Faculty Bibliography

Through a combination of organic growth and acquisitions, LKQ Corp. became the leading aftermarket auto parts distributor in the U.S. by the early 2000s. Beginning in 2012, the company began similarly consolidating the European marketplace. However, by 2017, the company still lacked a meaningful presence in Germany, which was the largest automotive market in Europe. Stahlgruber AG, the largest German distributor, became available as an acquisition opportunity. Senior LKQ management had to decide whether to participate in the sale process, and if so, how high to bid. Bain Capital, which was also making aggressive moves into the European marketplace, was likely to be the other significant bidder. On one hand, “Project Jigsaw” (named as such because Stahlgruber would be the jigsaw piece in the center of the European puzzle) represented a once-in-a-lifetime opportunity for LKQ. On the other hand, the competitive bidding process would force LKQ to stretch financially. The case presents the challenges and opportunities presented by the Stahlgruber acquisition.

To investigate the widespread claim that stock market short-termism is a major drag on U.S. corporate investment, R&D, and the broad economy, the author examines trends in corporate capital investment, buybacks, and R&D that stretch back, in some cases, over the past 50 years. (He briefly summarizes firm-level data and explains their limits in making policy recommendations.) As critics of market-driven corporate short-termism have pointed out, U.S. corporate investment in capital equipment and other tangible assets has been falling steadily since the late 1970s, and buybacks have been rising. This relationship is suggestive of large public firms pushing out their cash and weakening their capacity to invest. But if the story of economy-wide short-termist decline due to stock market pressure were valid and strong, we would expect to see the following: (1) investment spending in the United States declining faster than in Europe and Japan, where large companies depend less on stock markets for capital and where shareholder activists are less influential; (2) cash from large share buybacks inducing a bleeding out of cash from the U.S. corporate sector; and (3) economy-wide declines in corporate R&D spending. What the author reports, however, is U.S. corporate R&D spending, far from falling, has been rising since the 1970, and is rising faster than the economy is growing. And while corporate distributions of capital through dividends and gross buybacks have also been rising sharply for decades, corporate cash holdings (as a percentage of total assets), are at near record high levels. The best explanation for such high cash holdings together with record-high payouts—and perhaps the author’s most striking finding—is that such distributions are closely matched to new corporate borrowings. What’s more, the annual pattern of net payouts by S&P 500 companies, often mature companies, is remarkably similar to net new investment into smaller public companies outside of the S&P 500 companies. Since capital spending by European and Japanese companies—which face neither U.S.-style quarterly-oriented stock markets nor aggressive activist investors—has been falling more rapidly than in American companies suggests that U.S. capital markets may not be a particularly powerful source of corporate shortsightedness. The author brings forward alternative explanations. These trends do not preclude the possibility that had the critics’ proposals been in place decades ago, investment, R&D, and overall performance would have been even better. But before embarking on potentially expensive reforms we should have more confidence that there is indeed a severe problem that needs addressing. For example, while critics see short-termism as damaging American R&D, the numbers show corporate R&D spending to be rising, while government support for innovation and R&D has been falling since the financial crisis. If innovation needs more support, it’s the government cutbacks that would first seem to need to be addressed.

This report is the first in a series of reports by the Program on International Financial Systems on enhancing the market structure for trading U.S. Treasuries (“cash Treasuries”) and for repurchase agreements of U.S. Treasuries (“Treasury repos”). In this report, we assess whether policymakers should mandate central clearing in both markets. In future reports we will consider whether policymakers should require the public disclosure of transaction-level data and evaluate design considerations for the standing Treasury repo facility.

Many criminal justice reformers see risk-based sentencing—where an offender’s likelihood of returning to crime determines the amount of time they spend in prison—as a fair and efficient way to shrink the size of the incarcerated population, while minimizing sacrifices to public safety. But, as this article shows, risk-based sentencing is indefensible—even assuming the truth of a number of controversial premises that proponents take to be sufficient for its justification. Instead of trying to cut sentences for those who are least likely to reoffend, officials should focus sentence reductions on the least well-off—who tend to be the most likely to reoffend.

This course explores legal issues relating to the creation, exploitation, and protection of music and other content. It focuses on traditional regimes and models and the ways new technologies have affected strategies involved in making and distributing content. The seminar balances doctrinal and policy concerns with day-to-day legal and business practices and skills relevant to practitioners.

