Faculty Bibliography
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It is a huge pleasure to engage with Prof. Shaw’s careful and close reading of my article. Though almost a decade old, many of the issues are becoming only more relevant as it seems that Roe v Wade will be overruled in the U.S. and travel for abortion will become a sad reality. I appreciate how deeply Prof. Shaw interacts with my article and am full of praise for his work, but given the small space allocated here I only focus on our few places of disagreement.
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The two days of discussions began with a frank acknowledgment that religion has all too often been a source of, or a pretext for, conflict in today’s increasingly interdependent world.
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If Amazon can move its business online, then labor law requires that the union be able to move its picket line online too.
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The sobering realization that little has changed in the scope of inpatient harm makes it plain that efforts intent on improving patient safety must be redoubled if the status quo is to be reversed. Living up to the recommendations of the iconic Institute of Medicine (IOM) Report (To Err Is Human: Building a Safer Health System) must remain top of mind. Much can and must be done to assure to the degree possible the safety of the inpatient population.
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President Biden presided over the best midterm elections for the party in the White House in 20 years — despite Washington insiders predicting that Democrats would be wiped out.
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This JGIM Perspective discusses new and emerging challenges with accessing controversial medical therapies like medical aid in dying and abortion. While some states permit these therapies for only their residents, other states prohibit these therapies for their own residents. We summarize recent developments and growing challenges for clinicians treating “medical tourism” patients from other jurisdictions.
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The law presumes that individuals are rational. But what about when the patient has neuropsychiatric impairments that hinder judgement?
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Many consumers suffer from present bias. To present-biased consumers, the long-term is a foreign country, and they are not sure that they will ever visit. If consumers suffer from present bias, there is room to rethink national policies in multiple domains. For example, regulatory mandates might turn out to be better than economic incentives. Fuel economy and energy efficiency mandates might produce billions of dollars in annual savings to present-biased consumers. The net benefits of mandates that simultaneously reduce internalities and externalities might exceed the net benefits of incentives that reduce externalities alone, even if mandates turn out to be a highly inefficient way of reducing externalities.
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Students for Fair Admissions is one of only a few Supreme Court cases about the rights of Asian Americans. But what will it achieve on their behalf?
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Election administration is a job for professionals.
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The point of remembering our agitated past is to gain hope, not despair.
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Our brief argued that the Constitutional Court should recognize the rights of individual animals under the constitutional language of rights of nature. The Court adopted most of the arguments we presented in the brief.
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I want to begin by thanking the editors of Law and History Review for hosting this rich exchange on Vice Patrol, as well as Marie-Amélie George, Yvonne Pitts, and Steven Maynard for their generous and generative comments. Engaging so deeply and so rigorously with another scholar's project, connecting it to one's own research and even to one's own life experience, is an act of remarkable collegiality, and I am grateful for their time and reflections.
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Written for a symposium issue celebrating the thirty-year anniversary of the publication of The Economic Structure of Corporate Law by Frank Easterbrook and Daniel Fischel (“E&F”), this Essay discusses the interaction of my research over the years with their writings. During the period in which the book and articles were written, and in the many years since then, I have paid close attention to E&F’s writings in my research in the economics of corporate governance. Indeed, a significant part of my research in this field engaged closely with E&F’s writing and reached conclusions that substantially differed from theirs. Below I discuss this engagement of my work with E&F’s writings, and our respective approaches, in five corporate research areas: (i) takeover policy and rules; (ii) contractual freedom in corporate law; (iii) state competition in the provision of corporate law rules; (iv) efficiency and distribution in corporate law; and (v) corporate purpose.
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Easterbrook and Fischel’s The Economic Structure of Corporate Law advances their now famous passivity thesis, which posits that managers should remain passive in the face of an unsolicited tender offer for the company’s shares. Consistent with the broader Chicago-school economic belief, Easterbrook and Fischel argue that markets are generally efficient, and therefore restrictions on the market (like poison pills) are bad. In doing so, Easterbrook and Fischel also consider and reject externalities that might cause the market for corporate control to not function well. Thirty years have passed since Easterbrook and Fischel’s seminal work and the world has changed in meaningful ways, with the rise of stakeholder governance, ESG, and stockholder activism. We therefore propose some ground rules that would govern pills in today’s corporate world. These rules, we believe, would effectively balance the board’s interest in considering a broad set of constituencies and the challenges of facing increasingly sophisticated and coordinated shareholder activists against the rights of all shareholders, including activists, to solicit support for their ideas or attempt to gain control of the company.
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Alito says the breach put justices’ lives in danger. That’s all the more reason for a serious investigation.
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The Supreme Court hears a challenge to affirmative action this week—and will likely overrule more than four decades of precedents on college admissions.
