Faculty Bibliography

The right to food has been acknowledged as a key part of the global human rights framework, officially recognized by 171 countries. Even in countries that have not formally recognized the right—notably including the United States—there is general agreement that government plays an important role in ensuring food security. Recent global shocks, including the COVID-19 pandemic, the Russia-Ukraine conflict, and the impacts of climate change on agricultural output, are straining that right. Yet, governments have under-recognized a key global opportunity: leveraging surplus edible food that would otherwise go to waste to help realize the right to food. Governmental entities in several countries recently recognized the connection between food waste and the right to food. The Lahore High Court in Pakistan made this connection in a 2019 decision, as did national legislation in Mexico enacted in 2024. However, this connection has been understudied. While scholarly literature exists about the right to food and about food waste, there is little discussion about how the two issues intersect. Further, critics of connecting food redistribution with the right to food have posed challenges to the broad set of solutions that are available. This Article fills a gap in the literature by describing the ways in which food waste violates the right to food, and how recovery and donation of surplus food can actually ensure the right to food. This Article argues that, given all the options available to reduce food waste, governments that fail to take action to remediate food waste should be seen as violating the right to food. To make this argument, the Article analyzes how food waste negatively impacts the right to food, looking at the Lahore High Court decision as well as legislation in Mexico and other countries that connect the right to food and food waste. The Article also examines various policies that countries have adopted to address food waste even when not directly referencing the right to food. The Article closes with a discussion of various critiques of the connection between food waste reduction and the right to food, concluding that these critiques actually offer further evidence of the important role government must play in efforts to align food waste reduction and the right to food.

The surge of executive power unleashed by the Supreme Court has reached the Federal Reserve, provoking a crisis that the justices seem suddenly anxious to avoid. But the drama is long overdue. The central bank has a constitutional stature that poses a direct challenge to unitary executive theory, the principle animating the Court's recent case law. Congress established the Federal Reserve System to carry out a critical legislative prerogative-making the sovereign money supply. Congress used an institutional form-national banking- innovated precisely to secure sovereign money-making from executive (originally monarchical) interference. Congress in turn assigned a vital responsibility-the capacity to make money out of debt in the people's name-to the Fed. The constitutional conclusion follows: Congress's prerogative over money-making clearly secures the Fed's independence from presidential interference. That conclusion is lost in current scholarship that treats the Fed as fundamentally like other independent agencies. The Court has assumed, similarly, that the unitary executive presides over a relatively homogeneous regulatory field. The case of the Fed exposes the separation of powers as a more complicated project. Legislatures built democratic sovereignty by struggling for prerogatives that, like money-making, protected their lawmaking authority. The prerogatives claimed by Congress inform the work of each agency and official, including within the executive branch. The Court dismantles democratic sovereignty when it denies the reach of those prerogatives.

This article, intended as a contribution to a tribute issue of the Revista critica del diritto privato, offers a detailed reading of an early article by Giovanni Marini. Marini provides a richly historicized account of the similar and different trajectories of Continental European and American critical legal studies as they stood in the early 1980s. his most striking argument is that the American extension of rigorous internal critique to the core of the corpus of private law is something that did not happen on the continent perhaps because of the deep cultural prestige in Europe of private law as theorized in the 19th century and understood as an important accomplishment of “European civilization.

This article describes in some detail the way in which critical legal scholars in the 1980s read, appropriated and then used versions of some of Jacques Derrida’s ideas, particularly the idea of deconstruction. They first of all understood deconstruction as a procedure close in many ways to the sociological jurists’ and legal realists’ critiques of the conceptual apparatus of classical legal thought. They debated and disagreed about the implications of the resulting Franco-American amalgam and applied different versions of it to contemporary debates about legal reasoning and doctrinal indeterminacy, and then extended them to debates about gender, “identity” and law and economics. The article ends with my own existentialist decisionist reading, from within these debates, of some canonical Derridean aphoristic slogans.

