Faculty Bibliography

Breaking the law is an impeachable offense but not the only one. We need to ask if America can survive this presidency and, if we do, what kind of nation will we have become.

As it has been developed over a period of many decades, administrative law has acquired its own morality, closely related to what Lon Fuller described as the internal morality of law. Reflected in a wide array of seemingly disparate doctrines, but not yet recognized as such, the morality of administrative law includes a set of identifiable principles, often said to reflect the central ingredients of the rule of law. An understanding of the morality of administrative law puts contemporary criticisms of the administrative state in their most plausible light. At the same time, the resulting doctrines do not deserve an unambiguous celebration, because many of them have an ambiguous legal source; because from the welfarist point of view, it is not clear if they are always good ideas; and because it is not clear that judges should enforce them.

Artificial intelligence is already starting to change our lives. Over the coming decades, these new technologies will shape many of our daily interactions and drive dramatic economic growth. As AI becomes a core element of our society and economy, its impact will be felt across many of the traditional spheres of AG jurisdiction. Members of AG offices will need an understanding of the AI tools and applications they will increasingly encounter in consumer devices, state-procured systems, the court system, criminal forensics, and others areas that touch on traditional AG issues like consumer privacy, criminal justice, and representing state governments. The modest goal of this primer is to help state AGs orient their thinking by providing both a broad overview of the impact of AI on AG portfolios, and a selection of resources for further learning regarding specific topics. As with any next technology, it is impossible to predict exactly where AI will have its most significant on matters of AG jurisdiction. Yet AGs can better prepare themselves for this future by maintaining a broad understanding of how AI works, how it can be used, and how it can impact our economy and society. In success, AGs can play a key constructive role in preventing misconduct, shaping guidelines, and ultimately maximizing the positive impact of these exciting new technologies. We intend for this briefing book to serve as a jumping-off point in that preparation, setting a baseline of understanding for the AGTech Forum and providing resources for specific learning beyond our workshop.

In ethics and political philosophy, it is not uncommon to distinguish the question of who is a moral agent (one who bears moral responsibility) from the question of who is a moral patient (one to whom moral obligations are owed). The two need not go together: one could be a moral patient but not have moral agency – infant children are a plausible example. In this draft chapter, I examine the allied notion of a human rights patient for the human right to health. I consider two particular questions. First, to what extent should a human right to health focus on identified lives, those whom we have identified as currently in need and who make claims on us, as opposed to statistical lives – the faceless masses who may also need our help just as much? This question sadly comes up all the time for ministries of health – whether to fund an expensive treatment for a sympathetic child who has come forward and demanded the treatment to save his or her life or to invest in programs that distribute less expensive, more quotidian benefits to hundreds of children in need. In particular, I will dwell on how countries like Colombia that have made a right to health justiciable may have tilted spending towards identified lives in a way that is potentially troubling. This discussion will occupy Section I of this chapter. In Section II I will go into even more murky territory and discuss whether a human right to health ought to encompass as its moral patients only those who currently exist, those who certainly will exist but do not yet exist, those whose existence may be contingent on the decisions we make, all of the above, or only some of the above. To give some tangible examples: How should a health care allocator, trying to fulfill a human right to health, make trade-offs between expending resources to prevent a very bad disability (say blindness) in an individual who currently exists versus implementing a program that works on asymptomatic adults but prevents them from transmitting the same bad disability to the children they are about to conceive? This is a trade-off between currently existing lives and lives that are certain to exist but do not yet exist. What if the way that “prevention” is accomplished is by having those women delay getting pregnant (think of the Zika virus) or choosing a sperm donor rather than their romantic partner who is a carrier of the disease? This form of prevention does not prevent a disease for those who do not currently exist but will certainly exist, instead it prevents the disease by changing who comes into existence – a different sperm meets the egg and a different child is born. Call this the question of contingent persons. Does the human right to health treat contingent persons as its moral patients?

Calls to remove a president have become a regular feature of American politics over the past two decades, making it harder to achieve if truly needed.

