Faculty Bibliography

"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.

Using a unique data set comprised of original research of both the corporate Web sites of the Big Four—PwC, Deloitte, KPMG, and EY—and their affiliated law firms, as well as archival material from the legal and accountancy press, this article documents the rise and transformation of the Big Four legal service lines since the enactment of the Sarbanes Oxley Act of 2002. Moreover, it demonstrates that there are good reasons to believe that these sophisticated players will be even more successful in penetrating the corporate legal services market in the decades to come, as that market increasingly matures in a direction that favors the integration of law into a wider category of business solutions that these globally integrated multidisciplinary practices now champion. We conclude with some preliminary observations about the implications of the reemergence of the Big Four legal networks for the legal profession.

Andrew Coan offers a fresh and forthright response to the long disagreement over constitutional interpretation. Instead of entering the debate between originalism and nonoriginalism, he proposes to settle it, through an amendment proclaiming nonoriginalism as the law of the land. Under the Coan Amendment, the entire Constitution would be construed "to accommodate the practical exigencies of human affairs and the evolving standards of decency that mark the progress of a maturing society." This Amendment, he writes, would "eliminat[e] a huge quantity of basically unproductive debate about the legal and moral necessity of originalism," thereby "redirect[ing]” that effort “to far more pressing matters of constitutional substance." Coan offers his suggestion as a "thought experiment," not a "serious proposal." This is a good thing, because the substantive effect of his proposal would be unambiguously bad. But even as a thought experiment, it’s unclear how much the Amendment shows. The legal debate over the status of originalism can indeed be settled by new law. But the moral status of originalism -- and, indeed, of our law more generally -- is not so easily settled.

A review of the article "Untangling the Promise of Human Genome Editing" by Professor K. Drabiak, which appears in the same issue of the journal, is presented, and it mentions germline gene editing, Mitochondrial Replacement Therapy, and an appropriations-related U.S. Congressional Rider.

Over the last few years, there has been an unprecedented outpouring of scholarship on partisan gerrymandering. Much of this work has sought either to introduce new measures of gerrymandering or to analyze a metric — the efficiency gap — that we previously developed. In this Article, we reframe this debate by presenting a series of criteria that can be used to evaluate gerrymandering metrics: (1) consistency with the efficiency principle; (2) distinctness from other electoral values; (3) breadth of scope; and (4) correspondence with electoral history. We then apply these criteria to both the efficiency gap and other measures. The efficiency gap complies with the criteria under all circumstances. Other metrics, in contrast, often violate the efficiency principle and cannot be used in certain electoral settings.

This chapter summarizes the four areas of practical innovation of the Uniform Directed Trust Act (UDTA). The first is a careful allocation of fiduciary duties. The UDTA’s basic approach is to take the law of trusteeship and attach it to whichever person holds the powers of trusteeship, even if that person is not formally a trustee. Thus, under the UDTA the fiduciary responsibility for a power of direction attaches primarily to the trust director (or trust protector or trust adviser) who holds the power, with only a diminished duty to avoid “willful misconduct” applying to a directed trustee (or administrative trustee). The second innovation is a comprehensive treatment of non-fiduciary issues, such as appointment, vacancy, and limitations. Here again, the UDTA largely absorbs the law of trusteeship for a trust director. The UDTA also deals with new and distinctive subsidiary problems that do not arise in ordinary trusts, such as the sharing of information between a trustee and a trust director. The third innovation is a reconciliation of directed trusts with the traditional law of co-trusteeship. The UDTA permits a settlor to allocate fiduciary duties between co-trustees in a manner similar to the allocation between a trust director and directed trustee in a directed trust. The fourth innovation is a careful system of exclusions that preserves existing law and settlor autonomy with respect to tax planning, revocable trusts, powers of appointment, and other issues. Prepared for the 2018 Heckerling Institute on Estate Planning at the University of Miami, this chapter is an abridgment of John D. Morley & Robert H. Sitkoff, Making Directed Trusts Work: The Uniform Directed Trust Act, 44 ACTEC L.J. 1 (2018, Forthcoming).

