Faculty Bibliography

Supreme Court Justices, alone in our system, are not truly regulated by anyone other than themselves.

This paper explores the application of message framing as a management practice to promote change in employee behaviour for corporate sustainability. We conduct a field experiment in a German automotive company to test the effects of three different frames (emotional, normative and gain) on pro-environmental actions in relation to electric vehicle choices of 170 employees. The frames are applied via two communication channels: first, via emails to remind employees about ordering a new car and second, via pop-up notifications appearing in the online system where employees complete their orders. We find that the interventions applied in emails, but not in pop-up notifications, have significant positive effects on electric vehicle adoption. Yet, the durability of the effects is limited. Overall, gain framing in the form of cost saving information has the longest and most powerful impact on electric car choices. Our findings have implications for workplaces where employees might not yet possess strong pro-environmental beliefs, showing that employee sustainable behaviour can be enhanced by emphasising complementary gain motives.

A revered Supreme Court ruling protected the robust debate vital to democracy—but made it harder to constrain misinformation. Can we do better?

This Report presents a summary of the discussion at a workshop that explored in a comparative and cross-disciplinary manner the phenomenon of discrimination on the basis of chronological age, including discrimination against the young and against the old and against any ages in-between, and including both direct and discrimination (both practices with discriminatory intention and those with discriminatory impact), and also including a specific discussion of political rights of minors. The participants including current and former members of international and regional human rights institutions, judges, and academics from Harvard and other universities within and outside the United States.

Conventional wisdom says that “authorizations for the use of military force” (AUMFs) are the key congressional engagement with the forever war. Since Congress has not refreshed the relevant AUMFs in over two decades, the AUMF focus makes it seem like Congress is disengaged from the conduct of the forever war, or perhaps that Congress has inappropriately delegated war powers to the President. That focus also makes it seem like repealing or modifying the AUMFs is the key to ending the forever war, or at least to Congress recapturing or reasserting its war powers, or to disciplining presidential militarism. This paper argues that from a separation of powers perspective, the AUMF focus is misleading to the point of wrong. AUMFs are not the only or even the main congressional engagement with the forever war, even though the executive branch and scholars focus on those sources. Congress through its formal votes and through the continuous actions of certain committees has long been heavily involved in managing practically every element of U.S. forever-warfighting, through a thick and persistent array of appropriations, authorizations beyond the well-known AUMFs, reporting requirements, ongoing consultation, and extensive ex ante and ex post oversight. Congress is formally very much on board for the President’s conduct of the forever war, and is sometimes more hawkish than the President. This preliminary draft sketches these points and raises implications and questions.

The judgments of human beings can be biased; they can also be noisy. Across a wide range of settings, use of algorithms is likely to improve accuracy, because algorithms will reduce both bias and noise. Indeed, algorithms can help identify the role of human biases; they might even identify biases that have not been named before. As compared to algorithms, for example, human judges, deciding whether to give bail to criminal defendants, show Current Offense Bias and Mugshot Bias; as compared to algorithms, human doctors, deciding whether to test people for heart attacks, show Current Symptom Bias and Demographic Bias. These are cases in which large data sets are able to associate certain inputs with specific outcomes. But in important cases, algorithms struggle to make accurate predictions, not because they are algorithms but because they do not have enough data to answer the question at hand. Those cases often, though not always, involve complex systems. (1) Algorithms might not be able to foresee the effects of social interactions, which can depend on a large number of random or serendipitous factors, and which can lead in unanticipated and unpredictable directions. (2) Algorithms might not be able to foresee the effects of context, timing, or mood. (3) Algorithms might not be able to identify people’s preferences, which might be concealed or falsified, and which might be revealed at an unexpected time. (4) Algorithms might not be able to anticipate sudden or unprecedented leaps or shocks (a technological breakthrough, a successful terrorist attack, a pandemic, a black swan). (5) Algorithms might not have “local knowledge,” or private information, which human beings might have. Predictions about romantic attraction, about the success of cultural products, and about coming revolutions are cases in point. The limitations of algorithms are analogous to the limitations of planners, emphasized by Hayek in his famous critique of central planning. It is an unresolved question whether and to what extent some of the limitations of algorithms might be reduced or overcome over time, with more data or various improvements; calculations are improving in extraordinary ways, but some of the relevant challenges cannot be solved with ex ante calculations.

