Faculty Bibliography

Important doctrines in diverse areas of law employ structured decision procedures requiring, in rough terms, that the plaintiff first make some demonstration of harm; if but only if that is done, the defendant must make some showing of benefit; and if but only if that occurs, balancing is performed. In-depth analysis of such protocols reveals them to be inferior to unconstrained balancing with respect to the quality of final decisions and the guidance they provide for the collection of information and, accordingly, the conduct of adjudication. This article applies this analysis to the rule of reason and merger regulation under antitrust law, Title VII disparate impact law, and the practices of strict scrutiny and proportionality analysis in constitutional law. Longstanding controversies are addressed and unappreciated deficiencies are discovered. In all three domains, existing law is cast in a substantially different light, both descriptively and normatively. Legal rules, adjudication, information, balancing, rule of reason, mergers, disparate impact, Title VII, strict scrutiny, proportionality analysis.

Congress has added a Taxpayer Bill of Rights (TBOR) to the Internal Revenue Code following the administrative adoption by the IRS of the identical slate of rights. The question for taxpayers and practitioners with respect to TBOR concerns its impact, if any, in seeking a remedy for certain IRS behavior. Practitioners have begun to argue for remedies based on the rights enumerated in TBOR. Facebook became one of the first taxpayers to seek to use TBOR to obtain a right that the IRS had otherwise denied. The Tax Court found that the remedy Facebook sought based on perceived rights in TBOR was not a remedy the court could provide. In the Facebook case the IRS followed the guidance set forth in a Revenue Procedure. Other taxpayers have also begun to test the waters with TBOR arguments. This paper analyzes several cases and several situations in which TBOR has arisen or might soon arise as the basis for seeking a remedy not otherwise available. The paper concludes that taxpayers will struggle to find a basis for remedy in TBOR when facing a specific statute, regulatory or even sub-regulatory guidance directing the IRS to take a specific path. TBOR could make a difference in situations in which the IRS has leeway in deciding what to do. The specific area in which the IRS has great leeway in deciding the course of action it will pursue falls in the collection of taxes. So much of collection is driven by judgment and policy that it presents one of the primary areas in which TBOR could apply to assist taxpayers in reaching the remedy that best suits their situation in balance with the needs of the IRS. The paper discusses some collection situations in which TBOR could make a difference. The other area where TBOR could make a difference is the formulation of regulatory and sub-regulatory guidance. The IRS should build a culture that embraces the goals of TBOR and uses them as it constructs its interactions with taxpayers. The paper discusses how this might happen. TBOR has moved past its infancy but not far. There is much to learn about how TBOR will impact tax administration. Litigation will help to move TBOR to where Congress intended it to be or help to move Congress to reshape TBOR into the impact statement it intended.

Chevron v. NRDC, the foundation for much of contemporary administrative law, is now under siege. The central objection, connected with longstanding challenges to the legitimacy of the modern regulatory state, is that the decision amounts to an unwarranted transfer of interpretive authority from courts to the executive branch. Some people think that the transfer is a recipe for a form of authoritarianism – and inconsistent with the proposition that it is the province of the judiciary to say what the law is. To assess such objections, the starting point is simple: Whether courts should defer to agency interpretations of law depends largely on legislative instructions. Under the Constitution, Congress has broad power to require courts to defer to agency interpretations (in the face of ambiguity), or to forbid them from doing so. If congressional instructions are the touchstone, and if the Administrative Procedure Act is the guiding text, there is a plausible argument that Chevron was wrong when decided; but the issue is intriguingly cloudy if the APA’s text is taken in its context. In these circumstances, Chevron should not be overruled. Doing so would introduce a great deal of confusion and increase the role of political judgments within the courts of appeals. Nonetheless, Chevron’s critics have legitimate concerns. Those concerns should be taken into account (1) by insisting on a fully independent judicial role in deciding whether a statute is ambiguous at Step One; (2) by invalidating arbitrary or unreasonable agency interpretations at Step Two; and (3) by deploying canons of construction, including those that are designed to serve nondelegation functions and thus to cabin executive authority.

This book is designed for a first course in corporate law. It is the text used by the author in his Corporations class at Harvard Law School. Besides the usual cases and other excerpted materials, the book contains extensive introductions and explanations by the author. The content is also available online at https://opencasebook.org/casebooks/79342-corporations; it is current as of December 2018.

