Faculty Bibliography

Data is an integral part of healthcare delivery. A growth in digital technologies has produced large swaths of health data that contain individuals’ personal, and often sensitive, information. A key question for policymakers is how to regulate the collection, storage, sharing, and disclosure of this information. In this chapter, the authors evaluate two different types of regulatory enforcement mechanisms: public rights of action (where the government sues) and private rights of action (where private persons sue). They use a recent case to illustrate the advantages and drawbacks of private rights of action in health data privacy cases, and then use this analysis to contrast them with public rights of action. Their analysis suggests that public and private rights of action should be viewed as complementary regulatory tools, rather than competing alternatives. In short, both public and private rights of action have important roles in regulating health data. To ensure private rights are effective regulatory tools, policy makers should pay particular attention to how those rights of action are designed and implemented.

Senate Republicans’ brief in the Supreme Court surprisingly argues just that.

When a resident of an anti-abortion state goes to a prochoice state to get an abortion, which law applies to that person? To the abortion provider? To anyone who helps them obtain the abortion? Since Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade, states have passed conflicting laws regarding abortion, and courts will need to determine whether anti-abortion states can apply their laws to persons or events outside their territory either through civil lawsuits or criminal prosecution. This article canvasses the major disputes likely to arise over conflicts of abortion law and the arguments on both sides in those cases. It addresses both common law analysis and the constitutional constraints on application of state law under the Full Faith and Credit Clause and the Due Process Clause, and it comes to some conclusions both about what laws should apply in different fact settings and how the choice of law analysis should proceed.Since Dobbs focused on the “history and tradition” behind rights under the Due Process Clause, and because the constitutional test for “legislative jurisdiction” that regulates when a state can apply its law to a controversy is partly based on the Due Process Clause, we start with the prevalent approaches to conflicts of law available to judges at the time the Bill of Rights was adopted in 1791 and when the Fourteenth Amendment was adopted in 1868, focusing on the “comity” approach championed by Justice Joseph Story. We consider also the First Restatement’s vested rights approach in vogue between the end of the nineteenth century and the middle of the twentieth century. We then move to modern choice of law analysis to determine which law applies when a person leaves their state to obtain an abortion. We will consider the Second Restatement’s “most significant relationship” test, the “comparative impairment” approach, the “better law” and “forum law” approaches, as well as the emerging Third Restatement of Conflict of Laws rules being drafted right now by the American Law Institute.One set of cases involves conduct that is wholly situated within the borders of the anti-abortion state. That state has full authority under the Constitution to regulate its internal affairs and to apply its laws to people who distribute or use anti-abortion medication there or who otherwise assist residents in violating its laws prohibiting or limiting access to abortion. Anti-abortion states have full authority to regulate conduct within their borders. However, the First Amendment protects people who provide information about the availability of abortion services in other states where it is legal, and the constitutional right to travel should protect those who transport someone out of state to get an abortion in a prochoice state or who subsidize the cost of such out-of-state travel.A second set of cases concerns cross-border torts where conduct in a prochoice state has effects in an anti-abortion state. Courts traditionally apply the law of the place of injury to those cases if it was foreseeable that the conduct would cause the injury there. But there are traditional exceptions to the place of injury rule that should apply in the abortion context when the place of conduct defines the conduct as a fundamental right and immunizes the actor from liability or places a duty or an affirmative privilege on the abortion provider to provide the care. Courts should depart from the place of injury rule in those circumstances when conduct is wholly confined to the immunizing (prochoice) state, and that means that an anti-abortion state cannot legitimately punish an abortion provider in a prochoice state who provides care there in reliance on rules of medical ethics that require the care to be provided. Nothing would violate rule of law norms more severely than placing a person under a simultaneous duty to provide care and a duty not to provide that care. On the other hand, anti-abortion states have full authority to regulate out-of-state conduct that does spill over the border into the anti-abortion state, such as shipping abortion medication to a recipient there. Difficult issues of foreseeability and proximate cause arise when an abortion provider prescribes abortion medication in a prochoice state but knows or suspects that the patient will be taking the medication back to the anti-abortion state to ingest. In some fact settings, the foreseeability issue is significant enough that it may rise to a constitutional limitation on the powers of the anti-abortion state to apply its law to out-of-state conduct or to assert personal jurisdiction over the abortion provider. In other cases, the place of injury has the constitutional authority to apply its law to out-of-state conduct that the actor knows will cause unlawful harm across the border but it may or may not have personal jurisdiction over the nonresident provider.A third set of cases involve bounty claims, tort survival lawsuits, or wrongful death suits that an anti-abortion state might seek to create by giving claims to one of its residents against the resident who left the state to get the abortion. Such cases may be viewed as “common domicile” cases by the anti-abortion state since both plaintiff and defendant reside in the anti-abortion state. That may tempt the anti-abortion state to apply its laws to an abortion that takes place in another state even though both conduct and injury occurred in a state that privileges the conduct and immunizes the defendant from liability. However, the law of the place of conduct and injury should apply in those cases since the prochoice law is a “conduct-regulating rule,” and choice of law analysis, traditional rules, and constitutional constraints on legislative jurisdiction all require deference to the law of the prochoice state in such cases. Courts sometimes apply the law of the common domicile when the law at the place of conduct and injury is not geared to regulating conduct there, but the opposite is true for laws directed at conduct, and this article will show why prochoice laws that define abortions as a fundamental right are conduct-regulating rules. The same is true for the question of criminal prosecution. An anti-abortion state has no legitimate authority to punish a resident who leaves the state to get an abortion in a state where abortion is protected as a fundamental right.

