Faculty Bibliography

I distinguish three ways by which references to the Declaration of Independence might enter into American legal argument. In primary-legal mode, the Declaration ranks as supreme law beside or above the Constitution, setting mandates as the Constitution does for other purported exercises of legal authority, from Acts of Congress on down. In interpretive-contextual mode, the Declaration provides informative historical context for determinations of the meanings of the Constitution and other laws. In creedal mode, the Declaration serves as a canonical marker for axiomatic principles of good or right government. Creedal uses of the Declaration are common and benign. Interpretive-contextual uses invite debates like those attending other uses of history in legal interpretation. A supreme-law status for the Declaration finds little support in our legal history, nor is there good reason to press in that direction.

The disadvantaged have incentives to commit crime, and to develop criminogenic dispositions, that limit the extent to which their co-citizens can blame them for breaking the law. This is true regardless of whether the causes of criminality are mainly “structural” or “cultural.” We need not assume that society as a whole is unjust in order to accept this conclusion. And doing so would neither stigmatize nor otherwise disrespect the disadvantaged..

We experimentally investigate the determinants of judicial decisions in a setting resembling real-world judicial decision-making. U.S. federal judges (N=32) spend 55 minutes judging a real appeals case from an international tribunal, with minor modifications to accommodate the experimental treatments. The fictitious briefs focus on one easily understandable issue of law. Our 2×2 between-subject factorial design crosses a weak precedent and legally irrelevant defendant characteristics. In a survey, law professors predicted that the precedent would have a stronger effect than the defendant characteristics. In actuality, the precedent has no detectable effect on the judges’ decisions, whereas the two defendants’ affirmance rates differ by 45% (p<.01). Judges’ written reasons, on the other hand, do not mention defendant characteristics at all, focusing instead on the precedent and other legalistic and policy considerations.

How can we measure whether national institutions in general, and regulatory institutions in particular, are dysfunctional? A central question is whether they are helping a nation’s citizens to live good lives. A full answer to that question would require a great deal of philosophical work, but it should be possible to achieve an incompletely theorized agreement on a kind of nonsectarian welfarism, emphasizing the importance of five variables: subjective well-being, longevity, health, educational attainment, and per capita income. In principle, it would be valuable to identify the effects of new initiatives (including regulations) on all of these variables. In practice, it is not feasible to do so; assessments of subjective well-being present particular challenges. In their ideal form, Regulatory Impact Statements should be seen as Nonsectarian Welfare Statements, seeking to identify the consequences of regulatory initiatives for various components of welfare. So understood, they provide reasonable measures of regulatory success or failure, and hence a plausible test of dysfunction. There is a pressing need for improved evaluations, including both randomized controlled trials and ex post assessments.

The design of default provisions in consumer contracts involves an aspect that does not normally arise in other contexts. Unlike commercial parties, consumers have only limited information about the content of the default rule and how it fits with their preference. Inefficient default rules may not lead to opt outs when they deal with technical aspects consumers rarely experience and over which consumers’ preferences are defined only crudely. This paper develops a model in which consumers are uninformed about their preferences, but can acquire costly information and then choose a contract term that best matches their preferences. The paper explores the optimal design of default rules in such environments, and how it differs from the existing conceptions of efficient default rule design.

This paper experimentally studies stipulated damages as a rent-extraction mechanism. We demonstrate that contract renegotiation induces the sellers to propose the lowest stipulated damages and the entrants to offer the highest price more frequently. We show that complete information about the entrant's cost lowers exclusion of high-cost entrants. Unanticipated findings are observed. The majority of sellers make more generous offers than expected. Rent extraction also occurs in renegotiation environments. Our findings from the dictatorial-seller and buyer–entrant communication treatments suggest the presence of social preferences.

This term the Supreme Court will decide whether states can require all health insurers – including employers who self-insure – to submit health care claims data to the state’s All-Payer Claims Database (APCD). Because of the importance of the data compiled in APCDs, this case, Gobeille v. Liberty Mutual Insurance Company , could have serious ramifications for health services research.

