Faculty Bibliography

The distinction between formal and substantive equality is theorized then illustrated by sexual harassment law in the United States and in international legal developments. The convergence of sexual harassment concepts with prostitution, hence of sex discrimination law with the Nordic/Equality Model, is explained and explored.

Background Family members of parents with intellectual disabilities (ID) are viewed as their main source of support. However, the existence of family involvement itself does not guarantee that such support will be beneficial. Aims This study draws on the perspectives of social workers to describe and evaluate involvement by Israeli family members (grandparents) in the lives of their adult children with ID (parents with ID) who themselves have become parents. Method A thematic analysis was conducted in 21 semi-structured interviews with social workers serving parents with ID through social service departments. Results From the social workers’ perspectives, grandparent attitudes regarding their adult children with ID procreating and parenting ranged from strong resistance to active encouragement. Two sub-themes of grandparent involvement were identified from the social workers’ perspectives: the critical role of grandparent support, and the complex relationships between grandparents and the parents with ID. Two further and interrelated subthemes emerged on the role of social worker engagement with grandparents. Conclusions Professionals should be aware that grandparent involvement can either support or undermine the parenting function of parents with ID. Social service professionals need to promote family involvement that empowers parents with ID by supporting their needs and roles, but without supplanting their primary parenting activities.

Feminist legal scholar, writer, teacher, and activist Catharine A. MacKinnon discusses the #MeToo movement with Durba Mitra. They discuss the genesis of sexual harassment law; the relationship between the law and social movements; the particular vulnerabilities faced by women of color, immigrant women, and trans people; contemporary applications of Title IX; and harassment in international law.

Transparency is a concept that is becoming increasingly lauded as a solution to a host of problems in the American health care system. Transparency initiatives show great promise, including empowering patients and other stakeholders to make more efficient decisions, improve resource allocation, and better regulate the health care industry. Nevertheless, transparency is not a cure-all for the problems facing the modern health care system. The authors of this volume present a nuanced view of transparency, exploring ways in which transparency has succeeded and ways in which transparency initiatives have room for improvement. Working at the intersection of law, medicine, ethics, and business, the book goes beyond the buzzwords to the heart of transparency's transformative potential, while interrogating its obstacles and downsides. It should be read by anyone looking for a better understanding of transparency in the health care context.

Family life is a near-universal condition and a fundamental human right. It can also have a significant impact on mental health, including recovery from mental health conditions. In India, families play a considerable role, representing a source of social, cultural, religious and, often, financial support. However, families can also play a stigmatising role. Aim: To examine the experiences of mental health service users (MHSUs) relating to stigma and support provided by family members and to consider ways in which family support can be improved. Method: This is a qualitative study. A total of 17 residential MHSUs at the Ahmedabad Hospital for Mental Health were interviewed. The results were evaluated using thematic content analysis. The results revealed that all 17 MHSUs considered their families to be important sources of support, while 14 of the 17 MHSUs also experienced stigma emanating from their families. A total of 11 experienced lack of knowledge, 4 spoke of prejudicial attitudes and 5 mentioned discriminatory behaviours. There were important gender differences in experiences. MHSUs mentioned needs ranging from education and peer support for family members to financial support. Families act both as sources of support and stigmatisation. Education needs are considerable, while the need for peer support for families and resources to aid families in supporting people with mental health conditions are also important considerations.

Purpose: United Nations human rights treaties and domestic law require social workers to support the parenting rights of persons with intellectual disabilities. Social workers are also required to protect the health and well-being of those clients’ children. This study explores the experiences, challenges, and complex attitudes of Israeli social workers regarding parenthood by their clients with intellectual disabilities. Methods: A qualitative method employed semi-structured interviews with twenty-one social workers. A thematic analysis identified major themes. Results: Social workers recognized the parental desires of clients with intellectual disabilities and acknowledged their role in supporting those individuals. Nevertheless, most of the social workers expressed negative perceptions regarding the right or capability of clients with intellectual disabilities to parent. Social workers thus felt the tension between their personal reservations and their professional duty to support these clients. Regardless of individual attitudes, social workers uniformly asserted that greater state and community support was needed to enable the parental capacity of their clients. Conclusions: In addition to increasing state and community support for parents with intellectual disabilities, additional training is needed for empowering social workers to act on behalf of these clients in Israel.