The use of AI, or more generally data-driven algorithms, has become ubiquitous in today’s society. Yet, in many cases and especially when stakes are high, humans still make final decisions. The critical question, therefore, is whether AI helps humans make better decisions compared to a human-alone or AI-alone system. We introduce a methodological framework to answer this question empirically with minimal assumptions. We measure a decision maker’s ability to make correct decisions using standard classification metrics based on the baseline potential outcome. We consider a single-blinded and unconfounded treatment assignment, in which the provision of AI-generated recommendations is assumed to be randomized across cases, conditional on observed covariates, with final decisions made by humans. Under this study design, we show how to compare the performance of three alternative decision-making systems—human-alone, human-with-AI, and AI-alone. Importantly, the AI-alone system encompasses any individualized treatment assignment, including those not used in the original study. We also show when AI recommendations should be provided to a human-decision maker, and when one should follow such recommendations. We apply the proposed methodology to our own randomized controlled trial evaluating a pretrial risk assessment instrument. We find that the risk assessment recommendations do not improve the classification accuracy of a judge’s decision to impose cash bail. Furthermore, replacing a human judge with algorithms—the risk assessment score and a large language model in particular—yields worse classification performance.

Money has recently regained a history. Long set aside as a commodity, convention, or empty instrumentality, money figures increasingly in recent scholarship as a consequential subject of debate and design in early America. That development invites attention to the strange historiography of money and its recent turn. Money’s modern historiography dates to the Enlightenment, when the narrative took hold that money was essentially a transparent technology, one that transmitted determinations about value made independently by individuals as agents. After tracing that narrative and its impact in organizing contemporary assumptions and disciplines, this essay considers emerging approaches to money as represented by the papers presented at the 2023 WMQ -EMSI Workshop, “Money in Vast Early America.” Though those approaches vary, they tend to read money as a practice that organizes value rather than simply expressing it. Money appears as a complexly crafted system with formative influence rather than as a mere marker or straightforward mode of measure. Analyzing the historical drama in the workshop papers, this essay argues that societies create money as a respiratory system for capital, one that sources value in viable form, circulates it, and channels its use distinctively around the society that engineers it. Recognizing money as that expansive phenomenon opens a wide new avenue for insight on early America and its capitalist aftermath.

This report evaluates the “Make America Healthy Again” (MAHA) movement’s food policy proposals, identifying five areas with strong scientific support to reduce diet-related chronic diseases. These five science-supported policy areas include: eliminating toxic chemicals, prohibiting subsidies for sugary drinks and ultra-processed foods, protecting children from unhealthy food environments, improving access to nutrition services in healthcare settings, and reducing conflicts of interest in food and nutrition research.

Algorithmic recommendations and decisions have become ubiquitous in today’s society. Many of these data-driven policies, especially in the realm of public policy, are based on known, deterministic rules to ensure their transparency and interpretability. We examine a particular case of algorithmic pre-trial risk assessments in the US criminal justice system, which provide deterministic classification scores and recommendations to help judges make release decisions. Our goal is to analyze data from a unique field experiment on an algorithmic pre-trial risk assessment to investigate whether the scores and recommendations can be improved. Unfortunately, prior methods for policy learning are not applicable because they require existing policies to be stochastic. We develop a maximin robust optimization approach that partially identifies the expected utility of a policy, and then finds a policy that maximizes the worst-case expected utility. The resulting policy has a statistical safety property, limiting the probability of producing a worse policy than the existing one, under structural assumptions about the outcomes. Our analysis of data from the field experiment shows that we can safely improve certain components of the risk assessment instrument by classifying arrestees as lower risk under a wide range of utility specifications, though the analysis is not informative about several components of the instrument. Supplementary materials for this article are available online, including a standardized description of the materials available for reproducing the work.

The Supreme Court decisions in Meyer v. Nebraska and Pierce v. Society of Sisters left us a mixed legacy, one part blessing and one part curse. Many would agree on this but differ on which part is blessing and which part curse. In my view the blessing is the doctrine of substantive due process protecting personal liberty. The Court did not use this language in these cases, but it did rule that the states’ attempts to interfere with parent rights in those cases violated the 14th Amendment to the U.S. Constitution, and the Court made it clear that in future cases the state would bear a heavy burden to justify any such attempts. In later cases, the Court looked back to Meyer and Pierce as the foundational law when it created important reproductive freedom and relationship rights—the right to contraception and abortion, the rights to sex and marriage for same-sex couples. In my view the curse is the doctrine of parent rights, given the Court’s failure to create any comparable rights for children. More on this later, but first a word on legacy.