This chapter explores the problem of incorporating music and art into a theory of freedom of speech without also including a far wider range of human activities. Constitution writers and scholars of free expression agree that music and art are covered by principles of free expression. Exactly why they are is a bit unclear, but the unclarity has few practical implications. Examination of the coverage of music and art, though, may reveal something about free expression theory. It may show that that theory deals with subjects sharing a family resemblance rather than resting upon ‘foundations’. If so, the examination has significant theoretical implications—and almost no practical ones. Democratic governments rarely attempt to coercively regulate art and music.

Why are lies wrong? The answer bears on continuing disputes about freedom of speech and the protection of lies and falsehoods. One answer, rooted in the work of Immanuel Kant, sees lies as a close cousin to coercion; they are a violation of individual autonomy and a demonstration of contempt. By contrast, the utilitarian answer is that lies are likely to lead to terrible consequences, sometimes because they obliterate trust, sometimes because they substitute the liar's will for that of the chooser, who has much better information about the chooser's welfare than does the liar. The utilitarian objection to paternalistic lies is akin to the utilitarian embrace of Milll's Harm Principle. It is possible to see the Kantian view as a kind of moral heuristic, welcome on utilitarian grounds. The Kantian and utilitarian objections to lying have implications for the family, the workplace, advertising, commerce, and politics, and also for constitutional law.

"Drawing upon the experience of faculty from across the country, Integrating Doctrine and Diversity is a collection of essays with practical advice, written by faculty for faculty, on specific ways to integrate diversity, equity and inclusion into the law school curriculum. Chapters will focus on subjects traditionally taught in the first-year curriculum (Civil Procedure, Constitutional Law, Contracts, Legal Writing, Legal Research, Property, Torts) and each chapter will also include a short annotated bibliography curated by a law librarian. With submissions from over 40 scholars, the collection is the first of its kind to offer reflections, advice and specific instruction on how to integrate issues of diversity and inclusions into first-year doctrinal courses"– Provided by the publisher

Property has a complexity problem. Although both “property” and “complexity” are often invoked in property theory, we need more and better notions of both. Much theorizing about property law and institutions suffers from an excessive and misguided reductionism, what I call “Flatland.” The Flatland style of theorizing reduces law to a heap of rules and property to a merely additive bundle of rights. By incorporating complexity based on dense interaction into the picture, we can overcome some false dichotomies in property theory. These include the unstructured collection of “sticks,” the flattening of system, all-or-nothing formalism, misunderstandings of the role of information costs, and the assumption that purposes must be directly reflected in individual rules of property. By contrast, seeing system in property as a method of managing complexity points to the importance of exclusion versus governance; hybrid regimes of private, common, and public property; a spectrum of formalism including law versus equity; degrees of modularity and thing-ness; a combination of spontaneous and directed evolution; and a synergy of common law and legislation. Implementing these aspects of system and overcoming problematic reductionism and false dichotomies will require an encounter with practice. Applications to the law of possession, aerial trespass, nuisance, and the integration of property “bundles” demonstrate how theory can meet practice.

Many firms require consumers, employees, and suppliers to sign class action waivers as a condition of doing business with the firm, and three recent US Supreme Court cases, Concepcion, Italian Colors, and Epic Systems, have endorsed companies’ ability to block class actions through mandatory individual arbitration clauses. Are class action waivers serving the interests of society or are they facilitating socially harmful business practices? This paper synthesizes and extends the existing law and economics literature by analyzing the firms’ incentive to impose class action waivers. While in many settings the firms’ incentive to block class actions may be aligned with maximizing social welfare, in many other settings it is not. We examine conditions in which class action waivers can compromise product safety, facilitate anticompetitive conduct, and support harmful employment practices. Our analysis delivers a more nuanced, policy-based critique of the recent US Supreme Court cases, highlights several new unresolved issues, and identifies future challenges for legal scholarship.

Recent work has argued that a corporate discretion to advance the interests of stakeholders is illusory and undesirable. This article argues that, to the contrary, such discretion is both inevitable and desirable.