Equitable defences are the front line of controversy over fusion. Because law and equity offer a range of defences that partially overlap and the rationale for matching equitable defences to equitable remedies is at least as obscure as the rationale for separate equitable remedies, conventional wisdom holds that the more one can fuse the equitable defences into the law the better. In this chapter I argue that equity roughly reflects a distinct function - a safety valve that operates at a higher (meta) level over the rest of the law and that responds to problems of high uncertainty and variability. These characteristic problems include opportunism and multipolar conflicts. From a functional point of view, some of the special treatment of equitable defences makes sense, and puzzling patterns in this area receive an explanation and some justification. Even the adaptation of some equitable defences into the law dovetails with a dynamic picture of the equitable function.

Numerous high profile cases across industries and jurisdictions, including Wells Fargo, Siemens, Volkswagen, BP or Google, indicate that legal compliance remains a significant corporate governance challenge around the world. Ever increasing fines have become the standard response to all types of misconduct by corporations and their agents. Are they the appropriate answer to the compliance challenge? Are there superiour ways to rein in corporations? What can academic research contribute to this debate? An international Roundtable among academics, regulators and practitioners, which was organized at Harvard Law School in May 2018, discussed these and several related questions. The conclusions from this debate suggest a three-pronged way forward: (i) Companies need to keep finetuning their compliance organizations and toolkits by, e.g., systematically measuring the effectiveness of compliance efforts and specifically linking compensation policies to compliance; (ii) regulators and prosecutors need to give more weight to incentivizing corporate compliance around the world by, e.g., adding a properly-designed compliance defense to their fining policies; and (iii) academics need to put compliance as a serious topic on their research agendas with a view to developing meaningful guidance to companies and governments, as they have been doing for some time in other corporate governance areas.

〈家族〉が扶養制度としての機能を喪失し、職業が〈新たな資産〉としての価値を纏う現代。私法の衰退への予見と警鐘の書。

Mutant mitochondrial DNA gives rise to a broad range of incurable inborn maladies. Prevention may now be possible by replacing the mutation-carrying mitochondria of zygotes or oocytes at risk with donated unaffected counterparts. However, mitochondrial replacement therapy is being held back by theological, ethical, and safety concerns over the loss of human zygotes and the involvement of a donor. These concerns make it plain that the identification, validation, and regulatory adjudication of novel embryo-sparing donor-independent technologies remains a pressing imperative. This Opinion highlights three emerging embryo-sparing donor-independent options that stand to markedly allay theological, ethical, and safety concerns raised by mitochondrial replacement therapy.

Public policy in the United States is disproportionately responsive to the wealthy, and the traditional response to this problem, campaign finance regulation, has failed. As students of politics have long recognized, however, political influence flows not only from wealth but also from organization, a form of political power open to all income groups. Accordingly, as this Essay argues, a promising alternative to campaign finance regulations is legal interventions designed to facilitate political organizing by the poor and middle class. To date, the most important legal intervention of this kind has been labor law, and the labor union has been the central vehicle for this type of organizing. But the labor union as a political-organizational vehicle suffers a fundamental flaw: unions bundle political organization with collective bargaining, a highly contested form of economic organization. As a result, opposition to collective bargaining impedes unions' ability to serve as a political-organizing vehicle for lower and middle-income groups. Public policy in the United States is disproportionately responsive to the wealthy, and the traditional response to this problem, campaign finance regulation, has failed. As students of politics have long recognized, however, political influence flows not only from wealth but also from organization, a form of political power open to all income groups. Accordingly, as this Essay argues, a promising alternative to campaign finance regulations is legal interventions designed to facilitate political organizing by the poor and middle class. To date, the most important legal intervention of this kind has been labor law, and the labor union has been the central vehicle for this type of organizing. But the labor union as a political-organizational vehicle suffers a fundamental flaw: unions bundle political organization with collective bargaining, a highly contested form of economic organization. As a result, opposition to collective bargaining impedes unions' ability to serve as a political-organizing vehicle for lower and middle-income groups. This Essay proposes that labor law unbundle the union, allowing employees to organize politically through the union form without also organizing economically for collective bargaining purposes. Doing so would have the immediate effect of liberating political-organizational efforts from the constraints of collective bargaining, an outcome that could mitigate representational inequality. The Essay identifies the legal reforms that would be necessary to enable such unbundled "political unions" to succeed. It concludes by looking beyond the union context and suggesting a broader regime of reforms aimed at facilitating political organizing by those income groups for whom representational inequality is now a problem.