The athletes who participate in professional football call themselves (and the public calls them) football “players,” not football “workers,” reflecting the reality that as exhausting and high-pressure as their efforts are, they are ultimately playing a sport. Nevertheless, we should not forget that these athletes indeed are workers; they have trained extensively to perform their roles, they do intense physical labor as part of their jobs, they are salaried employees of National Football League (“NFL”) clubs, and they are represented by a labor union, the National Football League Players Association (“NFLPA”). This Article is the first to explore in depth what might happen if our society treated professional football like a workplace, subject to government regulation, public–private cooperation or other “soft law” mechanisms, or required information disclosure to facilitate more informed understanding of the variety of safety and health risks these workers face to provide fans with entertainment. Specifically, it examines how recognizing the NFL as a workplace, governed by the U.S. Occupational Safety and Health Administration (“OSHA”) and the law surrounding occupational health and safety, can transform our understanding of the NFL and player safety. This topic has gained considerable and growing public attention, particularly regarding the recent and controversial concerns over the possible long-term risks of neurological damage in these workers. The Article explains that OSHA clearly has the authority to regulate the NFL. Nevertheless, there is little to no precedent or guidance for OSHA to insert itself into the on-the-field aspects of professional sports. We discuss in detail the small body of case law that bears on OSHA’s authority in entertainment and sports, which opens some doors for OSHA to issue standards but also sets limits on its ability to alter the nature of the entertainment or sport. But more importantly, there are a host of political and practical reasons we discuss, which make it very unlikely that OSHA will attempt to regulate the NFL. Nevertheless, there are a wide variety of ways for OSHA to intervene or involve itself without regulating, as discussed at length in the Article. Adding a public institution like OSHA as a party to existing labor-management discussions concerning health and safety may be the best natural evolution of the issue. Many in the public seem to believe that football must become safer to thrive and hope that it will. Regulations or “soft law” approaches have sometimes worked well even in complicated, uncertain, and fraught issues. OSHA understands evidence from a public health lens, and it is the institution empowered by Congress and the courts to help balance the competing goals of worker protection versus cost and liberty in an open setting. So we place the onus on OSHA in this Article: the agency should be more willing to step up to this challenge and less conflicted about offering to participate in an issue where it has expertise complementary to that which the NFL and NFLPA bring, as well as a unique opportunity to help bring about constructive change.

Behavioral economics emerged in the 1980s, above all because of the creative work of Richard Thaler, exploring the relevance of the endowment effect, mental accounting, concern for fairness, and other "anomalies" from the standpoint of standard economic theory. His engaging book, "Misbehaving," offers a narrative account of how these ideas came about, and also explores some of their implications for the future. Continuing challenges include making predictions when behavioral findings cut in different directions (as, for example, where optimistic bias conflicts with availability bias); understanding the line between nudging and manipulation; and applying behavioral findings to pressing public policy challenges, such as poverty, education, terrorism, and climate change.

This Article discusses the justification for income tax exemption for organizations qualifying under § 501(c)(4). It explores why these organizations are entitled to exemption on their entire income though they are deemed unworthy of the charitable contribution deduction. The Article notes that income tax exemption generally only benefits entities that accumulate funds and points out that the subsidy from income tax exemption for long term accumulation can exceed the benefit of the charitable deduction. It concludes that full income tax exemption under § 501(c)(4) cannot be justified either on the grounds that it is relatively unimportant or by analogy to the treatment of mutual organizations, whose exemption has been circumscribed. However, exemption for income from performance of services related to the exempt purpose and for a limited amount of investment income may be appropriate in some circumstances.

The desirability of a dual-class structure, which enables founders of public companies to retain a lock on control while holding a minority of the company's equity capital, has long been the subject of a heated debate. This debate has focused on whether dual-class stock is an efficient capital structure that should be permitted at the time of initial public offering ("IPO"). By contrast, we focus on how the passage of time since the IPO can be expected to affect the efficiency of such a structure. Our analysis demonstrates that the potential advantages of dual-class structures (such as those resulting from founders' superior leadership skills) tend to recede, and the potential costs tend to rise, as time passes from the IPO. Furthermore, we show that controllers have perverse incentives to retain dual-class structures even when those structures become inefficient over time. Accordingly, even those who believe that dual-class structures are in many cases efficient at the time of the IPO should recognize the substantial risk that their efficiency may decline and disappear over time. Going forward, the debate should focus on the permissibility of finite-term dual-class structures -- that is, structures that sunset after a fixed period of time (such as ten or fifteen years) unless their extension is approved by shareholders unaffiliated with the controller. We provide a framework for designing dual-class sunsets and address potential objections to their use. We also discuss the significant implications of our analysis for public officials, institutional investors, and researchers.