Purpose: United Nations human rights treaties and domestic law require social workers to support the parenting rights of persons with intellectual disabilities. Social workers are also required to protect the health and well-being of those clients’ children. This study explores the experiences, challenges, and complex attitudes of Israeli social workers regarding parenthood by their clients with intellectual disabilities. Methods: A qualitative method employed semi-structured interviews with twenty-one social workers. A thematic analysis identified major themes. Results: Social workers recognized the parental desires of clients with intellectual disabilities and acknowledged their role in supporting those individuals. Nevertheless, most of the social workers expressed negative perceptions regarding the right or capability of clients with intellectual disabilities to parent. Social workers thus felt the tension between their personal reservations and their professional duty to support these clients. Regardless of individual attitudes, social workers uniformly asserted that greater state and community support was needed to enable the parental capacity of their clients. Conclusions: In addition to increasing state and community support for parents with intellectual disabilities, additional training is needed for empowering social workers to act on behalf of these clients in Israel. Implications for Rehabilitation Social workers hold critical roles for parents with intellectual disabilities and are required to support their clients’ parenting while ensuring the health and well-being of their children. Israeli social workers balance negative or ambivalent attitudes regarding the capability of parents with intellectual disabilities against a desire to honor their duty to support these clients. State and community support for parents with intellectual disabilities must be increased. Additional training is needed for empowering social workers to act on behalf of these clients in Israel.

Policy-makers show an increasing interest in “nudges” – behaviorally motivated interventions that steer people in certain directions but maintain freedom of consumer choice. Despite this interest, little evidence has surfaced about which population groups support nudges and nudging. We report the results of nationally representative surveys in Denmark, Hungary, Italy, and the United Kingdom. Individual, household and geographic characteristics served as predictors of nudge approval, and the count of significant predictors as measures of controversy. Less high approval rates of nudges in Denmark and Hungary were reflected in higher controversy about “System 1” nudges, whereas the United Kingdom and Italy were marked by higher controversy about “System 2” nudges, despite high approval rates. High-controversy nudges tended to be associated with current public policy concerns, for example, meat consumption. The results point to means for effective targeting, and increase knowledge about the types of nudges likely to obtain public support.

The volume features commentary from a broad range of scholars across a variety of disciplines in order to provide a comprehensive study of the legal, psychological, education, sociological, and other aspects of the CPRD.

The introduction of the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD) and General Comment 1 on Article 12 (GC1) has generated considerable debate regarding the assertion that people with psychosocial disabilities (disabilities arising from mental health conditions) always possess decision-making capacity. While there is debate over the feasibility and acceptability of supported decision-making, stakeholders interviewed for this study suggested that coercive treatment is heavily overutilized and that there needs to be more dialogue between holders of divergent positions. There are a number of important unresolved questions relating to more complex cases and to whether the right guaranteed by the CRPD is absolute and immediate or subject to limitations. Ensuring participation of all key stakeholders is essential to realizing the pluralistic vision of the CRPD, as is research focusing on implementation of supported decision-making regimes, particularly in low- and middle-income countries. Training on the provisions of the CRPD is also needed to ensure implementation, and addressing stigmatized beliefs among policy makers about the decision-making and cognitive abilities of mental healthcare users (MHCUs) is critical.