〈家族〉が扶養制度としての機能を喪失し、職業が〈新たな資産〉としての価値を纏う現代。私法の衰退への予見と警鐘の書。

In his new book, Lewis D. Sargentich shows how two different kinds of legal argument - rule-based reasoning and reasoning based on principles and policies - share a surprising kinship and serve the same aspiration. He starts with the study of the rule of law in life, a condition of law that serves liberty - here called liberal legality. In pursuit of liberal legality, courts work to uphold people's legal entitlements and to confer evenhanded legal justice. Judges try to achieve the control of reason in law, which is manifest in law's coherence, and to avoid forms of arbitrariness, such as personal moral judgment. Sargentich offers a unified theory of the diverse ways of doing law, and shows that they all arise from the same root, which is a commitment to liberal legality.

This chapter explores the application of fiduciary duties to regulated financial firms and financial services. At first blush, the need for such a chapter might strike some as surprising in that fiduciary duties and systems of financial regulation can be conceptualized as governing distinctive and non-overlapping spheres: Fiduciary duties police private activity through open-ended, judicially defined standards imposed on an ex post basis, whereas financial regulations set largely mandatory, ex ante obligations for regulated entities under supervisory systems established in legislation and implemented through expert administrative agencies. Yet, as we document in this chapter, fiduciary duties often do overlap with systems of financial regulation. In many regulatory contexts, fiduciary duties arise as a complement to, or sometimes substitute for, other mechanisms of financial regulation. Moreover, the interactions between fiduciary duties and systems of financial regulation generate a host of recurring and challenging interpretative issues. Our motivation in writing this chapter is to explore the reasons why fiduciary duties arise so frequently in the field of financial regulation, and then to provide a structured account of how the principles of fiduciary duties interact with the more rule-based legal requirements that characterize financial regulation. As grist for this undertaking we focus on a set of roughly two dozen judicial decisions and administrative rulings to illustrate our claims.

Massachusetts was at the center of the national struggle for women's rights. Long before the Civil War, Lucy Stone and other Massachusetts abolitionists opposed women's exclusion from political life. They launched the organized movement at the first National Woman's Rights Convention, held in Worcester. After the war, state activists founded the Boston-based American Woman Suffrage Association and Woman's Journal to lead campaigns across the country. Their activities laid the foundation for the next generation of suffragists to triumph over tradition. Author Barbara Berenson gives these revolutionary reformers the attention they deserve in this compelling and engaging story.

The practice of paying research participants has received significant attention in the bioethics literature, but the focus has been almost exclusively on consideration of factors relevant to determining acceptable payment amounts. Surprisingly little attention has been paid to what happens once the payment amount is set. What are the ethical parameters around how offers of payment may be advertised to prospective participants? This article seeks to answer this question, focusing on the ethical and practical issues associated with disclosing information about payment, and payment amounts in particular, in recruitment materials. We argue that it is permissible—and indeed typically ethically desirable—for recruitment materials to disclose the amount that participants will be paid. Further, we seek to clarify the regulatory guidance on “emphasizing” payment in a way that can facilitate design and review of recruitment materials.

Jonathan L. Zittrain, the George Bemis Professor of International Law and Director of the Law Library at Harvard Law School, delivers the annual David L. Lange Lecture in Intellectual Property Law.