Times v. Sullivan sets a striking principle: without (nearly unobtainable) proof of “actual malice,” public officials can’t win defamation suits. If public persons’ reputations conflict with free discourse, the latter wins. Sullivan is iconic. But it’s increasingly beleaguered, said to immunize lies that tear our polity apart. These fears are well-founded. The Sullivan Regime is broken. But understanding why starts not, as critics suggest, from new technology or constitutional doctrine. It starts from the tort of defamation. What interest does the defamation tort protect? What injury does it redress? Leading accounts look to property, dignity, or other values. But these miss something vital. In our polity, a central, serious harm defamation redresses is democratic disempowerment: the destruction of political efficacy in one’s community. Defamation victims (say, those falsely branded sex offenders) lose more than honor. They lose their ability to be credibly heard, participate in civic discussion, have their voices matter. They are discredited. And in our democracy, where participation is core to personhood, this wrong is profound indeed. This insight shows Sullivan, in balancing vigorous press against defamation suits, wasn’t trading “speech” against “non-speech” (say, politicians’ dignity). Rather, the balance was among speech priorities—vigorous press, and democratically enabled People. Silencing by lawsuits, versus silence by slanders. But Sullivan saw speech on just one side. And in our Viral Age, this error causes crisis: a wave of democratic disempowerment, crashing hardest at democracy’s front lines (school boards, election workers, journalists). Fortunately, seeing the problem shows how we might solve it. End “actual malice” for most public persons, but end all defamation suits brought by the very powerful. Make swifter merits decisions, but re-empower lay juries. Surer defeats for nuisance plaintiffs, but stark damages for egregious defamers. Bold, paradoxical shifts to protect both vigorous critique and democratic participation. And which help tame broader discontents—from baseless conspiracies to bigoted cybermobs. Lastly, most broadly, seeing defamation this way hints at a new private law paradigm: one taking democratic efficacy as a core personal interest (like our bodies, lands, and psyches). Today, this interest faces new threats (like lawless “deplatformings”) but is ill-served by old protectors (like constitutional doctrines). In this context, democracy torts—civil remedies to guard our democratic efficacy—hold great promise.