Is the world facing a serious threat to the protection of constitutional democracy? There is a genuine debate about the meaning of the various political events that have, for many scholars and observers, generated a feeling of deep foreboding about our collective futures all over the world. Do these events represent simply the normal ebb and flow of political possibilities, or do they instead portend a more permanent move away from constitutional democracy that had been thought triumphant after the demise of the Soviet Union in 1989? Constitutional Democracy in Crisis? addresses these questions head-on: Are the forces weakening constitutional democracy around the world general or nation-specific? Why have some major democracies seemingly not experienced these problems? How can we as scholars and citizens think clearly about the ideas of "constitutional crisis" or "constitutional degeneration"? What are the impacts of forces such as globalization, immigration, income inequality, populism, nationalism, religious sectarianism? Bringing together leading scholars to engage critically with the crises facing constitutional democracies in the 21st century, these essays diagnose the causes of the present afflictions in regimes, regions, and across the globe, believing at this stage that diagnosis is of central importance - as Abraham Lincoln said in his "House Divided" speech, "If we could first know where we are, and whither we are tending, we could then better judge what to do, and how to do it."

A Report of the Syrian Refugee Resettlement Project, An Initiative of the Harvard Immigration and Refugee Clinical Program. At a time when the U.S. refugee admissions program is under serious threat and the world’s displaced population is at its highest, this Report sets forth extensive recommendations regarding the United States’ role in protecting vulnerable refugees and compliance with its commitments under domestic and international law that together safeguard people fleeing persecution and fearing return to torture. The Report also identifies key national security reasons for supporting and enhancing the refugee program in keeping with U.S. foreign policy priorities. Additionally, the Report provides an in-depth discussion of the robust, multistep security-assessment mechanisms already in place for screening refugees; offers viable policy solutions to improve the integration of resettled refugees through enhanced collaboration among government agencies, private resettlement agencies, and sponsors involved in domestic resettlement; and demonstrates the positive economic impact of refugee resettlement in the United States. Drawing on the perspectives of longtime domestic refugee resettlement experts, the Report also provides fresh insights into how public private partnerships function in refugee resettlement and the ways in which they can be strengthened.

As of the beginning of this century, the United Nations (UN) human rights system had comprehensively elided persons with disabilities from its purview. The Convention on the Rights of Persons with Disabilities (CRPD) responded to this lacuna in 2006. The CRPD obligates States parties to mainstream disability by protecting and promoting the human rights of persons with disabilities in all policies and programs, and intersects disability with other discriminated-against populations. This Article investigates the success of the UN in mainstreaming disability throughout its human rights treaty bodies over the period 2000–2014 by comparing the seven years before and the eight years after the CRPD's adoption for six core UN treaty bodies. In doing so, the Article provides initial and unique insight into how well the UN implements human rights norms into treaty bodies, and provides a template for future research on the inclusion of vulnerable group-based rights in the UN and beyond. Despite some significant variations between treaty bodies, we find an overall dramatic increase in the quantitative incidence of disability rights being referenced. Nevertheless, a closer look into the practices of two treaty bodies shows that the human rights of persons with disabilities, while noted by those bodies, are included fully only on occasion. For the UN to truly mainstream disability (or other) human rights, those rights must go beyond mere formal references and also be substantively integrated.

Inclusive higher education is elusive for students with disabilities, especially in developing countries. The adoption and rapid ratification of the Convention on the Rights of Persons with Disabilities (CRPD) provides, if applied as its drafters intended, a “whole of institution” framework for its realization (CRPD Committee, 2016). Myriad legal, attitudinal, physical, and communication-based barriers limit or exclude participation. The individual impact of such discrimination is clear and carries lifelong consequences. Equally endemic are the broad societal and pedagogical effects of this exclusion. To illustrate: preventing persons with disabilities from Teacher Education courses impacts inclusive education in primary and secondary education; barring people with disabilities from academic programs in the sciences stifles innovation in assistive technology, health, and rehabilitation; and limiting access to studying the humanities hampers the emergence of disability studies as a rightful discipline. This article presents a framework for inclusive higher education in developing countries as contemplated by the CRPD. In doing so, we draw on field work conducting the first assessment of the accessibility of Egyptian public higher education to students with disabilities. We outline lessons that can be learned and pitfalls to be avoided both in Egypt and indeed for other countries in the Global South.

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.