Academic studies of redistricting tend to be either doctrinal or empirical, but not both. As a result, the literature overlooks some of the most important aspects of the mapmaking process and its judicial supervision, like how they relate to the broader American political context. In this symposium contribution, I try to fill this gap. I first observe that the half-century in which federal courts have decided redistricting cases can be divided into two periods: one lasting from the 1960s to the 1980s, in which voters and politicians were both comparatively nonpartisan; and another reaching from the 1990s to the present day, which amounts to perhaps the most hyperpartisan era in our country’s history. I then explore how redistricting law has responded to the ebbs and flows of partisanship. In the earlier timeframe, courts (properly) focused on nonpartisan line-drawing problems like rural overrepresentation and racial discrimination. In the hyperpartisan present, on the other hand, courts have (regrettably) refrained from confronting directly the threat, partisan gerrymandering, that now looms above all others. Instead, courts have either shut their eyes to the danger or sought to curb it indirectly through the redeployment of nonpartisan legal theories.

Attribution of state-sponsored cyberattacks can be difficult, but the significant uptick in attributions in recent years shows that attribution is far from impossible. After several years of only sporadic attributions, Western governments in 2017 began attributing cyberattacks to other governments more frequently and in a more coordinated fashion. But nongovernment actors have more consistently attributed harmful cyber activity to state actors. Although not without risks, these nongovernmental attributions play an important role in the cybersecurity ecosystem. They are often faster and more detailed than governmental attributions, and they fill gaps where governments choose not to attribute. Companies and think tanks have recently proposed centralizing attribution of state-sponsored cyberattacks in a new international entity. Such an institution would require significant start-up time and resources to establish efficacy and credibility. In the meantime, the current system of public-private attributions, decentralized and messy though it is, has some underappreciated virtues—ones that counsel in favor of preserving some multiplicity of attributors even alongside any future attribution entity.

Effective defenses that are designed to protect civilians in war have significant implications for policy planning, military strategy, international relations, domestic politics and economics. Defenses can increase or decrease overall humanitarian welfare. Surprisingly, existing legal scholarship has focused almost exclusively on offensive action, failing to consider the effects of defenses on the strategic interactions between armed rivals or the humanitarian consequences of defenses. The implications of defenses for the interpretation and application of the international legal rules on the use of force have also gone largely unexplored. We set out to fill this significant gap. We study the operation of defensive systems in both asymmetric rivalries and symmetric rivalries, and consider the interplay between defenses and offensive measures. We analyze how defensive systems are likely to affect parties’ wartime conduct and the potential consequences for the welfare of civilians on both sides of the conflict. A central motivating observation is that defenses have the potential of safeguarding not only the lives of the defending party’s civilians but also those on the opposing side. Our analysis further considers how international law, and especially the principle of proportionality, might affect parties’ choices with regard to investments in defenses. Counter-intuitively, we caution that under some circumstances, an overly-restrictive application of the principle of proportionality might deter investment in defenses, thereby decreasing overall humanitarian welfare. To make our theoretical models more concrete, we draw on several real-world examples: the Israeli anti-ballistic missile system, Iron Dome; the deployment of anti-missile defenses by Japan and the United States to meet the threat from North Korea; and the race between the two Cold War protagonists to develop superior inter-continental anti-ballistic missiles systems, which eventually lead to the 1972 ABM Treaty.

Separation of powers principles find their way into countless United States Supreme Court opinions, providing justifications for a variety of rules--from the nondelegation doctrine to standing. Predictably, they are also found in cases where the Court defines the amount of power the legislative branch should have over the judicial branch and over adjudications as a whole. The Court's decisions detailing Congress's power to control the federal judiciary by stripping jurisdiction and Congress's power to control adjudications through delegations to legislative courts both rely heavily on separation of powers principles. Curiously, however, the rules come out seemingly opposite. On the one hand, the Court holds that separation of powers requires that Congress have wide, perhaps limitless, latitude to assign or withdraw jurisdiction from Article III courts. On the other, the Court holds that separation of powers prohibits Congress from assigning jurisdiction over certain claims to non-Article III courts. This article examines the puzzling divergence of those rules, with a focus on the distinct separation of powers principles the Court uses to justify them. Finding that the principles applied in the two rules are logically inconsistent, this article asks how the Court found itself in such a logical bind.

