Faculty Bibliography

For fans of Thinking Fast and Slow and The Power of Habit, a groundbreaking new study of how disrupting our well-worn routines, both good and bad, can rejuvenate our days and reset our brains to allow us to live happier and more fulfilling lives.Have you ever noticed that what is thrilling on Monday tends to become boring on Friday? Even exciting relationships, stimulating jobs, and breathtaking works of art lose their sparkle after a while. People stop noticing what is most wonderful in their own lives. They also stop noticing what is terrible. They get used to dirty air. They stay in abusive relationships. People grow to accept authoritarianism and take foolish risks. They become unconcerned by their own misconduct, blind to inequality, and are more liable to believe misinformation than ever before. But what if we could find a way to see everything anew? What if you could regain sensitivity, not only to the great things in your life, but also to the terrible things you stopped noticing and so don’t try to change? Now, neuroscience professor Tali Sharot and Harvard law professor (and presidential advisor) Cass R. Sunstein investigate why we stop noticing both the great and not-so-great things around us and how to “dishabituate” at the office, in the bedroom, at the store, on social media, and in the voting booth. This groundbreaking work, based on decades of research in the psychological and biological sciences, illuminates how we can reignite the sparks of joy, innovate, and recognize where improvements urgently need to be made. The key to this disruption—to seeing, feeling, and noticing again—is change. By temporarily changing your environment, changing the rules, changing the people you interact with—or even just stepping back and imagining change—you regain sensitivity, allowing you to more clearly identify the bad and more deeply appreciate the good.

In The World and Us, Roberto Mangabeira Unger sets out to reinvent philosophy. His central theme is our transcendence, everything in our existence points beyond itself, and its relation to our finitude: everything that surrounds us, and we ourselves, are flawed and ephemeral. He asks how we can live so that we die only once, instead of dying many small deaths; how we can breathe new life and new meaning into the revolutionary movement that has aroused humanity for the last three centuries, but that is now weakened and disoriented; and how we can make sense of ourselves without claiming for human beings a miraculous exception to the general regime of nature. For Unger, philosophy must be the mind on fire, insisting on our prerogative to speak to what matters most. From this perspective, he redefines each of the traditional parts of philosophy, from ontology and epistemology to ethics and politics. He turns moral philosophy into an exploration of the contest between the two most powerful contemporary moral visions: an ethic of self-fashioning and non-conformity, and an ethic of human connection and responsibility. And he turns political philosophy into a program of deep freedom, showing how to democratize the market economy, energize democratic politics, and give the individual worker and citizen the means to flourish amid permanent innovation.

Justice Gorsuch will have completed his seventh year on the Supreme Court when the Justices recess for the summer later this year. If those seven years are prologue, the Justice’s longer-term impact on environmental law may well exceed even the worst fears expressed by environmentalists who opposed his confirmation. Whether assessed quantitatively or qualitatively, Justice Gorsuch is a solidly conservative vote skewed against legal positions that environmentalists favor, with the potential to unsettle the entire federal administrative state upon which much of federal environmental law depends. His votes and opinions do not evince hostility to environmentalism per se, but instead reflect misgivings about the heightened roles that the national government and federal executive branch officials serve in administering environmental law. No doubt there will be instances when Justice Gorsuch’s views on cross-cutting issues of constitutional law tip in favor of particular outcomes protective of the environment, but these are likely to be the exception. Justice Gorsuch’s views on separation of powers have already proven incompatible with the efforts of the United States Environmental Protection Agency and other federal agencies to assert the kind of expansive authority necessary to meet today’s compelling environmental problems. His views on federalism are even more foreboding, especially his exceedingly narrow conception of congressional Commerce Clause authority to address environmental protection concerns. With regard to federalism, there is potential for some votes favorable to environmentalists when state and local governments, rather than the federal government, champion environmental causes. However, even that mitigating potential seems likely to be diminished in light of the Justice’s evident concern that environmental protection requirements, regardless of the sovereign imposing them, unduly burden individual liberty and private property interests.

Private utility companies are blocking new interregional transmission lines.

Health care workers are disproportionately at risk for workplace violence. They are 5 times more likely to experience violence at work than other workers, accounting for 73% of all nonfatal workplace injuries from violence. Attacks against health care workers are on the rise. A national survey of nurses found a 119% increase in nurses reporting worsening workplace violence between March 2021 and March 2022. This increase is part of a broader trend of rising violence against health care workers over the last decade. This Viewpoint seeks to understand the current legislative responses at the state level to this outburst of deadly violence and analyze how the law is adapting to protect health care personnel.

