Faculty Bibliography

The outpouring of empirical work on how and when human beings depart from perfect rationality has led to a wholesale rethinking of paternalism and its limits. Over the last decades, three camps have emerged: (1) coercive paternalists, who urge that behavioral findings undermine John Stuart Mill's Harm Principle and greatly strengthen arguments for paternalistic mandates and bans; (2) libertarian paternalists, who urge that behavioral findings justify a host of paternalistic but freedom-preserving interventions or "nudges," such as warnings, reminders, labels, and automatic enrollment; and (3) antipaternalists, who urge that behavioral findings do not justify paternalism and argue only, or at most, for efforts to strengthen or "boost" people's competences, or their capacities to make good choices. On welfare grounds, it is possible to identify the assumptions under which, and the policy domains in which, one or another approach would be best. Libertarian paternalism often has significant advantages over coercive paternalism, at least in circumstances in which choosers are heterogeneous. But when all or most choosers err, the welfarist argument for coercive paternalism is strengthened, and when choosers are not only heterogeneous but also adequately informed and free from behavioral biases, antipaternalism makes a great deal of sense.

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.

What is the connection between a lawsuit brought by a proxy adviser against the Securities and Exchange Commission (SEC) and Niccolò Machiavelli’s Discourses on Livy, a 16th-century Italian treatise on history and politics? It’s just a word – solicit – which is at the center of the lawsuit and appears in some English translations of the Discourses but not in others, thus creating a small linguistic mystery about its meaning. Does soliciting entail a preference, a desire, or a personal interest in the ultimate outcome of the solicited action, as the plaintiff argues in the lawsuit? Or does it merely denote a pursuit or a mechanical causation of that action, with no regard for intentions or preferences, as the SEC maintains? It turns out that translating Machiavelli requires thinking hard about this question. To be sure, neither the lawyers nor the court in the proxy advisers case made this connection with Machiavelli. But this lexicographic journey is, I believe, instructive. It shows how hard – and sometimes inane – it is to try to “crack the code” of a text without drowning in the philosophical and literary depths of words.

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 Chapter, prepared for the 2026 Heckerling Institute on Estate Planning and derived from our earlier paper, “The Twenty-First Century Revolution in Conflict of Trust Laws,” 79 Tulane Law Review 1013 (2023), 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.

The brutal conflict between Hamas and Israel convulsed higher education. Student protestors have demanded that university endowments "divest" from Israel. University leaders have largely resisted those demands on grounds of fiduciary obligation, institutional neutrality, or both. In response, protestors have pointed to prior instances of purported divestment. Confusion abounds over the applicable fiduciary principles and the scope of prior divestments. This paper synthesizes the law and finance of endowment divestment and applies that analysis to past divestments and present divestment demands. We show that under prevailing law endowment divestment for nonfinancial reasons is permissible only if: (1) the divestment is consistent with the university's charitable purpose of research and education, and (2) the divestment's effect on the portfolio is reasonable in light of that purpose. Applied to the current state of university endowment management, this is a highly restrictive standard. The charitable purpose of most secular universities is research and education, full stop. Moreover, contemporary endowment practice relies on external managers, making a divestment today more costly to implement than in the past. Under current endowment practice, therefore, even a de minimis divestment, whether from Israel or otherwise, would likely be a fiduciary breach, potentially exposing university trustees to out-of-pocket damages for any resulting loss to the endowment. We also examine current divestment policies and purported prior divestments, including South Africa under apartheid, tobacco, the Darfur war, and fossil fuels. Consistent with our legal analysis, but contrary to conventional wisdom, we find that universities have generally not engaged in broad divestments, not even from South Africa under apartheid. Instead, most large university endowments adhere to a narrow divestment policy for "moral abhorrence" that has rarely been invoked. We show that a divestment for moral abhorrence could pass fiduciary muster as consistent with the public benefit principle of charity law if supported by a clear public policy established by confirmatory governmental actions.

In free markets, countless goods may be bought and sold. What was once not traded on markets-for example, access to public parks or sexual and reproductive capacitiesmight be turned into a commodity. Time and again, allowing things to be bought and sold increases both autonomy and welfare. Still, there are pervasive objections to commodification. The first set of objections points to illicit preferences and values and the importance of delegitimating, or not legitimating, those preferences and values (for example, employers cannot "buy" the right to engage in sexual harassment). A second set of objections involves collective action problems: commodification might create such problems (consider the right to vote). A third set of objections invokes equality (as, for example, when people reject the idea that access to public parks should be allocated on the basis of willingness to pay). A fourth set of objections points to information failures and behavioral biases, potentially producing blocked exchanges. A fifth set of objections emphasizes what may be the corrosive effects of commodification on the goods in questions (consider prostitution). These objections sometimes depend on doubtful empirical assumptions, and are frequently overstated. They have different levels of force in different contexts.