In the last several months, several major disciplines have started their initial reckoning with what ChatGPT and other Large Language Models (LLMs) mean for them – law, medicine, business among other professions. With all of this Sturm und Drang in other professions, I was delighted when the journal asked me to offer some tentative thoughts on what ChatGPT might mean for bioethics. I want to emphasize my humility – the reported performance jump of ChatGPT-3 to 4 is quite remarkable and it is often said that while human beings are good at understanding linear growth, we are bad at correctly conceptualizing exponential growth of the kind that is more likely with these models. I will first argue that many bioethics issues raised by ChatGPT are similar to those raised by current medical AI – built into devices, decision support tools, data analytics, etc. These include issues of data ownership, consent for data use, data representativeness and bias, and privacy. I describe how these familiar issues appear somewhat differently in the ChatGPT context, but much of the existing bioethical thinking on these issues provides a strong starting point. There are, however, a few "new-ish" issues I highlight - by new-ish I mean issues that while perhaps not truly new seem much more important for it than other forms of medical AI. These include issues about informed consent and the right to know we are dealing with an AI, the problem of medical deepfakes, the risk of oligopoly and inequitable access related to foundational models, environmental effects, and on the positive side opportunities for the democratization of knowledge and empowering patients. I also discuss the way in which race dynamics (between large companies and between the U.S. and geopolitical rivals like China) risk sidelining ethics. I end on a note of humility: so much has changed so fast in the development of LLMs and how people are using them that any assessment at the moment is very tentative.

The work of Tom Ginsburg, a leading scholar of comparative constitutional studies, is influential around the world and spans a very wide range of topics. He has played an absolutely essential role in establishing a database of constitutional provisions, both around the world and over time, that has fueled his own research, including his co-authored book on the endurance of national constitutions, and the research of other comparative constitutional scholars. He has contributed important insights about many different areas of comparative constitutional study. In much of his work he has been concerned with the relationship between political forces and political life on the one hand, and constitutional forms of law on the other. Whether on judicial review in new democracies, or on the role of courts and constitutions in authoritarian societies, his work is always interesting and reflects his terrific instinct for important and fruitful topics of inquiry.

“Outsider scholarship,” we hear, “is characterized by a commitment to the interests of people of color and/or women, by rejection of abstraction and dispassionate ‘objectivity,’ and by a preference for narrative and other engaged forms of discourse.” Off the bat, we think: “Delgado!”, “Rodrigo!” Rightly, we raise our hats and cheer.

On International Workers' Day, the Clean Slate for Worker Power reflects on the intersection of the labor, climate, and racial justice movements in its report "Exploratory Principles: Making Progress for People and the Planet."

Laura Underkuffler has kindly commented on my progressive, social- relations approach to property and property law. I feel humbled, honored, and seen. She notices the core moral commitments manifested in that work. She focuses on my scholarship on discrimination in public accommodations, the violent dispossession and persisting sovereignty of Native nations, and the obligations of the rich toward the poor. She emphasizes my willingness to take a moral stance. And she comments on the fact that I attempt to persuade readers about what the law should be, not just by interpreting authoritative texts, but by making normative arguments that are built on stories. She ponders the role of stories in the legal system. Well, here are some stories, and here are some moral stances.

There is broad consensus that the law of conflict of trust laws is outdated. Both the American Law Institute and the Uniform Law Commission have initiated reform projects to address this obsolescence. But there is no consensus around what went wrong or how to fix it. This Article, prepared for a Symposium on Conflict of Laws in Trusts and Estates, responds to that gap by providing a historically, theoretically, and institutionally grounded account of the rise and fall of the old regime with an eye toward informing ongoing law reform efforts. We first show that the prevailing regime--that of the 1971 Restatement (Second) of Conflict of Laws--was purpose-built to encode then-common norms of trust law and practice. We then explain how and why modern trust law and practice has departed from those norms, upending the Restatement's foundational assumptions. In the Restatement's era, conflicts of trust laws rarely arose and were easily resolved through reliance on the locational anchors of land, probate, and court supervision. Today, by contrast, provoking a conflict of trust laws by drafting a trust to capture the benefits of interstate variation in law is a routine estate planning strategy, and the locational anchors of land, probate, and court supervision have become unmoored. Indeed, our account recasts nearly every significant development affecting trust law and practice over the past fifty years as a contributor to the revolution in conflict of trust laws. Informed by this understanding of the old regime's obsolescence, we offer tentative suggestions for the law reform efforts currently underway.

In evaluating interventions, policymakers should consider both their welfare effects, including their effects on people’s emotional states, and their effects on distributive justice, including their effects on those at the bottom of the economic ladder. The arguments for investigating welfare effects, and effects on distributive justice, are meant as objections to efforts to evaluate behaviorally informed interventions solely in terms of (for example) revealed preferences and effects on participation rates. The arguments are also meant as a plea for investigation and specification of the effects of such interventions on experienced well-being. If interventions give people a sense of security and safety, that is a strong point in their favor; if they make people feel frightened and sad, that is a strong point against them. A central concern is that policymakers sometimes neglect the emotional impact, whether negative or positive, of behaviorally informed interventions. Personalized approaches can promote distributive goals and also target interventions to those who are most likely to be helped by them.

