Faculty Bibliography

The year 2015 was a significant anniversary for global health: 15 years since the adoption of the Millennium Development Goals and the creation of the Global Alliance for Vaccines and Immunization, followed two years later by the Global Fund to Fight AIDS, TB and Malaria. 2015 was also the 10-year anniversary of the adoption of the International Health Regulations (May 2005) and the formal entering into force of the Framework Convention on the Tobacco Control (February 2005). The anniversary of these frameworks and institutions illustrates the growth and contribution of 'global' health diplomacy. Each initiative has also revealed on-going issues with compliance, sustainable funding and equitable attention in global health governance. In this paper, we present four thematic challenges that will continue to challenge prioritisation within global health governance into the future unless addressed: framing and prioritising within global health governance; identifying stakeholders of the global health community; understanding the relationship between health and behaviour; and the role of governance and regulation in supporting global health.

In the 1990s Brazil and other emerging economies went through a major transformation. Closed economies were opened, foreign investment encouraged, and many state-owned enterprises privatized. This “global transformation” had a major impact on the Brazilian legal system. While many parts of the legal system were affected, the corporate law profession changed the most. This sector includes all the institutions and actors that provide legal advice to corporations whether domestic and foreign, public or private. Global transformation brought about major changes in the national political economy, led to a flood of new laws governing corporate activity, and created a demand for new kinds of legal services to help companies manage the new legal environment. This led to rapid growth of the complex of institutions that provide corporate legal services and affected the way lawyering was practiced and organized. Many forces came together to give new shape to the professional identity of lawyers, the structures they work in, and the roles they play. The result was the creation of a new and powerful segment of the legal profession whose activities had profound impacts on the rest of the profession, the legal system, the operation of enterprises (both public and private), state policy and global governance. In this book, we describe the growth of the corporate legal sector in Brazil, and the impact of this development on law-making, legal education, regulation of the legal profession, public interest law, trade policy, and gender roles. The book is part of a larger study of global transformation and its impact on the legal profession carried out by GLEE, the project on Globalization, Lawyers, and Emerging Economies. Based at the Harvard Law School’s Center for the Legal Profession, GLEE is currently studying these developments in Brazil, India and China, with plans to expand the project into Africa and the states of the former Soviet Union. In Brazil, GLEE’s research has been based at the law school of the Fundação Getulio Vargas (FGV) in São Paulo.

Careful attention to choice architecture promises to open up new possibilities for reducing greenhouse gas emissions – possibilities that go well beyond, and that may supplement or complement, the standard tools of economic incentives, mandates, and bans. How, for example, do consumers choose between climate-friendly products or services and alternatives that are potentially damaging to the climate but less expensive? The answer may well depend on the default rule. Indeed, climate-friendly default rules may well be a more effective tool for altering outcomes than large economic incentives. The underlying reasons include the power of suggestion; inertia and procrastination; and loss aversion. If well-chosen, climate-friendly defaults are likely to have large effects in reducing the economic and environmental harms associated with various products and activities. In deciding whether to establish climate-friendly defaults, choice architects (subject to legal constraints) should consider both consumer welfare and a wide range of other costs and benefits. Sometimes that assessment will argue strongly in favor of climate-friendly defaults, particularly when both economic and environmental considerations point in their direction. Notably, surveys in the United States and Europe show that majorities in many nations are in favor of climate-friendly defaults.

The article examines U.S. President Andrew Johnson's impeachment hearings in 1868. It describes the impeachment proceedings initiated by the House of Representatives and the Senate against Johnson for violating the Tenure of Office Act and other offenses. It also discusses the actions taken by Johnson that indicated his hatred for African Americans and the political and social impact of his impeachment.

Human Rights, Democracy, and Legitimacy in a World of Disorder brings together respected scholars from diverse disciplines to examine a trio of key concepts that help to stabilize states and the international order. While used pervasively by philosophers, legal scholars, and politicians, the precise content of these concepts is disputed, and they face new challenges in the conditions of disorder brought by the twenty-first century. This volume will explore the interrelationships and possible tensions between human rights, democracy, and legitimacy, from the philosophical, legal, and political perspectives; as well as the role of these concepts in addressing particular problems such as economic inequality, catastrophic risks posed by new technologies, access to health care, regional governance, and responses to mass migration. Made up of essays arising from an interdisciplinary symposium convened at Harvard Law School in 2016, this volume will examine how these trusted concepts may bring order to the global community.

