Faculty Bibliography

Some experts argue that corporate leaders are starving their firms of investment capital by making excessive payouts to shareholders, thereby undermining innovation, employment opportunity, and economic growth. As evidence, they point to S&P 500 firms’ using 96% of their net income for repurchases and dividends. A closer look at the data shows that the amounts going to shareholders at the expense of internal investment are less than claimed. The problem lies in the ratio used—shareholder payouts as a percentage of net income—which fails to take into account offsetting equity issuances as well as actual R&D expenditures. The percentage of income potentially available for investment that goes to shareholders is not 96% but a much more modest 41%. After paying shareholders, S&P 500 firms are at near-peak levels of investment and have huge stockpiles of cash for exploiting future opportunities. There may well be severe corporate governance problems in the S&P 500, but the data suggests that excessive shareholder payouts is not one of them.

With imperfect private monitoring, a firm selling two experience goods can increase both producer and consumer surplus by bundling. Bundling constrains consumers to buy two products, making consumers better informed and ensuring that they use tougher punishment strategies. Both increased monitoring and increased punishment benefit other consumers, so bundling overcomes a free‐rider problem. The social value of bundling is even larger if consumers cannot attribute a negative signal to the specific product that generated it, or if one of the two goods is a durable and the other is a complementary nondurable. Our results are robust to mixed bundling.

Governance Feminism shows how some feminists and feminist ideas have entered into state and state-like power in recent years. Collecting examples from the U.S., Israel, India, and from transnational human rights law, the authors argue that governance feminism is institutionally diverse and globally distributed—emerging from grassroots activism as well as statutes and treaties, as crime control and as immanent bureaucracy.

In 1969, Japan launched a massive subsidy program for the "burakumin" outcastes. The subsidies attracted the mob, and the higher incomes now available through organized crime compensated those burakumin who abandoned the legal sector for criminal careers. In the process, the subsidies gave new support to the tendency many Japanese already had to equate the burakumin with the mob. The government ended the subsidies in 2002. We explore the effect of the termination by merging 30 years of municipality data with a long-suppressed 1936 census of burakumin neighborhoods. First, we find that outmigration from municipalities with more burakumin increased after the end of the program. Apparently, the higher illegal income generated by the subsidies had restrained young burakumin from joining mainstream society. Second, we find that once the mob-tied corruption and extortion associated with the subsidies neared its end, real estate prices rose in municipalities with burakumin neighborhoods. With the subsidies gone and the mob in retreat, other Japanese found the formerly burakumin communities increasingly attractive places to live.

In a possible first, the heritable transmission of a fatal mitochondrial DNA disease (Leigh syndrome) may have been prevented by replacing the mutation-bearing mitochondria of oocytes with donated mutation-free counterparts. The procedure, carried out by a U.S.-led team, took place in Mexico in circumvention of a statutory U.S. moratorium on mitochondrial replacement. This development calls into question the regulatory utility of a national moratorium in a globalized world wherein cross-border care is increasingly prevalent. This development also calls to account the moral defensibility of a moratorium that acquiesces in the birth of gravely ill children whose afflictions could have been prevented. In this Current Commentary, we outline a potential path forward by analyzing the dual imprint of the moratorium, examining its legislative shortcomings, exploring its motivational roots, considering its national effect, and proposing its unlinking from the related yet distinct ban on editing the genome of the human embryo.

In Schuette v. Coalition to Defend Affirmative Action, Justice Kennedy’s controlling plurality revised the political process doctrine and ended the practice of affirmative action in Michigan. In this opinion, Kennedy followed in the Court’s tradition of invoking antibalkanization values in equal protection cases, making the empirical claims both that antibalkanization motivated the campaign to end affirmative action in Michigan and that the campaign itself would, absent judicial intervention, have antibalkanizing effects. Using sophisticated empirical methods, this Article is the first to examine whether the Court’s claims on antibalkanization are correct. We find they are not. Support for the Michigan ballot initiative banning affirmative action arose principally from feelings of racial resentment, not a desire for racial comity. The ballot initiative did not mitigate racial divisiveness but did just the opposite, exacerbating racial division in the state. We conclude by considering what Schuette and these empirical findings mean for affirmative action, for the political process doctrine, and for the antibalkanization principle.

