Faculty Bibliography

The Times of London was wrong to report that I lobbied for a pardon for Ghislaine Maxwell.

Following are lightly edited remarks delivered at a panel on “Unwritten Law,” held at the annual meeting of the Association of American Law Schools on January 6, 2022. These informal remarks are of course not intended to be rigorous or comprehensive, merely suggestive. Many thanks to organizer Robert Leider and fellow panelists Jeremy Waldron, Steve Sachs and Ashraf Ahmed for their thoughts and contributions.

It would be a profound mistake for Congress to rush consideration of ECA reform.

With respect to climate change, the principal focus of both research and public policy has been on mitigation – on reducing greenhouse gas emissions so as to reduce anticipated adverse effects. But it is increasingly clear that adaptation must also be a high priority. Climate-related risks – including flooding, extreme heat, wildfires, droughts, and hurricanes – are quite serious and are likely to grow over time. Creative and not-so-creative measures to nudge, incentivize, and mandate adaptation may well have benefits far in excess of costs – and may, in fact, deliver higher net benefits than some efforts at mitigation. Because significant climate change is now occurring, and will almost certainly create increasing risks over time, adaptation is essential. It must be carefully assessed with attention to (a) its aggregate effects on social welfare and (b) its distributional impacts. Cost-benefit analysis can much help with (a), but it can run into serious concerns, not only because of (b), but also because of epistemic gaps and because of its failure, in some cases, adequately to capture welfare effects.

With gratitude for our commentators’ thoughtful and generous engagement with Recognizing Wrongs, we offer in this reply a thumbnail summary of their comments and responses to some of their most important questions and criticisms. In the spirit of friendly amendment, Tom Dougherty and Johann Frick suggest that a more satisfactory version of our theory would cast tort actions as a means of enforcing wrongdoers’ moral duties of repair. We provide both legal and moral reasons for declining their invitation. Rebecca Stone draws a particular link between civil recourse in private law theory and the right of self-defense as recognized in criminal law and moral theory. While we share Stone’s basic inclination, we argue for a different version of the link than the one that she draws. Veronica Rodriguez-Blanco provides a critique of our model of negligence law based on action theory. In response, we explain – in a way that we hope sheds light on debates over moral luck – how it is possible for the law to define negligence such that its commission depends simultaneously on the character of the defendant’s conduct and on the consequences that result from it. Though generally sympathetic to our approach, Stephen Smith faults us for failing satisfactorily to explain important remedial dimensions of tort law. Stubbornly, we insist that we can account for these, and indeed can do so on more satisfactory terms than corrective justice theorists. Finally, Erin Kelly challenges us to consider how our work might inform the analysis of two pressing issues of racial justice: overcriminalization and reparation payments. While we question whether our work to date has as much to offer on these matters as she suggests, we also maintain that the core principle of civil recourse theory – where there is a right there is a remedy – provides grounds for critiquing modern law’s failure to provide adequate accountability when police officers use excessive force against persons of color.

This essay offers my explication of what I understand to be the principle propositions that constitute American legal realism. “Explication,” because I do not intend to defend the propositions, and “my” because the essay is not an exegesis of the work of major legal realists but is instead my personal version of what I take to be those propositions. The core assertion is that a person seeking to understand what the law is in some jurisdiction must engage in an empirical inquiry into social facts. These facts include matters such as the organization of the legal profession, culturally prevalent ideologies about law, and more. American Legal Realism, that is, in my view is fundamentally a sociological account of law.

According to a theory that is gaining support among academics and practitioners, we should expect index fund managers to undertake the role of “climate stewards” and push companies into reducing their carbon footprint. In a new paper, Roberto Tallarita shows the limits of this theory and suggests that policymakers should not rely on index fund stewardship as a substitute for traditional climate regulation.

Republicans are busy undermining the next election. But giving up on democracy isn’t an option. We must fight back, and here’s how.

Total shareholder return (TSR) has become the definitive metric for gauging performance. Unlike accounting measures such as revenue growth or earnings per share that reflect the past, TSR is based on share price and thus captures investor expectations of what will happen in the future, which is its chief attraction. The problem is that TSR conflates performance associated with strategy and operations with that arising from cash distributions (dividends and buybacks). In this article, the authors discuss the distortions embedded in TSR and propose a new metric, core operating shareholder returns, that emphasizes operational performance. It also provides a comprehensive assessment of the buyback revolution—and the verdict is quite damning.

