Faculty Bibliography

This Research Agenda indicates key directions for future investigation in tort law, with particular focus on the ways in which laws could and should assign responsibility for injury and regulate safety. Bringing together leading international experts, this book maps out key challenges of emerging developments in tort law and theory.

Politicians appear to be increasingly dependent upon a group of ultra-wealthy elites who not only fund their campaigns but are critical for the functioning of public governance. These ultrawealthy individuals provide the indispensable infrastructure, expertise, and communication that are critical to modern electoral politics. These ultra-wealthy individuals want more than influence, seeking instead to govern even though the voters do not elect them. This chapter describes this process and argues that the campaign finance literature, which is mired in a debate about corruption and equality, is not well-positioned to address this contemporary challenge to representative democracy. The piece refers to this challenge as "plutocratic democracy," and uses Elon Musk as a case study.

Fresh out of college, we were a bunch of misfits, in a chaotic, run-down communal home, desperately trying to figure out who we were meant to be.

In certain antitrust settings, it is sometimes claimed that otherwise cognizable benefits (efficiencies, procompetitive effects) do not count in the balance if they arise in a different "market" from the locus of harm. Such an omission would be pernicious. If broadly applied, it would condemn many movements of resources to their best uses, the lifeblood of a well-functioning economy. After all, when supply and demand shift or drastic innovations channel resources in new directions--whether by contracts, internal decisions of firms (including monopolists), or acquisitions--they necessarily move resources away from being deployed somewhere else. An immediate implication is that, at a fundamental level, healthy economic activity routinely leaves some suppliers and customers worse off, no matter how widespread and substantial are the benefits to others. Attempts to regulate an economy that ignore "out-of-market" benefits would undermine its basic operation. It would be dangerous to expand this type of limitation on sound analysis and decision-making; instead, any such restrictions should be expunged.

Wolford v. Lopez presents the Supreme Court with a novel question: may states require property owners to affirmatively consent before armed persons enter private property that is held open to the public? Hawaii enacted such a default rule after New York State Rifle & Pistol Association v. Bruen instructed courts to assess modern gun regulations by analogy to historical restrictions that are “relevantly similar” in “how and why” they burden the right to armed self-defense. In Wolford, the parties have turned to colonial-era hunting statutes limiting armed entry onto private land, but they disagree fundamentally about what those laws represent. This Essay shows how Wolford crystallizes the level-of-generality problem embedded in Bruen’s historical framework. Outcomes often turn on the frame courts choose for “the relevant tradition”: defined too narrowly, no analogue fits; defined too broadly, almost anything does. Wolford poses that problem on both “why” and “how.” On “why,” the parties and lower courts dispute whether Founding-era hunting laws targeted “poaching” alone or broader concerns about armed trespass. On “how,” they dispute whether bans tied to “enclosed” or “improved” land map onto the modern category of “private property open to the public.” Reexamining the record through property history clarifies what the hunting laws can—and cannot—do in the analogical analysis. Even an “anti-poaching” frame does not resolve whether the laws addressed theft of game or a broader bundle of concerns including trespass, property damage, and violence associated with armed strangers. And “enclosure” and “improvement” functioned as publicly legible property signals—proxies for claim and notice—rather than precursors to contemporary zoning-era distinctions between residential and commercial space. The Essay closes by arguing that when history is genuinely ambiguous and competing constitutional values are in tension, courts should be transparent about the level-of-generality choices that drive outcomes and candid about the extent to which those choices inevitably reintroduce means-ends reasoning under another name.

Long before the federal onslaught, a Twin Cities museum showed what it meant to find a home in America.

In an attempt to protect its dominant position in the market for incorporations, Delaware recently relaxed the constraints on public company controllers. This article analyzes how the relaxation of controller constraints is expected to affect public investors and the economy. In particular, we show that this relaxation should be expected to: (i) provide controllers with substantial private benefits through six channels that we identify and discuss; (ii) impose even larger costs on public investors and thereby generate considerable efficiency costs and reductions in corporate value; (iii) transform ownership patterns over time-leading both to an increase in the prevalence of controlled companies and to a decline in the ownership stakes held by controllers; and (iv) lower the quality of investor protection in U.S. controlled companies to a level significantly below that observed in other advanced economies. We also demonstrate that market forces and private ordering cannot be relied on to adequately address the above concerns. The looming risks we identify for both public investors and the broader economy raise serious concerns for anyone interested in investor protection and economic performance.

This Viewpoint discusses new guidance on responsible use of artificial intelligence.