This Article revisits the state action doctrine, a judicial invention that shields “private” or “non-governmental” discrimination from constitutional scrutiny. Traditionally, this doctrine has applied to discrimination even in places of public accommodation, like restaurants, hotels, and grocery stores. Born of overt racial discrimination, the doctrine has inflicted substantial injustice throughout its inglorious history, and courts have continuously struggled in vain to coherently apply the doctrine. Yet, the United States Supreme Court has not fully insulated “private” or “horizontal” relations among persons from constitutional scrutiny. The cases in which it has applied constitutional norms to non-governmental actors should be celebrated rather than shunned. This Article proposes reinterpreting the state action doctrine to mitigate its historical and contemporary harms. Ultimately, the Authors draw from property law theory to contend that the doctrine should be fundamentally reformed in favor of a more egalitarian conception of the state’s role in ensuring equal protection of law. The insights of property law theory lead the Authors to conclude that: (1) equal protection depends on law, not action; (2) common law is law and, whether it is coercive or permissive, it must comply with the Equal Protection Clause; and (3) common law that allows discriminatory exclusion from the marketplace violates the Equal Protection Clause. What matters, for the purposes of constitutional protection, is not “state action” but whether the law violates the norms of liberty, equality, and dignity recognized by free and democratic societies.

Significant social change often comes from the unleashing of hidden preferences; it also comes from the construction of novel preferences. Under the pressure of social norms, people sometimes falsify their preferences. They do not feel free to say or do as they wish. Once norms are weakened or revised, through private efforts or law, it becomes possible to discover preexisting preferences. Because those preferences existed but were concealed, large-scale movements are both possible and exceedingly difficult to predict; they are often startling. But revisions of norms can also construct rather than uncover preferences. Once norms are altered, again through private efforts or law, people come to hold preferences that they did not hold before. Nothing has been unleashed. These points bear on the rise and fall (and rise again, and fall again) of discrimination on the basis of sex and race (and also religion and ethnicity). They also help illuminate the dynamics of social cascades and the effects of social norms on diverse practices and developments, including smoking, drinking, police brutality, protest activity, veganism, drug use, crime, white nationalism, “ethnification,” considerateness, and the public expression of religious beliefs.

The opening pages of Rousseau’s Social Contract have two striking phrases. The more celebrated is, “[m]an was born free, and everywhere he is in chains.” That, though, is preceded by this: “I want to inquire whether, taking men as they are and laws as they can be made to be, it is possible to establish some just and reliable rule of administration in civil affairs.” I take this second sentence as my guide: Taking the textual Constitution as it is and with the interpreted Constitution as it could be, can there be a constitutionalism that progressives could wholeheartedly endorse? I contrast utopian thinking to the thinking grounding the day-to-day work of progressive litigators and academics focused on achieving the best outcomes possible in the courts (and legislatures) as they are, not as they could be. To focus on the Supreme Court: In such work the hoped-for outcome is one favorable to our long-term goals. Ordinarily that means winning cases. With that goal in mind we unsurprisingly count votes and understand that to win a victory for progressivism (to-day) we have to develop arguments that have some chance of getting the vote of Justice Anthony Kennedy (or, or perhaps and, the vote of Chief Justice John Roberts). The Future of the U.S. Constitution: A Symposium. April 14-15, 2017, Bloomington, Indiana. Sponsored by Indiana University Maurer School of Law, Indiana Law Journal & the American Constitution Society for Law and Policy.

Over the past 30 years, the majority of large firms that filed for bankruptcy did so in the US bankruptcy courts of the Southern District of New York and Delaware. Some believe these experienced courts dominate because their expertise makes bankruptcy more predictable. Critics dispute this explanation, arguing instead that “predictability” is a cloak for the true, self-interested motivation of the debtor’s managers, lawyers, and senior creditors who influence the debtor’s choice of venue. In this paper, I look for evidence supporting the views of the proponents and detractors of bankruptcy forum shopping in a large sample of market data. My results suggest that the market is better at predicting the outcomes of bankruptcy cases in New York and Delaware, consistent with the hypothesis that the law there is more predictable. I do not find evidence supporting the view that those courts are biased in favor of senior creditors.