This essay argues that universities should commit their endowments to a non-divestment policy, investing solely for risk and return. We acknowledge that there are narrow conditions under which divestment may be legally permissible. Instead, our argument is pragmatic and informed by our normative view of the university. Pragmatically, divestments do not pass a cost-benefit test. They are unlikely to produce the desired social benefits but are likely to complicate endowment management and create litigation risk. By contrast, investing solely for prudent risk and return minimizes management costs and is all but a fiduciary safe harbor. We consider the possibility that a divestment could be justified on reputational grounds but conclude that such a divestment would be legally problematic and is as likely to damage the university's reputation as to improve it. Normatively, we argue that a non-divestment policy is most consistent with higher education's long-standing ethos of open-ended inquiry and that universities will best serve society by focusing solely on their charitable purpose of research and education.

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.

This brief essay, forthcoming in the NLU Delhi Journal of Legal Studies, describes several versions of transformative constitutionalism., all of which are aimed at transforming a deeply unsatisfying status quo. Most scholarship on the topic has focused on material deprivation and inequality, with some attention to cultural conditions. After describing some of the well-known institutional implications of materially transformative constitutionalism, the essay turns to cultural transformations, which are in general anti-cosmopolitan, and distinguishes between anti-colonial and reactionary cultural transformative constitutionalism.

It is rational to care about proximity; closer is often better. Proximity bias can be found when people overweight proximity and are willing (for example) to suffer serious welfare losses in terms of health or wealth in return for modest welfare gains as a result of proximity. In extreme cases, proximity bias leads people to stay where they are, at significant cost to their own welfare. Proximity bias is paralleled by proximity neglect, which can be found when people underweight the welfare benefits of proximity. Proximity bias can be seen as a product of present bias, though it often has additional or distinctive characteristics (including overestimation of the welfare costs of getting from one place to another). Extreme forms of proximity bias can be counted as pathological (“hodophobia”). There is clear evidence of the importance of proximity, and suggestive evidence of proximity bias, in diverse contexts, including medical care; vaccination; eviction; voting; and public assistance. Proximity bias has significant implications for policy and law. It suggests that there may be large effects from increasing (or reducing) proximity or making proximity less (or more) salient, perhaps through the use of debiasing, online alternatives, or various forms of choice architecture.

Extremism is often made possible or fueled by group polarization: Like-minded people, engaged in discussions with one another, adopt a more extreme position in line with their prediscussion inclinations. Group polarization often promotes and influences norm entrepreneurs, who in turn help direct, unify, and energize those who listen to them, who in turn direct and energize norm enterpreneurs. The result can be a kind of spiral or tornado. Because of habituation, understood as diminishing sensitivity to stimuli, the energy provided by a transgressive or outre position is often less intense on Wednesday than it was on Monday, which means that norm entrepreneurs are often incentivized to up the ante. Spare as they are, these points suggest the importance of seeing extremism as a product of dynamic interactions among (1) group polarization; (2) norm entrepreneurship; and (3) habituation and thrill-seeking. These interactions might be formalized and subjected to empirical testing.

We examine how priority of workers’ claims vis-à-vis secured claims in insolvency varies across jurisdictions and over time as a window into the shifting treatment of distributional or social justice considerations in private law. Existing literature focuses on the extent to which laws in the Global South are either legal transplants from European countries belonging to the same legal family or have more recently adhered to “neoliberal” prescriptions from the United States or international organizations. Our findings highlight the limits of these theories by showing (i) Global South-driven legal innovation and diffusion, with Mexico’s 1917 constitution granting workers’ claims priority over secured claims nearly two decades before comparable French legislation was enacted, and (ii) significant persistence—and, in some cases, growing recognition—of priority for workers’ claims across jurisdictions, despite strong contrary pressures from international organizations such as the World Bank and UNCITRAL. We also discuss the role of state capacity in explaining legal heterodoxy in the Global South and describe the growth of sub rosa legal reforms that circumvent workers’ priority in bankruptcy through new categories of insolvency-proof security interests.