Early in his life, Sanders left the streets of Brooklyn for the woodlands of Vermont. What did the man bring to the state—and what did the state bring to the man?

Bâli and Dajani's edited collection on federalism and decentralization in North Africa and the Middle East draws needed attention to the importance of the purposes of leading actors in decentralization efforts and the great diversity in motivations to decentralize or federalize state power. Among the editors’ six typologies, an interesting and important one is “Authoritarian Decentralization,” in which apparent decentralization is used to enhance or preserve power at the center. The chapters in this important collection richly reward reading and illustrate both the different valences of the “federalism” idea in different societies and the different structures that may be able to promote rights-respecting and effective governance.

From the constitutional Founding until Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), federal courts routinely applied a body of “general law” to resolve a wide range of legal issues, including issues relating to commercial law, torts, international law, conflict of laws, equity, and procedure. This general law regime became politically fraught and difficult to administer, and the Supreme Court finally repudiated it in Erie, declaring that “there is no federal general common law” and requiring the federal courts to ground all rules in either federal or state law. Erie and its progeny created what this Article terms the “Erie algorithm,” which requires federal courts to convert pre-Erie rules premised on one understanding of law and federal judicial power into rules premised on different understandings of both, almost always with a different meaning and different legal status than prevailed at the Founding and in the nineteenth century. This algorithm undergirds nearly every corner of contemporary federal courts doctrine. Despite its willingness to rethink other major structural constitutional law precedents, the Supreme Court has accepted—and, indeed, embraced—the Erie algorithm and incorporated it throughout modern public law. By contrast, a number of scholars in recent years—primarily but not exclusively originalists—have sought to revive the pre-Erie general law. “General law revivalism,” this Article argues, overlooks how dysfunctional the general law regime had become before Erie and fails to appreciate the incompatibility of that regime with the post-Erie constitutional order. In addition, those who suggest jettisoning Erie have not made the case for absorbing the massive system costs that such an effort would generate. The Article concludes that many strands of originalism are left with “the problem of 1938”: the necessity of reconciling originalist commitments with a legal system fundamentally shaped by Erie and its transformational algorithm.

Alignment of artificial intelligence (AI) encompasses the normative problem of specifying how AI systems should act and the technical problem of ensuring AI systems comply with those specifications. To date, AI alignment has generally overlooked an important source of knowledge and practice for grappling with these problems: law. In this paper, we aim to fill this gap by exploring how legal rules, principles, and methods can be leveraged to address problems of alignment and inform the design of AI systems that operate safely and ethically. This emerging field -- legal alignment -- focuses on three research directions: (1) designing AI systems to comply with the content of legal rules developed through legitimate institutions and processes, (2) adapting methods from legal interpretation to guide how AI systems reason and make decisions, and (3) harnessing legal concepts as a structural blueprint for confronting challenges of reliability, trust, and cooperation in AI systems. These research directions present new conceptual, empirical, and institutional questions, which include examining the specific set of laws that particular AI systems should follow, creating evaluations to assess their legal compliance in real-world settings, and developing governance frameworks to support the implementation of legal alignment in practice. Tackling these questions requires expertise across law, computer science, and other disciplines, offering these communities the opportunity to collaborate in designing AI for the better.

In this Viewpoint, a California artificial intelligence law is described, including its positive contributions to making these companion chatbots safer for minor and adult users and the limits of the law, and recommends further steps California and other states can adopt to improve protections for mental health and chatbot safety, especially for minors.

This Viewpoint explores the US Food and Drug Administration’s plan to approve leucovorin for patients with autism and the potential implications for evidentiary standards.

For a long time, for both Justices and many observers, “legitimacy” was a focal criterion for assessing the Supreme Court’s performance. But what if the Court, or a big enough faction of its Justices, dropped legitimacy as a concern or goal? What if enough Justices felt that there was big enough of a chance to make fundamental transformations in the law that it was not only acceptable but necessary to deteriorate the institution’s standing—or scrap it altogether? Our proposal is that the performance of the contemporary Supreme Court prompts just this question. The current majority’s zeal to validate its longstanding unitary executive theory in collusion with President Trump raises the possibility of a post-legitimacy court most obviously, but the evidence for the abandonment of what had been a traditional goal and metric is far more pervasive. If our descriptive proposal is that the Supreme Court’s majority has relinquished legitimacy as a criterion of its own performance, our evaluative corollary is that we should cease pining for its return, and draw the consequences of living in the aftermath.