A convention is a practice not memorialized in a formal rule but regularly engaged in out of a sense of obligation, where the sense of obligation arises from the view that adhering to the practice serves valuable goals of institutional organization and the public good. Constitutional conventions are important in making it possible for the national government to achieve the goals set out in the Preamble. Over the past twenty years or so, however, such conventions have eroded. This article addresses the role and importance of constitutional conventions in the United States, arguing that conventions' erosion has been accompanied by a configuration of partisan politics that makes it difficult to present a discussion of that erosion in a way that will not itself seem partisan. I argue that contention over claims about departures from conventions takes forms familiar from ordinary common-law reasoning--perhaps not surprising because common-law reasoning rests on judicial decisions that cannot offer canonical textual formulations of the rules the courts apply. This article also discusses some of the ways in which political actors can depart from conventions, and some consequences of such departures. Finally, the Essay takes up some larger questions about constitutional transformation through abandonment or revision of constitutional conventions.

When data from all aspects of our lives can be relevant to our health - from our habits at the grocery store and our Google searches to our FitBit data and our medical records - can we really differentiate between big data and health big data? Will health big data be used for good, such as to improve drug safety, or ill, as in insurance discrimination? Will it disrupt health care (and the health care system) as we know it? Will it be possible to protect our health privacy? What barriers will there be to collecting and utilizing health big data? What role should law play, and what ethical concerns may arise? This timely, groundbreaking volume explores these questions and more from a variety of perspectives, examining how law promotes or discourages the use of big data in the health care sphere, and also what we can learn from other sectors.

This paper analyzes the extent to which the Internet’s global domain name resolution (DNS) system has preserved its distributed resilience given the rise of cloud-based hosting and infrastructure. We explore trends in the concentration of the DNS space since at least 2011. In addition, we examine changes in domains’ tendency to “diversify” their pool of nameservers – how frequently domains employ DNS management services from multiple providers rather than just one provider – a comparatively costless and therefore puzzlingly rare decision that could supply redundancy and resilience in the event of an attack or service outage affecting one provider.

With the election of Donald J. Trump, many people on both the left and right feared that America’s 240-year-old grand experiment in democracy was coming to an end, and that Sinclair Lewis’ satirical novel, It Can’t Happen Here, written during the dark days of the 1930s, could finally be coming true. Is the democratic freedom that the United States symbolizes really secure? Can authoritarianism happen in America? Acclaimed legal scholar, Harvard Professor, and New York Times bestselling author Cass R. Sunstein queried a number of the nation’s leading thinkers. In this thought-provoking collection of essays, these distinguished thinkers and theorists explore the lessons of history, how democracies crumble, how propaganda works, and the role of the media, courts, elections, and "fake news" in the modern political landscape—and what the future of the United States may hold.

“Information wants to be free.” Although this sentiment dominates the current digital landscape, information about Islamic law and history often remains bound to its physical form and to the price of acquiring it. One should not have to travel to several countries or be associated with the handful of institutions with large collections in these fields to gain access to these sources (which can still be onerous once there). But this is precisely the case for those who aim to do serious, comparative, or otherwise broad-ranging work in Islamic law. For Islamic law, there is a persistent problem of access and ease of use.