The legal principle of offset has played a key role in debt collection by private parties for centuries. In 2021, offset plays an equally essential role in the United States government’s collection of debts owed to it, accounting for billions of dollars in funds taken from outgoing payments. The right of offset arises when two parties owe each other debts. The party asserting offset can subtract what is owed to them from what they owe, allowing the parties to avoid an unnecessary transaction. Offset thus makes intuitive sense, simplifying two payment flows into one. But offset becomes far more complex when one of the parties is the federal government, which is unlike a traditional private creditor in important ways. Offset has perhaps its largest impact in the tax system, where Congress has legislated that the Internal Revenue Service (the “Service”) has the authority (and sometimes, the mandate) to offset tax refunds. Refunds are commonly offset when a taxpayer owes prior year tax liabilities, other agency debts (e.g., student loans), state taxes, or past due child support. Despite its frequent use by the Service, offset is subject to minimal procedural protections, likely due to its origin in longstanding common law doctrine. Unlike other forms of tax collection, offset does not carry a right to prepayment judicial review in Tax Court. Nor does offset require the Service to issue a notice to the taxpayer prior to taking collection action. Courts also treat offset inconsistently when the applicable taxpayer/debtor is protected by a collection stay under Title 26 or Title 11, allowing offset in some scenarios and denying it in others. Finally, Congress and the Service have often failed to use their authority to make offset more equitable, particularly as applied to low-income taxpayers. The Service has a limited administrative remedy available for taxpayers to affirmatively request bypass from the offset of their refund to a tax debt. But the remedy is little-publicized, little-used, and difficult to administer. During the COVID-19 pandemic and recession, Congress legislatively protected advance stimulus payments from some forms of offset. But Congress failed to make that protection expansive or to extend it to conventional tax refunds, both of which would have put needed funds in the hands of millions of taxpayers during an economic crisis. Similarly, the Service declined to exercise its statutory discretion to systemically suspend offset of conventional tax refunds to past tax liabilities. These issues extend to payments of the Earned Income Tax Credit (EITC), which are subject to offset. Both Congress and the Service have failed to acknowledge the EITC’s unique nature as a type of public benefit, treating it instead as a conventional tax refund subject to offset. This disproportionately hurts the low-income taxpayers, and their children, that the EITC was enacted to benefit. We argue that policymakers should pay closer attention to offset and make the necessary changes to apply it in a more equitable and logical manner.

In 1969, the Yale Law School received a $1,000,000 grant from the United States Agency for International Development for a Program in Law and Modernization. Yale promised to study legal impediments to modernization, assess legal needs of modernization projects, train lawyers for research and development work, and disseminate knowledge. The Program was conceived by David Trubek and William Felstiner, former USAID lawyer-administrators, who, along with Richard Abel, ran it. Launched in the shadow of the Cold War, it started with the implicit promise of diffusing US liberal ideas about law and transplanting US legal institutions and culture, and was seemingly aligned with US foreign policy. Flush with USAID resources, the Program mounted innovative courses, brought Visiting Professors and Fellows with Third World expertise to Yale, supported scholars from the Third World and elsewhere seeking advanced degrees, funded research by Yale faculty, students, and Fellows, held workshops and conferences, and published Working Papers and articles. Linked with the nascent Law and Society Association, it sought to create a Comparative Sociology of Law. There were vigorous debates ranging from the nature of law and social science to the role of the US in the Third World, all on a campus roiled by student protests over the War in Vietnam and racism in the US. Gradually, the Program became a locus for critique of liberal ideas about law and social science, a source of doubts about US foreign policy, and an incubator for critical studies in law and legal sociology. By 1976, the founding directors were gone and the Program was soon closed. In 1977, nine law professors convened the first Critical Legal Studies conference: six had been involved with the Program while at Yale and the others had interacted with it.

Under the U.S. Constitution, is the executive branch unitary, and if so, in what sense? For many decades, there has been a sharp dispute between those who believe in a strongly unitary presidency, in accordance with the idea that the president must have unrestricted removal power over high-level officials entrusted with implementation of federal law, and those who believe in a weakly unitary presidency, in accordance with the view that Congress may, under the Necessary and Proper Clause, restrict the president’s removal power, so long as the restriction does not prevent the president from carrying out his constitutionally specified functions. Both positions can claim support from the original understanding of relevant clauses; both can claim to keep faith with constitutional commitments in light of dramatically changed circumstances, above all the rise of the modern administrative state. In Seila Law v. Consumer Financial Protection Bureau, a sharply divided Court enthusiastically embraced the strongly unitary position, in an ambiguous opinion that might be read to preserve the constitutionality of independent multimember commissions, but that also left a great deal of room for constitutional challenges to such commissions in their present form. The Court’s analysis purports to be rooted in the original understanding of the constitution, and not implausibly so; but the Court relies so heavily on abstract principles, such as “liberty” and “accountability,” that its analysis is not easily distinguishable from a dynamic constitutionalism suffused with political morality. The Court’s holding and analysis can thus be seen as a direct outgrowth of modern anxiety, rooted in structural concerns, about the threats posed by a powerful, discretion-wielding administrative apparatus, and a belief that presidential control is an essential safeguard.