The Guide takes you step-by-step through the Innocent Spouse claim process, from information gathering, to administrative proceedings, to determination, to trial, and to refund relief.

The lenders that fund Chapter 11 reorganizations exert significant influence over the bankruptcy process through the contract associated with the debtor-in-possession (DIP) loan. In this Article, we study a large sample of DIP loan contracts and document a trend: over the past three decades, DIP lenders have steadily increased their contractual control of Chapter 11. In fact, today’s DIP loan agreements routinely go so far as to dictate the very outcome of the restructuring process. When managers sell control over the bankruptcy case to a subset of the creditors in exchange for compensation, we call this transaction a “bankruptcy process sale.” We model two situations where process sales raise bankruptcy policy concerns: (1) when a senior creditor leverages the debtor’s need for financing to lock in a preferred outcome at the outset of the case (“plan protection”); and (2) when a senior creditor steers the case to protect its claim against litigation (“entitlement protection”). We show that both scenarios can lead to bankruptcy outcomes that fail to maximize the value of the firm for creditors as a whole. We study a new dataset that uses the text of 1.5 million court documents to identify creditor conflict over process sales, and our analysis offers evidence consistent with the predictions of the model.

In criminal courts, prosecutors can adjust police officers' charges between arrest and sentencing -- and can therefore check unwarranted disparities in police arrests. Yet prosecutors are human and so may introduce more disparities than they offset. We use discontinuities in mandatory-prison laws to identify prosecutors' impacts on racial disparities in North Carolina state courts. We find that prosecutors' charging responses to mandatory-prison discontinuities initially compounded arrests disparities (1995-2007) but recently attenuated them (2015-2019). This reversal is concentrated in arrests typically initiated by police stops and absent from arrests typically initiated by victim reports, suggesting that prosecutors have increasingly questioned the police.

The Trump administration attempted to drastically curtail protections for asylum seekers in the United States through a series of regulatory changes, including a prohibition on the admission of certain stereotype-based evidence in asylum proceedings. While seemingly benign on its face, the provision would have made it difficult, if not impossible, for many asylum seekers to succeed in their claims. Given the challenges asylum seekers routinely face in gathering corroborating evidence, advocates often rely on stereotype-based evidence in support of asylum claims. Although courts enjoined the rule, preventing it from taking effect, the provision nonetheless offers an opportunity to rethink the role of stereotype-based evidence in refugee protection. By interrogating the type of evidence required to establish asylum eligibility, immigration advocates, scholars, and adjudicators alike can begin to push back against harmful cultural stereotype and return to a core principle of refugee law: the need to afford asylum seekers the benefit of the doubt.

When firms collude and charge supracompetitive prices, consumers can bring antitrust lawsuits against the firms. When the litigation cost is low, firms accept the cost as just another cost of doing business, whereas when the cost is high, the firms lower the price to deter litigation. Class action is modeled as a mechanism that allows plaintiffs and attorneys to obtain economies of scale. We show that class actions, and the firms' incentive to block them, may or may not be socially desirable. Agency problems, settlement, fee-shifting, treble damages, public enforcement, and sustaining collusion through repeat play are also considered.