This paper examines the impact of defense counsel at first appearance (CAFA) on criminal justice outcomes using randomized control trials in two Texas counties. The study evaluates the influence of CAFA on bond amounts, pretrial release, conditions, and post-magistration outcomes such as recidivism and failure to appear. Results show that while CAFA reduces bond amounts and influences bond types in one jurisdiction, its effects on pretrial release and recidivism are limited. These findings highlight jurisdictional differences and suggest that CAFA’s impact may be more modest than previous studies indicate, underscoring the need for further research in this area.

A semiotic analysis of dress as the production of socially meaningful signs supports the feminist analysis that sees sexy costumes as loaded with allusions to abuse, and as a factor in eroticizing male domination of women. But the same analysis suggests the possibility of pleasure/resistance through sexy dress, and particularly the possibility of eroticizing female sexual autonomy. The reality of male abuse of women burdens or discourages the activities of fantasy, play, invention and experiment through which we have whatever hope we have of evolving or transcending our current modes of male and female sexuality. For this reason, men have at least a potential erotic interest in fighting against it.

This encyclopedia entry contrasts opposing approaches to the legal aspects of money creation. The divide is stark, pitting those who understand law as instrumental, regulatory, or managerial against those who identify it as essential, enabling, or literally constitutive of money and exchange. Those positions are rooted in fundamentally different assumptions about the nature of value, the functions of money, the interests and capacities of sovereign authorities, and the nature of historical change. The contrast exposes the stakes of the divergence for matters ranging from public policy to our understanding of the market. The essay concludes with a case study that approaches the National Banking Acts as an episode of monetary engineering.

Millions in the United States have criminal records. Many of these records are eligible for some sort of concealment from public view, commonly known as expungement or sealing. In this Article, we analyzed criminal records in four counties in Pennsylvania and several counties in Kansas to determine the number of records eligible for such remedies. In Pennsylvania, the analysis included both expungement, defined here as petition-based suppression of information, and sealing, defined here as suppression that the government (usually the judicial system) undertakes without petitions. Kansas law only allows for petition-based expungement. Our analysis found approximately 100,000 charges eligible for expungement in Kansas and 180,000 charges eligible for expungement in Pennsylvania, supporting prior research that identified a so-called “second chance gap.” Our primary contribution is an analysis of which statutory reforms would render the largest number of cases or charges eligible for a record-clearing remedy. We found that elimination of criteria related to legally imposed financial obligations (“LIFOs”) would render a surprising number of files eligible for information suppression. In addition, our analysis identified approximately 200,000 charges that were eligible for sealing in Pennsylvania but were still available to the public online at the time of the data retrieval. This finding suggests that even when the government undertakes information suppression from its own databases, it finds the task challenging. Finally, we examine why certain records were not eligible for expungement or sealing in each state. This insight will inform legislatures and activists where their efforts can be most effective.

Dropout often threatens the validity of causal inference in longitudinal studies. While existing studies have focused on the problem of missing outcomes caused by treatment, we study an important but overlooked source of dropout, selective eligibility. For example, patients may become ineligible for subsequent treatments due to severe side effects or complete recovery. Selective eligibility differs from the problem of ``truncation by death'' because dropout occurs after observing the outcome but before receiving the subsequent treatment. This difference makes the standard approach to dropout inapplicable. We propose a general methodological framework for longitudinal causal inference with selective eligibility. By focusing on subgroups of units who would become eligible for treatment given a specific treatment history, we define the time-specific eligible treatment effect (ETE) and expected number of outcome events (EOE) under a treatment sequence of interest. Assuming a generalized version of sequential ignorability, we derive two nonparametric identification formulae, each leveraging different parts of the observed data distribution. We then derive the efficient influence function of each causal estimand, yielding the corresponding doubly robust estimator. Finally, we apply the proposed methodology to an impact evaluation of a pre-trial risk assessment instrument in the criminal justice system, in which selective eligibility arises due to recidivism.