In both countries, people protest their judiciary, but in Israel, these protests have not turned violent even as tensions rise.

Artificial intelligence (AI), including generative AI, is not human, but restrictions on the activity or use of AI, or on the dissemination of material by or from AI, might raise serious first amendment issues if those restrictions (1) apply to or affect human speakers and writers or (2) apply to or affect human viewers, listeners, and readers. Here as elsewhere, it is essential to distinguish among viewpoint-based restrictions, content-based but viewpoint-neutral restrictions, and content-neutral restrictions. Much of free speech law, as applied to AI, is in the nature of “the law of the horse”: established principles of multiple kinds applied to a novel context. But imaginable cases raise unanswered questions, including (1) whether AI as such has constitutional rights, (2) whether and which person or persons might be a named defendant if AI is acting in some sense autonomously, and (3) whether and in what sense AI has a right to be free from (for example) viewpoint-based restrictions, or whether it would be better, and correct, to say that human viewers, listeners, and readers have the relevant rights, even if no human being is speaking. Most broadly, it remains an unanswered question whether the First Amendment protects the rights of human viewers, listeners, and readers, seeking to see, hear, or read something from AI.

Policy must support generation of evidence on safety and effectiveness.

The Fifth Edition embodies the authors’ collective wisdom from teaching the text over many years and incorporates numerous substantive and pedagogical changes. New notes introduce the principal cases succinctly and clearly. These notes orient readers to the topics at hand and illuminate related puzzles and controversies. They both assist students in understanding the cases that follow and serve to spur careful analysis and robust classroom discussion. Many new headings and subheadings have also been added. These, too, are intended to facilitate understanding by clearly indicating how various issues fit together within the larger topic. The revision includes over 50 new cases, squibs, and other materials. These updates reflect both developments in traditional fields of tort liability and new phenomena such as the rise of online platforms where products are now sold and commerce is carried on. Some of these new cases show courts grappling with questions of gendered and racialized wrongs in ways that they would not have done even a decade ago. Since the Fourth Edition, many provisions of the Second Restatement (of Torts, Agency, or other fields of law) have been superseded or supplemented by corresponding provisions of the Third Restatement. Moreover, many states have adopted pattern jury instructions that succinctly outline the elements of various claims and defenses. These new materials provide clear guidance regarding the current scope and contours of numerous claims and defenses. There are also important organizational changes and deletions. To name just a few: several chapters have been reorganized to address the rise of classical accident law and to clarify how modern tort law develops from it, to update and expand upon limitations on punitive damages, and to clarify the elements of battery and the defenses to battery. Furthermore, the casebook has been shortened and its materials have been focused on those topics addressed in current first-year torts classes. Lastly, this edition expands the book’s treatment of an emerging area of law: public nuisance. While public nuisance originally landed in the United States along with the rest of the English common law, it owes its contemporary prominence in mass tort litigation to the tobacco suits of the 1990’s. In the wake of the stunning success of the tobacco litigation, ambitious public nuisance claims have proliferated to encompass contemporary social problems such as the public health scourge of lead paint contamination, greenhouse gases, and opioids. This important legal field is comprehensively addressed in the portion of the casebook discussing mechanisms of recovery for increasingly common situations in which many people are put at risk, and many ultimately hurt, by the same tortious conduct.

The Supreme Court’s decision is good for science and especially good for women.

This chapter probes the doctrine of stare decisis as it functions in constitutional cases in the Supreme Court of the US. It solves what some have viewed as two puzzles about constitutional stare decisis in the US. One involves how past decisions that the justices believe to be erroneous can displace the original meaning of a constitution that purports to be ‘the supreme law of the land’. The other mystery is how it can be that if erroneous precedents sometimes prevail over the US Constitution’s original meaning, they do not always do so. In response to the first puzzle, this chapter appeals to the Hartian concept of a ‘rule of recognition’, grounded in official practice and ‘acceptance’. In addressing the second puzzle, this chapter relies on Hart’s distinction between rules of recognition and ‘rules of change’. In the Supreme Court, the chapter argues, an important practical function of the doctrine of stare decisis is to empower the justices to act as constitutional law-makers choosing whether to effect or not to effect legal change. In addition to clarifying the role of constitutional stare decisis in the Supreme Court, this chapter seeks to advance understanding of possible variations in the functioning of stare decisis in different legal systems and of Hartian jurisprudential concepts, including those of rules of recognition and rules of change.