Por muito tempo, o direito contratual foi a área de estudo favorita entre pesquisadores de direito comparado. Economistas têm assumido que instituições contratuais desempenham um papel central no desenvolvimento econômico. Ainda assim, em um afiado contraste com o estado-da-arte de outros campos (tais como direito empresarial e direito falimentar), o papel que leis contratuais podem exercer na modulação de resultados econômicos permanece amplamente negligenciado. Este ensaio explora as principais razões que podem explicar esse status quo. Elas são: (i) a falta de variação significativa nas leis contratuais ao redor do mundo; (ii) a trivialidade do direito contratual; (iii) a larga disponibilidade de escolha do direito; (iv) o viés centrado nos Estados Unidos da literatura da análise econômica do Direito; (v) a falta de dados públicos acerca de práticas contratuais, (vi) os limites do direito contratual. Conclui-se que, apesar de importantes, esses fatores são, em última análise, insuficientes para justificar a escassez de trabalhos sobre as consequências econômicas do direito contratual, o que poderia ser uma proveitosa área para pesquisas futuras.

Courts look at text differently in high-stakes cases. Statutory language that would otherwise be “unambiguous” suddenly becomes “less than clear.” This, in turn, frees up courts to sidestep constitutional conflicts, avoid dramatic policy changes, and, more generally, get around undesirable outcomes. The standard account of this behavior is that courts’ failure to recognize “clear” or “unambiguous” meanings in such cases is motivated or disingenuous, and, at best, justified on instrumentalist grounds. This Article challenges that account. It argues instead that, as a purely epistemic matter, it is more difficult to “know” what a text means—and, hence, more difficult to regard that text as “clear” or “unambiguous”—when the practical stakes are raised. For that reason, this Article insists, it is entirely rational for courts to be more cautious when interpreting text in high-stakes cases than they would be if the stakes were low. Drawing on contemporary work in philosophy of language and epistemology, this Article grounds its argument in the observation that ordinary speakers’ willingness to attribute “knowledge” or “clarity” decreases as the practical stakes increase. And while the technical explanations of this phenomenon vary, they all reflect a basic insight: that one needs greater epistemic justification to act on some premise the higher the practical stakes. To illustrate, this Article applies the above insight to various interpretive settings. Considering judicial review, for example, this Article explains that it makes good epistemic sense for a court to wait until it is really sure that a statute means what it thinks it means before taking the extraordinary step of invalidating that statute as unconstitutional. Similarly, this Article urges that it is just sound epistemic practice for a court is to construe a statute in a way that would unsettle an existing implementation regime only if it is especially well justified in its reading of the statutory text—that is, only if it really knows that its reading is correct. This Article thus offers at least a partial justification of courts’ seemingly loose treatment of statutory text when the practical stakes are raised. And it does so, in contrast to prior scholarly efforts, by appeal to reasons that both formalists and instrumentalists can accept.

On January 10, 2017, President Barack Obama delivered his formal farewell address to the country in Chicago, the city that had given him his political start. In reflecting on the achievements and challenges of his two terms in office, the president paid special attention to an issue that he knew would, for better and for worse, define his presidency: Race. In the simple, yet elegant, language that even his harshest critics have come to respect, the president said this about the state of race relations after eight years of the Age of Obama: "After my election, there was talk about a post-racial America. Such a vision, no matter how well-intended, was never realistic. For race remains a potent and often divisive force in our society. I’ve lived long enough to know that race relations are better than they were 10, 20, 30 years ago — you can see it not just in the statistics, but in the attitudes of young Americans across the political spectrum. But we are not where we need to be. All of us have more work to do." In this Report, we offer a preliminary assessment of how much progress had been made — and how much work remains to be done — in a part of the American economy President Obama knows well: the legal profession. We do so by examining the careers of the black graduates of President Obama’s law school alma matter in the 16 years since the beginning of the new millennium. Harvard Law School provides an important lens through which to study these issues. One hundred and fifty years ago this year, the Law School enrolled George Lewis Ruffin, who would go on to be the first black person to graduate from any law school in the United States. In the intervening years, Harvard has graduated more black lawyers — over 2,700 — than any law school in the country with the exception of the great Howard University School of Law. Among their ranks are some of the most powerful and influential lawyers in the world, including the 44th President of the United States and the country’s former First Lady, Michelle Obama ’88. In 2000, the Harvard Law School Center on the Legal Profession released a Report on the State of Black Alumni: 1869-2000 chronicling the achievements and continuing challenges of this remarkable group of lawyers on the basis of a comprehensive survey of the careers of over 650 of the school’s African American alumni. In this new Report, based on a second survey of the school’s black alumni, including those that graduated in the new millennium and matured during the Age of Obama, we both bring that history up to date and offer new perspectives for this new era. Collectively, we hope that these two reports will provide the “common baseline of facts” that President Obama identified in his farewell address as key to a civil dialogue in a functioning democracy, for a profession that will always have a central role in guaranteeing the freedom and equality that are the cornerstones of our democracy.