The killings of George Floyd, Michael Brown, Trayvon Martin, and others have occurred under different factual circumstances, in different states, at the hands of both state and private actors, and have engendered different levels of outrage on the basis of their perceived egregiousness. Collectively and cumulatively, they have forced Americans to, once again, wrestle with the visible manifestation of racism and structural inequality. This confrontation is not simply a function of the inability to avert one’s eyes when faced with incontrovertible evidence of evident inhumanity and abject degradation, though it is in part that. After all, how to justify the deployment of state power to literally snuff the breath of another human being who was otherwise harmlessly restrained and presented a threat to no one? Or, how not to be appalled by three white men effectively hunting down and shooting a black man who was simply jogging? These facts are self-evidently heinous, and the only acceptable reaction is outrage. Ours is a moment rife with the possibilities of racial justice. Fundamental change seems possible. The question for the future is about how to harness this moment to make this fundamental change real and lasting. How does a movement translate its demands into actionable policy? In this Essay, we argue for a three-step incremental process, from protest to politics to law. Taking as our example the case of the Voting Rights Act, we illustrate how the Freedom Movement went from its voting rights campaign to the heart of the Democratic Party and ultimately to August 6, 1965, when President Johnson signed the Voting Rights Act into law. Fundamental change, as we show in the pages that follow, requires all three steps.

In August 2021, the Securities and Exchange Commission approved Nasdaq's proposed rules related to diversity. The rules' aim is for most Nasdaq-listed firms to have at least one director self-identifying as female and another self-identifying as an underrepresented minority or LGBTQ+. While Nasdaq claims these rules will benefit investors, the empirical evidence provides little support for the claim that gender or ethnic diversity in the boardroom increases shareholder value. In fact, rigorous scholarship--much of it by leading female economists--suggests that increasing board diversity can actually lead to lower share prices. The implementation of Nasdaq's proposed rules thus may well generate risks for investors.

"Trademark registration is useful in providing a record of when rights were acquired and over what symbols, it also provinces constructive notice of registrant’s rights. Registration presents issues when underlying rights are expanded through assertions in litigation, even when the rights are narrow on paper. A number of reforms to the registration process could address these problems: “use requirements, heightened distinctiveness requirements, and a version of prosecution history estoppel to discourage registrant manipulation of the difference between the rights-granting entity (the PTO) and the rights-enforcing entity (the courts).” The interdependency of rights and remedies necessarily means that any reform to the registration process needs to consider a balance of infringement and counterfeit deterrence with competition and market entry. As it stands, the current registration system focuses heavily on competition and market entry, with less thought given to infringement and counterfeit deterrence. This chapter explores ways to make registration beneficial for both the consumers and producers."

But what does fairness mean when it comes to code? This practical book covers basic concerns related to data security and privacy to help data and AI professionals use code that's fair and free of bias.

In Roman Catholic Diocese of Brooklyn v. Cuomo, the Supreme Court took a highly aggressive approach to restrictions imposed by the state of New York on houses of worship, even though those restrictions were vigorously defended on public health grounds. Because of the serious health effects of the COVID-19 pandemic, and because of the plausibility of a plea for judicial respect for complex choices and tradeoffs by elected officials, Roman Catholic Diocese can reasonably be seen as a kind of anti-Korematsu – that is, as a strong signal of judicial solicitude for constitutional rights, and of judicial willingness to protect against discrimination, even under emergency circumstances in which life is on the line. Roman Catholic Diocese can also and equally be seen as a vindication of Justice Robert Jackson’s argument in Railway Express, in which he called for relatively ready invocation of antidiscrimination principles, as opposed to liberty principles, on the ground that the former, unlike the latter, trigger political safeguards against unjustified actions. Nonetheless, there are two open questions. The first is how to think about claims of discrimination in the context of actual and potentially challenging questions about the appropriate comparator, that is, the institutions that are best seen as comparable to houses of worship, in terms of the health risks that they create. The second is whether Roman Catholic Diocese is genuinely generalizable as an anti-Korematsu, or whether it is best seen as a distinctive product of the contemporary Court’s particular solicitude for religion and religious institutions.

Abuses of constitutional clemency power should be investigated and prosecuted.

