Faculty Bibliography

The American administrative state has become, in important respects, a cost-benefit state. At least this is so in the sense that prevailing executive orders require agencies to proceed only if the benefits justify the costs. For defenders of the cost-benefit state, the antonym of their ideal is, alternately, regulation based on dogmas, intuitions, expressivism, or interest-group power. The focus on costs and benefits is an important effort to attend to the real-world consequences of regulations – and it casts a pragmatic, skeptical light on modern objections to the administrative state, invoking public-choice theory and the supposed self-serving decisions of unelected bureaucrats. In the future, however, there will be better ways to identify those consequences, by focusing directly on welfare, and not relying on imperfect proxies.

The governance of online platforms has unfolded across three eras – the era of Rights (which stretched from the early 1990s to about 2010), the era of Public Health (from 2010 through the present), and the era of Process (of which we are now seeing the first stirrings). Rights-era conversations and initiatives amongst regulators and the public at large centered dominantly on protecting nascent spaces for online discourse against external coercion. The values and doctrine developed in the Rights era have been vigorously contested in the Public Health era, during which regulators and advocates have focused (with minimal success) on establishing accountability for concrete harms arising from online content, even where addressing those harms would mean limiting speech. In the era of Process, platforms, regulators, and users must transcend this stalemate between competing values frameworks, not necessarily by uprooting Rights-era cornerstones like CDA 230, but rather by working towards platform governance processes capable of building broad consensus around how policy decisions are made and implemented. Some promising steps in this direction could include delegating certain key policymaking decisions to entities outside of the platforms themselves; making platforms “information” or “content” fiduciaries; and systematically archiving data and metadata about disinformation detected and addressed by platforms.

The fair use doctrine requires courts “to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 577 (1994). The Federal Circuit’s rejection of a jury finding of fair use instead embraced a rigid approach that, as a matter of law, would bar any copying of code into a new program, even for a different platform, as non-transformative and unfair. To justify its ruling, the Federal Circuit abandoned a consensus in the lower courts about the broad scope of fair use when dealing with highly functional software elements. It made key mistakes about the fair use factors and their balancing, including inflating the relevance of commerciality, applying an erroneous “no more than necessary” standard for copying, dismissing as insignificant the highly functional nature of computer programs, and conflating the market for Java SE as a whole with the market for individual declarations. Absent these legal errors, it is clear that the jury was at least reasonable in making factual findings that supported a finding of fair use. The extent to which a new work has a new meaning, message, or purpose—transformativeness—is often and rightly prioritized in the fair use analysis. But what constitutes transformativeness is often contentious. Here, the new purpose of Google’s new code implementing the declarations was the creation of a new computing environment in which Java programmers could readily create programs on multiple platforms, which required the use of limited portions of highly functional declarations. This type of purpose has been recognized as transformative because of its role in furthering competition and innovation. A computer interface supports the creation of other creative works, and in such situations, it is important to avoid locking in third parties to specific platforms. Factors two and three of the fair use test help define the boundaries of this type of fair use. In cases such as the one at bar, the highly functional nature of the copied declarations and the limited amount of the overall Java SE work used, consistent with industry practices, are vital considerations supporting the conclusion that Google’s use was a transformative use that served copyright’s basic goal of encouraging creation of new works. By discounting to the point of irrelevance the thinness of protection for highly functional aspects of computer interfaces (factor two) and of the industry practice of treating the amount Google reimplemented as reasonable (factor three), the Federal Circuit distorted its analysis of the other fair use factors, threatening the coherence of fair use doctrine and the ultimate progress of creativity. By downplaying the relevance of the nature of the work and the amount taken, the Federal Circuit fell into the well-known trap of circularity: reasoning that, because Oracle could have charged a license fee for this type of use if fair use were unavailable, Oracle suffered cognizable market harm. Because such claims can be made for any fair use, which by definition is not paid for, this reasoning cannot distinguish fair and unfair uses. But factors two and three can help identify when crediting such claimed market harm would be inconsistent with copyright’s overall balance between past and future creators. Thus, given the limited copying of functional elements here, factors one and four also support fair use, because Google’s purpose was generative of additional creativity by third parties and because Oracle’s claimed market harm goes beyond the legitimate scope of its thin copyright in highly functional declarations. A thin copyright for software, including Java SE, provides software copyright owners with meaningful protection against copying of significant amounts of expression, but meaningful protection does not require the expansive rights that the Federal Circuit granted. Providing a broad scope to highly functional elements of software is unnecessary and dangerous to competition and innovation. Factors two and three enable fair use to implement this distinction between types of works. The Federal Circuit erred in not recognizing this interaction between the fair use factors and instead adopting a rigid rule that would preclude fair use in computer programs.