Adjacent to the recent (and ongoing) legal disputes over admissions to elite university programs, parallel disputes over admission to the most selective high schools continue. New York City operates the best known of these high schools and chooses its students through blindly graded exams. Critics--including prominent scholars like Stanford's Richard Banks and Yale's Daniel Markovitz--argue that the exams favor the wealthy. The Obama administration urged the high schools to replace their blind exams with a random selection mechanism for all applicants who met a minimum competency standard. For decades, the Tokyo Board of Education had similarly maintained an elite high school and had similarly selected its students through a blind exam. Under similar egalitarian pressure, it replaced the exam with what would in time become the Obama administration template: the combination of a minimum competency exam with random selection. Almost immediately, the most promising students abandoned public high schools entirely. They shifted to what had previously been inferior private schools. The best of these private schools raised their standards in response, and public education in Tokyo never recovered. Students learn best when taught at their level. The brightest students learn best when taught at a level that challenges them, and with which other students could never keep up. Bright Tokyo students wanted that challenge. When the public schools denied it to them, they left the public schools en masse.

This chapter provides an updated examination of public enforcement efficacy in the context of securities regulation. We summarize the literature exploring the relationship between enforcement and other measures of robust capital markets; between enforcement and capital flows, valuations, and cross-listing decisions; and between enforcement and the success of regulatory reform efforts. We also review recent efforts to employ more sophisticated econometric methods to tease out the direction of causality between enforcement intensity and robust capital markets. We conclude by surveying a new frontier for the public enforcement of securities laws: cryptocurrencies. Overall, existing scholarship confirms that greater levels of public enforcement are associated with key measures of robust capital markets.

Does the Constitution guarantee free speech on university campuses? The Supreme Court has essentially said so, at least insofar as we are speaking of public universities. Some private universities are interested in adhering to the First Amendment, even though it does not bind them. But what do First Amendment protections entail or require? It is clear that in general, universities may not discriminate on the basis of viewpoint. It is also clear that as educational institutions, universities may sometimes regulate speech to protect their essential mission – by, for example, forbidding “true threats,” prohibiting plagiarism, protecting speakers from being shouted down, forbidding students from taking over buildings, and ensuring that students and teachers focus on the topics of their courses. By exploring thirty-seven scenarios, it is possible to concretize these general propositions, and to see which questions are easy and which questions are hard. The broadest conclusion is that to the extent that universities seek to comply with the First Amendment, they must permit a great deal of speech that is offensive, hateful, and even horrifying.

The Fourteenth Amendment’s Section One is central to our constitutional law. Yet its underlying principles remain surprisingly obscure. Its drafting history seems filled with contradictions, and there is no scholarly consensus on what rights it protects, or even on what kind of law defines those rights.This Article presents a new lens through which to read the Fourteenth Amendment—new to modern lawyers, but not to the Amendment’s drafters. That lens is general law, the unwritten law that was taken to be common throughout the nation rather than produced by any particular state. Though later disparaged in the era of Erie Railroad Co. v. Tompkins, general law was legal orthodoxy when the Amendment was written.To those who created the Fourteenth Amendment, general law supplied the fundamental rights that Section One secured. On this view, while Section One identified the citizens of the United States, it did not confer new rights of citizenship. Instead, it secured preexisting rights—rights already thought to circumscribe state power—by partially shifting their enforcement and protection from state courts and legislatures to federal courts and Congress. This general-law understanding makes more sense of the historical record than existing theories, which consider the Fourteenth Amendment solely in terms of federal or state law. And it has significant implications for modern Fourteenth Amendment doctrine, from state action to civic equality to “incorporation” to “substantive due process.”

From a human rights perspective, impeachment offers an extraordinary mechanism for halting or preventing violations serious enough to motivate the legislature’s intervention. The need for this mechanism is greatest when officials who cannot otherwise be removed are committing or directing the violations. Historically, impeachment has often served human rights goals. Nonetheless, the power of impeachment has also been abused for partisan advantage or to undermine the independence of the judiciary. Human rights tribunals have articulated limits on the impeachment process to protect the rights of officials and of the voters who supported them. These limits also need to preserve the potential of impeachment for protecting democracy and human rights.