Avoiding the reduction of property to a bundle or rights or to the working out of a single master principle, the architectural theory of property sees property as an integrated system or structure anchored in certain unifying principles. Because our world is neither chaotic nor additively simple, property law and institutions must achieve their plural ends in a fashion that manages the inherent complexity of the interaction of valued resource attributes and human actions. In managing complexity, some of the law’s structures receive functional explanations and justifications, which can be different from the explanations and justifications that apply to the system as a whole. In working as a whole, the system exhibits a number of tightly interwoven design principles, including the centrality of things, rights to exclude and possession, hybrids of exclusion and governance, modularity, differential formalism, standardization and the numerus clausus, and “property rule” protection and equity. The architectural approach allows us to revisit some basic questions in property theory and to capture the dyanamic reality of property law and institutions.

Although there has been a proliferation of research and policy work into how nudges shape people’s behaviour, most studies stop far short of welfare analysis. In the current work, we critically reflect on recent efforts to proxy the welfare impact of nudges using willingness to pay and subjective wellbeing reports and explore an alternative unobtrusive approach: automatic facial expression coding. In an exploratory lab study, we use facial expression coding to assess the short-run emotional impacts of being presented with calorie information about a popcorn snack in the context of a stylized ‘Cinema experience’. The results of the study indicate that calorie information has heterogeneous impacts on people’s likelihood of choosing the snack and on the emotions they experience during the moment of choice which varies based on their level of health consciousness. The information does not, however, affect the emotions people go on to experience while viewing movie clips, suggesting that the emotional effects of the information are short-lived. We conclude by emphasising the potential of automatic facial expression coding to provide new insights into the short-run welfare effects of nudges and calling for further research into this promising technique.

Book review of The Purpose of Power: How We Come Together When We Fall Apart by Alicia Garza.

I want to press a bit on the question of what the unwritten aspects of our constitutional structure establish. Rather than a fixed legal order constructed by conventions, I want to suggest that this unwrittenness points to the ♦provisionality♦ of the constitutional order itself—that is, to its essentially unsettled character. This perspective raises three problems or puzzles that a Constitution-by-Convention poses for public law: a duality at the crux of the presidential office; the unsettled nature of the separation of powers itself; and the role of courts in an unstable constitutional order. In particular, I will argue that our unwritten Constitution provides a challenge not just to Textualism but to the very idea of the separation of powers as a legalistic concept that courts can and should robustly enforce. At the same time, our unsettled presidency raises crucial questions about how courts should respond when litigation implicates presidential norms—or norm breaches—that pertain not just to the legitimacy of executive action, but to the legitimacy of the courts as well.

In the two decades following the 1955 Asian African Conference in Bandung, Asian and African jurists sought to reshape international law to better incorporate the aspirations of formerly colonised peoples. The Asian-African Legal Consultative Committee (AALCC), founded one year after the Bandung Conference, helped formulate a common Afro-Asian and Third World international legal agenda by bringing together jurists and ideologically diverse Asian and African governments while collaborating with UN institutions working to codify and develop international law. The AALCC’s work and the contemporaneous writings of African and Asian jurists reveal a shared ambition to weaken the international protection of foreign-owned property by pursuing a legal agenda anchored in the structure and principles of the post-World War II international legal system. The Afro-Asian international legal agenda combined efforts to eliminate pre-war rules incompatible with the foundational principles of the UN Charter while elaborating the content of these principles through UN institutions.

This paper results from the Arthur M. Sackler Colloquium of the National Academy of Sciences, “The Science of Deep Learning,” held March 13–14, 2019, at the National Academy of Sciences in Washington, DC. Preventing discrimination requires that we have means of detecting it, and this can be enormously difficult when human beings are making the underlying decisions. As applied today, algorithms can increase the risk of discrimination. But as we argue here, algorithms by their nature require a far greater level of specificity than is usually possible with human decision making, and this specificity makes it possible to probe aspects of the decision in additional ways. With the right changes to legal and regulatory systems, algorithms can thus potentially make it easier to detect—and hence to help prevent—discrimination.