This wide-ranging collection of essays reflects the manifold scholarly interests of legal historian Charles Donahue, whose former students engage here with questions related to foundational Roman law concepts, the impact of the law on women ...

Consent lay at the core of medieval English marriage law due to its centrality in the rules adopted by Pope Alexander III, recognizing an exchange of present consent or an exchange of future consent followed by intercourse as creating a binding marriage. Consent was also an important concept in the realm of sin and crime, where it connoted an interior disposition toward committing a wrongful act. To be convicted of felony in medieval England, a person must have consented to involvement in an alleged crime. When a husband and wife were implicated in crime together, their marital status gave rise to presumptions, most notably that a wife might have had no alternative but to obey her husband, thereby calling into doubt her consent to the alleged crime. In both the marital and criminal contexts, an emphasis on consent led to evidentiary challenges and a reliance on presumptions to aid adjudication. The resulting adjudicatory processes ensured that the marital bond, forged in consent, did not inevitably give rise to liability for a spouse’s criminal behavior.

Capitalism identifies as essential a particular relationship between property and money. According to that claim, property is a material claim secured to free and equal individuals. Money is the instrument that measures, transfers, and stores that value in stable form, an instrument emergent from exchange and neutral in the sense that it does not affect the value decisions of individuals. The model is both clear and parsimonious. It is also at odds with the nature of both property and money. Each phenomenon is a legal institution that is constantly negotiated and adapted, a process basic to their sustainability in the societal space that gives them meaning. Private property and legal tender are at once protections for those holding them and measures that spread losses across a community. That double-sided character means that debate over how we design property and money has stakes both material and moral. They can be constructed to bring members together in generative exchange or engineered to spirit capital away from accountability.

The volume lays out the philosophical justifications for and against capital punishment, before examining the practicalities of the death penalty, including the roles of numerous legal actors before, during, and after a capital trial.

The US food supply is increasingly associated with diet-related diseases, toxicity, cancer, and other health harms. These public health concerns are partly attributable to a loophole in federal law. The Food and Drug Administration (FDA) evaluates the premarket safety of ingredients regulated as food additives but allows the food industry to self-regulate and determine which substances to classify as generally recognized as safe (GRAS) based on undisclosed data and conclusions that the FDA never sees. Furthermore, the FDA lacks a formal approach for reviewing food additives and GRAS substances already found in the food supply. Substances in the food supply thus include innocuous ingredients (e.g., black pepper), those that are harmful at high levels (e.g., salt), those that are of questionable safety (e.g., potassium bromate), and those that are unknown to the FDA and the public. A recent court decision codified these gaps in the FDA’s current approach, leaving states to try to fill the regulatory void. The FDA and Congress should consider several policy options to ensure that the FDA is meeting its mission to ensure a safe food supply. (Am J Public Health. 2024;114(10):1061–1070. https://doi.org/10.2105/AJPH.2024.307755)

Due to infrequent and inconsistent testing, there is no reliable count of how many infants are exposed to substances in utero, yet recent data on drug use and child fatalities signal an unmitigated crisis. Efforts to limit responsibility of Child Protective Services (CPS) for substance-exposed infants, including laws to prevent doctors from conducting toxicology screenings when there is reasonable suspicion the infant was exposed, severely diminish the likelihood that the parent and child will receive necessary care. Plans of Safe Care, voluntary offers of services seen as a more compassionate alternative to CPS involvement, are not backed by any evidence of their actual efficacy in keeping children safe.

The use of Artificial Intelligence (AI) based on data-driven algorithms has become ubiquitous in today's society. Yet, in many cases and especially when stakes are high, humans still make final decisions. The critical question, therefore, is whether AI helps humans make better decisions as compared to a human alone or AI an alone. We introduce a new methodological framework that can be used to answer experimentally this question with no additional assumptions. We measure a decision maker's ability to make correct decisions using standard classification metrics based on the baseline potential outcome. We consider a single-blinded experimental design, in which the provision of AI-generated recommendations is randomized across cases with a human making final decisions. Under this experimental design, we show how to compare the performance of three alternative decision-making systems--human-alone, human-with-AI, and AI-alone. We apply the proposed methodology to the data from our own randomized controlled trial of a pretrial risk assessment instrument. We find that AI recommendations do not improve the classification accuracy of a judge's decision to impose cash bail. Our analysis also shows that AI-alone decisions generally perform worse than human decisions with or without AI assistance. Finally, AI recommendations tend to impose cash bail on non-white arrestees more often than necessary when compared to white arrestees.