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Charlayne Hunter-Gault’s ‘My People: Five Decades of Writing About Black Lives’ offers a survey of turbulent times and those who made history throughout them
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Human decision-makers frequently override the recommendations generated by predictive algorithms, but it is unclear whether these discretionary overrides add valuable private information or reintroduce the human biases and mistakes that motivated the adoption of the algorithms in the first place. We develop new quasi-experimental tools to measure the impact of human discretion over an algorithm, even when the outcome of interest is only selectively observed, in the context of bail decisions. We find that 90% of the judges in our setting generally underperform the algorithm when making a discretionary override, with most judges making override decisions that are no better than random. Yet the remaining 10% of judges outperform the algorithm in terms of both accuracy and fairness when making a discretionary override. We provide suggestive evidence on the behavior underlying these differences in judge performance, showing that the high-performing judges are more likely to use relevant private information and less likely to overreact to highly-salient events compared to the low-performing judges.
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What the next big Supreme Court labor case means for workers' right to strike — and what Congress can do about it.
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This Viewpoint discusses the new Colorado law prohibiting anonymous gamete donation and other debates over reproductive technologies and secrecy.
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Clinical research often excludes people with disabilities who have impaired decisional capacity, but they can be included through supported decision-making, where their decisions can be assisted by designated supporters of their choosing. This will promote equitable access to research.
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Governments are put in place to carry out policies. Effective governance means that they have the capacity to implement those policies. As Samuel Huntington observed, “[t]he most important political distinction among countries concerns not their form of government but their degree of government.” For our purposes, state capacity is the ability of a government-in-place to develop and implement policies that its leaders believe will improve national well-being. The capacity to govern includes having the required material resources, the personnel for whatever is necessary to deliver the policies to their beneficiaries, and a bureaucratic organization that enables high-level officials to implement policies. How does state capacity feature in constitutional adjudication? And how can courts contribute to effective governance? Of course, they can interpret constitutions and statutes to authorize government officials to use whatever capacity they have to implement their chosen policies.
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What is the added value – or disvalue – of a “right to effective governance”? That question is phrased in relative terms, and needs a baseline. If the baseline is the United States Constitution, then suffice it to say that the US Constitution is notoriously an eighteenth-century constitution with a few later additions, and that it includes rather few “positive rights” (meaning affirmative rights to government action, as opposed to negative rights to government forbearance). Assuming that the “right to effective governance” is defined in a manner that actually requires the government to do something, and especially if the right is enforceable by private persons, then it would add a great deal to the requirements of the US Constitution. (Whether the result would be a net benefit is a different question.)
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When calls for regulating lies collide with free expression values
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In a copyright case, the Justices revealed their own anxieties about interpreting precedents.
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If Dobbs is correct from an originalist position, a wide range of Supreme Court doctrine is not.
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This Viewpoint examines the murky legal treatment of various health-related wearable or other general wellness products for patients, physicians, and manufacturers, and recommends solutions.
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Social and behavioral science research proliferated during the COVID-19 pandemic, reflecting the substantial increase in influence of behavioral science in public health and public policy more broadly. This review presents a comprehensive assessment of 742 scientific articles on human behavior during COVID-19. Two independent teams evaluated 19 substantive policy recommendations (“claims”) on potentially critical aspects of behaviors during the pandemic drawn from the most widely cited behavioral science papers on COVID-19. Teams were made up of original authors and an independent team, all of whom were blinded to other team member reviews throughout. Both teams found evidence in support of 16 of the claims; for two claims, teams found only null evidence; and for no claims did the teams find evidence of effects in the opposite direction. One claim had no evidence available to assess. Seemingly due to the risks of the pandemic, most studies were limited to surveys, highlighting a need for more investment in field research and behavioral validation studies. The strongest findings indicate interventions that combat misinformation and polarization, and to utilize effective forms of messaging that engage trusted leaders and emphasize positive social norms.
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This book examines these new challenges to international and regional human rights in Africa, Europe, Latin America, and the Middle East.
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This Review Essay uses the publication of Martin Loughlin’s Against Constitutionalism and Roberto Gargarella’s The Law as a Conversation Among Equals as the occasion for reflections on the tension between contemporary constitutionalism and constitutional democracy, a tension both authors identify and analyze in detail. After laying out their concerns, the Review Essay constructs an argument for a different kind of constitutionalism, one that is predicated on deliberative interactions among the people, flexible, and respectful of fundamental rights. In that form of constitutionalism, structural arrangements and specifications of fundamental rights are always provisional, subject to revision after considered deliberation among the people. The Review Essay concludes that such arrangements deserve the honorific label “constitutionalist,” and addresses some arguments to the contrary.