This Article shows that new economic proofs and empirical evidence provide powerful confirmation that, even when horizontal shareholders individually have minority stakes, horizontal shareholding in concentrated markets often has anticompetitive effects. The new economic proofs show that, without any need for coordination or communication, horizontal shareholding will cause corporate managers to lessen competition to the extent they care about their vote share or re-election odds and will cause executive compensation to be based less on firm performance and more on industry performance. The new empirical evidence consists of cross-industry studies which confirm that, just as the proofs predict, increased horizontal shareholding increases the distortion of executive compensation and the gap between corporate profits and investment. I also provide new analysis demonstrating that critiques of earlier empirical studies showing adverse price effects for airlines and banking are generally invalid and that addressing the valid subset of those critiques actually increases the estimated price effects. I further demonstrate that the various excuses for delaying enforcement action are meritless. Finally, I provide new legal theories for tackling the problem of horizontal shareholding. I show that when horizontal shareholding has anticompetitive effects, it is illegal not only under Clayton Act §7, but also under Sherman Act §1. In fact, the historic trusts that were the core target of antitrust law were horizontal shareholders. I further show that anticompetitive horizontal shareholding also constitutes an illegal agreement or concerted practice under EU Treaty Article 101, as well as an abuse of collective dominance under Article 102.

The Supreme Court has looked to the rights of corporate shareholders in determining the rights of union members and non-members to control political spending, and vice versa. The Court sometimes assumes that if shareholders disapprove of corporate political expression, they can easily sell their shares or exercise control over corporate spending. This assumption is mistaken. Because of how capital is saved and invested, most individual shareholders cannot obtain full information about corporate political activities, even after the fact, nor can they prevent their savings from being used to speak in ways with which they disagree. Individual shareholders have no “opt out” rights or practical ability to avoid subsidizing corporate political expression with which they disagree. Nor do individuals have the practical option to refrain from putting their savings into equity investments, as doing so would impose damaging economic penalties and ignore conventional financial guidance for individual investors.Most individual shareholders cannot obtain full information about a corporation’s speech or political activities, even after the fact, nor can most shareholders prevent their savings from being used for political activity with which they disagree. More generally, the Court's focus on whether union non-members are effectively forced to fund political speech or activity with which they disagree should reflect the fact that most Americans must routinely fund speech with which they disagree. While some of this compulsion is from practical reality rather than law there are numerous examples outside the union context of laws that require individuals to fund expressive activities. There is, simply put, very little way for most individuals in modern America to avoid subsidizing speech with which they disagree.

Reframing nuclear weapons as a humanitarian issue revolutionised the diplomatic debate surrounding them, and in 2017, 122 countries adopted the Treaty on the Prohibition of Nuclear Weapons (TPNW). The humanitarian approach to disarmament provided inspiration for this historic achievement. While traditional disarmament aims primarily to protect state security, humanitarian disarmament strives to end human suffering. This article examines the TPNW as the latest step in humanitarian disarmament. Through a close analysis of process and text, it finds that humanitarian disarmament served as a catalyst to and model for the TPNW’s negotiations and shaped its purpose and provisions. The article also shows how the humanitarian underpinnings of the TPNW allowed it to transform nuclear disarmament and how the new treaty strengthened humanitarian disarmament in return.