Do foreign lives matter? When? How much? If one nation damages another, what are its obligations, as a matter of law and policy? These questions can be approached and understood in diverse ways, but they are concretized in debates over the “social cost of carbon,” which is sometimes described as the linchpin of national climate policy. The social cost of carbon, meant to capture the damage done by a ton of carbon emissions, helps to determine the stringency of regulations in many domains, including emissions limits on motor vehicles and on stationary sources. In determining the social cost of carbon, agencies must decide whether to use the global number (as chosen by Presidents Barack Obama and Joe Biden) or instead the domestic number (as chosen by President Donald Trump). Use of the global number should be seen as a form of climate change cosmopolitanism, whether the grounding is moral, strategic, or otherwise. Within the constraints of governing statutes, there are four central arguments in favor of using the global figure. (1) The epistemic argument: experts do not know a great deal about the purely domestic harms from climate change, which makes it impossible to generate a purely domestic number. (2) The interconnectedness argument: harms done to U.S. citizens by domestic emissions are not limited to those directly brought about by the incremental increase in temperatures within the territorial boundaries of the United States; they include an assortment of harms to U.S. citizens living abroad and harms to U.S. citizens and interests that come as a result of the cascading effects of harm done to foreigners (including governments, companies, and individuals), which are ultimately felt by U.S. citizens or within the United States. (3) The moral cosmopolitan argument: in deciding on the scope of its regulations, the United States has a moral obligation to take account of the harms it does to non-Americans. (4) The reciprocity argument: if all nations used a domestic figure, all nations would lose; a successful approach to the climate problem requires nations to treat greenhouse gas emissions as a global, and not merely domestic, externality. Neither the epistemic argument nor the incompleteness argument justifies the choice of the global number. The moral cosmopolitan and reciprocity arguments stand on much stronger grounds, though they both run into plausible objections.

Heyes and Saberian (2019) estimate from 2000–2004 data that outdoor temperature reduces US immigration judges’ propensity to grant asylum. This estimate is the result of coding and data errors and of sample selection. Correcting the errors reduces the point estimate by two-thirds, with a wide 95 percent confidence interval straddling zero. Enlarging the sample to 1990–2019 flips the point estimate’s sign and rules out the effect size reported by Heyes and Saberian with very high confidence. An analysis of all criminal sentencing decisions by US federal district judges from 1992 to 2003 yields no evidence of temperature or other weather effects either.

The way that Americans understand their Constitution and wider legal tradition has been dominated in recent decades by two exhausted approaches: the originalism of conservatives and the "living constitutionalism" of progressives. Is it time to look for an alternative? Adrian Vermeule argues that the alternative has been there, buried in the American legal tradition, all along. He shows that US law was, from the founding, subsumed within the broad framework of the classical legal tradition, which conceives law as "a reasoned ordering to the common good." In this view, law's purpose is to promote the goods a flourishing political community requires: justice, peace, prosperity, and morality. He shows how this legacy has been lost, despite still being implicit within American public law, and convincingly argues for its recovery in the form of "common good constitutionalism." This erudite and brilliantly original book is a vital intervention in America's most significant contemporary legal debate while also being an enduring account of the true nature of law that will resonate for decades with scholars and students.

In “Contracting for Sex in the Pacific War,” International Review of Law & Economics (IRLE) (2020), I explored the economic logic behind the contracts made by Japanese and Korean prostitutes with the brothels at which they worked. Among the terms of the contracts that I tried to explain were the way in which they coupled a large initial payment with a maximum period of service. I sought to interpret these and other contractual terms as addressing classic economic dilemmas.My article provoked massive criticism. However, virtually none of the critics attacked my economic analysis of the contracts. Indeed, most of my critics did not even mention my analysis of the contractual terms – even though that was the focus of my article and was the basis for its publication in the IRLE. Instead, some critics complained that I did not examine actual prostitution contracts. Readers of my actual article will know that I never claimed to have a data set of actual contracts. To the best of my knowledge, very few actual contracts survived the war. What I did rely upon—as I make clear in my article—is information about the prostitution contracts from government documents, wartime memoirs, newspaper advertisements, a summary of a comfort station accountant’s diary, and so forth.Other critics compiled a long list of asserted mistakes concerning the accuracy, relevance, and interpretation of citations in my article. I respond to these claims below. Most of them are not mistakes at all. A small number of them are mistakes, but they do not affect my analysis of the contract terms. Most critics emphasized the immorality of the comfort women system. In particular, some critics claim that I ignored the fact that some women were deceived into becoming comfort women and were cheated and otherwise mistreated by owners of the comfort station brothels. Readers of my actual article will recall that I mention these points in my article. Most of the critics insist that large numbers of Korean women were forcibly conscripted (at gunpoint or hauled away against their will) by the Japanese army in Korea. My IRLE article does not address this issue, but I discuss it in this response. The claim is false: Korean women were not programmatically and forcibly conscripted by Japanese soldiers in Korea into comfort station work. There is no contemporaneous documentary evidence of forcible conscription. Neither is there any evidence for over 35 years after the war ended in 1945. Only in the late 1980s did some Korean women begin to claim that they had been forcibly conscripted. Crucially, in 1983 a Japanese writer named Seiji Yoshida wrote a best-selling book claiming that he and a posse of soldiers had dragooned Korean women at bayonet point and raped them, before sending them off to serve as sexual slaves. A famous 1996 UN report on the conscription of Korean women relied on this book, and it is in the wake of the book that a small number of Korean women began claiming that they had been conscripted even though some of them had earlier given different accounts. Before he died, Yoshida admitted that he had fabricated the entire book. Yoshida’s fabrication attracted substantial attention in Asia and abroad, including in the New York Times. The comfort women dispute began with Yoshida’s fraud. Yet this astonishing and crucial fabrication is not mentioned by any of my critics even though many of them are Japan or Korea experts and are surely aware of it.