Conservatives in the US are close to making Congress call a convention for proposing constitutional amendments. How could it be protected for majority rule?

The Federal Home Loan Banks (FHLBs) are the less well-known siblings of Fannie Mae and Freddie Mac. Since these government-sponsored enterprises were created in 1932, changes in housing finance markets have rendered largely irrelevant their original purpose of increasing the availability of mortgages. Yet the level and scope of their activities have increased dramatically in recent decades. These activities have at times both exacerbated risks to financial stability and obstructed the missions of federal financial regulators. Behind these undesirable outcomes lies the public/private hybrid nature of the FHLBs. The private ownership and control of the FHLBs provide an incentive to take advantage of the considerable public privileges from which they benefit—including an explicit line of credit from the United States Government and an implied guarantee of all their debt similar to that enjoyed by Fannie Mae and Freddie Mac before the Global Financial Crisis. This article examines past incidence and future potential for the FHLBs to amplify financial stability risks. It offers a framework for regulatory reform by the Federal Housing Finance Agency to contain these risks and avoid harmful interference with the activities of other federal regulators.

This paper proposes a set of guiding principles for responsible quantum innovation. The principles are organized into three functional categories: safeguarding, engaging, and advancing (SEA), and are grounded in the values of responsible research and innovation (RRI). Utilizing a global equity normative framework, we link the Quantum-SEA categories to promise and perils specific to quantum technology. The paper operationalizes the Responsible Quantum Technology framework by proposing ten actionable principles to help address the risks, challenges, and opportunities associated with quantum technology. Our proposal aims to catalyze a much-needed interdisciplinary effort within the quantum community to establish a foundation of quantum-specific and quantum-tailored principles for responsible quantum innovation. The overarching objective of this interdisciplinary effort is to steer the development and use of Quantum Technology (QT) in a direction not only consistent with a values-based society but also a direction that contributes to addressing some of society’s most pressing needs and goals.

Assessing Starbucks CEO's Senate testimonial regarding the company's response to workers union organizing.

Residents of Charleston, South Carolina could be forced to leave their homes. This is how they might do it—and provide a blueprint for other cities.

An unflinching look at the beautiful, endangered, tourist-pummeled, and history-filled port city which now finds itself at the intersection of the twin crises of climate and race. Unknown to the happy, mostly white visitors who hop from one restaurant to another on the charming streets of the Charleston peninsula, or to readers of the glossy magazines in which the city is named a top destination year after year, rapidly rising sea levels and increasingly devastating storms are mere years away from rendering the Holy City uninhabitable. If this precarity is hidden, it is because the city and the state have a strong interest in keeping up appearances. And because the city’s Black and lower-income residents will bear the brunt of the storm. Charleston will show how the city must quickly reimagine its future before rising waters stymie its ability to act at all. Along the way, the city will need to confront and right historic wrongs. Susan Crawford’s evocative and profoundly important book will make us question whether Charleston is a bellwether for other towns and major cities along global coastlines. Charleston will chronicle the tumultuous recent past in the life of the city, from protests to hurricanes. It will show readers the city tourists never see, and lay out the risks now faced by a place that is in the business of marketing ahistorical, glossy luxury. We will hear from Rev. Joseph Darby, a well-regarded Black minister with a powerful voice across the city and region—who has an acute sense of the city’s shortcomings when it comes to matters of race and water. It will introduce Michelle Mapp, one of the city’s most promising Black leaders, who left her nonprofit post to attend law school at the Charleston School of Law and sees clearly how the systems around her must change. We will hear from Quinetha Frasier, a charismatic young Black entrepreneur with Gullah-Geechee roots who fears her people will be displaced by developers if they aren’t first wiped out by chronic flooding. Readers will meet Jacob Lindsey, the young white city planner charged with running the city’s ten-year “comprehensive plan” efforts—who ends up working for a private developer bent on turning what was once part of a river running next to the city into a giant commercial development. Each of these people, and the city in which they live, faces extraordinary risks in the form of coming environmental chaos. This emblematic American city crystallizes human tendencies to value profit and property above all else. At the same time, Charleston, like scores of other global coastal cities, urgently needs to chart a new future for its citizens in light of the changes ahead. Whether it can do so successfully will have crucial implications for cities everywhere. Illuminating and vividly rendered, Charleston is a clarion call and filled with characters who will stay in the reader’s mind long after the final page.