"With contributions from leading scholars in constitutional law, this volume examines how carefully designed and limited doctrines of proportionality can improve judicial decision-making, how it is applied in different jurisdictions, its role on constitutionalism outside the courts, and whether the principle of proportionality actually advances or detracts from democracy. Contributions from some of the seminal thinkers on the development of scholarship on proportionality (e.g. Alexy, Barak, and Beatty) extend their prior work and engage in an important dialogue on the topic. Some offer substantial critiques, others defend the doctrine and offer important clarifications and extensions of their prior work. Throughout, the authors engage not only with case law from around the world but also with existing scholarly treatments of the subject. Mathematical treatments are avoided, making the book accessible to readers from both 'soft' and hard' social science backgrounds"-- Provided by publisher.

"Disability, Human Rights, and Information Technology addresses the global issue of equal access to information and communications technology (ICT) by persons with disabilities. The right to access the same digital content at the same time and at the same cost as people without disabilities is implicit in several human rights instruments and is featured prominently in Articles 9 and 21 of the Convention on the Rights of Persons with Disabilities. The right to access ICT, moreover, invokes complementary civil and human rights issues: freedom of expression; freedom to information; political participation; civic engagement; inclusive education; the right to access the highest level of scientific and technological information; and participation in social and cultural opportunities. Despite the ready availability and minimal cost of technology to enable people with disabilities to access ICT on an equal footing as consumers without disabilities, prevailing practice around the globe continues to result in their exclusion. Questions and complexities may also arise where technologies advance ahead of existing laws and policies, where legal norms are established but not yet implemented, or where legal rights are defined but clear technical implementations are not yet established. At the intersection of human-computer interaction, disability rights, civil rights, human rights, international development, and public policy, the volume's contributors examine crucial yet underexplored areas, including technology access for people with cognitive impairments, public financing of information technology, accessibility and e-learning, and human rights and social inclusion." -- University of Pennsylvania Press

The minuscule motion of a butterfly’s wings can trigger a tornado half a world away, according to chaos theory. Under the right conditions, small simple actions can produce large complex effects. In this timely and provocative book, Catharine A. MacKinnon argues that the right seemingly minor interventions in the legal realm can have a butterfly effect that generates major social and cultural transformations.Butterfly Politics brings this incisive understanding of social causality to a wide-ranging exploration of gender relations. The pieces collected here—many published for the first time—provide a new perspective on MacKinnon’s career as a pioneer of legal theory and practice and an activist for women’s rights. Its central concerns of gender inequality, sexual harassment, rape, pornography, and prostitution have defined MacKinnon’s intellectual, legal, and political pursuits for over forty years. Though differing in style and approach, the selections all share the same motivation: to end inequality, including abuse, in women’s lives. Several mark the first time ideas that are now staples of legal and political discourse appeared in public—for example, the analysis of substantive equality. Others urge changes that have yet to be realized.The butterfly effect can animate political activism and advance equality socially and legally. Seemingly insignificant actions, through collective recursion, can intervene in unstable systems to produce systemic change. A powerful critique of the legal and institutional denial of reality that perpetuates practices of gender inequality, Butterfly Politics provides a model of what principled, effective, socially conscious engagement with law looks like.

This book provides a theoretical framework for the understanding of corporate (or company) law from both a functional and a comparative perspective and illustrates how corporate laws in core jurisdictions (namely, Brazil, the U.S., the UK, France, Germany, Italy, and Japan) conform to that framework. Corporations in all jurisdictions share the same key legal attributes: namely, legal personality, limited liability, delegated management, transferable shares, and investor ownership. Businesses using the corporate form give rise to three basic types of agency problems, namely those between: (1) managers and shareholders as a class; (2) controlling shareholders and minority shareholders; and (3) shareholders as a class and other corporate constituencies, such as corporate creditors and employees. After identifying the common set of legal strategies used to address these agency problems and discussing their interaction with enforcement institutions, the book illustrates how a number of core jurisdictions around the world deploy such strategies. In so doing, it highlights the many commonalities across jurisdictions and reflects on the reasons why they differ on specific issues. The analysis covers the basic governance structure of the corporation, including the powers of the board of directors and the shareholder meeting, both when management and when a dominant shareholder is in control. It then analyses the role of corporate law in shaping labor relationships, the protection of external stakeholders, the relationships with creditors, related-party transactions, fundamental corporate actions such as mergers and charter amendments, takeovers, and the regulation of capital markets.