Does it matter if corporate leaders pursue a broader, social corporate purpose rather than a narrow, shareholder-centric one, and can legal and governance levers influence their choice? Theoretically—and limited by substitution, regulation, and legitimacy—socially-minded corporate decision-making can benefit society ex post, while commitment to either purpose may be required to motivate various constituencies’ contributions ex ante. Empirically, however, even structural measures like employee co-determination hardly have detectable effects, let alone mere exhortations such as those in (unenforceable) nuances of (misunderstood) fiduciary duties. Many arguments for or against (particular) corporate purpose(s) are fallacies, red herrings, or, for empirics, cherry-picking.

Customized Speech — speech targeted or tailored based on knowledge of one’s audience — is pervasive. It permeates our relationships, our culture, and, especially, our politics. Until recently, customization drew relatively little attention. Cambridge Analytica changed that. Since 2016, a consensus has decried Speech Customization as causing political manipulation, disunity, and destabilization. On this account, machine learning, social networks and Big Data make political Customized Speech a threat we constitutionally can, and normatively should, curtail. That view is mistaken. In this Article, I offer the first systematic analysis of Customized Speech and the First Amendment. I reach two provocative results: Doctrinally, the First Amendment robustly protects Speech Customization. And normatively, even amidst Big Data, this protection can help society and democracy. Doctrinally, the use of audience information to customize speech is, itself, core protected speech. Further, audience-information collection, while less protected, may still only be regulated by carefully drawn, content-neutral, generally applicable laws. And unless and until the state affirmatively enacts such laws (as, overwhelmingly, it has not), it may not curtail speakers’ otherwise-lawful use of such information in political Speech Customization. What does this mean for democratic government? Today, Customized Speech raises fears about democratic discourse, hyper-partisan factions, and citizen autonomy. But these are less daunting than the consensus suggests, and are offset by key benefits: modern Customized Speech activates the apathetic, empowers the marginalized, and checks government overreach. Accordingly, many current proposals to restrict such Customized Speech — from disclosure requirements to outright bans — are neither constitutionally viable nor normatively required.

Foreword

The combination of a global pandemic and global jeopardy to democracies exacerbates deficiencies in American education for children and youth and underscores the critical importance of renewed and amplified investments of resources and ideas. Underinvestment and stark disparities in educational opportunities persist across the nation. Inequities follow zip code and students' family income, and correlate with race and neighborhood, underscoring the differing effects of crime, family fragility, and access to educational opportunities outside of schooling. These matters take on constitutional significance at this time of frailty for many constitutional democracies, including the United States. Actually, America's constitutional democracy both presumes and supports commitments to educating each generation in the knowledge and dispositions to enable self-governance, in theory, as well as equipping successive generations to take on adult employment and family roles. Yet by presuming what is also a goal, the Constitution has not given rise to sturdy recognition of a federal right to education. Recent litigation advocating for constitutional recognition and enforcement of federal educational rights seeks judicial engagement, political action, and public attention. Arguments include historic roots in the views of the framers and national leaders, doctrinal developments in substantive due process and equal protection, and repeated Supreme Court articulations of the unique significance of education to the nation and its form of government. Objections to judicial recognition of a federal right to education can be countered and such a federal right could also be developed through legislation and practice. Work in this vein may stumble when it comes to spelling out the elements and priorities for practice; guided by education's relationship to constitutional democracy, its commitments should include cultivating understanding of facts, reasoned arguments, tolerance for social differences amid membership in communities, and the avenues for political participation and guards against tyranny. Whether enacted through judicial orders or political processes, legal commitments should address the promise and dangers from expanding home schooling and remote-access digital learning while deepening education critical to constitutional democracy.