With In the Courts of Three Popes, accomplished diplomat, international lawyer, and Harvard professor Mary Ann Glendon gives readers a rare inside look at the papacies of John Paul II, Benedict XVI, and Francis.

This is the original version of the Tanner Lectures on Human Values, delivered at Harvard University in 1994. The central question is this: How is law possible in a heterogeneous society, composed of people who sharply disagree about basic values? Such disagreements involve the most important issues of social life: the distribution of wealth, the role of race and gender, the nature of free speech and private property. Much of the answer to this puzzle lies in an appreciation of how people who disagree on fundamental issues can achieve incompletely theorized agreements on particular cases. Lecture I sets out the basic idea of incompletely theorized agreements and argues that such agreements have many virtues. Lecture II opposes rules to rulelessness. Its principal goal is to point the way toward a more refined understanding of the ideal of the rule of law, one that sees a degree of particularity, and a degree of lawmaking at the point of application, as an important part of that ideal. The lectures end with the suggestion that incompletely theorized agreements on particular outcomes play a large role not only in law, but also in many other sectors of social life, prominently including democratic discussion.

The Justices seem to want to avoid a major decision about whether Trump can serve as President—but if they do so they may set off a national crisis.

The Supreme Court decided two cases of central importance to free speech during the 2022 term – in both cases without addressing the First Amendment implications. In Andy Warhol Foundation v. Goldsmith, the Court upheld a ruling that Andy Warhol’s reworkings of Lynn Goldsmith’s photograph of the artist Prince into highly stylized silkscreens and drawings were not transformative, and thus were unfair, at least when images of the artworks were licensed to illustrate articles about Prince. In Jack Daniel’s v. VIP Products, the court found that a parody dog toy in the general shape of a Jack Daniel’s bottle, with the label “Bad Spaniels,” deserved no special protection for its parody against Jack Daniel’s trademark claim. The Court reached these results using ideas about the lesser status of profitable speech that it flatly rejected in other cases the same term, and with rationales that seem directly at odds with its First Amendment jurisprudence. In this article, we show that the Court’s decisions cannot be reconciled with its approach to any other area of speech, and that they are already having pernicious effects in the lower courts. We consider some possible explanations for the inconsistency: the possibility that the Court just doesn’t see First Amendment issues in IP cases; the possibility that a political realignment has left conservative justices less enchanted with speech in the marketplace; and the possibility that this is part of a broader trend away from holding courts to the same constitutional standard as the other branches of government, combined with statutes that leave room for substantial judicial discretion in individual cases. Whatever the explanation or explanations, the decisions in Warhol and Jack Daniel’s to cut back dramatically on judicially-created speech-protective rules may have the ironic effect of forcing the Court to confront directly the constitutional fragility of much modern IP law.

A longstanding and influential view in U.S. correctional policy is that "nothing works" when it comes to rehabilitating incarcerated individuals. We re-examine this hypothesis by studying an innovative law-enforcement-led program recently launched in the county jail of Flint, Michigan: Inmate Growth Naturally and Intentionally Through Education (IGNITE). We develop a new instrumental variable approach to estimate the effects of IGNITE exposure, leveraging quasi-random court delays that cause individuals to spend more time in jail both before and after the program's launch. We find that IGNITE exposure dramatically reduces both within-jail misconduct and post-release recidivism. Qualitative evidence suggests a cultural change within the jail as a key mechanism.

Recent laws in the US, along with the Digital Services Act (DSA), seek to provide “due process” for individual content moderation decisions. Due process, understandably enough, often contains a component of treating like cases alike. It seems to follow, then, that if two relevantly similar users are treated differently, there is a problem of inconsistency, and that problem might be addressed by requiring more “due process” in the forms of appeals and clear rules and explanations of those rules to offenders. But it is said that consistency is the hobgoblin of small minds. In internet regulation, it is a damaging goal if taken as a mandate to make individual decisions uniformly consistent with each other.

Western European nations offer an alternative to strict bans on abortion that holds out the promise of protecting life—both fetal and maternal life—as much as possible. More important than the details of policies directly aimed at abortion access are Western European systems of social support for women before, during, and after pregnancy—a thick social safety net in which contraception is readily available, as is medical care during pregnancy and after delivery, with generous family leave policies and widespread availability of child care. And these policies are all set in a “culture of life” that extends beyond the abortion issue itself. These Western European policies emerged from bargains among political parties with distinctive ideologies and histories. However, the contours of U.S. party politics make it difficult to imagine how the Western European model could be implemented in the United States.