Amici take no position on whether BOOKING.COM is generic, but write to encourage the Court to be cautious in resolving this case, which involves a generic term combined with a common top-level domain name identifier (.com). Trademark applications raise almost infinitely varied scenarios, including generic terms combined with other elements, and the top-level domain name identifier has some specific features that make it analogous to functional matter. Whatever rule the Court adopts should be highly attentive to the risks to competition of overassertion of registered marks that are largely or entirely comprised of generic elements. Because courts deciding infringement cases are often unfamiliar with the context of a trademark registration, they may miss limitations on the scope of the registered mark that the Trademark Office believed existed and, as a result, enforce broader rights than the registrants should actually have. Ordinary businesses receiving cease and desist letters are even more unlikely to have the expertise to understand the limits on a registration. This practical reality should guide the Court’s standards for registrations with generic components. Relatedly, the Court should reaffirm the basic principle that “de facto secondary meaning” does not give rise to protectability as a trademark. Courts have long distinguished between “de facto secondary meaning” and secondary meaning “to which courts will attach legal consequences.” De facto secondary meaning refers to an association between a generic term and a particular producer that is usually the result of an extended period of market dominance, whether achieved through advertising or through lack of competition. Because of the need to protect potential and future competition, a generic term cannot be appropriated as a trademark even if it has de facto secondary meaning The practical exclusivity afforded by domain name registration means that there may often be de facto secondary meaning in domain names, which can be difficult to distinguish from true trademark secondary meaning. This easily elided distinction affects how the Court should evaluate Booking.com’s survey, which purports to show secondary meaning. But the fact that de facto secondary meaning does not lead to trademark status does not mean it is irrelevant to the law. Even when a term is not protectable as a trademark, narrower unfair competition remedies may be available to prevent true passing off. When a term is generic or a product shape is functional, neither can be protected as a trademark and others may not be enjoined from competing using the term or shape.. Those competitors, however, may be required to distinguish themselves in the market by adding identifiers or otherwise differentiating their use, if the competitors’ use might deceive consumers. Thus, a rule that strongly protects competition by denying registration to generic terms does not leave consumers exposed to clever bad actors.

Immense amounts of information are now accessible to people, including information that bears on their past, present and future. An important research challenge is to determine how people decide to seek or avoid information. Here we propose a framework of information-seeking that aims to integrate the diverse motives that drive information-seeking and its avoidance. Our framework rests on the idea that information can alter people’s action, affect and cognition in both positive and negative ways. The suggestion is that people assess these influences and integrate them into a calculation of the value of information that leads to information-seeking or avoidance. The theory offers a framework for characterizing and quantifying individual differences in information-seeking, which we hypothesize may also be diagnostic of mental health. We consider biases that can lead to both insufficient and excessive information-seeking. We also discuss how the framework can help government agencies to assess the welfare effects of mandatory information disclosure.

This review addresses four key issues in the modern (post-1976) era of capital punishment in the United States. First, why has the United States retained the death penalty when all its peer countries (all other developed Western democracies) have abolished it? Second, how should we understand the role of race in shaping the distinctive path of capital punishment in the United States, given our country's history of race-based slavery and slavery's intractable legacy of discrimination? Third, what is the significance of the sudden and profound withering of the practice of capital punishment in the past two decades? And, finally, what would abolition of the death penalty in the United States (should it ever occur) mean for the larger criminal justice system?

Consumers, employees, students, and others are often subjected to “sludge”: excessive or unjustified frictions, such as paperwork burdens, that cost time or money; that may make life difficult to navigate; that may be frustrating, stigmatizing, or humiliating; and that might end up depriving people of access to important goods, opportunities, and services. Because of behavioral biases and cognitive scarcity, sludge can have much more harmful effects than private and public institutions anticipate. To protect consumers, investors, employees, and others, firms, universities, and government agencies should regularly conduct Sludge Audits to catalogue the costs of sludge, and to decide when and how to reduce it. Much of human life is unnecessarily sludgy. Sludge often has costs far in excess of benefits, and it can have hurt the most vulnerable members of society.