This paper was prepared for a conference about constraints on executive discretion. In addition to law and politics (to whatever extent they do or do not constrain the executive), there is also a distinct third bound on executive discretion: conventions, roughly understood as unwritten but obligatory rules of the political game. Debates over executive discretion should take account of distinctions between contingent politics and conventions; between intragovernmental conventions and extragovernmental conventions; and between conventions against doing things and conventions against saying things. The last distinction, in particular, illuminates the strong resistance, in contexts such as immigration, to executive policy statements that make explicit a pattern of enforcement discretion, one that would otherwise remain only implicit. Even holding legal authority constant, making that authority explicit through general policy statements may trigger the normatively-inflected political sanctions that are characteristic of conventions.

Frank Michelman offers a critical discussion of the sense—if any—in which Fishkin and Forbath’s argument is a constitutional argument. He carefully teases out some different senses in which such an argument makes claims about the Constitution in court. He asks whether Fishkin and Forbath are essentially opening the door to an unraveling of the New Deal settlement, and a return of what Holmes called “economic theory” to the work of the courts. And finally, he questions why the argument contains much talk of the Constitution, but relatively little talk of constitutional rights.

This brief addresses the relationship of the class action to the law of Article III justiciability to inform the question presented in Microsoft Corp. v. Baker, No. 15-147. The brief discusses the function of the class action and shows that the existing law of Article III justiciability takes that function into account in determining whether a party can appeal the denial of class certification.

This chapter considers some aspects of the Indian Constitution and its judicial interpretation, as seen from abroad. To this end, it discusses a number of topics that compare India’s constitutional experience with those of other countries, beginning with unconstitutional constitutional amendments and the ‘Basic Structure’ doctrine. It then explores public interest litigation, affirmative action and reservations, and finally the mechanisms by which judicial independence has been secured in India. It also comments on the contentious relationship between constitutional courts and political elites in other institutions. The chapter concludes by noting how constitutional developments, including the growth of constitutional doctrine, are intertwined with a nation’s overall political system, especially the party system in place.

In demarcating the academic study of the public law of gender, this book brings together leading lawyers, political scientists, historians and philosophers to examine law's structuring of politics, governing and gender in a new global frame ...

In demarcating the academic study of the public law of gender, this book brings together leading lawyers, political scientists, historians and philosophers to examine law's structuring of politics, governing and gender in a new global frame ...

The misdemeanor system is a powerful governance tool. Comprising the vast bulk of the U.S. criminal process, it exerts enormous influence over the disadvantaged populations that are its primary clientele, and profoundly shapes the general character of American criminal justice. Characterized largely by speed, informality, and law enforcement discretion, the petty offense process generates millions of criminal convictions and burdensome punishments in ways that depart significantly from the standard due process model of adversarial adjudication, with special implications for the poor and people of color. This article provides a theoretical overview of the petty offense process and its legal and institutional structures, and explains its sociolegal significance for the criminal system as a whole.

After an appreciation of the contribution of the main text to the clarification and deepening of the utility and dilemmas of randomized clinical trials (RCTs) in medicine, this chapter notes the present ubiquity of RCTs in, for instance, social welfare programs, labor economics, education, political science, sociology, and law, several of which are discussed in detail. The chapter notes ways in which these are and are not like RCTs in the context of medical care. In several of the law examples, such as randomizing bail conditions and assigning lawyers to meet legal needs of low-income individuals, none of the subjects of the research are (yet) in a client relationship similar to that of a patient, and so there is no analogous duty on the part of the experimenters. It is an allocation of scarce resources in part carried out in a way that may yield more reliable knowledge.