This report is the second in a series of reports by the Program on International Financial Systems on enhancing the market structure for trading U.S. Treasuries (“cash Treasuries”). In this report, we assess whether policymakers should mandate the public dissemination of comprehensive real-time transaction-level data in cash Treasury markets.As described in the first report in this series, the March 2020 stress in cash Treasury markets and the September 2019 Treasury repo market spike were strong indications that Treasury markets are vulnerable to severe bouts of illiquidity that can threaten the broader financial system. Measures to strengthen the liquidity and resiliency of Treasury markets should therefore be a priority for U.S. policymakers.Policymakers and market participants have recently voiced support for mandatory post-trade transparency in cash Treasury markets. The Group of Thirty, an international body of current and former regulators, academics, and market participants, recommended in its 2021 report on Treasury markets that real-time transaction-specific data on cash Treasuries should be made public in a manner similar to the way that data on U.S. corporate bond transactions are currently disclosed. And Securities and Exchange Commission (“SEC”) Chairman Gary Gensler indicated in a speech this year that “[p]ost-trade transparency promotes liquidity and helps investors” and recommended that the Financial Industry Regulatory Authority (“FINRA”) consider publishing transaction-specific Trade Reporting and Compliance Engine (“TRACE”) data on cash Treasuries. Legislation has also been proposed that would bring comprehensive post-trade transparency to the cash Treasury markets.This report provides a unique survey of the current structure of cash Treasury markets and relevant academic literature on the effects of mandatory post-trade transparency. Part I describes the extent of pre- and post-trade transparency in cash Treasury markets, finding that pre- and post-trade data in cash Treasury markets is available only on a limited and fragmented basis.Part II evaluates the academic literature on the effects of mandatory real-time post-trade transparency in various asset classes, including corporate bonds, municipal bonds, and agency mortgage-backed securities, finding that post-trade transparency increases liquidity, reduces transaction costs, and enhances price efficiency. We therefore conclude that U.S. policymakers should mandate the public dissemination of real-time transaction-level data in cash Treasury markets.

This review of Madhav Kkhosla’s book, India’s Founding Moment, sees his approach as one of “best lights” understandings, that is, an effort to identify and explain the conceptual underpinnings of India’s founding constitution in their best lights. Khosla emphasizes as key the ways in which the constitution’s requirements of full adult suffrage, its intense specificity of language, and its strongly centralized government form, all contribute conceptually to the creation of the democratic citizen of India—a citizen whose rights across the country were secured by a common constitution and central government, whose knowledge of and ability to exercise rights were enhanced by the constitution’s codified approach, and a citizen whose capacities to participate in democratic processes would be developed by the exercise of democratic rights. The review focuses attention on choices about suffrage, comparing India’s with the less inclusionary founding impulses of the United States constitution. It explores nuances of how codification would and would not promote exercises of citizenship rights, noting the importance of adjudication in the construction of the “common knowledge” to which (according to Khosla) the founders aspired. And the review argues that today, as more illiberal, authoritarian regimes are on the rise, the book’s emphasis on the importance of ideas, words, and common knowledge in constructing liberal, democratic politics is of urgent contemporary importance.

This report is the third in a series of reports by the Program on International Financial Systems on enhancing the market structure for trading U.S. Treasuries (“cash Treasuries”) and for repurchase agreements of U.S. Treasuries (“Treasury repos”). In this report, we describe the Federal Reserve’s domestic standing Treasury repo facility and consider whether expanding access to the standing Treasury repo facility would enhance the liquidity and stability of U.S. Treasury markets, as has been argued by financial market experts.