America's judiciary is aging. The average age of federal judges is sixty-nine years old, older than it has been at any other time in the country's history. The typical reaction to this demographic shift is concern that aging judges will serve past their prime. Scholars have thus offered proposals for mandatory judicial retirement, judicial term limits, and mechanisms for judicial removal. In this Article, I critique such proposals and draw on cognitive neuroscience to argue that rather than forcing their retirement, we should empower aging judges. The central neuroscientific insight is that individual brains age differently. While at the population level, age generally leads to reductions in information processing speed, and for some, serious deficits in memory and decision-making capacity, there is much individual variation. Given individual differences in how aging effects cognitive decline, the current system--which mandates intense health scrutiny when a judge is younger, followed by no formal cognitive evaluation for the rest of the judge's career--can be improved. I argue that we can empower judges by providing them opportunities for confidential, accurate, and thorough cognitive assessments at regular intervals throughout their judicial careers. If carefully developed and implemented so as to avoid politicization and to ensure complete confidentiality of results, individualized judicial cognitive health assessments will allow judges to make more informed decisions about when and how to modify their service on the bench. More individualized assessment will allow the legal system to retain the wisdom of experienced judges, while avoiding the injustice that comes with handing over the courtroom to a judge who is no longer capable of running it.

On the eve of the financial crisis, a series of Delaware court decisions resulted in a radical change in law: creditors would no longer have the kind of common law protections from opportunism that helped protect their bargains for the better part of two centuries. In this Article, we argue that Delaware’s shift materially altered the way large firms approach financial distress, which is now characterized by a level of chaos and rent-seeking unchecked by norms that formerly restrained managerial opportunism. We refer to the new status quo as “bankruptcy hardball.” It is now routine for distressed firms to engage in tactics that harm some creditors for the benefit of other stakeholders, often in violation of contractual promises and basic principles of corporate finance. The fundamental problem is that Delaware’s change in law was predicated on the faulty assumption that creditors are fully capable of protecting their bargains during periods of distress with contracts and bankruptcy law. Through a series of case studies, we show how the creditor’s bargain is often, contrary to that undergirding assumption, an easy target for opportunistic repudiation and, in turn, dashed expectations once distress sets in. We further argue that the Delaware courts paved the way for scorched earth corporate governance. Fortunately, judges can help fix the problem with more rigorous application of existing legal doctrines.

In this paper, I explore how international legal scholarship about war, written at a time of war, ought to read. Can — and should — we demand doctrinal rigor and analytical clarity, while also expecting that scholarship makes us feel something, that it connects us to the author, that it captures the intimacy and emotion that human beings experience in relation to war? I use two eras of international legal scholarship on war — namely, the Vietnam era and the War on Terror — to illustrate key moments in the field that were typified by very different kinds of writing and the corresponding differences in thinking and feeling. I argue, in part, that — in contradistinction to passion-filled Vietnam-era scholarship — a particularly influential strand of contemporary scholarship on the United States’ War on Terror adopts a view that is aridly technical, acontextual, and ahistorical. In short, it lacks passion. (I use “passion” as a composite term in an attempt to capture diverse facets of a problem that I am attempting to diagnose.) The Introduction situates this project within broader writing on law and emotions. Part I provides a list of characteristics of what I consider passionate scholarship, using the Vietnam era as an example of that approach. Part II provides a mirrored list of the characteristics of abstract and bloodless scholarship, using the latter part of the War on Terror (2009 onward). The observations compare how scholars of each period contend with the sense of crisis and urgency of their time, the understanding that they (we) were living — and writing — through moments that would be seen as history-changing and law-shifting in the future. Part III examines possible explanations for differences where we ought to see similarities, for absences of scholarly connection where they should be plentiful, and for a seismic shift in the general tone and mood of international legal scholarship on war in less than two generations. Part IV concludes by discussing why we — international lawyers, scholars who feel strongly about war and peace — ought to care about and seek to reverse this shift.

In criminal courts, prosecutors have considerable discretion over defendant’s sentencing, suggesting skilled prosecutors may be able to reduce both incarceration and future crime. Leveraging the quasi-random assignment of low-level felonies in North Carolina Superior Court, we find that prosecutors vary in their effects on both incarceration and re-offense. Since differences across prosecutors in their re-offense effects cannot be fully explained by their incarceration effects, prosecutors vary in their “skill” — the degree to which they selectively incarcerate those defendants most likely to re-offend. Indeed, prosecutors who are one standard deviation above the mean achieve a 2pp (8%) lower rate of re-offense than one would expect given their incarceration effect.