After performing an abortion in 1973, Dr. Kenneth Edelin was indicted and convicted of manslaughter. Dr. Edelin’s conviction was reversed 50 years ago. However, the conflict between the medical and legal systems, the use of abortion prosecution to control patients and providers, and the framing of a fetus as a person feel just as relevant to today’s abortion landscape.

Reported instances of AI-assisted, blanket denials of coverage have increased in recent years, particularly for Medicare Advantage plans, resulting in insurers facing criticism, class action lawsuits, investigations from Congress, and key providers leaving their networks. To ensure a fair healthcare system, action is needed to improve transparency in how AI tools approve or deny claims, and address provider burnout and patient burden due to navigating prior authorization requests and appeals.

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.

Although the obvious effect of settlement is to save litigants the costs of trial, settlement also influences deterrence—and for two reasons. First, because settlement is agreed upon by plaintiffs, it raises their expected return from litigation and thus the probability of suit. This augments deterrence. Second, because settlement is agreed upon by defendants, it lowers their expected costs of litigation and therefore dilutes deterrence. The primary objective of the article is to identify the net effect of settlement on deterrence and on social welfare in a model of accidents, liability, and litigation. The conditions for the bringing of suit in the model are not only that plaintiffs be willing to go to trial, but also that their anticipated settlements would exceed their pretrial costs.

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.

In our 2025 book, Algorithmic Harm, we contend that the use of algorithms can benefit consumers in many ways (largely because of greater personalization), but that it can also cause harm in the face of information deficits and behavioral biases (again, largely because of greater personalization). Unsophisticated consumers, as we call them, are especially vulnerable to algorithmic harm. In this short response to a set of excellent comments on our book, we explore some of the benefits of personalization; some of the costs of forbidding it; some challenges, in terms of feasibility, to our preferred approaches; and the intriguing question whether and in what sense algorithms might be said to have an unconscious.

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 Article documents and examines Brazil’s pioneering imposition of joint and several liability for labor obligations on parent companies since 1937, complicating existing narratives about the German origins of group law. We uncover evidence that nationalism and resistance to foreign corporate groups contributed significantly to this legal development. Central to Brazil’s groundbreaking 1937 reform holding parent companies liable for subsidiaries’ labor obligations was the concern about protecting local workers from foreign groups attempting to evade legal responsibilities through separate legal entities. This innovation has shown remarkable durability and contemporary relevance. A 2024 decision by the Brazilian Supreme Court applied the economic group doctrine to enforce its orders against X (formerly Twitter) by freezing the assets of the Brazilian subsidiaries of Starlink, also controlled by Elon Musk. Our comparative analysis reveals a gradual, if contested, trend toward eroding corporate separateness to protect workers across jurisdictions. Moreover, this development appears to be more common in the Global South, with Portugal standing as the sole Global North country examined to converge with Brazil’s comprehensive statutory approach—and only after a 70-year delay. These findings suggest that challenges in state capacity and the geographic divide between capital and labor, often pronounced along North-South lines, can shape the evolution of limited liability and corporate separateness doctrines in ways that challenge conventional narratives in corporate and comparative law.

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?

Whatever the party of the new president, elected in 2028, it would be worthwhile for the incoming administration to consider eight ideas, to be explicitly embodied in executive orders or presidential memoranda: (1) a clear commitment to the independence of the Federal Reserve Board, certainly with respect to monetary policy; (2) a broad commitment to freedom of speech and the press, building on constitutional requirements; (3) a firm commitment not to interfere with the prosecutorial decisions of the Department of Justice; (4) an insistence on the centrality of cost-benefit analysis, designed to work against both overregulation and underregulation; (5) new restrictions on the pardon power, designed to regularize relevant processes; (6) reasonable (not excessive or expressive) restrictions on conflicts of interest and self-dealing, applicable to executive branch officials and the president personally; (7) a presumption against suits brought by the president in his personal capacity (a voluntary presidential disability, meant to parallel and accompany presidential immunity); (8) perhaps most controversially, a presumption (not a rule) against prosecution, by the current administration, of members of the previous administration. All of these ideas would have to be specified, but they are worthy of serious consideration, no matter the political party of the new administration.

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.