Recent conflicts on campus have featured as antagonists proponents of racial justice versus proponents of civil liberties. Many in both camps identify as liberals. A dose of recollection might help dissipate this avoidable and politically destructive strife.

What’s a tort? It’s a wrong that a court is prepared to recognize, usually in the form of ordering the transfer of money (“damages”) from the wrongdoer to the wronged. The court is usually alerted to wrong by the filing of a lawsuit: anyone can walk through the courthouse doors and, subject to the limits explored in civil procedure, call someone else (or, if a company, some-thing) to account. We’ll discuss the sources that courts turn to in order to answer such questions. Rarely, in tort cases, are those sources the ones laypeople expect: statutes passed by legislatures. Without statutes to guide them, what are courts left with?

The international trade of live animals, especially animals sold for slaughter, creates significant challenges for international law. Nonhuman animals do not fit neatly into the legal world created by humans. In nearly every jurisdiction, animals are property, but they are not like all other property. The sentience of animals has been widely recognized and it forms the basis of anticruelty laws where they exist. You may destroy your toaster any way you like, but the laws of most jurisdictions protect how you treat your dog. This fractured point in the law, animals as property and yet not exactly property, is the source of confusion in national laws, leading to unsatisfactory answers to questions such as what damages should be paid when a companion animal is negligently killed or whether individuals should own wildlife as “pets.”

By the late 1960s, the American death penalty was in significant decline. They allowed the imposition of the death penalty for murder. In 1972, in Furman v. Georgia, the United States Supreme Court invalidated prevailing capital statutes as unconstitutional under the Eighth Amendment. State officials condemned the court's intervention and swiftly sought to refashion their statutes to rectify constitutional defects. Unsurprisingly, given the prestige and influence of the American Law Institute (ALI), many states looked to the death penalty provisions of the Model Penal Code (MPC). The most dramatic aspect of the MPC's new approach was its enumeration of aggravating and mitigating factors. This chapter explores the law and practice surrounding aggravating and mitigating evidence. It tracks three strands of constitutional jurisprudence regarding aggravating factors, noting where the court diverges both from the MPC and from the court's own original commitments, and identifying issues that remain to be resolved.

Remarks, Strategies for Engaging the Global Trade System, Inst. Global Law & Pol’y (IGLP) Research Policy Workshop, Insertion of Argentina in the World: 2025 Vision, Buenos Aires, Arg. (Dec. 13-14, 2017).

Expertise in a World of Struggle, European Media Summit, Lech am Arlberg, Austria (Dec. 2, 2017).

I begin by commending my friend Gary Lawson for his important treatment of the nature of evidence and proof in his book Evidence of the Law. I write, very much, I think, in the spirit of his book and his own agonophilic (I shall explain this concept) style, to question whether his theory of proof hinders its explanatory power by omitting to recognize virtues of arguments other than the one on which he (and, for that matter, most philosophers--he is in good company) focuses, namely, argumentative proofs that produce true or probabilistically warranted propositions. To make my argument I draw on my own theory of the nature of argument and method of analyzing the virtues and vices of argument. I call this method and its supporting theory the Logocratic Method (“LM”). My task in this Lecture is to present enough of the LM-- including two of its concepts central to my critique, “agonophilia” and “agonophobia”--and enough of a re-presentation of what I understand Gary's argument about the nature of proof to be, to raise my question about the explanatory adequacy of Gary's theory.

The regulatory state has become a cost-benefit state, in the sense that under prevailing executive orders, agencies must catalogue the costs and benefits of regulations before issuing them, and in general, must show that their benefits justify their costs. Agencies have well-established tools for valuing risks to health, safety, and the environment. Sometimes, however, regulations are designed to protect moral values, and agencies struggle to quantify those values; on important occasions, they ignore them. That is a mistake. People may care deeply about such values, and they suffer a welfare loss when moral values are compromised. If so, the best way to measure that welfare loss is through eliciting private willingness to pay. Of course, it is true that some moral commitments cannot be counted in cost-benefit analysis because the law rules them off-limits. It is also true that the principal reason to protect moral values is not to prevent welfare losses to those who care about those values. But from the welfarist standpoint, those losses matter, and they might turn out to be very large. Agencies should take them into account. If they fail to do so, they might well be acting arbitrarily and hence in violation of the Administrative Procedure Act. These claims raise fundamental issues in legal and political theory about welfarism and its limits, and they also bear on a wide variety of issues, including protection of foreigners, of victims of mass atrocities, of children, of rape victims, of disabled people, of future generations, and of animals.