How does the prospect of sale affect the seller’s incentive to investigate — to acquire socially valuable information about the asset? How do the disclosure rules of contract law influence the investigation decision? Shavell (1994) showed that, if sellers and buyers are symmetrically informed, at the pre-investigation stage, then a mandatory disclosure rule leads to a first-best outcome, and a voluntary disclosure rule leads to a suboptimal outcome. But in many real-world cases owners of assets have better information about their assets, even before they investigate. In such asymmetric information settings, we show, mandatory disclosure no longer attains a first-best outcome. And, under certain conditions, voluntary disclosure is the more efficient rule. We further enrich the analysis by introducing a third rule: the mandatory post-disclosure rule, which requires disclosure of material information, but only after the contract is concluded. We show that this rule can be more efficient than both voluntary disclosure and mandatory (pre-contract) disclosure.

Startup founders, who generally must cede control to obtain VC financing, are widely believed to regain control in the event of IPO, à la Facebook’s Mark Zuckerberg. Indeed, the premise that founders expect to reacquire control if there is an IPO underlies the leading finance theory for why venture capital cannot thrive without a robust stock market: the existence of an IPO market enables VCs to give founders a “call option on control” exercisable if the firm is successful. But little is known about how frequently founders regain control via IPO. Using a sample of over 18,000 VC-backed firms that received their initial round of VC financing during 1990-2012, we show that founders generally do not reacquire control if there is an IPO. In almost 60% of firms that do go public, the founder is no longer CEO at IPO. In firms with a founder-CEO right after IPO, founders generally lack substantial voting power; 50% are no longer CEO of the firm within three years. Zuckerberg is not the norm. We also show that the ex ante likelihood of any given founder reacquiring control via IPO is extremely low, suggesting that the expected value of any call option on control is trivial. As of initial VC financing, the likelihood that a founder takes her firm public and retains the CEO position and voting control for three years is about 0.4%. Our results shed light on how control evolves in U.S. startups, and cast doubt on the plausibility of the “call option on control” theory linking stock and VC markets.

Abuse of power and obstruction of Congress have long been considered criminal and merit impeachment.

What should be the role of law in response to the spread of artificial intelligence in war? Fuelled by both public and private investment, military technology is accelerating towards increasingly autonomous weapons, as well as the merging of humans and machines. Contrary to much of the contemporary debate, this is not a paradigm change; it is the intensification of a central feature in the relationship between technology and war: double elevation, above one’s enemy and above oneself. Elevation above one’s enemy aspires to spatial, moral, and civilizational distance. Elevation above oneself reflects a belief in rational improvement that sees humanity as the cause of inhumanity and de-humanization as our best chance for humanization. The distance of double elevation is served by the mechanization of judgement. To the extent that judgement is seen as reducible to algorithm, law becomes the handmaiden of mechanization. In response, neither a focus on questions of compatibility nor a call for a ‘ban on killer robots’ help in articulating a meaningful role for law. Instead, I argue that we should turn to a long-standing philosophical critique of artificial intelligence, which highlights not the threat of omniscience, but that of impoverished intelligence. Therefore, if there is to be a meaningful role for law in resisting double elevation, it should be law encompassing subjectivity, emotion and imagination, law irreducible to algorithm, a law of war that appreciates situated judgement in the wielding of violence for the collective.