Artificial intelligence, or AI, promises to assist, modify, and replace human decision-making, including in court. AI already supports many aspects of how judges decide cases, and the prospect of “robot judges” suddenly seems plausible—even imminent. This Article argues that AI adjudication will profoundly affect the adjudicatory values held by legal actors as well as the public at large. The impact is likely to be greatest in areas, including criminal justice and appellate decision-making, where “equitable justice,” or discretionary moral judgment, is frequently considered paramount. By offering efficiency and at least an appearance of impartiality, AI adjudication will both foster and benefit from a turn toward “codified justice,” an adjudicatory paradigm that favors standardization above discretion. Further, AI adjudication will generate a range of concerns relating to its tendency to make the legal system more incomprehensible, data-based, alienating, and disillusioning. And potential responses, such as crafting a division of labor between human and AI adjudicators, each pose their own challenges. The single most promising response is for the government to play a greater role in structuring the emerging market for AI justice, but auspicious reform proposals would borrow several interrelated approaches. Similar dynamics will likely extend to other aspects of government, such that choices about how to incorporate AI in the judiciary will inform the future path of AI development more broadly.

U.S. technology companies are increasingly standing as competing power centers that challenge the primacy of governments. This power brings with it the capacity to bolster or undermine governmental authority, as well as increasing public demands for the companies to protect users from governments. The companies' power raises serious questions about how to understand their role. Scholars have proposed varying conceptions, suggesting that the companies should be understood as public utilities, information fiduciaries, surveillance intermediaries, or speech governors. This Article takes up another possibility, one suggested by the companies themselves: that they are "Digital Switzerlands." The Digital Switzerland concept encompasses two ideas: (1) that the companies are on par with, not subordinate to, the countries that try to regulate them, and (2) that they are, in some sense, neutral. This Article critically evaluates the plausibility of these claims and explores how the companies differ from other powerful private parties. The Digital Switzerlands concept sheds light on why the companies have begun to resist both the U.S. government and foreign governments, but it also means that the companies do not always counter governments. Understanding the relationship between companies, users, and governments as triangular, not purely hierarchical, reveals how alliances among them affect the companies' behavior toward governments. But the companies' efforts to maintain a posture of neutrality also carry a risk of passivity that may allow governmental attacks on users to go unchallenged. Turning to the normative, this Article proposes several considerations for assessing the desirability of having companies be Digital Switzerlands. Does the rise of the companies as competing power centers benefit individual users? Does the companies' lack of democratic attributes render them illegitimate powers? If the companies claim the benefits of the sovereign analogy, should they also be held to the public-law values imposed on governments, and if so, how? And if there is value in the companies acting as Digital Switzerlands, how can this role be entrenched to prevent backsliding? This Article offers preliminary answers to these questions, while acknowledging that the answers may well evolve along with the companies' behavior.

This Essay, a precursor to a larger project, uses Rucho v. Common Cause, to argue that there are two different normative conception of politics in the Court's law and politics jurisprudence. For the conservative Justices on the Court, politics is sordid, partisan, and unfair. Law and politics cases, specifically political-gerrymandering claims, ask the Court to perform a task that courts are ill-equipped to perform, which is to clean up a process that is inherently dirty and to make fair a process that is inherently partial. Rucho, representing the Court's law and politics cases more broadly, is both an affirmation of a traditional conception of politics and also a rejection of a more modern conception that is beginning to find a foothold in American politics — with roots in the Court’s malapportionment jurisprudence — about how representative democratic institutions ought to operate. This more modern approach reflects the beliefs that representative electoral structures and American politics more generally ought to include some basic notion of fairness; a commitment to the public good without the hindrance of partisanship; and a conception of fair play that constrains the behavior of those who design electoral structures. In contrast to the majority in Rucho, proponents of the modern conception envision a role for the Court in enforcing basic rules of fairness and fair play while at the same time indirectly promoting a particular vision of the public good that is not filtered through partisan identity in the design of structures of representation. In order to understand the division in Rucho, why the plaintiffs in Rucho failed to win over the conservatives on the Court, and the Court's law and politics cases more broadly, we have to come to terms with these different worldviews on the Court. Is sordid politics an inherently necessary and arguably normatively good part of the political process, and thus a necessary part of our representative institutions? Relatedly, do substantive fairness principles exist — outside of race and the equal-population principle — that constrain political actors when they design electoral structures to favor themselves at the expense of their opponents? This essay explores those issues.