This paper examines the widespread belief that the Trump administration’s attacks on international law and institutions are significantly harming the international legal order. Part I describes the actions Trump has taken. That is the relatively easy part. It is much harder to figure out the medium- and long-term impact of Trump’s actions. For the reasons offered in Part II, we think that in most respects it is still too early to tell. But we speculate that Trump’s biggest impact is likely to come as much from his verbal attacks on international law and institutions as from the material changes he has brought to them.

Actuarial risk assessments might be unduly perceived as a neutral way to counteract implicit bias and increase the fairness of decisions made at almost every juncture of the criminal justice system, from pretrial release to sentencing, parole and probation. In recent times these assessments have come under increased scrutiny, as critics claim that the statistical techniques underlying them might reproduce existing patterns of discrimination and historical biases that are reflected in the data. Much of this debate is centered around competing notions of fairness and predictive accuracy, resting on the contested use of variables that act as "proxies" for characteristics legally protected against discrimination, such as race and gender. We argue that a core ethical debate surrounding the use of regression in risk assessments is not simply one of bias or accuracy. Rather, it's one of purpose. If machine learning is operationalized merely in the service of predicting individual future crime, then it becomes difficult to break cycles of criminalization that are driven by the iatrogenic effects of the criminal justice system itself. We posit that machine learning should not be used for prediction, but rather to surface covariates that are fed into a causal model for understanding the social, structural and psychological drivers of crime. We propose an alternative application of machine learning and causal inference away from predicting risk scores to risk mitigation.

While acknowledging that, on balance, social media can have a positive effect on democracy, the author also examines the other side of the argument, specifically the perils of polarisation. In doing so, he offers a critical view of certain aspects of the policies of social media companies that seek to offer a “personalized experience” which he argues risks keeping users in an “information cocoon”. However, he notes that there are other policies that counter this trend, which instead seek to keep users informed, and which must be pursued in order to ensure that social media is a tool that can make democracy work better.

In his book The Purse and the Sword: The Trials of Israel’s Legal Revolution, Daniel Friedmann brings under critical inspection what he names as a legal revolution in Israel. Friedmann gives us, under that name, an account of a shift of certain major and sensitive state powers from elected leaders and legislators to politically insulated officials and judges. The Supreme Court’s construction of two Basic Law enactments of the twelfth Knesset into a justiciable, substantive “formal constitution” for Israel figures in Friedmann’s book as one component of the revolution, along with other judicial developments, including purposive interpretation of constitutional and other laws, an intensified form of common-law review of administrative actions for unreasonableness, and expansionary revisions to standing and justiciability. In all these developments, Aharon Barak took a leading part as judge and as scholar. I here consider to what extent these developments may be understood as responsive to promptings from a “political-liberal” conception of a justificational burden and need for substantive constitutional law. I reflect here on the possible pull of this conception in a political-cultural setting of a persisting widespread attachment to an idea of Israel as a member of the family of liberal constitutional states, and hence on Barak’s understanding of the role and responsibility of the Supreme Court. I speculate briefly about how far that pull may extend also to Professor Friedmann in his role of critic of the judicial handiwork of Barak and the Court on which he served.

Law of Asylum in the United States is an authoritative presentation of U.S. asylum law, long considered a must-have publication for practitioners, students, researchers, and teachers. It is frequently relied upon and cited by practitioners and decision makers. Law of Asylum describes and interprets U.S. statutes, regulations, and cases, as well as numerous international sources, providing an up-to-date analysis of all aspects of asylum law. This edition has been thoroughly updated to capture recent developments in asylum law and policy, including the Trump Administration's policy changes, children's credibility, formulation of particular social groups, the material support bar to asylum eligibility, the one-year filing deadline, ongoing Safe Third Country Act litigation, and reinstatement of removal. The extensive Procedures Appendix has been expanded and thoroughly updated to provide an invaluable resource for practitioners and researchers interested in U.S. asylum processes. In addition, this edition includes numerous unpublished Board of Immigration Appeals and immigration judge decisions In addition, this edition includes numerous unpublished Board of Immigration Appeals and immigration judge decisions and asylum officer training materials in accessible perma.cc format to guide practitioners and researchers.