This Essay (the “Essay”) estimates the U.S. bankruptcy system’s ability to absorb an anticipated surge of financial distress among American consumers, businesses, and municipalities as a result of COVID-19. An increase in the unemployment rate has historically been a leading indicator of the volume of bankruptcy filings that occur months later. If prior trends repeat this time, the May 2020 unemployment rate of 13.3 percent will lead to a substantial increase in all types of bankruptcy filings. Mitigation, governmental assistance, the unique features of the COVID-19 pandemic, and judicial triage should reduce the potential volume of bankruptcies to some extent, or make it less difficult to handle, and it is plausible that the predictive power of the recent unemployment spike will be smaller than history would otherwise predict. We hope this will be so. Yet, even assuming that the worst-case scenario could be averted, our analysis suggests substantial, temporary investments in the bankruptcy system may be needed. Our model assumes that Congress would like to have enough bankruptcy judges to maintain the average bankruptcy judge’s caseload at no more than it was during the last bankruptcy peak in 2010, when the bankruptcy system was pressured and the public caseload figures indicate that judges worked 50 hour weeks on average. To keep the judiciary’s workload at 2010 levels, we project that, in the worst-case scenario, the bankruptcy system could need as many as 246 temporary judges—a very large number. But even in our most optimistic model, the bankruptcy system will still need 50 additional temporary bankruptcy judgeships, as well as the continuation of all current temporary judgeships. The optimistic model begins with the observation that an unusually large number of the unemployed believe that they are only temporarily furloughed and will be back at work soon. Accordingly, we (optimistically) removed the excess-from-baseline number of unemployed who believe they will be back at work shortly—as if they will be back at work shortly with no adverse impact on the economy’s channel to bankruptcies. That reduction yielded a projected need of between 50 and 69 fewer judges to maintain a judicial workload no greater than the one bankruptcy courts faced in the 2009 financial crisis. In other circumstances, the enormous uncertainty of what the bankruptcy caseload will be would warrant waiting to see what develops. And strong action probably will not occur until we see a major across-the-board rise in filings. (Large business filings are rising sharply now, but consumer filings are not rising.) The downside of a wait-and-see strategy is that full-scale bankruptcy court appointments need about a year to complete. The dilemma in what action to take now is that if bankruptcies do in fact rise by several-fold---a plausible but uncertain prospect, then waiting for the rise will lead to a large gap that will put the system one year behind where it ought to be if the filings had been anticipated as certain and acted upon. Hence, we recommend that the relevant players act on the optimistic estimation and re-assess bankruptcy needs as the economy evolves and more information develops. Judicial appointments need not be for the full term of a bankruptcy judge. Capacity can be added via temporary judges (of which there already are some in the bankruptcy court system) and by recalling recent retirees who are willing to serve.

This is Chapter 14 from the 2020 edition of Advertising & Marketing Law: Cases and Materials, a casebook by Rebecca Tushnet and Eric Goldman. This chapter examines the legal issues arising from featuring people in advertisements, including publicity rights and endorsement/testimonial guidelines.

Motor vehicle fuel-economy standards have long been a cornerstone of U.S. policy to reduce fuel consumption in the light-duty vehicle fleet. In 2010 and 2012, these standards were significantly expanded in an effort to achieve steep reductions in oil demand and greenhouse gas (“GHG”) emissions through 2025. In 2018, following a review of the standards, the Environmental Protection Agency and National Highway Traffic Safety Administration proposed instead to freeze the standards at 2020 levels, citing high program costs (and potential safety issues). The current debate over the future of U.S. fuel economy standards provides an opportunity to consider whether the existing approach could be improved to achieve environmental and other goals at a lower cost. The current policy prescribes standards that focus on fuel economy alone, as opposed to lifetime consumption, and treats vehicle categories differentially, meaning that it imposes unnecessarily high costs and does not deliver guaranteed GHG savings. On the basis of a commitment to cost-benefit analysis, which has defined U.S. regulatory policy for more than thirty years, we propose novel reforms with three main features: (1) the direct regulation of expected fuel consumption and GHG emissions without consideration of the type or size of the vehicle; (2) use of existing data to assign lifetime fuel consumption and GHG emissions to each model; and (3) creation of a robust cap-and-trade market for automakers to reduce compliance costs. We show that these reforms would reduce fuel consumption and GHG emissions in transportation with greater certainty and do so at a far lower cost per ton of GHG emissions avoided. We also show that the the Environmental Protection Agency and the Department of Transportation could implement such an approach within their existing statutory authority.

At the time he wrote, Wesley Hohfeld seemed to be of the view that longstanding conceptual confusions that had blocked progress in legal thought — particularly confusions about legal rights — would soon be put to rest. If so, rights have proved a tougher nut to crack than he expected. Indeed, the difficulty of providing an adequate account of rights has led many scholars, including scholars who share Hohfeld’s aptitude and aspirations for analytic philosophy, to lose sight of a distinction central to Hohfeld’s project, namely, the distinction between a right (or claim right) and a power. Or so we argue in Part I. Worse, confusions over rights and powers, when combined with a particular understanding of what constitutes clear-eyed analysis of legal issues, has contributed to the now-widely shared but mistaken supposition that common law reasoning must (or should) take the form of instrumental reasoning. We outline this claim in Parts II and III. Ultimately, we suggest that Hohfeld’s juristic legacy contains two profound ironies. His entirely sound insistence on the analytic separation of legal rights and legal powers has helped to obscure their deep substantive connection in certain bodies of law, especially tort and contract law. And his implicit acceptance of the idea that a commitment to conceptual clarity goes hand in hand with instrumentalism in legal analysis has indirectly led prominent courts — including most famously the California Supreme Court in landmark decisions such as Rowland v. Christian — to mangle how rights, duties, and powers are linked within private law.