"Transformative Property Law honours Professor AJ Van der Walt (1956-2016) - scholar, mentor, and teacher. As the first incumbent of the DST/NRF South African Research Chair in Property Law his primary research goal was to develop the theoretical foundations for the transformation of property law in post-apartheid South Africa. Covering topics that are at the forefront of global thinking on property law, Transformative Property Law consists of 20 essays by a combination of senior and young scholars from South Africa, the United States of America, the United Kingdom, Ireland, the Netherlands, Belgium, and Zimbabwe. The essays focus on the themes that Professor Van der Walt developed during the first 10 years of the research chair, namely: (a) the single system of law and subsidiarity principles; (b) the marginality principle; (c) the development of the common law of property; (d) constitutional property law; and (e) property theory. This volume also includes a list of all Professor Van der Walt’s research outputs and a list of all the Masters and Doctoral students that he supervised during his career.–Publisher’s website.

Within a few years of Lateran IV’s prohibition of priestly involvement in trial by ordeal, England moved definitively toward a criminal justice system based on trial by jury. This paper will explore the underlying assumptions of king, council and justices at the time of the criminal trial jury’s introduction (c. 1220) as to the jury’s precise function within a prosecutory system that countenanced only capital sanctions for those convicted of felony. Unearthing these assumptions will require careful consideration of earlier ordeal procedure and other kinds of juries in the late twelfth and early thirteenth centuries, most notably juries of presentment, coroners’ inquests, and juries tasked with responding to writs de odio et atia. It will also require situating trial by jury within the broader context of felony adjudication with its manifold escape valves, including benefit of clergy, sanctuary, abjuration and pardons. The paper will rely on a re-examination of primary source materials and engagement with the existing secondary literature to grapple with the broad questions of what constituted serious criminal wrongdoing, what jurors were expected to know and do in adjudicating felony cases, and the extent to which jurors’ verdicts were based on knowledge or belief in the guilt of an individual, as opposed to such factors as reputation, rumor or expected recidivism. With regard to the issue of jury independence, the paper will query whether juries engaged in unilateral nullification of the law, or whether verdicts that appear to be contrary to the law reflect instead a consensus of judge and jury. Related to this is the macro-level question of what constituted the law, including the related matters of how jurors were to know the law and respond to it. As a think piece, this paper will test several hypotheses regarding problems fundamental to the history of English criminal law, some of which may prove unresolvable.

Surge nas principais economias do mundo nova vanguarda da produção, a economia do conhecimento. Em cada setor da economia, porém, aparece como franja que exclui a grande maioria de trabalhadores e empresas. O resultado da exclusão é deprimir o crescimento e agravar a desigualdade. Seguindo o exemplo de Adam Smith e Karl Marx, para quem a melhor maneira de compreender o regime econômico e suas possibilidades de transformação é estudar a produção mais avançada da época, Roberto Mangabeira Unger analisa o que a economia do conhecimento é e o que ela pode vir a ser. Para Mangabeira, o aprofundamento das produção de vanguarda e sua disseminação – o vanguardismo includente ― são obras gêmeas. Juntas, têm potencial revolucionário: acelerar o crescimento, reverter a desigualdade e empoderar todos os participantes no processo produtivo. Para operar esta transformação, é preciso mudar não apenas práticas produtivas e instituições econômicas, mas também a educação, a cultura e a política. É preciso também contar com ideias que a teoria econômica estabelecida não fornece. Mangabeira esboça as grandes linhas destas alternativas de organização social e de pensamento econômico.