"[This book presents the author's] new thesis about how the law should work in America, arguing that the courts best enable people to live together, despite their diversity, by resolving particular cases without taking sides in broader, more abstract conflicts. [The author] analyzes the way the law can mediate disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges must avoid broad, abstract reasoning. He states that judges purposely limit the scope of their decisions to avoid reopening large-scale controversies, calling such actions incompletely theorized agreements. In identifying them as the core feature of legal reasoning, he takes issue with advocates of comprehensive theories and systemization, from Robert Bork to Jeremy Bentham, and Ronald Dworkin. Equally important, [the author] goes on to argue that it is the living practice of the nation's citizens that truly makes law. Legal reasoning can seem impenetrable, mysterious, baroque. [This book] helps dissolve the mystery. Whether discussing abortion, homosexuality, or free speech, the meaning of the Constitution, or the spell cast by the Warren Court, ...[the author] moves the debate over fundamental values and principles out of the courts and back to its rightful place in a democratic state: to the legislatures elected by the people. In this second edition, the author updates the previous edition bringing the book into the current mainstream of twenty-first century legal reasoning and judicial decision-making focusing on the many relevant contemporary issues and developments that occurred since its initial 1996 publication."-- Provided by publisher.

Effective corporate governance is a crucial foundation for economic growth, and by providing accountability and legitimacy to large-scale businesses, it is a core part of America’s success story. The Committee asked for comment on the role that law plays in corporate and shareholder disclosures and governance, and how they could be improved, as well as on a number of bills introduced into Congress that address different aspects of corporate governance. I comment generally on corporate governance, and then on five of the seven bills, including bills addressing cybersecurity risk and governance, proxy advisors, and reforms to Section 13(d) blockholder disclosures.

This qualitative study examined how NFL players and their family members characterized the impact of an NFL career on the mental and emotional health of NFL players. We interviewed 25 NFL players (23 former and 2 current) and 27 family members (24 wives and 3 others) to elicit players’ experiences during and following their time in the NFL. While players experienced positive outcomes from their careers, they also described important mental health challenges including feelings of depression, loneliness, and stress. Many of their concerns during their careers were linked to anxiety about job performance and job security. Post-career concerns were linked to loss of social identify and connections. Players had difficulty finding help for their concerns. We conclude with eight recommendations, including improved resources, confidentiality, and support.

The article reports on the Stakeholder Perspectives including investigators and institutional review boards (IRBs) and the Ethical and the Regulatory Oversight and to address technical and methodological challenges and Issues concerning the leading research institute in the United States for PCOR, Patient-Centered Outcomes Research Institute (PCORI).

This Article offers a positive and normative account of an important and growing trend: wealthy individuals are increasingly giving their money to the government to encourage the government to fund particular projects that these individuals want the government to pursue. Such gifts--dubbed "patriotic philanthropy" by one prominent donor--raise fundamental questions about the role that private money plays and ought to play in public policy-making. Legal academics have addressed these types of questions in other contexts, such as campaign financing, privatization of government, and private philanthropy. However, patriotic philanthropy, which presents a new and perhaps more effective way for wealthy individuals to influence the government, has generally escaped the attention of the legal literature. We aim to remedy that lacuna with this Article. Although we do not question the enormous good that patriotic philanthropy can do, this Article argues that gifts to government raise significant concerns about democratic profess, equality, and state capacity.