In 1862, Lincoln broke with longstanding US policy by agreeing with Britain to establish international courts to suppress the Atlantic slave trade. Historians have previously neglected these courts because the illicit trade’s decline in the 1860s resulted in empty dockets. This article, however, shows how the two American commissioners on the court at Freetown took up a broader intervention in Africa based in part on British imperial practices that the commissioners viewed as consistent with federal policies back home. Most notably, they proposed a treaty system with African nations that would exchange American protection, trade, and “civilizing” reforms for commitments to end slavery and its trade. This lost international history of the Civil War thus extends the history of American antislavery expansionism in West Africa into the Civil War period and captures a revealing vision of American expansion during the war beyond the consolidation of a continental empire.

Muitos incentivos são monetários e, quando instituições públicas ou privadas buscam mudar de comportamento, é natural mudar os incentivos monetários. Mas muitos outros incentivos são resultantes de significados sociais, sobre os quais as pessoas podem não deliberar, mas que podem operar como subsídios ou tributos. Em alguns momentos e lugares, por exemplo, o significado social do tabagismo tem sido positivo, aumentando o incentivo ao fumo; em outros tempos e lugares, foi negativo e, portanto, serviu para reduzir o tabagismo. No que diz respeito à segurança e à saúde, os significados sociais mudam radicalmente ao longo dos anos e podem ser drasticamente diferentes a depender do lugar. Muitas vezes, as pessoas se manifestam de acordo com os significados que lamentam ou, pelo menos, desejam que seja de outra forma. Mas é extremamente difícil para os indivíduos alterar os seus próprios conceitos. A alteração de conceitos pode advir da lei, que pode, por meio de um mandato, transformar o significado da ação em um mero: "Eu cumpro a lei", ou em algo menos brando, como: "Sou um bom cidadão". A alteração de significados sociais também pode advir de ação privada em larga escala, projetada ou promovida por "empreendedores que ressignificam", que pode transformar o significado da ação de "Eu sou um excêntrico" para "Eu cumpro meu dever cívico" ou "Eu protejo outras pessoas de danos." Às vezes, subgrupos se rebelam contra significados novos ou alterados, produzidos pela lei ou por empreendedores que ressignificam, mas geralmente esses significados permanecem e produzem mudanças substanciais.

At least since the late eighteenth century, constitutions have been understood as emanations of the will of “the People,” as the ultimate expression of an inherent popular sovereignty. In the form of theories of constituent power, accounts of constitutional foundations blended notional or conceptual “descriptions” of the People, which anchored the political legitimacy of constitutional orders in the idea of hypothetical consent, with empirical claims that the nation’s actual people were represented in constitution-making processes through elected delegates and thereby were the authors of and gave consent to its fundamental law. As part of the third wave of democratization, there was an important shift in what popular participation consisted of—from indirect participation by elected representatives to direct, popular participation in the constitution-making process. As a matter of constitutional process, this led to the growing practice, and expectation, that major constitutional changes should be ratified through referenda.

Wesley Hohfeld’s scheme of jural relations possesses two fundamental strengths. First, the legal relations tend to correspond closely to potential legal results availing between individual persons – who can sue whom for what. Second, the system of “fundamental” relations possesses a symmetry and generality that made it attractive to the Realists as a springboard to their approach to law. In this paper we argue that Hohfeld’s scheme is incomplete: without more, the legal relations identified by Hohfeld do not scale up properly. Instead of being mere aggregates of more basic relations, complex relations and legal doctrines are structured and interact as a system. Activities that belong at the mid-level between the individual and large populations are most difficult to capture. What is required is a formulation of the legal relations that connects the micro of parties and the macro of the legal system at the level of society. The adoption by the Legal Realists of Hohfeld’s incomplete scheme built a gap between the micro and the macro into most subsequent American theorizing about private law. By contrast, other pre- and non-Realist versions of the broadly “Hohfeldian” program, and in particular that of Albert Kocourek, pay more attention to realistic, “economical” methods of delineating legal relations. These analytical but less reductionist formulations “scale up” better than the conventional picture, and can inspire new theories that explain more of the emergent properties of the legal system.