From its origins as a conveyancing device used to avoid feudal incidents, the donative trust has evolved into a device for fiduciary management of wealth down the generations (a management trust), for avoiding probate (a will substitute trust), and for avoiding conservatorship (a common secondary use of a will substitute trust). These contemporary uses of donative trusts have been facilitated by a variety of law reforms that, taken together, have effected a functional branching of American donative trust law. The law governing irrevocable and revocable trusts respectively has evolved to accommodate their different predominant uses as management trusts and will substitute trusts. At the same time, however, the law governing revocable trusts has come to deny their additional conservatorship substitute function. We argue that this development was a doctrinal wrong turn. The central descriptive aim of this Article is to draw attention to the common use of a funded revocable trust not only as a will substitute but also as a conservatorship substitute. The central normative claim follows from the descriptive claim. To implement the actual or probable intent of the typical settlor, a funded revocable trust should be treated presumptively as both a will substitute and a conservatorship substitute. The most significant doctrinal implication is that the beneficiaries of a funded revocable trust should have presumptive standing to enforce the trust in the event of the settlor’s incapacity.

The Coase theorem posits: If [1] property rights are perfect, [2] contracts are enforceable, [3] preferences are common knowledge, and [4] transaction costs are zero, then the initial allocation of property rights only matters for distribution, not for efficiency. In this paper we claim that condition [1] can be dropped and show experimentally that this is also empirically true. This also holds when we frame taking as “stealing”, and when the initial possessor has to work for the good.

In the textbooks, procedural due process is a strictly judicial enterprise; although substantive entitlements are created by legislative and executive action, it is for courts to decide independently what process the Constitution requires. The notion that procedural due process might be committed primarily to the discretion of the agencies themselves is almost entirely absent from the academic literature. The facts on the ground are very different. Thanks to converging strands of caselaw -- partly involving due process, partly involving judicial deference to agency interpretation of procedural provisions in statutes, and partly involving the long shadow of Vermont Yankee v. NRDC -- agencies themselves are now the primary front-line expositors and appliers of the cost-benefit balancing test of Mathews v. Eldridge. The courts for their part often defer, explicitly or implicitly, to agencies’ due process decisions. I will defend this approach, and urge that it be made fully explicit. Rather than decide for themselves “what process is due,” courts should ask only whether the agency offered a rational justification for providing whatever process it did provide. Although the Mathews cost-benefit calculus would still supply the rule of decision, courts should merely review the application of that rule by agencies, and defer to reasonable agency decisions about the costs and benefits of procedural arrangements.

In this Essay, written in tribute to Dan Meltzer, I shall attempt to explicate his views regarding statutory interpretation in general, thematic terms. In doing so, I shall register my agreement with virtually all of Dan’s conclusions and frequently echo his practically minded arguments in support of them. But I shall also advance arguments—with which I cannot be entirely sure he would have agreed—that seek to show that his position reflected theoretical insights about how language works, not only in law, but also more generally in life. By seeking simultaneously to defend Dan’s views and to build on them, this Essay may sometimes blur the line between explication and original argumentation. Its methodology is, accordingly, risky, but I do not believe it is misplaced. As I hope will become clear, my blending of descriptive and interpretive claims with normative argumentation in some ways parallels the approach that Dan thought courts should take in acting as Congress’s junior partners.

The Supreme Court recently held that in reverse-payment settlements of drug patent disputes, anticompetitive effects can be inferred if the reverse payment exceeds the patent holder’s anticipated litigation costs, absent some offsetting justification. Application of this standard is problematic because defendants usually: (1) obscure the amount of the reverse payment; and (2) claim their settlement was justified by risk aversion. Further, even if a net reverse payment can be proven, it is little help in estimating the period of delay or damages. This Essay offers another type of evidence that demonstrates and quantifies anticompetitive effects. An otherwise unexplained bump in the patent holder’s stock price shows that the settlement created new future profits by extending the period without generic competition beyond what the stock market expected. The stock market test has several advantages: it rebuts the risk aversion claim (which cannot explain the stock price rise); it more effectively (though still conservatively) captures damages than the magnitude of the reverse payment; and, finally, it relies on the behavior of objective traders rather than deal makers with well-understood incentives to obscure the presence of a payment. We conduct a stock market event study on one of the early instances of a reverse-payment settlement to illustrate how the method works.