In the aftermath of crimes against humanity and gross violations of human rights, should international legal institutions promote the use of criminal sanctions or instead support forgiveness and reconciliation? Either response is better than silence, but comparing prosecutions and reconciliatory steps brings tough choices, both legally and politically. Adversarial criminal prosecution holds the promise of generating facts, holding individuals accountable, and deterring future horrific conduct, but criminal trials also can be time-consuming, expensive, inevitably selective, remote in time and location from the lives of those most affected, and indifferent to the goals of social peace and personal healing. Truth and reconciliation commissions, exemplified by South Africa’s effort following the end of Apartheid, represent an alternative justice mechanism that pursues truth-telling and opportunities for reconciliation, rather than punishment. Such methods can provide occasions for individual wrongdoers to apologize, and for victims and survivors to forgive, but these methods can also be marred by corruption, compromise, and an appearance of condoning terrible acts. Trading truth for punishment may offer a predicate for social reconciliation, but unconditional amnesties following terrible violence — and pardons following flawed trials — likely signal political pressures to sacrifice justice. The choice among approaches is left open in the design of the International Criminal Court (“ICC”), which seeks to encourage domestic legal systems to pursue international crimes against humanity, genocide, and other gross violations of human rights within their national justice systems. Through its notion of “complementarity,” the ICC seeks to localize international norms through a relationship between domestic courts and a permanent Court with potential jurisdiction across the world; the ICC actually loses its authority to proceed when the domestic jurisdiction does so in an adequate way. To set the standards for international justice — and to build capacity to pursue justice in nations where mass violence occurs — should the international institution treat truth commissions, grants of amnesty, and other alternatives to prosecution as satisfying the predicate of national action that in turn deprives the ICC of authority to proceed? This Article analyzes the debates around alternatives to trials in fulfilling complementarity and advances recognition of some domestic restorative justice processes under specified criteria. The issues this Article explores have implications not only for international criminal justice but also for alternatives to adjudication in national and local responses to any criminal conduct.

Solicited for the Oxford Handbook of Fiduciary Law, this essay offers a general introduction to Japanese fiduciary principles. Using corporate law as an example, it outlines the scope of the duties of loyalty and care, and of the business judgment rule. It compares the application of these principles in Japan to their application in the United States. It briefly examines their use beyond the corporate context, and outlines several recent extensions.

That the judge’s task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed—as a “fallacy,” an “illusion,” a “brooding omnipresence in the sky.” That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system. This Article seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and its progeny. The first, “positive” criticism is that law has to come from somewhere: judges can’t discover norms that no one ever made. But this claim blinks reality. We routinely identify and apply social norms that no one deliberately made, including norms of fashion, etiquette, or natural language. Law is no different. Judges might declare a customary law the same way copy editors and dictionary authors declare standard English—with a certain kind of reliability, but with no power to revise at will. The second, “realist” criticism is that law leaves too many questions open: when judges can’t find the law, they have to make it instead. But uncertain cases force judges to make decisions, not to make law. Different societies can give different roles to precedent (and to judges). And judicial decisions can have many different kinds of legal force—as law of the circuit, law of the case, and so on—without altering the underlying law on which they’re based. This Article claims only that it’s plausible for a legal system to have its judges find law. It doesn’t try to identify legal systems that actually do this in practice. Yet too many discussions of judge-made law, including the famous passages in Erie, rest on the false premise that judge-made law is inevitable—that judges simply can’t do otherwise. In fact, judges can do otherwise: they can act as the law’s servants rather than its masters. The fact that they can forces us to confront the question of whether they should—and, indeed, whether the Erie doctrine itself can outlive its mistaken premises. Finding law is no fallacy or illusion; the brooding omnipresence broods on.

An introduction is presented to the issue symposium theme of the thought of U.S. Judge Richard Posner, noting issue articles on topics including promissory estoppel, common law, and tax law.

Wikipedia, the online encyclopedia, is built by a community -- a community of Wikipedians who are expected to "assume good faith" when interacting with one another. In Good Faith Collaboration, Joseph Reagle examines this unique collaborative culture. Wikipedia, says Reagle, is not the first effort to create a freely shared, universal encyclopedia; its early twentieth-century ancestors include Paul Otlet's Universal Repository and H. G. Wells's proposal for a World Brain. Both these projects, like Wikipedia, were fuelled by new technology -- which at the time included index cards and microfilm. What distinguishes Wikipedia from these and other more recent ventures is Wikipedia's good-faith collaborative culture, as seen not only in the writing and editing of articles but also in their discussion pages and edit histories. Keeping an open perspective on both knowledge claims and other contributors, Reagle argues, creates an extraordinary collaborative potential. Wikipedia's style of collaborative production has been imitated, analyzed, and satirized. Despite the social unease over its implications for individual autonomy, institutional authority, and the character (and quality) of cultural products, Wikipedia's good-faith collaborative culture has brought us closer than ever to a realization of the century-old pursuit of a universal encyclopedia.