Once upon a time, Carolene Products provided an inspiring charter for the exercise of the power of judicial review. Intervene to correct flaws in the political process, Carolene instructed courts, but otherwise allow American democracy to operate unimpeded. In this Article, I use the Supreme Court’s recent decision in Rucho v Common Cause to argue that the current Court flips Carolene on its head. It both fails to act when the political process is malfunctioning and intercedes to block other actors from ameliorating American democracy. Rucho is the quintessential example of judicial apathy when, under Carolene, judicial engagement was sorely needed. The Court acknowledged that partisan gerrymandering offends democratic values like majoritarianism, responsiveness, and participation. But the Court didn’t take the obvious next step under Carolene and hold that extreme gerrymanders are unlawful. Instead it went in exactly the opposite direction, announcing that partisan gerrymandering claims are categorically nonjusticiable. Rucho, however, is only the tip of the current Court’s anti-Carolene spear. Past cases have compounded (and future cases will likely exacerbate) the democratic damage by preventing non-judicial institutions from addressing defects in the political process. Looking back, the Court’s campaign finance decisions have struck down regulation after regulation aimed at curbing the harms of money in politics. Looking forward, the Court may well nullify the main non-judicial response to gerrymandering: independent redistricting commissions adopted through voter initiatives. What can possibly explain this doctrinal pattern? Conventional modes of analysis — originalism, judicial restraint, respect for precedent, and so on — all fail as justifications. They’re riddled by too many exceptions to be persuasive. What does seem to run like a red thread through the current Court’s rulings, though, is partisanship. The anti-Carolene Court may spurn pro-democratic judicial review in part because, at this historical juncture, it often happens to be pro-Democratic.

This article, which draws upon material from my book, "The Framers’ Coup: The Making of the United States Constitution" (Oxford University Press 2016), investigates how and why the Philadelphia Convention of 1787 wrote a constitution that was far more nationalizing and antipopulist than most Americans probably anticipated or desired. The article also seeks to shed light on how the Federalists managed to convince the nation, through a reasonably democratic ratifying process, to approve a constitution that was, in significant part, designed to reduce popular influence upon the federal government.

This Article seeks to contribute to the heated debate on the disclosure of political spending by public companies. A rulemaking petition urging SEC rules requiring such disclosure has attracted over 1.2 million comments since its submission seven years ago, but the SEC has not yet made a decision on the petition. The petition has sparked a debate among academics, members of the investor and issuer communities, current and former SEC commissioners, and members of Congress. In the course of this debate, opponents of mandatory disclosure have put forward a wide range of objections to such SEC mandates. This Article provides a comprehensive and detailed analysis of these objections, and it shows that they fail to support an opposition to transparency in this area. Among other things, we examine claims that disclosure of political spending would be counterproductive or at least unnecessary; that any beneficial provision of information would best be provided through voluntary disclosures of companies; and that the adoption of a disclosure rule by the SEC would violate the First Amendment or at least be institutionally inappropriate. We demonstrate that all of these objections do not provide, either individually or collectively, a good basis for opposing a disclosure rule. The case for keeping political spending under the radar of investors, we conclude, is untenable.

Federal regulators have often required environmental labels, which may be designed to help consumers to save money or to reduce externalities. Under prevailing executive orders, regulators are required to project the benefits and costs of such labels, and also to show that the benefits justify the costs. These projections can be extremely challenging, partly because of the difficulty of knowing how consumers will respond to labels, partly because of the challenging of converting behavioral changes into monetary equivalents. The benefits of environmental labels should include (1) the monetary value of the reduced externalities and (2) the monetary benefit to consumers, measured by willingness to pay. It may be difficult for regulators to know (1), and even if they can figure out (2), willingness to pay may not capture the welfare benefit to consumers, at least if consumers are not adequately informed (or if they suffer from some kind of behavioral bias). In principle, agencies should include, as part of (2), the moral convictions of people who care about environmental goods, at least if those convictions are backed by willingness to pay. In the face of the evident epistemic difficulties, sometimes the best that agencies can do is to engage in breakeven analysis, by which they explore what the benefits would have to be in order to justify the costs. Technical as they might seem, these claims raise fundamental questions about valuation of environmental goods and the possible disconnect between willingness to pay and welfare.

Vaccine refusal is a serious public health problem, especially in the context of diseases with potential to spark global pandemics, such as Ebola virus disease in the Democratic Republic of the Congo. This article examines whether and when compelling vaccination through mandates and criminalization, for example, are appropriate. It argues that some legal approaches are ethical when they preserve social stability, trust in government, therapeutic research opportunities, or when they diminish disease severity.