Behavioral Law and Economics was born approximately 20 years ago, when Behavioral Economics started to be systematically utilized in the service of legal policymaking.1 Before then, people’s responses to legal rules were studied using the rationality assumption of Neoclassical Economics. Behavioral Economics, which replaces the rationality assumption with a more realistic, empirically based understanding of human decision-making, has been around for much longer.2 But it always takes law a few decades to catch up. Behavioral Ethics (BE), focusing “on people’s inability to recognize the extent to which self-interest in its broader sense affects their behavior,”3 has also been around for a while. And, as with Behavioral Economics, it has taken too long for Behavioral Ethics to make inroads into legal policymaking. In his important book, The Law of Good People, Professor Feldman lays the foundation for finally bringing Behavioral Ethics into law with full force. This is a major contribution. This short Comment consists of two Parts. The first, larger part seeks to situate The Law of Good People and BE more generally, vis-à-vis the more established Behavioral Law and Economics (BLE). The main claim is that BE is a close cousin to BLE and that drawing on these familiar similarities is often more useful than highlighting differences (as The Law of Good People tends to do). The second part of the comment focuses on a particular, substantive question, concerning the relationship between deterrence and unawareness or non-deliberative reactions. It challenges the BE claim that unawareness undermines the goal of deterring bad behavior. Before I begin, I wish to emphasize an important caveat: The book draws on a rich literature in psychology and BE, which I am not steeped in. I have not attempted to master this literature, although I am aware that this failure will hurt the quality, even credibility, of this Comment. My goal is a modest one—to take The Law of Good People as a stand-alone statement (without the nuances and qualifications that a rich literature can offer, but a single book cannot), and offer the unlearned reaction of an outsider.

To tackle the challenge of how to distribute organs, vaccines, and other kinds of health care, organizations are relying on AI and analytics. But many of them treat ethical considerations as an afterthought. This is a mistake. Such factors should be taken into the account at the outset of the effort to create the AI algorithm or analytics model.

What role do courts play in peace processes? Relying on case studies of South Africa and Colombia, we identify two functions. First, by invalidating some peripheral provisions constitutional courts can enhance the legitimacy of those agreements by adding the imprimatur of legalism to the political support the agreements already have. Second, the international law of impunity can be an obstacle to reaching a peace agreement, but domestic courts can weaken that impediment by deferring a confrontation with that law by creative interpretation of both the peace agreement and international law, thereby postponing to the indefinite future any actual confrontation between the agreement and international law.

Property rights in a free and democratic society are built on - and limited by - the values of liberty, equality, and democracy (among other norms). Those values define the types of property relationships that can be legally recognized, outlawing relationships of servitude, class distinctions, and caste assignments typical of nondemocratic societies. Property law defines things we should not have to bargain for. Property rights are partly defined by judges in common law rules and partly by elected representatives. Regulatory rules chosen by legislatures reflect the collective choices of citizens in setting minimum standards for social and economic relationships compatible with the norms of a society of free and equal human beings. While values like liberty and equality are essentially contested and open to interpretation, they place real limits on property law, ensuring a foundation for market relationships, while framing debate about contested issues. Contract law can rest on a norm of freedom to contract (and not to contract) only because property law and property law norms create a foundation that protects rights we should not have to bargain for when we enter the marketplace. And free and democratic societies cannot function with extreme inequality that undermines social relationships and warps political institutions.

In the view of many, heritable human genome editing (HHGE) harbors the remedial potential of ridding the world of deadly genetic diseases. A Hippocratic obligation, if there ever was one, HHGE is widely viewed as a life-sustaining proposition. The national go/no-go decision regarding the implementation of HHGE, however, must not, in the collective view of the authors, proceed absent thorough public engagement. A comparable call for an “extensive societal dialogue” was recently issued by the International Commission on the Clinical Use of Human Germline Genome Editing. In this communication, the authors lay out the foundational principles undergirding the formation, modification, and evaluation of public opinion. It is against this backdrop that the societal decision to warrant or enjoin the clinical conduct of HHGE will doubtlessly transpire.

In the modern era, the statements and actions of public figures are scrutinized with great care, and it often emerges that they have said or done things that many people consider objectionable, hurtful, offensive, or despicable. A persistent question is whether public figures should apologize for those statements or actions. Suppose that an apology has a purely strategic motivation: helping a politician to be elected or reelected, helping an executive to keep his job, helping a nominee to be confirmed by the U.S. Senate. Empirical work presented here suggests that an apology might well turn out to be futile or even counterproductive. One reason is Bayesian; an apology produces updating that can be unfavorable to the apologizer (by, for example, resolving doubts about whether the apologizer actually said or did the objectionable thing, and about whether what the apologizer did was actually objectionable). Another reason is behavioral; an apology triggers the public’s attention, makes the public figure’s wrongdoing more salient, and can help define him or her. But many open questions remain about the reasons why apologies by public figures fail, and about the circumstances in which they might turn out to be effective.