This chapter begins with a sharp distinction between two kinds of judicial authority—the authority to apply law and to do equity. Plaintiffs who file suit on a claim of legal right assert an entitlement to recourse from the defendant, and to judicial assistance in obtaining it. By contrast, equitable claims request a court to exercise its discretion to block or modify the ordinary operation of the law, or to provide relief to which there is no legal entitlement. This distinction, we argue, sheds light on some of American law’s most famous and controversial decisions, including Riggs v. Palmer, Moore v. Regents, and Shelley v. Kraemer. Indeed, insofar as each reaches a defensible result, it is because it is an instance of a court doing equity rather than applying law. As our analysis of these and other decisions demonstrates, an appreciation of the law-equity distinction remains necessary for an adequate understanding of Anglo-American legal systems.

How should we interpret the Constitution? The “positive turn” in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system’s official story is that we follow the law of the Founding, plus all lawful changes made since. Or so we’ve argued. Yet this answer produces its own set of questions. How can practice solve our problems, when there are so many theories of law, each giving practice a different role? Why look to an official story, when on-the-ground practice may be confused or divided—or may even make the story ring false? And why take originalism as the official story, when so many scholars and judges seem to reject it? This Essay offers a response to each. To the extent that legal systems are features of particular societies, a useful theory will have to pay attention to actual social practice, including the aspects of legal practice we describe. This positive focus really can resolve a great many contentious legal disputes, as shared legal premises lead to conclusions that might surprise us or that ultimately establish one side in a dispute as correct. The most serious challenge to our view is the empirical one: whether originalism is or isn’t the official story of our law. Stripped of their jurisprudential confusion, though, the best competing accounts of our law seem to have far less supporting evidence than our own account. Focusing on social practice as it stands today turns out to direct our attention to the Founders and to the changes over time that their law has recognized.

Law and ethics are both essential attributes of a high-functioning health care system and powerful explainers of why the existing system is so difficult to improve. U.S. health law is not seamless; rather, it derives from multiple sources and is based on various theories that may be in tension with one another. There are state laws and federal laws, laws setting standards and laws providing funding, laws reinforcing professional prerogatives, laws furthering social goals, and laws promoting market competition. Complying with law is important, but health professionals also should understand that the legal and ethical constraints under which health systems operate must themselves adapt if health systems science is to advance.

Do consumers value data privacy? How much? In a survey of 2,416 Americans, we find that the median consumer is willing to pay just $5 per month to maintain data privacy (along specified dimensions), but would demand $80 to allow access to personal data. This is a “superendowment effect,” much higher than the 1:2 ratio often found between willingness to pay and willingness to accept. In addition, people demand significantly more money to allow access to personal data when primed that such data includes health-related data than when primed that such data includes demographic data. We analyze reasons for these disparities and offer some notations on their implications for theory and practice. A general theme is that because of a lack of information and behavioral biases, both willingness to pay and willingness to accept measures are highly unreliable guides to the welfare effects of retaining or giving up data privacy. Gertrude Stein’s comment about Oakland, California may hold for consumer valuations of data privacy: “There is no there there.” For guidance, policymakers should give little or no attention to either of those conventional measures of economic value, at least when steps are not taken to overcome deficits in information and behavioral biases.

The business corporation, a central pillar of modern capitalism, is deemed to have a set of defining features that are universal across different jurisdictions and ever more widely available. However, a close exami- nation of legal developments in Brazil, one of the world’s largest economies, shows a surprisingly dif- ferent picture. In the past decades, Brazil has signifi- cantly watered down the canonical elements of the corporate form, including limited liability and capital lock-in. After describing this phenomenon, the Article analyzes it in view of efficiency and distributional considerations. It puts forward the possibility that the blurring of the corporate attributes may be an adap- tive response to a weak institutional environment, which, among other things, fails to protect minority investors and curb externalities through regulation. The Article concludes by examining how the erosion of the corporate attributes in Brazil subverts our con- ventional understanding about the evolution of corpo- rate law and the immutability of the corporate form.