Hate speech, disinformation, and polarization are underwritten by deeply rooted media market dynamics involving the profitability of stoking anger and providing easy, identity-confirming outrage. Solutions therefore must focus on changing the payoffs to selling outrage and hatred. This essay offers two approaches that aim to make the outrage industry internalize the externalities of its business model. The first is a reconsideration of defamation laws. The second is the creation of a regulatory framework mandating transparency from companies that profit from advertisements in outrage media content. There would be a publicly curated database that makes transparent which companies have advertising associated with hateful content. Civic organizations and citizens would be encouraged to apply economic and social pressure on corporations to divest from this type of content. The essay discusses the benefits and drawbacks of these approaches, offering them as potential short-term solutions to a problem that will require long-term intervention.

Forword

Approaches to calculating fraud on the market 10b-5 damages have evolved substantially from the 1970s to the present. In this Essay I discuss the various approaches used over this span of time, including the rise of the event study approach.

When conduct in one state causes injury in another state, and the law at the place of injury is more favorable to the victim than the law of the place of conduct, what law applies? Where can suit be brought? The traditional answers are that the law of the place of injury applies but that it may be unconstitutional to sue the tortfeasor in the courts at the place of injury because all the tortfeasor’s conduct took place outside the forum. Scholars have long criticized this contradiction, and this Article argues that they are right to do so. If we focus on choice-of-law theory and the emerging choice-of-law rules in the Third Restatement of Conflict of Laws, we see that the argument for applying the plaintiff-protecting law of the place of injury is strong. This Article explains and develops that argument, and it gives us reason to reject the idea that the place of injury courts have no personal jurisdiction over the defendant. Hobbes taught us that the first job of government is to protect us from harm at the hands of others and, as long as it is objectively foreseeable that the conduct could have caused harm in the place of injury, there is no fundamental unfairness or constitutional prohibition on applying place of injury law. If that is so, it is irrational not to allow victims to sue at home where they have been injured. Nor is personal jurisdiction unfair to the defendant. It is time to bring choice-of-law doctrine and personal jurisdiction law more in line with each other, and the right way to do so is to adopt an approach that ensures that victims have civil recourse in their home courts against those who stand across the border engaged in acts that intentionally or predictably cause harm there.

In this paper, Massad and Jackson propose that the SEC and the Commodity Futures Trading Commission (CFTC) jointly create and oversee a new self-regulatory organization, similar to the Financial Industry Regulatory Authority (FINRA) or the National Future Association (NFA).

While stablecoins could produce important consumer benefits and valuable competition in the payments space, current regulation of stablecoin issuers is woefully inadequate. Legislative solutions are possible but may not be forthcoming any time soon. In the meantime, markets continue to evolve and other regulatory systems may move ahead of the United States in payments innovation.We propose a federal framework for the issuance of stablecoins within the existing regulatory framework for insured depository institutions, a structure that would not require any new legislation. In our view, a well-designed regulatory platform would put the “stable” in stablecoins—protecting consumers from the risks of illiquidity and potential losses in the event of a stablecoin issuer’s default, and protecting the financial system from instability as the stablecoin market grows in size and importance. The market value of all stablecoins, which was around $5 billion at the beginning of 2020, exceeded $140 billion at the beginning of August 2022. The framework described in this white paper is consistent with the recommendations of the President’s Working Group on Financial Markets in its November 2021Report on Stablecoins.Under current law, the Comptroller of the Currency could authorize a national trust bank charter, organized as an operating subsidiary of an insured depository institution, to create stablecoins through the use of a dedicated trust vehicle. Under our proposal, the Comptroller would adopt standards limiting the investment of stablecoin reserves to high quality liquid assets and address redemptions and operational resilience, among other matters. Our approach could promote increased competition in payments services and potentially safeguard the role of the dollar in international finance. While our framework would not be mandatory, our approach would provide substantial benefits to stablecoin sponsors, thus increasing the likelihood that they would opt into the framework.Coordination across government agencies would be necessary to implement our recommendations effectively. The federal banking agencies—the Federal Reserve Board, the Comptroller, and the Federal Deposit Insurance Corporation —would have to support this framework. The FDIC would not insure stablecoin holdings under our proposal, but could be responsible for resolving a stablecoin national trust bank if one ran into trouble. Buy-in from both the Securities and Exchange Commission and the Commodity Futures Trading Commission would be highly desirable. We recommend that a working group of the Financial Stability Oversight Council quarterback this coordination. Our proposal is self-consciously incremental and cautious, imposing stringent and overlapping safeguards and preserving the separation of banking and commerce. If successful, our proposal might later be liberalized in a variety of ways. The experience gained in developing our approach could also be useful in drafting more comprehensive legislation.Implementing our proposal would, no doubt, be a substantial administrative lift, but it would represent a viable and realistic way forward.