Rationale: An increasing number of automated and artificially intelligent (AI) systems make medical treatment recommendations, including “personalized” recommendations, which can deviate from standard care. Legal scholars argue that following such nonstandard treatment recommendations will increase liability in medical malpractice, undermining the use of potentially beneficial medical AI.  However, such liability depends in part on lay judgments by jurors: When physicians use AI systems, in which circumstances would jurors hold physicians liable? Methods: To determine potential jurors’ judgments of liability, we conducted an online experimental study of a nationally representative sample of 2,000 U.S. adults. Each participant read one of four scenarios in which an AI system provides a treatment recommendation to a physician. The scenarios varied the AI recommendation (standard or nonstandard care) and the physician’s decision (to accept or reject that recommendation). Subsequently, the physician’s decision caused a harm. Participants then assessed the physician’s liability. Results: Our results indicate that physicians who receive advice from an AI system to provide standard care can reduce the risk of liability by accepting, rather than rejecting, that advice, all else equal. However, when an AI system recommends nonstandard care, there is no similar shielding effect of rejecting that advice and so providing standard care. Conclusion: The tort law system is unlikely to undermine the use of AI precision medicine tools and may even encourage the use of these tools.

The knowledge economy is today’s road to greater and more inclusive prosperity.

The United States Supreme Court closed the courthouse door to federal litigation to narrow educational funding and opportunity gaps in schools when it ruled in San Antonio Independent School District v. Rodriguez in 1973 that the Constitution does not guarantee a right to education. Rodriguez pushed reformers back to the state courts where they have had some success in securing reforms to school funding systems through education and equal protection clauses in state constitutions, but far less success in changing the basic structure of school funding in ways that would ensure access to equitable and adequate funding for schools. Given the limitations of state school funding litigation, education reformers continue to seek new avenues to remedy inequitable disparities in educational opportunity and achievement, including recently returning to federal court. This book is the first comprehensive examination of three issues regarding a federal right to education: why federal intervention is needed to close educational opportunity and achievement gaps; the constitutional and statutory legal avenues that could be employed to guarantee a federal right to education; and, the scope of what a federal right to education should guarantee. A Federal Right to Education provides a timely and thoughtful analysis of how the United States could fulfill its unmet promise to provide equal educational opportunity and the American Dream to every child, regardless of race, class, language proficiency, or neighborhood.

A popular research design identifies the effects of corporate governance by (changes in) state laws, clustering standard errors by state of incorporation. Using Monte-Carlo simulations, this paper shows that conventional statistical tests based on these standard errors dramatically overreject: in a typical design, randomly generated “placebo laws” are “significant” at the 1/5/10% level 9/21/30% of the time. This poor coverage is due to the extremely unequal cluster sizes, especially Delaware's concentration of half of all incorporations. Fixes recommended in the literature fail, including degrees-of-freedom corrections and the cluster wild bootstrap. The paper proposes a permutation test for valid inference.

Market democracies struggle with economic insecurity and growing inequality, presenting new threats to democracy. The revival of “political economy” offers a frame for understanding the relationship between productivity and justice in market societies. It reintegrates power and the social and material context — institutions, ideology, and technology — into our analysis of social relations of production, or how we make and distribute what we need and want to have. Organizations and individuals, alone and in networks, struggle over how much of a society’s production happens in a market sphere, how much happens in nonmarket relations, and how embedded those aspects that do occur in markets are in social relations of mutual obligation and solidarism. These struggles involve efforts to shape institutions, ideology, and technology in ways that trade off productivity and power, both in the short and long term. The outcome of this struggle shapes the highly divergent paths that diverse market societies take, from oligarchic to egalitarian, and their stability as pluralistic democracies.

In the late twentieth century constitution-designers came to understand that, in addition to the three classic Montesquiean functions of law-making, law-applying, and law-interpreting, constitutional institutions had to perform an additional function, that of protecting the constitution itself. That function is performed by constitutional courts, but also by agencies concerned with elections and with corruption. A case study of an important anti-corruption inquiry in South Africa illustrates the proposition that institutions protecting the constitution must combine independence from other political actors with some degree of accountability to them. Following the case study, the Article examines some general characteristics of these institutions, sketching some of the questions about independence and accountability that constitution-designers must consider. Among those questions are the possibility of too much independence, with the institutions having a greater impact on political outcomes than is appropriate, too much responsiveness to non-political but professional concerns such as legality and the details of accounting conventions, and of course too much accountability to the very political institutions that these agencies are designed to regulate. Throughout the Article emphasizes the role of conflicts of interest both in setting the agenda for these agencies and in posing the risk that the agencies will undermine rather than protect the constitution.