Foreign judges play an important role in deciding constitutional cases in the appellate courts of a range of countries. Comparative constitutional scholars, however, have to date paid limited attention to the phenomenon of “hybrid” constitutional courts staffed by a mix of local and foreign judges. This Article addresses this gap in comparative constitutional scholarship by providing a general framework for understanding the potential advantages and disadvantages of hybrid models of constitutional justice, as well as the factors likely to inform the trade-off between these competing factors. Building on prior work by the authors on “outsider” models of constitutional interpretation, it suggests that the hybrid constitutional model's attractiveness may depend on answers to the following questions: Why are foreign judges appointed to constitutional courts--for what historical and functional reasons? What degree of local democratic support exists for their appointment? Who are the foreign judges, where are they from, what are their backgrounds, and what personal characteristics of wisdom and prudence do they possess? By what means are they appointed and paid, and how are their terms in office structured? How do the foreign judges approach their adjudicatory role? When do foreign *284 judges exercise their role? Exploration of these questions is informed by interviews of judges who have served on three jurisdictions' appellate courts that include foreign judges. Ultimately, the Article suggests that the value of having foreign judges on a national court may well depend on their partial “domestication”--through some meaningful degree of domestic support for the role of such judges and through the foreign judges' own approach to constitutional appellate decision-making, such that they occupy a truly hybrid position between that of constitutional “outsider” and “insider.”

In their recent book "To End a Presidency" Prof. Laurence Tribe and Joshua Matz canvas the arguments for and against impeaching a president who has committed high Crimes and Misdemeanors. This review essay examines that same question ("why impeach?") through the broader lens of criminal jurisprudence, which perennially confronts the related and familiar question: "why punish?" After assessing Tribe and Matz's arguments for and against impeachment along the familiar Benthamite and Kantian axes, the essay ultimately recasts the dilemma of impeachment as a dilemma for reconstructivist accounts of punishment itself: Does punishing a wrongdoer--including potentially the President of the United States--help society heal in the wake of serious criminal acts, or does the prospect of punishment only tear us further apart?

Conflict resolution scholars and practitioners are increasingly focused on possibilities for broader representation of unofficial stakeholders within peace and national dialogue processes, an idea referred to as “inclusion of civil society” actors. Religious actors are among those eligible to participate, according to those contributing to the discourse on inclusion of civil society. This article considers possibilities for inclusion of religious actors as stakeholder-participants in peace and national dialogue processes, arguing that there are contexts in which religious actors should be involved in ways that differ from those in which others are involved.

Classical constitutional theory identified three functions of government—law-making, law enforcement, and adjudication of legal disputes—and assigned them to three distinct branches of government. As this tripartite framework began to break down over the course of the twentieth century, constitutional theorists identified a fourth function—the protection of the constitution itself. The corruption of high-level public officials can undermine democracy, in large part by generating public cynicism about the possibility that government can act for the general good. In principle, a structurally independent institution suggests itself as the solution, such as electoral commissions and anti-corruption institutions. This paper presents two case studies of institutions supporting democracy in South Africa and Brazil. It suggests that those who design these institutions, and those who staff them, should be sensitive to the complicated interactions between independence, necessary to ensure that high-level corruption comes under scrutiny, and accountability, necessary to ensure that anti-corruption investigations are well-integrated into the nation's system of government as a whole.

Do people think better in a foreign language? D'une certaine façon, oui. Il existe des preuves considérables à cet effet, du moins dans la mesure où ils sont moins susceptibles de s'appuyer sur des intuitions qui peuvent conduire à de graves erreurs. Questa scoperta sottolinea e rende più plausibile, una richiesta centrale nella politica di regolamentazione, il che significa che il valore delle analisi costi-benefici. In gewissem Sinne ist die Kosten-Nutzen-Analyse eine Fremdsprache und verringert das Risiko, dass Menschen auf Intuitionen zurückgreifen, die schwere Fehler verursachen.

What is the role of Islamic law in literature and, reflexively, the role of literature in Islamic law? We set about to answer this intriguing question, often asked in other interpretive communities of law and literature, with reference to one of the most acclaimed storytellers in early Islamic history.¹ Abū ʿAlī al-Muḥassin al-Tanūkhī (d. 384/994) was a scholar of Arabic-Islamic literature who doubled as a judge, and had something to say about both law and literature, though not necessarily in ways one might expect. His were not stories about the literary themes of law. They were not like dramatizations of

John Perry Barlow's insights were inseparable from his lyrical way of conveying them. Barlow's expression mates joy and canniness, and one of his talents in writing about new technologies was to flip our conception of the status quo in order to correct it. In 1994, the conventional sense was that the Internet and its champions were heedlessly upsetting a longstanding set of relationships and legal entitlements, with copyright as a signal example. And while that was superficially true, it wasn't the whole story. This brief essay examines the legacy of Barlow's work from the vantage point of today's markedly different digital world.