Since 2011, the United Kingdom has prohibited all deal protections—including termination fees—in mergers and acquisitions (M&A) deals. We examine the effect of this regulatory change on deal volumes, the incidence of competing offers, deal-jumping rates, deal premiums, and completion rates in the United Kingdom relative to the other European Group of 10 (G-10) countries. We find that M&A deal volumes in the United Kingdom declined significantly in the aftermath of the 2011 reform (in absolute terms and relative to deal volumes in other European G-10 countries). We find no countervailing benefits to targets’ shareholders in the form of higher deal premiums or more competing bids. Completion rates and deal-jumping rates also remained unchanged. Our results suggest that deal protections provide an important social welfare benefit by facilitating the initiation of M&A deals.

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.

Behavioral nudges are everywhere: calorie counts on menus, automated text reminders to encourage medication adherence, a reminder bell when a driver's seatbelt isn't fastened. Designed to help people make better health choices, these reminders have become so commonplace that they often go unnoticed. In Nudging Health, forty-five experts in behavioral science and health policy from across academia, government, and private industry come together to explore whether and how these tools are effective in improving health outcomes. Behavioral science has swept the fields of economics and law through the study of nudges, cognitive biases, and decisional heuristics-but it has only recently begun to impact the conversation on health care. Nudging Health wrestles with some of the thorny philosophical issues, legal limits, and conceptual questions raised by behavioral science as applied to health law and policy. The volume frames the fundamental issues surrounding health nudges by addressing ethical questions. Does cost-sharing for health expenditures cause patients to make poor decisions?Is it right to make it difficult for people to opt out of having their organs harvested for donation when they die? Are behavioral nudges paternalistic? The contributors examine specific applications of behavioral science, including efforts to address health care costs, improve vaccination rates, and encourage better decision-making by physicians.

A timely account of a raging debate: The history of the ongoing struggle between the presidents and Congress over who has the power to declare and wage war. The Constitution states that it is Congress that declares war, but it is the presidents who have more often taken us to war and decided how to wage it. In Waging War, David J. Barron opens with an account of George Washington and the Continental Congress over Washington’s plan to burn New York City before the British invasion. Congress ordered him not to, and he obeyed. Barron takes us through all the wars that followed: 1812, the Mexican War, the Civil War, the Spanish-American war, World Wars One and Two, Korea, Vietnam, Iraq, and now, most spectacularly, the War on Terror. Congress has criticized George W. Bush for being too aggressive and Barack Obama for not being aggressive enough, but it avoids a vote on the matter. By recounting how our presidents have declared and waged wars, Barron shows that these executives have had to get their way without openly defying Congress. Waging War shows us our country’s revered and colorful presidents at their most trying times—Washington, Lincoln, Theodore Roosevelt, Franklin Roosevelt, Truman, Eisenhower, John F. Kennedy, Johnson, both Bushes, and Obama. Their wars have made heroes of some and victims of others, but most have proved adept at getting their way over reluctant or hostile Congresses. The next president will face this challenge immediately—and the Constitution and its fragile system of checks and balances will once again be at the forefront of the national debate.

The Convention on the Rights of Persons with Disabilities (CRPD) requires States to replace their mental health laws based on substitute decision-making for persons with mental health issues with laws based on the supported decision-making paradigm. However, the exact scope of the CRPD's mandates is currently under debate, especially in the case of persons with very high support needs. The Mental Health Care Bill, 2013, introduces supported decision-making in India in the form of advance directives and nominated representatives. This article discusses how far the Bill measures up to the CRPD's standards and highlights some of the difficulties when the support needs of the person are very high.