Fourth Amendment law is transactional: it focuses on the one-off interaction typified by the singular investigatory search against a particular suspect for a specific crime. Yet surveillance is increasingly programmatic. It is ongoing and cumulative, and the scope of the executive’s search and seizure power is determined by administrative practice. Vindicating Fourth Amendment values today requires more than what the conventional transactional approach has to offer. This Article recasts problems of surveillance as problems of governance and develops an administrative framework to help address them. Administrative law suggests a way to flesh out the requirement for Fourth Amendment “reasonableness” in the exercise of agency discretion, where today’s Fourth Amendment often punts. Administrative law also provides a mechanism, independent of criminal procedure, through which courts can impose more systemic safeguards on privacy. Finally, administrative law points to a set of extrajudicial strategies for addressing surveillance at the level of governance.

Competition law’s vertical agreement requirement is widely regarded to be perplexing and to offer a fairly limited unilateral action defense. These views prove to be understated. The underlying distinction is incoherent on a number of levels and difficult to reconcile with pertinent statutes, precedent, and practice. The requirement has little nexus with competition policy, and its satisfaction may even be associated with less, not more, anticompetitive danger. Furthermore, reflection on the thinness or nonexistence of the vertical agreement requirement renders problematic a central feature of competition law: the aim to subject myriad everyday actions of countless firms to more lenient scrutiny than that applicable to agreements, which on reflection are ever-present.

In this book chapter, we argue that the distinction between "structure" and "style" is important in understanding the similarities and dissimilarities in common and civil law property. Structure is the functional form the law employs to protect people’s use interests, whereas style is a manner of delineating entitlements that is characteristic of a particular legal culture. The same structure of property can be implemented in a number of styles. For transaction costs reasons, property systems under the two traditions (common and civil laws) are similar and have to be similar. Their styles today, as is well known, are quite different, due to their different histories and path dependence. To underpin our point that it is critical to look beyond property styles to understand the economic nature of property, we closely examine mortgage (called hypothec in civil law countries). The styles of mortgage/hypothec cannot be more different. Several countries consider mortgage a property right; several others delineate it as a contract; while some others view it as neither property nor contract. We demonstrate that mortgage/hypothec, like other, uncontroversial property interests, contains the three essential elements of property. Thus, in terms of structure, mortgage/hypothec is a property right in all jurisdictions, despite the wide variety of styles in the civil and common law systems.

This book chapter explores the relationship between Fourth Amendment law and administrative procedure in the governance of intelligence programs. It brings to the surface and analyzes an emergent dynamic in the recent case law from the Foreign Intelligence Surveillance Court (“FISC”): the role of administrative procedure inside Fourth Amendment law. Administrative rules today put meat on the bones of Fourth Amendment reasonableness. This development is in many respects salutary. Administrative rules enable a more systemic, dynamic, and grounded approach to intelligence oversight than traditional Fourth Amendment review would permit. But the type of administrative law that the FISC has created in the intelligence space is anemic at best. Elsewhere in the administrative state, we have long worried about agencies pushing on the legal bounds of their authorities or adopting policies out of step with their political overseers and the public. Administrative law has developed a set of structural and procedural safeguards in response to those threats. The administrative law of intelligence is different; it is devoid of these safeguards. We are relying on administrative rules to do crucial work to give content to Fourth Amendment reasonableness, but without the conditions that have come to legitimate administrative rulemaking elsewhere in the regulatory state. This chapter illuminates the FISC’s emergent “administrative Fourth Amendment law” and begins to explore avenues for reform.

The author reflects on the issue of advancing a bill to the U.S. Congress which aim to expose Saudi Arabia to a lawsuit in U.S. courts alleging the country's connection in the 9/11 terrorist attack, citing concerns on its implication on diplomatic and economic relation between the countries.