Just three days prior to the inauguration of Donald J. Trump as president of the United States, Rep. Jody B. Hice (R-GA) introduced the Sanctity of Human Life Act (H.R. 586), which, if enacted, would provide that the rights associated with legal personhood begin at fertilization. While often touted as a means to outlaw abortion, protecting the “lives” of single-celled zygotes may also have implications for the practice of reproductive medicine and research. Indeed, such personhood efforts stand apart and distinct from more incremental attempts to restrict abortion that target the abortion procedure and those who would perform it. While personhood efforts have not been successful to date at either the state or federal levels, abortion opponents may find a friend in President Trump and his Supreme Court nominees. What is more, because the recent decision by the Court in Whole Woman’s Health v. Hellerstedt makes it more difficult for states to impose incremental restrictions on the abortion procedure, restrictions focused on the status of the unborn may assume increasing importance. Personhood rhetoric is often seen in proceedings involving the disposition of unused embryos and in laws that restrict access to abortion on the basis of gender, race, or disability. Laws outlawing abortion on the basis of fetal pain are also on the rise. With so much uncertainty surrounding the political landscape, this essay places the personhood movement in historical context with other anti-abortion strategies. This essay further explores the theoretical underpinnings of the personhood movement and considers its future prospects with regard to abortion and other reproductive services.

Like its author, Randy Kozel's ♦Settled Versus Right♦ is insightful, thoughtful, and kind, deeply committed to improving the world that it sees. But despite its upbeat tone, the book paints a dark picture of current law and the current Court. It depicts a society whose judges are, in a positive sense, ♦lawless♦ -- not because they disregard the law, but because they are without law, because they have no shared law to guide them. What they do share is an institution, a Court, whose commands are generally accepted. So ♦Settled Versus Right♦ makes the best of what we've got, reorienting judicial culture around a "second-best" stare decisis that leaves incorrect or "badly reasoned" precedents alone. If we can't agree on legal rules, or even on legal theories, at least we can compromise on preserving what our legal institutions have done before. Though the compromise is well-argued, it may fail to satisfy both sides. On the one hand, if we do still have any constitutional law, this law may take a view on our rules of stare decisis. The second-best theory is openly revisionary, rather than trying to capture our existing legal practice. Its pursuit of stability and impersonality may yield a system that's more law♦like♦ than law♦ful♦ -- a mere semblance of law, the way Kant saw "love of honor and outward propriety" as mere "semblances of morality," sharing only an obedience to "strict laws of conduct for their own sake." On the other hand, if our disagreements really have deprived us of any real law to apply, leaving judges to advance their values as best they can, then there are many other important values to consider. The second-best theory can't tell us where stability and impersonality rank on that list. Rather than patching up a broken system, we might use Kozel's analysis to illuminate ways of deepening our existing areas of agreement on rules and theories of law. In this project stare decisis might aid us, if we see it as a fallback and not as a foundation-stone--as requiring us to act ♦as if♦ a court has decided a case correctly, but not to treat the court's decision as establishing the standard of correctness. Maybe precedent is ♦supposed♦ to be a mere semblance; maybe that's its proper role, letting us debate the contours of our actual law without requiring a thousand judicial flip-flops along the way. If so, then expanding our agreement on the law might indeed involve a cultural change: we ought to take the law rather more seriously, and courts and judges rather less so. Once we do, we might find that our world is a lot less lawless than we think.

Understanding factors that influence public support for “nudging” policies, like pictorial cigarette pack warnings, may offer insight about how to increase such support. We sought to examine factors that influence smokers’ support for requiring pictorial warnings on cigarette packs. In 2014 and 2015, we randomly assigned 2149 adult US smokers to receive either pictorial warnings or text-only warnings on their cigarette packs for 4 weeks. The outcome examined in the current study was support for a policy requiring pictorial warnings on cigarette packs in the US. Support for pictorial warnings was high at baseline (mean: 3.2 out of 4). Exposure to pictorial warnings increased policy support at week 4 (β = .05, p = .03). This effect was explained by increases in perceived message effectiveness (p < .001) and reported conversations about policy support (p < .001). Message reactance (i.e., an oppositional reaction to the warning) partially diminished the impact of pictorial warnings on policy support (p < .001). Exposing people to a new policy through implementation could increase public support for that policy by increasing perceived effectiveness and by prompting conversations about the policy. Reactance may partially weaken the effect of policy exposure on public support.