This Viewpoint discusses the litigation strategy of state-initiated lawsuits alleging illegal and immoral conduct regarding the pricing of insulin by pharmaceutical companies and pharmacy benefit managers.

When medical AI systems fail, who should be responsible, and how? We argue that various features of medical AI complicate the application of existing tort doctrines and render them ineffective at creating incentives for the safe and effective use of medical AI. In addition to complexity and opacity, the problem of contextual bias, where medical AI systems vary substantially in performance from place to place, hampers traditional doctrines. We suggest instead the application of enterprise liability to hospitals—making them broadly liable for negligent injuries occurring within the hospital system—with an important caveat: hospitals must have access to the information needed for adaptation and monitoring. If that information is unavailable, we suggest that liability should shift from hospitals to the developers keeping information secret.

Millions of times every year, American prosecutors make the all-important decision whether to decline or file formal criminal charges after police have made an arrest. This declination decision determines whether an arrest will become a full-fledged criminal case and thus whether an individual arrestee will become a defendant. It establishes the classic dividing line between investigation and adjudication, triggering numerous constitutional consequences. Through declination, prosecutors also check and regulate police decision-making within the executive branch. In an era of racialized mass incarceration, prosecutorial declination can function as a mode of equitable gatekeeping, regulating the impact of sloppy or biased policing practices on communities, courts, and the rest of the criminal pipeline. It is therefore a unique structural moment of institutional and constitutional significance. Declination is especially influential because police and prosecutors are the two main decision-makers within the carceral executive branch. This Article conceptualizes the relationship between them as an overlooked example of internal separation of powers, with the declination decision as its most impactful regulatory moment. Administrative law teaches that intrabranch checks are vital, especially when interbranch separation of powers has proven ineffective as it famously has with respect to the penal executive. The prosecutorial declination decision, in turn, is an especially promising intrabranch checking tool. It offers decisional friction, oversight, and accountability within the executive at precisely the moment when good law enforcement decision-making makes a big difference for millions of people. In our massive misdemeanor system, this regulatory promise usually fails. Misdemeanor prosecutors routinely rubber-stamp police arrest decisions and convert arrests automatically into formal charges: namely, they abdicate their screening and checking functions by deferring to police. Misdemeanor declination rates are typically very low—often less than five percent—which means that police effectively get to decide not only who will be arrested but who will be formally charged with a crime. This is not how the criminal system is supposed to work. In administrative law terms, such prosecutorial abdication is a violation of basic branch design and a worrisome species of intrabranch collusion. It is, however, neither universal nor foreordained. Around the country, many newly elected prosecutors have embraced strong misdemeanor declination policies, not only as a way of checking police but increasing equity, efficiency, and accountability. Such policies exemplify how misdemeanor declination is an underappreciated opportunity to regulate the penal executive from within and to mitigate the excesses and injustices of the low-level carceral state.

Liberals see human beings as subjects, not objects. They reject despotism in its many forms. With Justice Robert Jackson, liberals believe that “compulsory unification of opinion achieves only the unanimity of the graveyard.” Liberal authoritarianism is an oxymoron. Illiberal democracy is illiberal, and liberals oppose it for that reason. Liberals are puzzled by many of those, on the left and the right, who describe themselves as “antiliberal” or “postliberal.” With respect to some claims of “antiliberals” or “postliberals,” liberals agree with Amos Tversky and Daniel Kahneman: “The refutation of a caricature can be no more than a caricature of refutation.” With respect to those claims of “antiliberals” or “postliberals” that do not amount to a caricature, liberals insist on the importance of freedom of thought and action and deliberative democracy, and on the need to respect reasonable pluralism.