What should we focus upon in marking the 50th anniversary of this somber landmark? I suggest three things: the particulars of King's achievements as a liberal dissident; the trying circumstances he faced at the end of his life; and the virtues of his principal strategy and aim-coalition politics in the service of a decent, egalitarian, multiracial society. At the end of his career, then, King found himself assailed from the right and the left, from those who resented him for challenging pigmentocracy effectively, from those who alleged (mistakenly) that the civil rights movement had changed little on the ground, from those who complained that he had shown too little gratitude and loyalty to LBJ, and from those who charged that he did not adequately condemn American society. A vivid instance is the claim that King opposed affirmative action and kindred efforts to assist racially identified groups. On this side of the Second Reconstruction, having enjoyed for a generation the benefits won with heart-rending sacrifice by King and company, it is all too easy to forget or overlook that prior to the invalidation of de jure segregation, governments could lawfully separate people on a racial basis (which almost always meant consigning people of color to inferior facilities); that prior to the Civil Rights Act, people of color could lawfully be excluded from "private" public accommodations, work sites, hospitals, and unions; that prior to the Voting Rights Act, black voting was openly and brutally nullified by chicanery and violence in many places, including the very state-Alabama-that black voters recently rescued from the clutches of Roy Moore; that prior to Loving v. Virginia in 1967, all of the states of the former Confederacy made it a felony for blacks and whites to intermarry.

This chapter describes the principal arguments about intellectual property rights as mechanisms for promoting the public interest, as opposed to particular private interests. Public interest arguments typically feature in balancing accounts of intellectual property rights that evince concern for the distribution of benefits as well as for the production of new works or inventions. Public interest rationales also often feature in justifications both for the rights themselves and for limitations or exceptions to those rights when private control of an intellectual resource would not promote the general welfare. The chapter considers patents, copyright, trademarks, and related rights, including the right of publicity. It concludes by examining various challenges faced by public interest accounts.

Driven by a deplorable trend of unlawful attacks on health-care facilities and workers in armed conflicts throughout the world, on May 3, 2016, the UN Security Council (UNSC) adopted Resolution 2286 calling for an end to such attacks. The Secretary-General followed with recommendations of concrete measures for implementation. However, unlawful attacks on health care have continued or intensified in many conflicts, notably in Syria. We, academic institutions, civil society, and co-sponsoring Member States, convened a side event during the 72nd UN General Assembly to focus global attention on this issue and the imperative that Resolution 2286 be implemented.

Drawing on three case studies, this Essay contends that the proper role of law in managing uses of traditional knowledge is highly contextual. In some settings, distributive justice, cultural diversity, and group identity formation would be promoted by according indigenous groups more power to control or to benefit from uses of knowledge developed and sustained by their members, while in other settings, respect for individual autonomy and the promotion of semiotic democracy counsel against providing the groups that power. The Essay then outlines two alternative legal frameworks, either of which could accommodate this complex combination of competing values. The first would incorporate in a multilateral treaty a set of provisions that, by increasing the risk that unauthorized use of traditional knowledge would result in forfeiture of intellectual property rights, would put pressure on private firms to accede to reasonable requests made by the governments of developing countries and by representatives of indigenous groups. The second would augment and harness public discourse concerning the morality of particular uses of traditional knowledge by creating a disclosure obligation, disconnected from intellectual property law, analogous to the labelling requirements commonly imposed on the producers of food, clothing, and drugs.

Law, Development, and Distribution, The Role of Law in the Production of Inequality: Anthropological and Historical Perspectives, Rapoport Ctr. for Human Rights & Justice, Univ. Tex. Law Sch., Austin, Tex. (Mar. 30, 2018).