What kinds of radicalism, if any, turn out to be appealing? Do radicals from former eras speak to us – perhaps as cautionary tales, perhaps as models? Jeremy McCarter has written a magnificent book about five young radicals, who did their most important early work about a century ago, when the United States experienced an outpouring of left-wing thought. McCarter’s radicals were idealists, revolutionaries; they thought that society should and could be remade in fundamental ways. They were exploding with energy, humor, and wit. They loved drama, satire, and sex. Some of the largest and most intriguing lessons involve the tensions among the drama-chasing, principle-free, where-the-action-is radicalism of John Reed, who loved the Russian Revolution; the democratic radicalism of Alice Paul, who fought for women’s suffrage and objected to the subordination of women; and the technocratic radicalism of Walter Lippmann, who emphasized the role of “fake news” and the inevitability of epistemic gaps on the part of the citizenry, and who prized knowledge and expertise. Paul and Lippmann emerge as very different heroes of the period.

Recoupment inquiries play an increasingly important role in antitrust analysis, yet they raise a number of conundrums: How can a failure of recoupment due to the plausible long-run profit recovery being dwarfed by short-run losses be reconciled with a defense of no predation that presupposes no short- run sacrifice to begin with? How can recoupment inquiries be diagnostic with respect to competing explanations for defendants’ behavior—such as product promotion or “legal” predation—that likewise require recoupment? This article addresses these questions and others by grounding recoupment and predatory pricing analysis more broadly in a decision framework that focuses on classification (distinguishing illegal predation from other explanations for firms’ pricing) and on the magnitudes of the deterrence benefits and chilling costs of imposing liability. Regarding the latter, although concerns for the chilling of procompetitive activity sensibly drive predatory pricing analysis, the great variation in chilling costs across competing explanations for alleged predation is unrecognized. Much of the analysis here is not particular to recoupment; the investigation aims to inform future research, policy, and practice regarding many aspects of predatory pricing as well as other forms of anticompetitive conduct.

Recoupment inquiries play an important role in predatory pricing cases. Nevertheless, their place in antitrust analysis is unclear and potentially problematic in ways that are not fully appreciated. Does a recoupment requirement define, augment, or replace the preexisting monopoly power requirement that involves similar analysis? How can a recoupment test be inserted in sequential assessments of alleged predatory pricing when all of the steps are intertwined with the others, including those deemed to come later? Why is a plaintiff permitted to show either that recoupment was ex ante plausible or that sufficient ex post profit recovery occurred, rather than requiring one in particular, or both? This article addresses these questions by examining the underlying purposes of recoupment assessments and predatory pricing inquiries more broadly. As will become evident, much of the analysis is relevant not just to predatory pricing but to other forms of anticompetitive conduct as well.

Stem cell therapies (hereinafter: SCT) hold tremendous promise for the treatment of a variety of diseases. Yet, alongside the medical potential, they pose significant risks. This article focuses on the phenomenon of B SCT travel and the regulatory challenges associated with it. Recent Findings Internet websites for clinics all around the world offer SCT for different medical conditions, such as degenerative and immunological conditions, as well as cosmetic indications. The demand for SCT is growing, despite their experimental nature, and an effective regulatory framework is urgently needed at both national and international levels. Summary A new regulatory framework aimed at reducing the risks associated with SCT travel and the provision of unproven SCT should be implemented. It should include professional guidelines, an accreditation system that would evaluate SCT being offered by clinics, enforcement mechanisms against fraud, reimbursement by insurers for approved SCT, and residency requirements.

In this essay, the author identifies the central challenge for democracy—crafting better ways to elicit a “we the people” that the people can respect. James Fishkin's work has pointed the way. This essay takes a few additional steps. First, the author discusses the influence of technology on democracy and the importance of building understanding of the need for Deliberative Polling in the “post-broadcast age.” He then suggests methods to make Deliberative Polling efficacious on a national level.