With textualism’s ascendancy, courts increasingly invoke the canon to assume “ordinary meaning” unless the context indicates otherwise and the rule to enforce “plain meaning” regardless of extratextual considerations. Yet the relationship between ordinary meaning and plain meaning can become confused in practice. Courts use the terms interchangeably, and they conflate them doctrinally. Ordinary meaning and plain meaning are distinct. Ordinary meaning is what the text would convey to a reasonable English user in the context of everyday communication. Plain meaning refers to a judgment that whatever the text conveys in context is clear from the text. Thus, a term’s ordinary meaning is also its plain meaning only when it is clear from how the term is used in the statute that its context is ordinary, as opposed to technical. Courts conflate the two, however, when they assume ordinary meaning under the ordinary meaning canon and then conclude that they are therefore bound to enforce that meaning under the plain meaning rule. As a result, they end interpretation prematurely, excluding extratextual aids that might well show that the ordinary meaning assumption should give way. This Article is the first to investigate the relationship between ordinary meaning and plain meaning. It clarifies their differences, identifies the ways in which they are conflated, and evaluates when they should converge. For textualists, greater clarity on this score illuminates when and how to bring ordinary meaning and plain meaning together in a principled manner. For methodological pluralists, understanding the gap between ordinary meaning and plain meaning opens opportunities to argue beyond the text in our increasingly textualist world.

“Intentional torts,” “Negligence,” and “Strict Liability” are typically cast as the major categories of tort liability. Conspicuously absent from this list is “Recklessness,” which would seem to fit between intentionality and negligence and is treated in criminal law as a category of its own. And yet recklessness does make sporadic appearances in tort law. Because it lies between categories without constituting a distinct category, recklessness thus can fairly be described as operating “interstitially” within tort law. As we explain, recklessness fulfills this role in two quite different ways. In the law of defamation and fraud, it sets the lower boundary of ‘malice,’ understood as mistreatment of another involving dishonesty or other states of mind inconsistent with good faith. A quite different collection of tort settings in which recklessness plays an important role – one that includes the application of assumption of risk to recreational activities – are those in which courts are prepared to relieve actors of liability notwithstanding that their actions generate a significant risk of harm. In this domain, recklessness marks an upper rather than a lower boundary, namely, the point at which conduct becomes so unjustifiably dangerous that liability will attach. We conclude by suggesting that attention to the different ways in which recklessness serves as a fine-tuning mechanism in tort law may illuminate philosophical debates about the nature of recklessness, as well as jurisprudential inquiries concerning interstitial legal concepts.

Psychiatry is rapidly adopting digital phenotyping and artificial intelligence/machine learning tools to study mental illness based on tracking participants’ locations, online activity, phone and text message usage, heart rate, sleep, physical activity, and more. Existing ethical frameworks for return of individual research results (IRRs) are inadequate to guide researchers for when, if, and how to return this unprecedented number of potentially sensitive results about each participant’s real-world behavior. To address this gap, we convened an interdisciplinary expert working group, supported by a National Institute of Mental Health grant. Building on established guidelines and the emerging norm of returning results in participant-centered research, we present a novel framework specific to the ethical, legal, and social implications of returning IRRs in digital phenotyping research. Our framework offers researchers, clinicians, and Institutional Review Boards (IRBs) urgently needed guidance, and the principles developed here in the context of psychiatry will be readily adaptable to other therapeutic areas.

Decades after data-driven consumer surveillance and targeted advertising emerged as the economic engine of the internet, data commodification remains controversial. The latest manifestation of its contested status comes in the form of a recent wave of more than a dozen state data protection statutes with a striking point of uniformity: a newly created right to opt out of data sales. But data sales as such aren’t economically important to businesses; further, property-like remedies to privacy problems have long and repeatedly been debunked by legal scholars, just as the likelihood of efficient privacy markets has been undercut by an array of experimental findings from behavioral economics. So, why are data sales a dominant point of focus in recent state legislation? This work proposes a cultural hypothesis for the recent statutory and political focus on data sales, and explores this hypothesis with an experimental approach. Inspired by the taboo trade-offs literature, a branch of experimental psychology looking at how people handle morally uncomfortable transactions, this work describes two experiments that explore reactions to data commodification. The experimental results show that selling data is far more contested than selling a traditional commodity good, suggesting that selling data fits within the domain of a taboo transaction. Further, various potential modifications to a data sale are tested, but in each case the initial resistance to the taboo transaction remains. The experimental results show a robust resistance to data commodification, suggesting that newly enacted state-level sales opt-out rights provide a culturally powerful balm to consumers. The results also suggest a new framework for analyzing economic measurements of privacy preferences, suggesting a new possibility for interpreting those findings in light of the tabooness of data commodification. More broadly, the normative implications of the results suggest the need for culturally-responsive privacy reform while keeping an eye to the possibility for taboos to distort technology policy in ways that ultimately fail to serve consumer protection interests.