In his important article, Benito Arruñada draws out the significance of sequential exchange for property rights and traces inadequacies in the economics of property rights to its overly contractual focus, to the exclusion of multiple transactions on the same asset. In this comment, I argue that although Arruñada's problem is a genuine one, it is part of a larger inadequacy in the economic analysis of property rights: property institutions have to manage complexity stemming from many kinds of interactions, making it problematic to focus solely on local interactions. Modular structures in property, including legal ‘things’ themselves, serve to manage this complexity. The larger problem of complexity allows us to set sequential exchange in its proper context.

Concepts are the building blocks of legal doctrine. All legal rules and standards, in fact, are formed by combining concepts in different ways. But despite their centrality, legal concepts are not well understood. There is no agreement as to what makes a legal concept useful or ineffective—worth keeping or in need of revision. Social scientists, however, have developed a set of criteria for successful concepts. Of these, the most important is measurability: the ability, at least in principle, to assess a concept with data. In this Essay, we apply the social scientific criteria to a number of concepts and conceptual relationships in American constitutional law. We show that this field includes both poor and effective concepts and conceptual links. We also explain how the examples of poor concepts could be improved.

During the lifetime of the Prophet Muḥammad and the expansion of the young Islamic empire immediately after his death, a number of land tracts were distributed to his Companions and Family members. One of them was a fertile farm called Yanbuʿ, located northwest of Medina. Having acquired the land, the Prophet’s cousin, son-and-law, caliph-to-be ʿAlī b. Abī Ṭālib discovered a spring that he named Bughaybigha, which fed what was to become a much-coveted date-palm orchard. He immediately turned it into a charitable endowment to be managed by his heirs. But when ʿAlī was killed in a struggle for the caliphate, chaos and confusion ensued—one feature of which was a generations-long battle over the land. For the next one hundred fifty years, Umayyad and ʿAbbāsid rulers episodically wrested the land from ʿAlī’s descendants each time the latter succeeded in securing its return. At one point in the midst of the political contestation, the affair ended up in court. There, the case turned on the judge’s creative interpretation of and choice between conflicting procedural rules. The outcome was a split decision that gave only a partial win to the caliph and a partial win to the ʿAlid descendant who had been cultivating the land. Judicial discretion and procedure, it turns out, was instrumental to resolving hotly contested issues of Islamic law, land, and legitimate rule. In fact, the case vividly displays how judges like the one at the center of this case helped construct Islamic law through their interpretive approaches to such issues that lay at the heart of disputes like Bughaybigha.

In a trust decanting, a trustee who under the terms of a trust (the first trust) has a discretionary power over distribution uses that power to distribute the trust property to a new trust (the second trust) with updated provisions, leaving behind the sediment of the first trust’s stale provisions. This article canvasses the rise of trust decanting in American trust practice, taking notice of its common law origins, its contrast with traditional American doctrine on trust modification and termination, the proliferation of state trust decanting statutes, and several areas of doctrinal divergence across the states.

It is not uncommon for multiple clinical trials at the same institution to recruit concurrently from the same patient population. When the relevant pool of patients is limited, as it often is, trials essentially compete for participants. There is evidence that such a competition is a predictor of low study accrual, with increased competition tied to increased recruitment shortfalls. But there is no consensus on what steps, if any, institutions should take to approach this issue. In this article, we argue that an institutional policy that prioritises some trials for recruitment ahead of others is ethically permissible and indeed prima facie preferable to alternative means of addressing recruitment competition. We motivate this view by appeal to the ethical importance of minimising the number of studies that begin but do not complete, thereby exposing their participants to unnecessary risks and burdens in the process. We then argue that a policy of prioritisation can be fair to relevant stakeholders, including participants, investigators and funders. Finally, by way of encouraging and helping to frame future debate, we propose some questions that would need to be addressed when identifying substantive ethical criteria for prioritising between studies.