Just as the public increasingly wants corporate taxation to serve as a mechanism for ensuring that business contributes to society, the sustainability of corporate taxation is increasingly under challenge by a changing global landscape. This tension between the heightened demands placed on the corporate tax system and its reduced capacity prompts the question: How can an increasingly tenuous fiscal instrument be modified to accommodate rising expectations? In this paper, we address this question by reviewing the empirical evidence on, and conceptual underpinnings of, the corporate tax. We place the taxation of corporations in a wider context that links it to ongoing debates on corporate law and governance and on corporate social responsibility. Drawing on an agency cost perspective on the corporate tax, we argue that one approach to its reform is to focus on circumstances in which there may exist a coincidence of interests between shareholders and the general public. This perspective encompasses many of the themes of current debates surrounding the taxation of corporations. We also outline three possible alternative futures for the corporate tax that have quite different implications for efficiency and distribution. One involves enhanced multilateral cooperation to preserve the corporate tax, another involves abandoning (corporate and personal) income taxation in favour of consumption taxation, and the third entails abolishing the corporate tax (while transforming personal taxation to address the resulting tax planning opportunities for individuals).

Social norms have been used to nudge people toward specified outcomes in various domains. But can people be nudged to support, or to reject, proposed government policies? How do people’s views change when they learn that the majority approves of a particular policy, or that the majority opposes it? To answer these questions, we conducted a series of experiments. We find that in important contexts, learning about the majority’s opinion causes a significant shift toward support for or opposition to particular policies. At the same time, we find that when people’s views are fixed and firm, they are unlikely to conform to the majority’s view and that they might even show reactance. We show this pattern of results with respect to people’s support for or opposition to governmental policies in a wide range of substantive areas — and also to the use of paternalistic tools, such as nudges or bans.

Executive pay continues to attract much attention from investors, financial economists, regulators, the media, and the public at large. The dominant paradigm for economists' study of executive compensation has long been that pay arrangements are the product of arm's-length bargaining—bargaining between executives attempting to get the best possible deal for themselves and boards seeking only to serve shareholder interests. But the actual pay-setting process has deviated far from this arm's-length model. Managerial power and influence have played a key role in shaping the amount and structure of executive compensation. Directors have had various economic incentives to support, or at least go along with, arrangements favorable to the company's top executives. The inability or unwillingness of directors to bargain at arm's length has enabled executives to obtain pay that is higher and more decoupled from performance than would be expected under arm's-length bargaining.

The armed drone, as an object and a symbol, is everywhere: in the news, in popular culture, in scholarship. Through and beyond its aesthetic and technical features, this chapter argues that the drone signifies the changing relationship between law and war. The object communicates a set of promises, of war as precise and asymmetrical governance: promises that this chapter assesses and critiques through a discussion of the object’s material and symbolic functions. The drone is very real, but it is also a symbol, a myth, a fixture in our imagination. Indeed, the very image accompanying this chapter, which is considered to be ‘the most widely reproduced image’ of a drone, is tellingly revealed to be a construct, a fiction, superimposed on stock images of the Afghan landscape. The very real object of the armed drone is appropriated, serving as a language to convey and debate the hopes and anxieties over what it signifies, namely the new way of war. To the extent that this new way of war is accepted as ‘the new paradigm’, the object serves Barthes’ ultimate understanding of the myth, namely that ‘in the eyes of the myth-consumer…it transforms history into nature’. History can be contested; it is ongoing; its course can be altered. Nature is entrenched. The object, by compellingly communicating the myth of ‘the new paradigm’, imposes it. International legal language is at the very center of the tension between the drone’s reality and its promise. International lawyers debate the compatibility of (the use of) drones with the principles of distinction and proportionality, their contribution to the creation of a borderless battlefield and the effects of this to the sovereignty of (weak) states, the classification of combatants and individuals who can be targeted, and the overall manifest lack of transparency and accountability in their use. The armed drone’s significance in international law and international legal debate can be explored through three perspectives/images: the image of the object itself as proliferated in the media, the image(s) the object generates for the targeters, and the image of the object for the targeted.

"In a never-ending attempt to destroy Israel, Muslim countries, the international Left, and anti-Semites of all political stripes have joined forces to create a worldwide campaign aimed at the economic and cultural isolation fo the Jewish State. BDS aims to de-legitimize Israel's very existence--barring it from international organizations, cultural exchanges, and global economic activity ... The Case Against BDS is a must-read for all people of goodwill who support Israel's right to exist. Only by shining sunlight on the shady origins and dishonest methods of BDS can we hope to defeat it"--Page 4 of cover.