There is anger among many at the growing recognition that this conservative Supreme Court is marching, not resting. That little of the past--like precedent--will constrain it. And that the decisions of the preceding terms--overturning Roe v. Wade, expanding the "right to bear arms," ending affirmative action, among other extraordinary decisions--are just the beginning of a long and cold jurisprudential winter. Many on the Left have responded by proposing ambitious strategies for resisting the Court. There are calls for court packing, and for the impeachment of faithless justices. Two of the most prominent among younger American law professors have declared the "need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism." This response is a mistake. The right strategy to answer people who believe that they are doing right is not to try to convince them their principles are wrong. It is to show them that they are not following their principles. The answer to the growing originalist majority on the United States Supreme Court is not to attack originalism, but to show how incomplete and inconsistent this Court's originalism has become. That is my aim in this essay. Not because arguments change minds. Necessarily. But because they set the predicate for what would be a principled and appropriate response by Congress. It is time for Congress to reclaim the role that the framers of our second Constitution--the Civil War Amendments--intended for it. Because a principled originalism could not resist that claim, and that claim, more than anything else, would liberate rights in America from their current, narrow judicial hold.

This chapter begins with an explanation of why, in the United States, philosophical analysis has become a prominent feature of private law scholarship. Historical, sociological, and constitutional peculiarities of the American experience all figure in our account. It then distinguishes two ways in which philosophy has been brought to bear on private law. The first involves the use of analytical and moral philosophy to critique and develop alternatives to policy-driven, welfarist approaches that tend to dominate elite U.S. legal-academic writing. The second harnesses philosophical analysis to defend the intelligibility of ordinary lawyerly discourse about private law as against reductionists (whether deontological and welfarist) who treat legal concepts as empty vessels to be filled with extra-legal content. Our aim is to help scholars understand the current state of private law scholarship in the U.S. and appreciate the role that philosophy can play in the explanatory, justificatory, and critical aspects of the legal academic enterprise.

A poor-quality dietary pattern is a leading risk factor for chronic disease and death in the United States, and the costs of medical care continue to unsustainably rise. Despite this reality, nutrition training for physicians fails to adequately prepare for them to address the complex factors that influence diet-related disease. Expanding nutrition education for physicians-in-training is imperative to equip them for the growing demand of food is medicine services and is also supported by recent policy efforts in the United States as well as the governing bodies of graduate and undergraduate medical education. A multisector approach that links graduate medical education, clinical care delivery innovation, and health and food policy experts provides momentum to advance nutrition education as a core strategy for food is medicine expansion globally.

There are two justifications for the major questions doctrine. The first justification, vigorously offered by Justice Neil Gorsuch, might be described as Lockean; it sees the doctrine as an effort to preserve legislative primacy and to reduce the policymaking authority of the executive branch. On the Lockean view, the major questions doctrine is a clear-statement principle, and it is in evident tension with textualism. The second justification, vigorously offered by Justice Amy Coney Barrett, might be described as Wittgensteinian; it sees the doctrine as an effort to capture Congress's likely instructions. The Wittgensteinian justification fits comfortably with textualism, and it does not operate as a clear-statement principle at all. The Court can be seen as having adopted an incompletely theorized agreement in favor of the major questions doctrine, but at some point, the two justifications might lead in different directions. While neither justification is implausible, both of them run into serious objections.