Based on the author’s years of classroom teaching and extensive experience consulting at major law firms, this book is organized around actual problems that routinely occur in practice. It does not pretend that such problems are solved by the mechanical application of rules, although all important and relevant rules are included. Rather, these problems are seen in the context of decided cases, academic articles, and the overriding principles of ethical philosophy, adding a dimension missing from many professional responsibility texts. This edition includes important changes in the ABA and Massachusetts rules and adds some excellent new cases that are of value in navigating the ethical pitfalls of the real world.

The question of why people follow the law has long been a subject of scholarly consideration. Prevailing accounts of how law changes behavior coalesce around two major themes: legitimacy and deterrence. Advocates of legitimacy argue that law is obeyed when it is created through a legitimate process and its substance comports with community mores. Others emphasize deterrence, particularly those who subscribe to law-and-economics theories. These scholars argue that law makes certain socially undesirable behaviors more costly, and thus individuals are less likely to undertake them.

Despite important gains in human rights, persons with disabilities — and in particular women and girls with disabilities — continue to experience significant inequalities in the areas of sexual, reproductive, and parenting rights. Persons with disabilities are sterilized at alarming rates; have decreased access to reproductive health care services and information; and experience denial of parenthood. Precipitating these inequities are substantial and instantiated stereotypes of persons with disabilities as either asexual or unable to engage in sexual or reproductive activities, and as incapable of performing parental duties. The article begins with an overview of sexual, reproductive, and parenting rights regarding persons with disabilities. Because most formal adjudications of these related rights have centered on the issue of sterilization, the article analyzes commonly presented rationales used to justify these procedures over time and across jurisdictions. Next, the article examines the Convention on the Rights of Persons with Disabilities and the attendant obligations of States Parties regarding rights to personal integrity, access to reproductive health care services and information, parenting, and the exercise of legal capacity. Finally, the article highlights fundamental and complex issues requiring future research and consideration.

This volume provides detailed information on inequality between the sexes, an expert grasp of the legal and conceptual tools of sex equality in its manifold dimensions, and visions of future possibilities.

The Nineteenth Edition is an updated version of this classic casebook, adding new materials on the Supreme Court’s most recent decisions on federal power, free speech, equal protection and religious freedom to its existing comprehensive coverage of separation of powers, federalism, civil rights and civil liberties. This casebook provides a unique combination of clearly structured and lawyerly coverage of the cases with rich historical, theoretical, and philosophical materials that illuminate the development of our constitutional law. In the 19th edition, you will find the latest decisions on gay marriage, street signs and confederate flags, campaign contribution limits, congressional power over voting rights, and religious exemptions from health care mandates, among many others. The note materials and questions in the casebook make it easy to structure classes and promote lively discussion. And comparative examples from the constitutional law of other nations are provided throughout.

This article examines the extent to which all 193 UN member states guarantee the rights of persons with disabilities in their national constitutions based on fundamental human rights outlined in the Convention on the Rights of Persons with Disabilities. As of May 2014, constitutions most commonly explicitly guarantee rights to persons with disabilities in education (28%), health (26%), and overall equity (24%). Fewer constitutions specifically guarantee the right to work or non-discrimination at work (18%), political rights (21-22%), or civil rights (9%) to persons with disabilities. Additionally, many constitutions permit denials of the right to liberty (19%) and political rights (22%-31%) for persons with mental health conditions. Although constitutional guarantees of rights for persons with disabilities are present in only a minority of constitutions, we find a significant increase in the inclusion of relevant provisions in constitutions adopted more recently, particularly those adopted in 2010 or later, across all regions.

The question of why people follow the law has long been a subject of scholarly consideration. Prevailing accounts of how law changes behavior coalesce around two major themes: legitimacy and deterrence. Advocates of legitimacy argue that law is obeyed when it is created through a legitimate process and its substance comports with community mores. Others emphasize deterrence, particularly those who subscribe to law-and-economics theories. These scholars argue that law makes certain socially undesirable behaviors more costly, and thus individuals are less likely to undertake them.