Chief Justice Roberts's metaphor of judges as umpires has been often criticized for being a bad theory of legal adjudication. Critics of Roberts's metaphor argue that judges are not mechanical reporters of clear-cut normative truths, but little attention has been paid to the question whether calling balls and strikes is indeed mechanical. The traditional theory, shared by both Roberts and his critics, is that "truth in baseball is clear-cut." In this Article, I argue that this theory of baseball is mistaken. Calling balls and strikes, despite its apparent simplicity, is an inherently interpretive practice. It is shaped not only by clear-cut rules, but also by shared practices and unwritten principles on how the game ought to be played.

In the early twenty-first century, constitutionalism confronts numerous pressures and critiques. Some prominent critics are concerned that constitutionalism’s modern form, in which high courts play a large role, limits popular self-governance. By committing their nations to detailed social and economic policies—from neoliberal requirements for balanced budgets to constitutionalized social welfare and environmental rights—many modern constitutions might make promises they cannot keep and be unduly rigid in the face of changing social, economic, and environmental conditions. Meanwhile, the rise of proto-authoritarian elected leaders around the world shows that constitutions are vulnerable to, and may even enable, democratic backsliding. Mark Tushnet and Bojan Bugarič argue that addressing each of these serious concerns through constitutional design and innovation is potentially valuable, but paradoxically, every remedy also carries with it the possibility that it will intensify the very conditions it seeks to ameliorate. Instead, Tushnet and Bugarič propose a “thin” idea of constitutionalism and suggest that we should scale back our expectations for what constitutionalism can achieve. Political mobilization, led by people attuned to the economic and cultural causes of democratic backsliding, is a better bet.

For nearly a century, debates over corporate purpose have framed the issue as a clash between two contested visions: Should corporations maximize profits, or should they pursue broader social goals? This Article argues that this conventional framing obscures the true nature of the dispute. Using Wesley Hohfeld’s map of rights, duties, privileges, and no-rights, I argue that the corporate purpose debate is fundamentally about the scope and design of managerial privilege, rather than abstract commitments to shareholders or stakeholders. The Article offers a set of “critical questions” that any proposal for corporate purpose reform should address to make itself legible, assessable, and comparable within a Hohfeldian framework, and employs these questions to examine three recent, influential proposals for stakeholderist reform. The analysis reveals that proposals for stakeholder-oriented reform often fail to constrain managerial privilege, while resting on risky empirical bets about corporate actors’ benevolence.

The U.S. penal apparatus is a bundle of wildly divergent practices. Police in some cities use more force than others. Prosecutors in some jurisdictions file charges automatically while others screen carefully. Public defenders in some counties lack zeal while others provide high quality representation. Offices that share the same name and perform the same basic legal functions—“police,” “prosecutor,” “public defender,” “criminal court”—actually operate according to highly disparate legal, professional, and normative standards. These differences give rise to a stratified criminal process in which a minority of defendants and cases are handled lawfully with attention and care, while a much larger group of defendants and cases are treated with legally sloppy inattention, disrespect, and even violence. These variations are a function of, among other things, distinctive institutional choices: the strikingly diverse organizational arrangements, resource allocations, and routine decision-making cultures within each of our major penal institutions. Under the influence of both federalism and localism, we tolerate a highly decentralized and internally inconsistent criminal system which distributes resources, status, and accountability unequally. As a result, American defendants are subject to a broad and often conflicted spectrum of operative criminal practices, principles, and norms, some far more punitive than others. These institutional differences represent a kind of systemic inequality, created and imposed by the workings of the criminal apparatus itself. While they reflect the well-studied inequalities that flow from defendant wealth, race, and neighborhood, they also inflict their own bespoke brand of unequal treatment through the unique processes, consequences, and normative values of criminalization. At the most foundational level, they alter the significance of basic legal principles such as due process, accuracy, and fairness, downgrading them under pressure from divergent institutional thinking and cultures. As a result, our very notions of criminality, justice, and equal treatment are unfairly protean: institutionally changeable and maldistributed throughout the penal system. This Article maps these maldistributions and the myriad ways in which the organization and operation of our basic criminal institutions shake out as powerful drivers of penal inequality.

The prohibition of false and misleading advertising should be the prototypical example of unfair competition law. False and misleading advertising, after all, is generally held to be unequivocally bad, even if punishing every instance would be more costly than it’s worth. But most of modern unfair competition law, at least in the United States, is focused on different things—more in the realm of trademark law (and sometimes antitrust), and I think to its detriment. As trademark’s scope has ballooned, and as the law has tolerated more and more monopoly power, it has also tolerated more and more false advertising. A rebalancing towards false advertising could strengthen the field of unfair competition as a whole.