A new Section 1557 rule bans discrimination by AI-based clinical decision tools, with compliance required by May 2025. This paper explores challenges in identifying and mitigating algorithmic bias, especially where outcome disparities exist. We emphasize the need to audit high-risk tools, address proxy discrimination, and provide standardized guidance. Political uncertainty around enforcement complicates long-term planning, making expanded regulatory support essential for health systems and developers alike.

Corporate debt financing and the restructuring of large corporations are now governed by what this Article calls the “global law of debt,” a transnational system shaped more by law firms, investment banks, and investors in New York and London than by national laws or court decisions. Large companies can now optimize governing law on a transaction-by-transaction basis, for example by borrowing in New York and then restructuring that debt in the United Kingdom, or by borrowing in London through English-law governed contracts with New York-law interpretation for select provisions. This Article provides the first account of this development, tracing its origins to the 1960s, when New York and London debt professionals expanded into each other’s markets, creating an entangled system that fostered mutual learning and competition. In 1978, Congress enacted a new bankruptcy law that gave American lawyers and investors corporate restructuring expertise that they later exported abroad. In the post-pandemic era, London emerged as a global restructuring hub rivaling the United States. These developments have produced a robust global debt market, but they have also unsettled long-standing assumptions about the rights of creditors as Chapter 11’s primacy fades and controversial American innovations that erode creditor protections proliferate globally.

U.S. states traditionally play a minor role in establishing national security policies, which generally fall within the federal government’s remit. But the return of great power competition with China and Russia and the accompanying proliferation of threats have spurred states to act on national security concerns. With unprecedented speed, breadth, and frequency, U.S. states have taken it upon themselves to address perceived security concerns with TikTok, purchases of real estate by foreign actors, and foreign-made drones, as well as commercial dealings with Russian firms. Drawing on their police powers, they have enacted security-related laws that sometimes parallel and sometimes go beyond the federal government’s actions. We term this phenomenon “entrepreneurial federalism” and explain its unique features. The increasing frequency and breadth of states’ national security–focused actions have set U.S. states and the federal government on a collision course. Private parties have launched a range of legal challenges to state laws, arguing that courts should hold that those laws are preempted based on existing federal statutes or on broader doctrines that disable states from acting in foreign relations. Courts may be tempted to do so, especially because China and Russia are near-peer threats that require careful federal management. But if the courts adopt broad preemption doctrines in this space, they may inadvertently foreclose two constructive phenomena that can arise from acts of entrepreneurial federalism: useful supplementation by the states of federal efforts to address national security threats and the productive friction that states can introduce into policymaking to improve the quality of U.S. national security policies. Even when there are good reasons for courts to hold that state actions that implicate the U.S. relationship with China or Russia are preempted, judicial decisions that reach that result too readily — or that use a broader form of preemption than necessary — may unintentionally impose longer-term costs on U.S. national security. This Article documents the rise of states’ national security actions, distinguishes them from earlier academic models of federalism, and proposes ways that the courts, Congress, the Executive, and the states can foster a positive role for states while minimizing the downsides that could flow from state actions in the national security space.

Amid plans to mark the nation’s semiquincentennial, many are asking whether or not the people really do rule, and whether the law is still king.

In the Supreme Court’s tariffs case, the conservative Justices will weigh two conflicting impulses regarding Presidential authority.

This Viewpoint reviews employer protection initiatives for family caregivers in Illinois and other states.

His posts and rants are omnipresent, ugly, and unhinged. Don’t look to history to make it make sense.

Congress wrote statutes with the apparent assumption that whoever held the office of the Presidency would use the powers they granted in good faith.

In the last one hundred years, the United States Constitution has remained essentially the same. About halfway through that century, however, constitutional theory reimagined it. In the time before, everyone agreed that the U.S. Constitution was undemocratic. That was the point of it, for its defenders; and it was the cause of America’s crises and thus the predicate of reform, for its critics. Nor was this fact especially surprising: the point of constitutionalism, ancient or modern, was generally to limit democracy or not to have it. After a brief transition, in the middle of the twentieth century, almost everyone came to agree that the U.S. Constitution — indeed constitutionalism generally — is democratic, actually and potentially. Nothing about the document had changed; indeed, it had changed more through formal amendment before this development, compared to since. This turn is best understood as the pseudo-democratization of American constitutional theory. The purpose of this chapter is descriptive and narrow. It is to establish the fact of pseudo-democratization. The core of the chapter is an enumeration of the forms of the new (pseudo)democratic constitutional theory.