Since 1970, the law of standing has been dominated by the "injury in fact" requirement. That requirement was first announced in an opinion by Justice William O. Douglas, who clearly sought both to expand the category of people entitled to challenge government action and to simplify the standing inquiry in significant ways. Justice Douglas made no effort to root that requirement in the text or history of the Constitution, or indeed in any of the Court's precedents. As far as constitutional law is concerned, the injury-in-fact test was made up out of whole cloth. It appears to have come from a 1955 law review article by Kenneth Culp Davis. Davis himself purported to interpret the Administrative Procedure Act (APA), not the Constitution. His interpretation of the APA was an egregious blunder. Over the course of the last half-century, the injury-in-fact test has been transformed from a bold effort to expand the category of persons entitled to bring suit into an equally bold effort to achieve the opposite goal, by understanding judicially cognizable injuries largely by reference to the common law (and the Constitution), and by severely restricting Congress' power to create new rights and to allow people to sue to protect those rights. The transformation is lawless. It is disconnected from standard sources of constitutional law. There is an irony here, and it is in the foreground, not in the background. The administrative state arose out of grave dissatisfaction with private law principles. In diverse ways, it was founded on a recognition that various interests beyond those protected by the common law (including those of consumers, investors, workers, environmentalists, and victims of discrimination) deserve some kind of legal protection. To be sure, the interests of the objects of regulation, armed with private-law rights, continued to matter, and would be a legitimate basis for a lawsuit. But in multiple domains, Congress explicitly decided that the beneficiaries of regulatory protection also ought to have access to court to protect their statutory rights. And even when Congress did not make that explicit decision, the relevant provision of the APA could easily be read to authorize such access, at least in certain circumstances. The irony is that the Court is now building the public law of standing directly on the private-law foundations that Congress rejected, as a matter of principle, in creating modern statutory programs and new statutory rights. As we shall see, we are witnessing a form of " Lochnering." My central goal in this Article is to offer a compressed sketch of the rise and the evolution of the idea of "injury in fact" in federal standing law. It is a truly astonishing tale. The brief sketch could, of course, be a lengthy narrative; my hope is that the main lines of the tale, and its astonishing nature, will emerge more clearly if presented in a compressed fashion. I also hope that an understanding of the novelty of the injury-in-fact requirement, and its peculiar origins, might help to cast in bold relief the even newer effort to build standing principles on traditional private rights, and to expose the oddity of the associated idea that Congress lacks the authority to create rights that lack clear analogues in the common law.

This essay discusses how several institutions might be designed to implement popular constitutionalism within a liberal constitutionalism frame. The institutions are (1) forms of direct popular legislation such as referendums, (2) imperative mandates or instructions to representatives that the representatives must follow, sanctioned by automatically removing a noncompliant representative from office, and (3) modern communications technologies used to elicit citizen views as an alternative to voting (or polling). As to referendums, it critiques arguments (1) that referendums can oversimplify complex policy options in ways that sometimes produce outcomes that are indefensible in principle, incoherent, and inconsistent with what the people would prefer after the kind of deliberation that occurs in representative assemblies, and (2) that referendums systematically, though not inevitably, threaten rights of minorities that liberal constitutionalism guarantees. As to imperative mandates, it argues that objections track those to referendums, and offers parallel responses. And as to modern communications technologies, it focuses on such concerns that they fail to take advantage of specialized knowledge, and argues that overestimate the degree to which specialists actually have specialized knowledge and underestimate the degree to which such knowledge is available within a population of ordinary people and observes that sometimes domains in which specialized knowledge really is required can be identified in advance and exempted from these mechanisms.