The basic principles that parents employ in disciplining their children in the household are described in the first part of this article. The description is based on a survey of parents, the major results of which are that parental disciplinary actions are premised on wrongdoing—not on the mere causation of harm; that parental sanctions are usually greater when wrongdoing results in harm than otherwise; that sanctions for intentionally harmful conduct tend to exceed those for negligence; and that sanctions are not increased when the probability that wrongdoing would be discovered is low. A theory is then developed to explain these principles as largely functional for parents. The kernel of the theory is that the rules of discipline foster the utility of parents—assuming that parental utility is reduced by the occurrence of harm and that their utility rises and falls with the well-being of their children.

Whether the Equal Rights Amendment is—right now—part of the Constitution is a matter of serious dispute. Thirty-eight states have sought to ratify the ERA, several of them only after the seven-year deadline in its proposing resolution. After President Biden’s statement disregarding the deadline and describing the ERA as the Twenty-Eighth Amendment, its doubtful validity may provoke a minor constitutional crisis. But there may be a legal answer. Not only in the resolution proposing the Bill of Rights, but also in those proposing the Twelfth and Seventeenth Amendments, Congress included operative language that modified the legal force of the newly proposed text. This language was deliberately chosen, was repeated by state ratifications, and seems to have been accepted as legally effective. This historical practice suggests that under Article V, the resolution is the amendment—the constitutional change proposed by the resolution as a whole, not just by the particular language it proposes to append. This understanding means that certain parts of the 1788 Constitution have been repealed, not just superseded. It also means that the ERA’s deadline rendered it incapable, even with thirty-eight states’ assent, of making any valid change to the Constitution’s text. The recent lobbying efforts on its behalf, including President Biden’s statements, are therefore seriously misguided. In a divided society, losing consensus on the Constitution’s text carries an especially high cost. The National Archives is the wrong place to play with fire.

Although much has been written about why Donald Trump's Executive Order purporting to abolish birthright citizenship for children of unlawfully present or temporarily present parents violates the Citizenship Clause of the Fourteenth Amendment, there is a prior issue that has received less discussion: the Executive Order also violates the Immigration and Nationality Act. This article examines that statutory issue through the lens of one particular but revealing aspect of the voluminous evidence, the law and practice of suspension of deportation for noncitizen parents of children born as citizens while their parents were unlawfully or temporarily present in the United States. The dense interaction of Congress and the executive from 1940 into the 1950s on suspension of deportation shows repeated confirmation of the shared interpretation of both branches on the scope of birthright citizenship, as embodied in the 1940 Nationality Act and then the 1952 INA. This article discusses both published sources and previously unpublished documentation obtained from INS files in the archives. Appendices to this article make available examples of previously unpublished suspension decisions, in order to further demonstrate that the Executive Order violates the INA. The actual practice totally contradicts revisionist theories that claim to support the Executive Order.

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.

This chapter situates the Global South in current debates on comparative corporate governance, with a special focus on the “BICS” (Brazil, India, China, and South Africa). The BICS now boast higher levels of stock market capitalization as a percentage to GDP than the four largest Global North economies, and their firms are also increasingly integrated into Global North markets. However, traditional views on corporate governance in the Global South have either assimilated the South into Global North categories (such as legal families) or have had a narrow focus on failures in legal transplantation or in ensuring investor protection. New ways of thinking about the Global South are emerging, however. Those have identified institutional innovations and adaptations in corporate laws in the Global South that account for local realities, especially in incorporating concerns about stakeholder protections and inequality. Global South legal systems are also increasingly a prominent driver of corporate law and governance trends around the world. While in earlier decades Global South jurisdictions sought to mobilize the United Nations (UN) to regulate multinational corporations, more recently the UN has sought to mobilize corporations to mitigate regulatory gaps in the Global South. Concerns about regulatory gaps in the Global South with respect to human rights and environmental protection have helped inspire global trends in corporate governance such as the ESG movement and human rights due diligence, thus contributing to the resurgence of stakeholderist proposals and reforms in the Global North. Interestingly, the growing interest in stakeholder-oriented approaches in the Global North can also be interpreted as a form of “reverse convergence” in comparative corporate governance, with various institutions of the Global North coming to resemble their Global South counterparts.

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.