinds of explanations that are currently required of humans under the law. Contrary to popular wisdom of AI systems as indecipherable black boxes, we find that this level of explanation should often be technically feasible but may sometimes be practically onerous|there are certain aspects of explanation that may be simple for humans to provide but challenging for AI systems, and vice versa. As an interdisciplinary team of legal scholars, computer scientists, and cognitive scientists, we recommend that for the present, AI systems can and should be held to a similar standard of explanation as humans currently are; in the future we may wish to hold an AI to a different standard.

To describe Bill simply as a lawyer and public servant would be misleading.

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.

This book takes the reader on a sweeping tour of the international legal field to reveal some of the patterns of difference, dominance, and disruption that belie international law's claim to universality. Pulling back the curtain on the "divisible college of international lawyers", Anthea Roberts shows how international lawyers in different states, regions, and geopolitical groupings are often subject to distinct incoming influences and outgoing spheres of influence in ways that reflect and reinforce differences in how they understand and approach international law. These divisions manifest themselves in contemporary controversies, such as debates about Crimea and the South China Sea. Not all approaches to international law are created equal, however. Using case studies and visual representations, the author demonstrates how actors and materials from some states and groups have come to dominate certain transnational flows and forums in ways that make them disproportionately influential in constructing the "international". This point holds true for Western actors, materials, and approaches in general, and for Anglo-American (and sometimes French) ones in particular. However, these patterns are set for disruption. As the world moves past an era of Western dominance and toward greater multipolarity, it is imperative for international lawyers to understand the perspectives and approaches of those coming from diverse backgrounds. By taking readers on a comparative tour of different international law academies and textbooks, the author encourages them to see the world through the eyes of others - an essential skill in this fast changing world of shifting power dynamics and rising nationalism.

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).