The idea of disregarding the U.S. Supreme Court—simply ignoring its decisions—has become a flash point. “Americans will not tolerate defiance of the institution and the rule of law,” remarked one conservative law professor, irate about the possibility that President Joe Biden or other political officials might engage in such behavior. Who has defied the Supreme Court in the past? If leading examples include Andrew Jackson the ethnic cleansing populist or George Wallace the Southern segregationist, the answer has to be: no one good.

Explainability in artificial intelligence and machine learning (AI/ML) is emerging as a leading area of academic research and a topic of significant regulatory concern. Increasingly, academics, governments, and civil society groups are moving toward a consensus that AI/ML must be explainable. In this Article, we challenge this prevailing trend. We argue that for explainability to be a moral requirement—and even more so for it to be a legal requirement—it should satisfy certain desiderata which it often currently does not, and possibly cannot. In particular, this Article argues that the currently prevailing approaches to explainable AI/ML are often (1) incapable of guiding our action and planning, (2) incapable of making transparent the actual reasons underlying an automated decision, and (3) incapable of underwriting normative (moral and legal) judgments, such as blame and resentment. This stems from the post hoc nature of the explanations offered by prevailing explainability algorithms. As the Article explains, these algorithms are “insincere-by-design,” so to speak. This often renders them of very little value to legislators or policymakers who are interested in (the laudable goal of) transparency in automated decision-making. There is, however, an alternative—interpretable AI/ML—which the Article will distinguish from explainable AI/ML. Interpretable AI/ML can be useful where it is appropriate, but presents real trade-offs as to algorithmic performance, and in some instances (in medicine and elsewhere) adopting an interpretable AI/ML may mean adopting a less accurate AI/ML. This Article argues that it is better to face those trade-offs head on, rather than embrace the fool’s gold of explainable AI/ML.

When the Supreme Court of the United States decided San Antonio Independent School District v. Rodriguez, the Court's five-to-four decision not only closed the door to federal courts to predominantly Mexican American low-income students seeking constitutional protection against unequal public education; it also rejected claims of federal constitutional right to equal educational opportunity, rebuffed calls for heightened judicial scrutiny of classifications drawn on the basis of wealth or poverty, and let stand unaltered school finance arrangements producing different per pupil expenditures depending solely on where students live. Setbacks though can inspire. Faced with the decision in Rodriguez, advocates pursued efforts in federal legislation reforms, expanded federal aid to schools with predominantly low-income students, and state-based litigation and reform efforts. And because the Rodriguez decision rejected stringent judicial scrutiny of wealth-based classifications, it opened the door to the use of socioeconomic status as a priority for admission to educational programs. Such creative responses are also legacies of Rodriguez. Current serious challenges can and should similarly elicit resilient and inventive approaches, including the uses of digital and technology resources as well as greater self-direction for students and their teachers in a world soon to be reshaped by readily available artificial intelligence resources. Although disappointment with public schooling has led families of different racial, ethnic, and income groups to pursue charter schools, vouchers or tax credits for use in private schools or family-funded private schooling, and homeschooling, new technologies and resources can strengthen equal educational opportunities for all children in the nation.

There's far more to his hush money case than meets the eye.

The ancient Athenian democracy provides our first richly documented example of a self-conscious transitional justice policy. This chapter explores the classical Athenians’ complex response to the atrocities committed during the reign of the Thirty Tyrants at the end of the fifth century BCE. Following the return of the democracy, the Athenians carefully balanced retribution and forgiveness: an amnesty protected collaborators from direct prosecution, but in practice private citizens could indirectly sanction even low-level oligarchic sympathizers by raising their collaboration as character evidence in unrelated lawsuits. They also balanced remembering and forgetting: discussion of the civil war in the courts memorialized the atrocities committed during the tyranny but also whitewashed the widespread collaboration by ordinary citizens, falsely depicting the populace as members of the democratic resistance.

In the face of war and atrocities, the principles of the 75-year-old document remain sound.

For decades, college-admissions offices have quietly imposed higher standards on female applicants.