We propose a new and better way to align the interests of lawyers and clients. A lawyer, representing a plaintiff, enjoys de facto control over the effort spent pursuing the case and over settlement decisions. It is well-known that hourly fees may create incentives for over-lawyering and excessive delay, while percentage fees may create incentives for under-lawyering and early settlement at disadvantageous terms. With our new method, the lawyer is paid by the hour but their pay is capped by the plaintiff's net recovery in excess of the rejected settlement offer. Benchmarking against the defendant's settlement offers aligns the lawyer's incentives with the plaintiff's, avoids windfall attorney fees, and gets the defendant to make early and reasonable settlement offers. Our method harnesses the information and incentives of the defendant to solve agency problems between the plaintiff and their lawyer and reduce the administrative burden on the court.

There is little credible evidence to help inform policy and practice for remote courts. In this study of self-represented family law litigants, preliminary information suggests that remote court may not affect appearance rates or case timelines but may come at a cost in terms of litigants’ perceptions of fairness.

By revealing a community in radical transition, constitutional crises expose money’s relationship to the market. That essential dynamic is more easily disregarded in routine times. Modern commentators deflect analysis further by imputing a basic divide between real and monetary activity. This essay retheorizes that relationship using the Civil War experience as a setting. The exercise illuminates money as a practice that constructs the market architecture across crises and calms. First, contriving a public unit of account creates commensurability in value and makes possible prices. That accomplishment is, at the same time, an arresting act of constitutional reorganization. To create a money, communities literally transmute political obligation into a unit and enable that entity to circulate: modern money is a sovereign liability that can offset individual indebtedness. Consonant with that faculty, the initiative expands public capacity and realigns private relations. Second, enabling money as a medium structures its operation. Money issues from public and private market actors who are advantaged by their ability to create it and it attracts users into its measurement system through their demand for that medium. Those features – discrete issue and particularized demand – are inherent to the phenomenon of circulation and, in turn, affect production. Third, a government curates exchange by enforcing those transactions in money that it approves. As it defines “commodities,” shapes contract, and develops property, the polity dredges the monetary channels of exchange. In the face of money’s sweeping effects as a unit of account, medium of exchange, and mode of payment, its disregard in modern economic theory is a major default. Analyzing money creation exposes it as the structure that configures economic activity.

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An unprecedented account of social stratification within the US legal profession. How do race, class, gender, and law school status condition the career trajectories of lawyers? And how do professionals then navigate these parameters? The Making of Lawyers’ Careers provides an unprecedented account of the last two decades of the legal profession in the US, offering a data-backed look at the structure of the profession and the inequalities that early-career lawyers face across race, gender, and class distinctions. Starting in 2000, the authors collected over 10,000 survey responses from more than 5,000 lawyers, following these lawyers through the first twenty years of their careers. They also interviewed more than two hundred lawyers and drew insights from their individual stories, contextualizing data with theory and close attention to the features of a market-driven legal profession. Their findings show that lawyers’ careers both reflect and reproduce inequalities within society writ large. They also reveal how individuals exercise agency despite these constraints.

Abstract Accounts of the post-Lateran IV period tend to emphasize the different procedural paths taken by English courts, which adopted jury trial for felony cases, and continental European courts, which turned toward inquisitorial methods and a greater reliance on confession. This article argues that the fact-finding strategies of the two systems had more in common than may appear at first glance due, in part, to a shared cultural reservoir exemplified by the strategy of circumstantial inquiry employed by confessors. Rather than focusing on the point of greatest difference, the trial jury, this article examines pre-trial investigative processes to emphasize shared jurisprudential priorities.