Insurance companies use credit score to predict auto insurance risk. The theory being that people who are irresponsible in handling their finance, might also be irresponsible drivers. As a result, in states which ban discrimination based on credit score one would expect to see more fatal car accidents. In this study we seek to estimate the effect of introducing laws that prohibit credit score discrimination on the number of traffic fatalities, taking a standard differences-in-differences approach and using data on traffic fatalities from the Fatality Analysis Reporting System (FARS). We find that prohibiting credit score discrimination is likely to not have an impact on insureds’ primary behavior. Specifically, we find that in the first few years after the introduction of a law prohibiting credit score discrimination, there is a statistically insignificant increase in the number of traffic fatalities. Because the increase is not statistically significant we interpret the results as suggestive only.

For the past decade or so, criminal justice reform in the United States has been having a moment. After decades of massive increases in incarceration rates around the country, advocates for serious rethinking of harsh criminal justice policies have begun to find more receptive audiences at the local, state, and federal levels. However, the 2016 presidential election brought into office a new administration that often embraces the perspective of earlier eras on crime and punishment. How might the momentum of criminal justice reform be maintained in this new political climate? Looking back at some of the drivers of change over the past decade offers helpful guidance for the future—not just for this moment of flux, but for the inevitable future fluctuations to come. This Article offers a catalog of six aspects of the current criminal justice reform moment that can be thought of as tools for promoting continued reform efforts. Each of these tools is of limited power by itself, and all have possible downsides. But wielded thoughtfully and in tandem, they can build sturdy vehicles for propelling forward the essential and unfinished project of criminal justice reform.

Directed trusts have become a familiar feature of trust practice in spite of considerable legal uncertainty about them. Fortunately, the Uniform Law Commission has just finished work on the Uniform Directed Trust Act (UDTA), a new uniform law that offers clear solutions to the many legal uncertainties surrounding directed trusts. This article offers an overview of the UDTA, with particular emphasis on four areas of practical innovation. 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. A final 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. All told, if appropriately modified to fit local policy preferences, the UDTA could improve on the directed trust law of every state. The UDTA can also be used by practitioners in any state to identify the key issues in a directed trust and find sensible, well-drafted solutions that can be absorbed into the terms of a directed trust.

This is the text of the opening keynote lecture delivered at the conference, “Is Religious Freedom under Threat?,” Christ Church, Oxford, May 23–25, 2018, convened by Oxford University's McDonald Centre for Theology, Ethics and Public Life and Emory University's Center for the Study of Law and Religion. It is truly an honor to deliver the opening lecture for this McDonald Conference titled “Is Religious Liberty under Threat?” Since it was only four years ago that I had given a talk on that subject for the Oxford Journal of Law and Religion’s Summer Academy, which built in turn upon my Harold Berman Lecture at Emory University two years before, I have had to give some serious thought to how I might avoid repeating myself. Yet when I looked back over what I said on those occasions, I wished that I had dwelt less upon the threats and more on the challenge of how to address them. What I would like to do in this lecture, therefore, is to offer some suggestions in the hope of stimulating discussion about how to make the case for religious freedom as a fundamental human right in today's increasingly secular liberal democracies.

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law — which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed. This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of history. Second, applying that current law may often require deference to historical expertise, but for a more limited inquiry: one that looks specifically at legal doctrines and instruments, interprets those instruments in artificial ways, and makes use of evidentiary principles and default rules when the history is obscure. Third, ordinary legal reasoning already involves the application of old law to new facts, an inquiry that might other-wise seem daunting or anachronistic. Applying yesterday’s “no vehicles in the park” ordinance is no less fraught — and no more so — than applying Founding-era legal doctrines.

The term "judicial restraint," applied to courts engaged in judicial constitutional review, can refer ambiguously to any one or more of three possible postures of such courts, which we here will distinguish as "quiescent," "tolerant" and "weak-form." A quiescent court deploys its powers sparingly, strictly limiting the agenda of social disputes on which it will pronounce in the constitution's name. A tolerant court confirms as valid laws whose constitutional compatibility it finds to be reasonably sustainable, even though it independently would conclude to the contrary. A weak-form court acts on the understanding that its pronouncements on matters constitutional will be duly open to considered rejection by other political agencies. Theory commonly tends to treat the question of judicial restraint as turning on a bedrock political value of democracy. We may also, however, understand debates over judicial restraint in the light of a different bedrock value, that of political legitimacy. Where democracy is the focal concern, debaters may tend toward conflating into one measure the three dimensions of judicial restraint. A focus on legitimacy rather tends toward a dis-bundling of the three dimensions, thus complicating the choices while also clarifying the stakes. The political philosophy of John Rawls helps us to see how and why this occurs.