Can AI safety shed any light on old corporate governance problems? And can the law and economics of corporate governance help us frame the new problems of AI safety? The author identifies five lessons — and one dire warning — on the corporate governance of AI and other socially sensitive technologies that have been made vivid by the corporate turmoil at OpenAI.

Cloud services have become an important part of the information technology toolkit in the global financial sector. As cloud adoption by financial institutions has increased, financial regulators have raised concerns about potential concentration risk resulting from cloud migration.2 This report aims to provide clarity around the discussion of cloud adoption and concentration risk in the financial sector. Section I of the report provides background on cloud adoption in the financial sector. Section II clarifies the potential risks associated with the use of third-party technology service providers by financial institutions, and examines those risks in the context of cloud adoption and traditional information technology (IT) infrastructure. Section III outlines the regulatory frameworks in different jurisdictions for addressing potential concentration risks associated with cloud adoption. Section IV concludes by setting out policy recommendations for mitigating potential concentration risks associated with cloud adoption in the financial sector. The report has several key takeaways: • Concentration risk is not new to the financial sector, nor is it unique to the cloud. Indeed, it is not obvious that such risks could be avoided if financial institutions were to rely on traditional IT infrastructure instead of the cloud. The critical question is how to manage or mitigate concentration risk. • In order to assess the landscape of concentration risk in the financial sector, regulators should develop a clear and consistent definition of concentration risk and the underlying scenarios to which that definition applies. • Regulators should also focus on gathering information about technology outsourcing by financial institutions, including the use of cloud-based services. Concentration risk can be addressed through information sharing and coordination among FIs, cloud providers, and supervisory authorities. • Cloud adoption in the financial sector is still in its early stages. As cloud adoption increases, regulators should weigh the risks of concentration against the benefits of scale and quality of services provided by major cloud providers. • In developing regulatory and supervisory approaches, regulators should engage directly with cloud providers in order to understand the tools available to financial institutions and the security and resiliency practice of cloud providers. • Regulatory requirements and supervisory practices for cloud adoption should be tailored to specific risks and a one-size-fits-all approach should not be adopted for all financial institutions.

Both antitrust and trademark law are, broadly speaking, “unfair competition” regimes. But the power that the law confers on trademark owners has expanded even as the constraints imposed by antitrust have contracted. In recent years, disputes over the use of trademarks as “keywords” used by search engines and their advertisers to target advertising when a consumer searches online have raised both trademark and antitrust issues. While U.S. trademark law generally considers keyword advertising to be pro-competitive and nonconfusing, a significant court of appeals case held that attempts to suppress such advertising did not violate the antitrust laws. Despite this unfortunate result, disputes over keyword advertising can still teach us important lessons about trademark theory, particularly the economic theory that trademark rights are justified to lower consumers’ search costs.

Blocked at the federal level, Massachusetts must act by passing a new state law.

In 1921, John Maynard Keynes and Frank Knight independently insisted on the importance of making a distinction between uncertainty and risk. Keynes referred to matters about which “there is no scientific basis on which to form any calculable probability whatever.” Knight claimed that “Uncertainty must be taken in a sense radically distinct from the familiar notion of Risk, from which it has never been properly separated.” Knightian uncertainty exists when people cannot assign probabilities to imaginable outcomes. People might know that a course of action might produce bad outcomes A, B, C, D, and E, without knowing much or anything about the probability of each. Contrary to a standard view in economics, Knightian uncertainty is real. Dogs face Knightian uncertainty; horses and elephants face it; human beings face it; in particular, human beings who make policy, or develop regulations, sometimes face it. Knightian uncertainty poses challenging and unresolved issues for decision theory and regulatory practice. It bears on many problems, potentially including those raised by artificial intelligence. It is tempting to seek to eliminate the worst-case scenario (and thus to adopt the maximin rule), but serious problems arise if eliminating the worst-case scenario would (1) impose high risks and costs, (2) eliminate large benefits or potential “miracles,” or (3) create uncertain risks.