As perhaps the most conservative Supreme Court of the past century, the Roberts Court regularly touts its commitment to traditional ideals, including the rule of law. Yet Trump v. United States seems ready to place presidents entirely or largely above the law by granting them absolute or near‑absolute immunity from criminal prosecutions for official conduct. And Trump is not a one-off: from judicial recusal to qualified immunity to due process decisions, the Court frequently seems to display indifference to values of accountability and impartiality that have long been thought integral to the rule of law. What is going on? We call this puzzle “the Roberts Court Paradox.” This Essay explains how the Court arrived at this untenable position and what has led it astray. Justice Antonin Scalia’s famous essay The Rule of Law as a Law of Rules provides our starting point. It argues that judges who wish to remain true to the rule of law must aspire to decide cases by formulating bright-line rules instead of nuanced rules, standards, or balancing tests. At the core of this argument are two ideas, both facially plausible. First, bright-line rules provide individuals with fair notice of what the law is and what sanctions they face. Second, they promise to prevent appellate judges from reading their own values into the law and thereby usurping the powers of other branches. We show that the Roberts Court is where it is in large part because of this equation of the rule of law with bright-line rules. Unfortunately, Justice Scalia’s argument withers under scrutiny, and it is especially weak as applied to constitutional interpretation undertaken by the Supreme Court. This is not only because it entirely fails to consider the centrality of accountability and equality before the law, which are both foundational to the rule of law. It is also because Justice Scalia’s “notice” and “limited power” arguments are far from compelling. While the value of notice is indeed critical in areas such as criminal law, it is much less important in constitutional law, which is primarily about power-conferring and power-constraining rules, not about sanctioning individuals for violating duty-imposing rules. And while judicial usurpation of power is indeed a rule-of-law issue, it is pure dogma to suppose that sticking to bright‑line rules is the only approach that can keep judges in their lane. More importantly, Supreme Court justices who create bright-line rules that preclude accountability for other branches of government are plainly abandoning the core value of limited powers, not protecting it. In sum: the Roberts Court, following Justice Scalia’s lead, has allowed its fondness for bright lines to overwhelm its duty to acknowledge the foundational place of accountability in the Anglo‑American legal tradition.

A proporcionalidade, aceita como princípio geral do direito constitucional por muitos países, exige que as interferências do governo nas liberdades individuais sejam justificadas, que interferências mais intensas tenham justificativas robustas e que as punições reflitam a gravidade relativa da infração. A proporcionalidade, enquanto doutrina desenvolvida pelas Cortes, como no Canadá, forneceu um quadro metodológico estável, promovendo decisões estruturadas e transparentes, até mesmo sobre valores constitucionais fortemente contestados. Outros benefícios incluem o potencial de aproximar o direito constitucional da justiça constitucional, fornecer um discurso comum sobre direitos para todos os ramos do governo e ajudar a identificar os tipos de falhas no processo democrático que justificam um escrutínio judicial mais rigoroso. Nos Estados Unidos, debates anteriores acerca da “ponderação” (balancing) não levaram em conta a recente experiência comparada à doutrina estruturada da proporcionalidade e dos seus benefícios. Muitas áreas do direito constitucional estadunidense incluem alguns elementos que, em outros contextos, são chamados de análise de proporcionalidade. Defendo aqui um uso mais amplo dos princípios e da doutrina, bem como argumento que a análise judicial de proporcionalidade não é a resposta para todas as questões relativas a direitos constitucionais. A liberdade de expressão pode se beneficiar de presunções categóricas, mas, em sua aplicação e formulação, a proporcionalidade pode ser relevante. A Quarta Emenda, que garante um “direito” contra “buscas e apreensões irrazoáveis”, está repleta de regras categóricas que protegem a conduta policial do escrutínio judicial. Uma análise mais casuística da “irrazoabilidade” ou desproporcionalidade da conduta policial protegeria melhor os direitos e o Estado de Direito. Demandas por igualdade baseadas em “impacto desproporcional” poderiam ser mais bem avaliadas por meio de padrões de análise mais proporcionais; a revisão de sentenças prisionais, à luz da Oitava Emenda, iria se beneficiar de um uso maior dos princípios da proporcionalidade. Assim, reconhecer as vantagens – e os limites – da proporcionalidade permitiria ao direito constitucional dos Estados Unidos da América (EUA), ao mesmo tempo, proteger direitos e favorecer uma autogovernança democrática eficaz.

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.