Traditionally, two general methods have been used to make constitutional law. The first involves creating a constitutional text, and has been done by constituent assemblies convened especially for that purpose or by legislatures either proposing replacement constitutions or more limited constitutional amendments. The second involves interpreting existing constitutional texts, and has been done by specialized constitutional courts or generalist courts. After describing briefly what we know about how constitutional law is made by these traditional methods, this essay turns to some recent innovations in making constitutional law, which I describe generically as involving substantially higher levels of public participation than in the traditional methods: the process of drafting a proposed new constitution for Iceland, and the practice of "public hearings" in the Brazilian Supreme Federal Court. My aim is to identify some features of these newer methods that might be of interest to scholars of comparative constitutional law. For that reason, the essay paints in deliberately broad strokes, isolating features that may point in the direction of a more general understanding of constitution-making processes while ignoring features that may play crucial roles in the two specific processes on which I focus.

Two risk-averse parties with different subjective beliefs negotiate in the shadow of a pending trial. Through contingent contracts, the parties can mitigate risk and/or speculate on the outcome. These contracts mimic the services provided by third-party investors, including litigation funders and insurance companies. The two parties (weakly) prefer to contract with the external capital market when third-party investors are risk neutral, litigation costs are exogenous, and the market is transaction-cost free. However, contracting with third parties increases the volume of litigation, the level of litigation spending, and the aggregate cost of risk bearing. In this sense, third-party involvement in litigation reduces social welfare.

A settlement is an agreement between parties to a dispute. In everyday parlance and in academic scholarship, settlement is juxtaposed with trial or some other method of dispute resolution in which a third-party factfinder ultimately picks a winner and announces a score. The "trial versus settlement" trope, however, represents a false choice; viewing settlement solely as a dispute-ending alternative to a costly trial leads to a narrow understanding of how dispute resolution should and often does work. In this Article, we describe and defend a much richer concept of settlement, amounting in effect to a continuum of possible agreements between litigants along many dimensions. "Fully" settling a case, of course, appears to completely resolve a dispute, and if parties to a dispute rely entirely on background default rules, a "naked" trial occurs. But in reality virtually every dispute is "partially" settled. The same forces that often lead parties to fully settle joint value maximization, cost minimization, and risk reduction will under certain conditions lead them to enter into many other forms of Pareto-improving agreements while continuing to actively litigate against one another. We identify three primary categories of these partial settlements: award-modification agreements, issue-modification agreements, and procedure-modification agreements. We provide real-world examples of each and rigorously link them to the underlying incentives facing litigants. Along the way, we use our analysis to characterize unknown or rarely observed partial settlement agreements that nevertheless seem theoretically attractive, and we allude to potential reasons for their scarcity within the context of our framework. Finally, we study partial settlements and how they interact with each other in real-world adjudication using new and unique data from New York's Summary Jury Trial Program. Patterns in the data are consistent with parties using partial settlement terms both as substitutes and as complements for other terms, depending on the context, and suggest that entering into a partial settlement can reduce the attractiveness of full settlement. We conclude by briefly discussing the distinctive welfare implications of partial settlements.

If policymakers could measure the actual welfare effects of regulations, and if they had a properly capacious sense of welfare, they would not need to resort to cost-benefit analysis, which gives undue weight to some values and insufficient weight to others. Surveys of self-reported well-being provide valuable information, but it is not yet possible to “map” regulatory consequences onto well-being scales. It follows that at the present time, self-reported well-being cannot be used to assess the welfare effects of regulations. Nonetheless, greatly improved understandings are inevitable, and current findings with respect to reported well-being – above all the serious adverse effects of unemployment – deserve to play a role in regulatory policymaking.

Many people, including many lawyers and judges, disparage law reviews (and the books that sometimes result from them) on the ground that they often deal with abstruse topics, of little interest to the bar, and are sometimes full of jargon-filled, excessively academic, and sometimes impenetrable writing. Some of the objections are warranted, but at their best, law reviews show a high level of rigor, discipline, and care; they have a kind of internal morality. What might seem to be jargon is often a product of specialization, similar to what is observed in other fields (such as economics, psychology, and philosophy). Much academic writing in law is not intended for the bar, at least not in the short-term, but that is not a problem: Such writing is meant to add to the stock of knowledge. If it succeeds, it can have significant long-term effects, potentially affecting what everyone takes to be “common sense.”