The concept of the rule of law is invoked for purposes that are both numerous and diverse, and that concept is often said to overlap with, or to require, an assortment of other practices and ideals, including democracy, free elections, free markets, property rights, and freedom of speech. It is best to understand the concept in a more specific way, with a commitment to seven principles: (1) clear, general, publicly accessible rules laid down in advance; (2) prospectivity rather than retroactivity; (3) conformity between law on the books and law in the world; (4) hearing rights; (5) some degree of separation between (a) law-making and law enforcement and (b) interpretation of law; (6) no unduly rapid changes in the law; and (7) no contradictions or palpable inconsistency in the law. This account of the rule of law conflicts with those offered by (among many others) Friedrich Hayek and Morton Horwitz, who conflate the idea with other, quite different ideas and practices. Of course it is true that the seven principles can be specified in different ways, broadly compatible with the goal of describing the rule of law as a distinct concept, and some of the seven principles might be understood to be more fundamental than others.

We examine perceived and idea ownership of US patient medical data as governed by HIPPA in a survey of three stakeholder groups: patients, primary care physicians, and medical administrators. Current and ideal unbundled ownership were measured with six questions about the rights to access, control access, profit, modify, destroy and transfer rights. First, we find that there is an underestimation of the patients’ rights in their medical data across all three samples of stakeholders. Second, all stakeholders agree on expanding patients’ rights and curtailing rights afforded to health systems.

DUNWODY DISTINGUISHED LECTURE IN LAW

Research shows, for example, that federal spending on things like safe housing and nutrition assistance for babies makes people healthier and reduces total health costs. [...]because of the rules Congress set, cbo cost estimates for these programs cannot assume taxpayers would save any money on health insurance costs or that taxpayers would spend less on Medicaid. Reforming these economic models would not be easy. cbo cost estimates generally exclude the potential macroeconomic effects of a proposed policy precisely because, as they explain it, they have too few analysts to crunch the numbers. [...]policymakers need to remember that modeling the costs and benefits of major public policies isn't just about numbers-it's also about our values.

This study focusses on the acquisition of Twitter by Elon Musk. Our analysis indicates that when negotiating the sale of their company to Musk, Twitter’s leaders chose to disregard the interests of the company’s stakeholders and to focus exclusively on the interests of shareholders and the corporate leaders themselves. In particular, Twitter’s corporate leaders elected to push under the bus the interests of company employees, as well as the mission statements and core values to which Twitter had pledged allegiance for years. Our analysis can inform the heated debates on corporate stakeholders and their treatment by corporate leaders. Our findings indicate that, contrary to the predictions of the implicit promises and team production theories of Coffee (1986), Shleifer-Summers (1988) and Blair-Stout (1999), corporate leaders selling their company should not be expected to look after the interests of stakeholders. In addition, rather than supporting the stakeholder governance, our findings also support the agency critique of stakeholder governance (Bebchuk and Tallarita (2020)), which stresses that corporate leaders have incentives not to serve stakeholders beyond what would serve shareholder value. Finally, our findings are consistent with the view that corporate mission and purpose statements are mostly for show.

When does the Dormant Commerce Clause preclude states from regulating internet activity--whether through state libel law or invasion of privacy law; through state laws requiring websites to accommodate disabled users (for instance, by providing closed captioning); through state bans on discriminating based on sexual orientation, religion, or criminal record; or through state laws that ban social media platforms from discriminating based on the viewpoint of users' speech? This Article argues that the constitutionality of such state regulation should generally turn on the feasability of geolocation--the extent to which websites or other internet services can determine, reliably and inexpensively, which states users are coming from so that the sites can then apply the proper state law to each user (or, if need be, choose not to allow access to users from certain states). In recent years, geolocation has become feasible and is routinely used by major websites for ordinary business purposes. There is therefore more constitutional room for state regulation of internet services, including social media platforms, than often believed.

The American Law Institute (“ALI”) has devoted much attention to tort law. This attention has come in different forms. This chapter labels these, respectively: “ALI in the Mode of Appellate Court,” “ALI in the Mode of Law Reform Commission,” and “ALI in the Mode of Think Tank.” Each of these can be placed along a spectrum of ambitiousness with respect to law reform. None is unambitious. But Appellate Court Mode is tethered to doctrine, Think Tank Mode is untethered, and Law Reform Commission Mode lies somewhere in between. One might suppose that the ALI’s promise – which enables leading academics, in consultation with members of the bench and bar and others, to undertake long-term, large-scale research projects – resides in work at the more ambitious end of the spectrum. However, based on an admittedly impressionistic survey, I will suggest that, in the domain of tort law, the Institute has had important successes when proceeding in the manner of an appellate court, and has courted trouble when operating in the other modes.