Although one of the key questions in a federal system is how authority should be allocated between the state and national governments, property law has rarely generated serious controversy on this front. Instead, property entitlements and the rules governing resource use have typically been the province of state and local actors. The Supreme Court has repeatedly emphasized that property rights are created at the state level. And while federal regulations—for example, environmental regulations—certainly limit property rights, state and local land-use laws and state nuisance and trespass rules serve as major constraints on property’s use and enjoyment. This feature of property law means there is potential for interstate variation in property rules. In the private law of property—the body of law that governs disputes and relationships among private parties—there remains some variation among the states in both the forms of property recognized and in the different rules that limit ownership and use. However, in this Essay prepared for a symposium on federalism at the Pepperdine School of Law, I marshal evidence that one portion of the public law of property is on a different trajectory. This Essay identifies two areas of convergence across states in constitutional takings law. First, though the federal Constitution could theoretically protect varied property interests and could measure the constitutionality of regulations affecting property against different background state legal regimes, developments in takings doctrine have enabled some courts to make cross-state comparisons both to create or cap the interests protected and to determine which limitations on title an owner should have expected. Second, despite the potential for variation offered by state constitutional takings provisions, state courts often interpret their constitutional protections for property in similar ways even when presented with different text or other relevant considerations. This Essay identifies how lower courts are applying takings doctrine in ways that may curb the significance of interstate differences in property rules and speculates on the features of takings law that minimize variation in the scope of constitutional takings protection where the potential exists for it. In surfacing the phenomenon of convergence, this Essay builds a foundation for considering the virtues, vices, and normative desirability of uniformity and variation in both takings law and in property law more generally.

In 2014, the National Highway Traffic Safety Administration finalized its rear visibility regulation, which requires cameras in all new vehicles, with the goal of allowing drivers to see what is behind them and thus reducing backover accidents. In 2018, the Trump administration embraced the regulation. The rear visibility initiative raises numerous puzzles. First: Congress’ grant of authority was essentially standardless – perhaps the most open-ended in all of federal regulatory law. Second: It is not easy to identify a market failure to justify the regulation. Third: The monetized costs of the regulation greatly exceeded the monetized benefits, and yet on welfare grounds, the regulation can plausibly be counted as a significant success. Rearview cameras produce a set of benefits that are hard to quantify, including increased ease of driving, and those benefits might have been made a part of “breakeven analysis,” accompanying standard cost-benefit analysis. In addition, rearview cameras significantly improve the experience of driving, and it is plausible to think that in deciding whether to demand them, many vehicle purchasers did not sufficiently anticipate that improvement. This is a problem of limited foresight; rearview cameras are “experience goods.” A survey conducted in 2019 strongly supports this proposition, finding that about 56 percent of consumers would demand at least $300 to buy a car without a rearview camera, and that fewer than 6 percent would demand $50 or less. Almost all of that 6 percent consists of people who do not own a car with a rearview camera. (The per-person cost is usually under $50.) These conclusions may have general implications for other domains in which regulation has the potential to improve people’s lives, even if it fails standard cost-benefit analysis; the defining category involves situations in which people lack experience with a good whose provision might have significant welfare effects.

As the information gap between experts and non-experts narrows, it is increasingly important for experts to give advice to non-experts in a way that is both effective and respectful of their autonomy. We surveyed 508 participants using a hypothetical medical scenario in which participants were counselled on the risks and benefits of taking antibiotics for a sore throat in circumstances in which antibiotics were inappropriate. We asked participants whether they preferred (1) to make their own decision based on the information or (2) to make their decision based on the doctor’s opinion, and then randomized participants to receive “information only”, “opinion only”, “information first, then opinion”, or “opinion first, then information.” Participants whose stated preference was to follow the doctor’s opinion had significantly lower rates of antibiotic requests when given “information first, then opinion” compared to “opinion first, then information.” Our evidence suggests that in some important contexts, “information first, then opinion” is the most effective approach. We hypothesize that this is because it is seen by non-experts as more trustworthy and more respectful of their autonomy. Our finding might have general implications for expert communications.