The pursuit of justice is a large part of the law of contracts, but in recent years most of the discussion about contract law has emphasized other values, such as freedom or economic efficiency. "Justice"-as used, for example, in the Restatement (Second) of Contracts-has become a flabby word denoting unexamined intuitions or random contingencies. This article tries to restore justice to its proper place in contract law by providing an analytic framework for discussing its role. It sets out five principles of justice embedded in contract law: (1) Justice as the equal exchange; (2) Justice as the honest wager; (3) Justice as the term that fits; (4) Justice as the deserved return; and (5) Justice as the advantage not to be taken. Each of these "Justices" responds to a distinct social sense of justice, and each helps explain a considerable swath of the actual law of contracts. But they are not always mutually consistent, so together they define a realm of debate rather than of demonstrable outcomes. The concluding section of the article looks at the mechanisms by which that debate works to produce results, and how it fits together with other forces also shaping the law.

We are living in a new sex bureaucracy. Saliently decriminalized in the past decades, sex has at the same time become accountable to bureaucracy. In this Article, we focus on higher education to tell the story of the sex bureaucracy. The story is about the steady expansion of regulatory concepts of sex discrimination and sexual violence to the point that the regulated area comes to encompass ordinary sex. The mark of bureaucracy is procedure and organizational form. Over time, federal prohibitions against sex discrimination and sexual violence have been interpreted to require educational institutions to adopt particular procedures to respond, prevent, research, survey, inform, investigate, adjudicate, and train. The federal bureaucracy essentially required nongovernmental institutions to create mini-bureaucracies, and to develop policies and procedures that are subject to federal oversight. That oversight is not merely, as currently assumed, of sexual harassment and sexual violence, but also of sex itself. We call this “bureaucratic sex creep” — the enlargement of bureaucratic regulation of sexual conduct that is voluntary, non-harassing, nonviolent, and does not harm others. At a moment when it is politically difficult to criticize any undertaking against sexual assault, we are writing about the bureaucratic leveraging of sexual violence and harassment policy to regulate ordinary sex. An object of our critique is the bureaucratic tendency to merge sexual violence and sexual harassment with ordinary sex, and thus to trivialize a very serious problem. We worry that the sex bureaucracy is counterproductive to the goal of actually addressing the harms of rape, sexual assault, and sexual harassment. Our purpose is to guide the reader through the landscape of the sex bureaucracy so that its development and workings can be known and debated.

Credit scores have become a near-universal financial passport for Americans to meet common personal needs including employment, loans, insurance, and home and car purchases or leases. At the same time, Elizabeth Warren and others have documented the horrific economic, emotional, and health consequences of low creditworthiness for score-bearers and their families. Individuals with psychosocial disabilities (previously called mental disabilities or mental illnesses) can make disastrously poor financial decisions during the active phases of their conditions; during inactive phases they are as capable as others of making sound or poor financial decisions. Yet, in computing credit scores and selling credit reports, national and transnational credit-reporting agencies (like Equifax) do not account for the implications of psychosocial disability. Worse, evidence shows that businesses rely on these reports to predatorily target borrowers with psychosocial disabilities — and especially those who are also women and racial minorities — in deciding terms of lending, employment, and housing. In theory but not in practice, the Americans with Disabilities Act and the Fair Housing Act each prohibit discriminatory financial decisions arising from disability status, while also requiring reasonable accommodations to equalize opportunities for disabled persons. The United Nations Convention on the Rights of Persons with Disabilities (which the United States has signed) further mandates enabling the financial decision making of these individuals, but does not provide guidance on achieving this obligation. Further, despite the crucial and direct implications this situation also raises for vast numbers of Americans without psychosocial disabilities who likewise make poor credit decisions, it has not undergone legal analysis. We engage this significant gap by suggesting schemes drawn from historical and comparative contexts that could enable the creditworthiness of persons with psychosocial disabilities, and then critiquing the costs and benefits of each. In doing so, we proffer the first analysis of this issue in the legal literature and seek to stimulate future dialogue among academics and policymakers. The Article concludes with thoughts on the implications of its analyses for the broader issue of credit scoring.

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.