Several of the Supreme Court’s most controversial constitutional doctrines hinge on claims about electoral accountability. Restrictions on the President’s power to remove agency heads are disfavored because they reduce the President’s accountability for agency actions. Congress cannot delegate certain decisions to agencies because then Congress is less accountable for those choices. State governments cannot be federally commandeered because such conscription lessens their accountability. And campaign spending must be unregulated so that more information reaches voters and helps them to reward or punish incumbents for their performances. There is just one problem with these claims. They are wrong — at least for the most part. To illustrate their error, I identify four conditions that must be satisfied in order for incumbents to be held accountable. Voters must (1) know about incumbents’ records, (2) form judgments about them, (3) attribute responsibility for them, and (4) cast ballots based on these judgments and attributions. I then present extensive empirical evidence showing that these conditions typically are not met in the scenarios contemplated by the Court. The crux of the problem is that voters are less informed than the Court supposes, more likely to be biased by their partisan affiliations, and less apt to vote retrospectively than in some other way. Accountability thus does not rise in response to the Court’s interventions — at least not much. The qualifiers, though, are important. If the Court’s claims are mostly wrong, then they are partly right. If accountability does not rise much due to the Court’s efforts, then it does go up a bit. These points are established by the same studies that document the general inadequacy of the Court’s reasoning. With respect to certain voters in certain settings, accountability is influenced by presidential control over agencies, congressional delegation to agencies, federal commandeering of state governments, and regulation of campaign spending. That is why this Article discounts accountability as a constitutional value but not does reject it altogether.

The United States has long epitomized capitalism. From its enterprising shopkeepers, wildcat banks, violent slave plantations, and raucous commodities trade to its world-spanning multinationals, its massive factories, and the centripetal power of New York in the world of finance, America has shaped political economy for two centuries and more. But an understanding of "capitalism" is as elusive as it is urgent. What does it mean to make capitalism a subject of historical inquiry? What is its potential across multiple disciplines, alongside different methodologies, and in a range of geographic and chronological settings? And how does a focus on capitalism change our understanding of American history?American Capitalism collects cutting-edge research from prominent scholars, sampling the latest work in the field. Rather than a monolithic perspective, these broad-minded and rigorous essays venture new angles on finance and debt, women's rights, slavery and political economy, labor, and regulation, among other topics. Together, the essays suggest emerging themes in the field: a fascination with capitalism as it is made by public authority, how it is experienced in the detail of daily life, how it spreads across the globe, and how it can be reconceptualized as a discrete and quantified object. A major statement for a wide-open field, this book demonstrates the breadth and scope of the work the history of capitalism can provoke.

The UN Human Rights Committee’s General Comment No. 35 summarizes the treaty body’s interpretation of the right to liberty of person, including protection against arbitrary detention, under the International Covenant on Civil and Political Rights, one of the principal human rights treaties at the global level. This essay provides an overview of General Comment No. 35, and then focuses on three aspects that provoked controversy either within the Committee or outside it: the time limit for “prompt” presentation of pre-trial detainees to a judge; the standards governing security detention in non-international armed conflict; and the disagreement between the Human Rights Committee and the Committee on the Rights of Persons with Disabilities regarding whether involuntary hospitalization is ever permitted. These examples illustrate significant issues about the interaction between the Covenant and other international regimes.

A robust secondary market has emerged over the past 20 years in the debt of Chapter 11 firms. Critics worry that the trading associated with this market has undermined bankruptcy governance by forcing managers to negotiate with shifting groups of activist investors in the Chapter 11 bargaining process. This article investigates whether this is a common problem and concludes that it is not. Although trading of bond debt is pervasive, the activist groups that tend to participate in negotiations usually enter cases early and rarely change significantly. Trading in general, therefore, does not appear to have the impact on governance that many claims trading critics fear, at least insofar as the average case is concerned.

In recent years, there has been a great deal of discussion of uses of behavioral economics in policy circles, with a focus on empirical, conceptual and ethical questions. On the basis of data from many nations, our forthcoming book asks and answers a question pressing in democratic and nondemocratic nations alike: What do citizens actually think about behaviorally informed policies? (Short answer: They approve of them.) In the process, we ask and answer two other questions as well: Do citizens of different nations have identifiable principles in mind when they approve or disapprove of behaviorally informed polices? (Short answer: Yes.) Do citizens of different nations agree with each other? (Short answer: Mostly yes, but with intriguing qualifications, involving diverging levels of trust and different evaluations of liberty.) This article previews our book, providing new insights into public approval of nudges and similar policies based on behavioral insights.