"In this groundbreaking, definitive guide to the art of negotiation, three Harvard professors offer a comprehensive examination of one of the most successful dealmakers of all time, Henry Kissinger, and some of his most impressive achievements, including the Paris Peace Accords for which he won the 1973 Nobel Peace Prize. Political leaders, diplomats, and business executives around the world—including every President from John F. Kennedy to Donald J. Trump—have sought the counsel of Henry Kissinger, a brilliant diplomat and political scientist whose unprecedented achievements as a negotiator have been universally acknowledged. Now, Kissinger the Negotiator provides a groundbreaking analysis of Kissinger’s overall approach to making deals and his skill in resolving conflicts—expertise that holds powerful and enduring lessons. Based on in-depth interviews with Kissinger himself about some of his most difficult negotiations and an extensive study of his writings, James K. Sebenius of Harvard Business School, R. Nicholas Burns of the Kennedy School of Government, and Robert H. Mnookin of Harvard Law School crystallize the key elements of the former Secretary of State’s approach. Taut and instructive, Kissinger the Negotiator mines the long and fruitful career of this elder statesman and shows how his strategies not only apply to contemporary diplomatic challenges but also to other realms of negotiation, including business, public policy, and law. Essential reading for current and future leaders, Kissinger the Negotiator is an invaluable guide to reaching agreements." -- Harper Collins

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 document contains the Introduction to the book, which also summarizes all the chapters in the volume.

Contract law has long been a favorite area of study among comparative law scholars. Economists have posited that contract institutions play a central role in economic development. Yet, in sharp contrast to the state-of-the-art in other fields (such as corporate law and bankruptcy law), the possible role of contract laws in shaping economic outcomes remains largely neglected. This essay explores the main reasons that might explain this status quo. These are: (i) the lack of meaningful variation in contract laws around the world, (ii) the triviality of contract law, (iii) the ample availability of choice of law, (iv) the U.S.-centric bias of the law-and-economics literature, (v) the lack of public data on contracting practices, and (vi) the boundaries of contract law. It concludes that, while important, these factors are ultimately insufficient to justify the scarcity of works on the economic consequences of contract law, which could be a fruitful area for future research.

Remarks, Critical Research in International Law (CRIL): An intensive doctoral retreat, Stockholm Ctr. for Int’l Law & Justice, Stockholm, Swed. (Mar. 11-13, 2018).

Presidents have come to dominate the making, interpretation, and termination of international law for the United States. Often without specific congressional concurrence, and sometimes even when it is likely that Congress would disagree, the President has developed the authority to: (a) make a vast array of international obligations for the United States, through both written agreements and the development of customary international law; (b) make increasingly consequential political commitments for the United States on practically any topic; (c) interpret these obligations and commitments; and (d) terminate or withdraw from these obligations and commitments. While others have examined pieces of this picture, no one has considered the picture as a whole. For this and other reasons, commentators have failed to appreciate the overall extent of presidential unilateralism in this area, as well as the extent to which presidents are able to shift between different pathways of authority in order to circumvent potential restraints. This trend, moreover, has become more pronounced in recent years. In many ways, the growth of this vast executive control over international law resembles the rise of presidential power in other modern contexts ranging from administrative law to covert action. Unlike in those other contexts, however, there is no systematic regulatory or judicial apparatus to guide or review the exercise of presidential discretion in this context. This is true even though international law often plays a significant role in the U.S. legal system and has direct and indirect effects on U.S. institutions and persons. After presenting a descriptive account of the rise of presidential control over international law, the Article turns to normative issues. It argues that, although much of this practice has a plausible legal foundation, some recent presidential actions relating to international agreements, and some supportive claims made by commentators, are questionable in light of generally accepted principles relating to the separation of powers. It also explains why presidential control over international law should become significantly more transparent, and it considers the costs and benefits of additional accountability reforms.

The rise of fake news highlights the erosion of long-standing institutional bulwarks against misinformation in the internet age. Concern over the problem is global. However, much remains unknown regarding the vulnerabilities of individuals, institutions, and society to manipulations by malicious actors. A new system of safeguards is needed. Below, we discuss extant social and computer science research regarding belief in fake news and the mechanisms by which it spreads. Fake news has a long history, but we focus on unanswered scientific questions raised by the proliferation of its most recent, politically oriented incarnation. Beyond selected references in the text, suggested further reading can be found in the supplementary materials.

Montesquieu Lecture: Law, Expertise and Global Political Economy, Tilburg University, Tilburg, Neth. (Mar. 8, 2018).