In recent years, scholars have made great strides in measuring the extent of partisan gerrymandering. By and large, though, they have not yet tried to answer the questions that logically come next: What are the causes of district plans’ partisan skews? And what consequences do these skews have for democratic values? Using a unique dataset of state house and congressional plans’ partisan tilts from 1972 to the present, this Article addresses precisely these issues. It finds that single-party control of the redistricting process dramatically benefits the party in charge, while other mapmaking configurations have small and inconsistent effects. It also shows that greater black representation and greater urbanization have a modest proRepublican impact, albeit one that fades when Democrats are responsible for redistricting. It concludes as well that the harm of gerrymandering is not limited to divergences between parties’ seat and vote shares. The injury extends, rather, to the distortion of the representation that legislators provide to their constituents.

The ecosystem of news has changed beyond the imagination of anyone living when the First Amendment was drafted. Changes in the private industry of the press leave some communities with no local news coverage.A majority of people in the United States now receive news selected for them by a computer-based mathematical formula derived from their past interests, producing echo chambers with few opportunities to learn, understand, or believe what others are hearing as news. Traditional news media—now called “legacy media”—is shrinking, cutting staff, and relying on freelancers. Meanwhile, digital platforms surge in usage, profits, and revenues from advertising, which are used to stimulate engagement and collect data to further target users. This contributes to a world in which fewer than one-third of those surveyed trust mass media to report the news fully and accurately—the lowest number since such surveys began. The recent indictment of thirteen Russians for disrupting the 2016 United States presidential election by spreading divisive and false messages through Facebook, Google, and Twitter underscores what Alexander Meiklejohn put so well: reliable press expression is fundamental to democratic self-governance. What can be done when transformations in technology, economics, and communications jeopardize the production and distribution of, and trust in, news that is essential in a democratic society?

Twenty-seven state constitutions contain a clause prohibiting the “damaging” or “injuring” of property for public use without just compensation. Yet when compared to its relative, the Takings Clause of the Federal Constitution—which says that private property cannot be “taken” for public use without just compensation—the ways in which state courts interpret and apply their “damagings clauses” have remained opaque and virtually unstudied. This Article recovers the hidden history of the state damagings clauses. It traces the clauses to the threats to private property posed at the turn of the twentieth century as a result of rapid infrastructural improvement. These state constitutional provisions were meant to fix perceived inequities resulting from strict application of takings law: many jurisdictions would not recognize a right to compensation when public works affected use rights and drastically devalued property but did not physically invade or appropriate it. Drafters envisioned the damagings clauses as a powerful bulwark for property owners whose livelihoods and homes were affected yet not touched by public works. However, as state courts were tasked with the brunt of the interpretive work, their rulings coalesced around a variety of doctrinal limitations that severely undercut the clauses’ potency. As a result, modern interpretations of the clauses mainly provide coverage in a variety of contexts where the offending activity would already qualify as a physical-invasion taking under most federal precedents. This Article argues that the damagings clauses deserve broader applications in condemnation law. Damagings comprise a more limited and historically supported category than regulatory takings, for which courts have long awarded compensation. Moreover, courts already try to mandate compensation for some of these types of injuries by manipulating ordinary takings law, leading to unnecessary doctrinal confusion. As a new wave of infrastructural growth looms, it is time for professors and practitioners to return their attention to these forgotten provisions of the state constitutions.

Digital medicine is a medical treatment that combines technology with drug delivery. The promises of this combination are continuous and remote monitoring, better disease management, self-tracking, self-management of diseases, and improved treatment adherence. These devices pose ethical challenges for patients, providers, and the social practice of medicine. For patients, having both informed consent and a user agreement raises questions of understanding for autonomy and informed consent, therapeutic misconception, external influences on decision making, confidentiality and privacy, and device dependability. For providers, digital medicine changes the relationship where trust can be verified, clinicians can be monitored, expectations must be managed, and new liability risks may be assumed. Other ethical questions include direct third-party monitoring of health treatment, affordability, and planning for adverse events in the case of device malfunction. This article seeks to lay out the ethical landscape for the implementation of such devices in patient care.