Congress has enacted into law thousands of statutory provisions containing rules of construction. These rules direct courts to the permissible interpretations of the statutes that Congress enacts. With respect to the self-determination contracts between Indian tribes and the United States at issue in these cases, the Indian Self-Determination and Education Assistance Act (ISDA) prescribes two interpretive rules that serve as congressional directives to this Court. First, each provision of the self-determination contract must be construed liberally for the benefit of the tribe. Second, the same is true of the statute itself: each provision of the ISDA must be construed liberally for the benefit of the tribe. The ISDA’s interpretive rules were intended to ensure agency compliance with Congress’s policy to promote tribal self-determination and are consistent with well-established rules guiding interpretation of treaties, agreements, and statutes that address Indian affairs and implement the United States’ unique responsibilities to Indian tribes. Congress enacted these rules in response to the executive branch’s repeated cramped readings of the relevant provisions of law and the resulting failures to ensure adequate federal financial support for tribes’ self-determination contracts. The parties here agreed to these rules as part of their contracts, and Congress codified these rules in the ISDA, as it has codified substantially identical rules for other agreements between tribes and the United States under other parts of the ISDA. Under ordinary principles of both contractual and statutory interpretation, these rules control in these breach-of-contract cases. The goal of interpretation— whether of a contract or statute—is to discern the authors’ intent from the written text. The plain text of the contracts and statute makes clear the parties’ and Congress’s intent regarding how the terms of their agreement and the applicable provisions of law are to be construed. As this Court has previously explained in a similar case, to prevail under these rules of construction, the government must demonstrate that its reading “is clearly required by the statutory language.” Salazar v. Ramah Navajo Chapter, 567 U.S. 182, 194 (2012). The government has made no such showing here. Instead, its arguments seek to bypass the ISDA’s text and read into the statute and contracts restrictions on the government’s financial-support obligations that are based solely on inferences drawn against Indian tribes. Congress gave no indication, much less a clear one, that any of the government’s suggested inferences should be drawn. And adopting such inferences would require this Court to disregard Congress’s unequivocal directives to construe each provision of the ISDA and self-determination contract liberally in the tribe’s favor. Applying the ISDA’s rules of construction is consistent with longstanding principles of federal Indian law and congressional and judicial practice in other statutory contexts. In the context of federal Indian Law, the Indian canon already requires liberal construction of the ISDA and the agreements as a matter of the United States’ trust responsibility and duty of protection to Indian tribes. The canon’s well-settled application to agreements between the United States and tribes and to statutes affecting their interests further supports enforcement of these express congressional rules. Congressionally mandated provisions telling courts to construe a provision liberally in favor of one party are a familiar feature of government contracting law. Federal courts have similarly applied Congress’s rules of construction in cases concerning the Employee Retirement Income Security Act, the Federal Arbitration Act, the Religious Land Use and Institutionalized Persons Act, the Miller Act, and numerous other statutes. Moreover, these are breach-of-contract cases in which the Court is construing statutory provisions incorporated into a contract. It is commonplace to enforce contractual provisions setting forth rules of interpretation, just like courts enforce any other provision of a contract. Indeed, that is precisely what this Court did in Salazar. It is unexceptional thus that the ISDA—a law authorizing and governing a specific type of government contracting with tribes—directs a liberal construction of those contracts for tribes’ benefit. The Court should enforce the ISDA’s rules of construction and affirm the decisions below in respondents’ favor.

The Court’s opinion in Dobbs v. Jackson Women’s Health Organization embraces a form of due process traditionalism. With Burkean and Thayerian arguments at work, the Court offers an understanding of the Due Process Clause which allows substantive protection of rights only if they are vindicated by tradition and essential to “ordered liberty.” Within the opinion’s logic, the major challenge is to accept due process traditionalism without simultaneously throwing a variety of nontraditional or antitraditionalist substantive due process cases into doubt. There are uneasy relationships between the traditionalist thrust of the Court’s opinion and the Court’s nontraditional or antitraditionalist jurisprudence in other areas of constitutional law. A central reason must be that the Court believes in some forms of moral progress. The central weakness of the Dobbs opinion is its rejection of the idea that moral progress can and should play a role in the understanding of constitutional rights.

Upon the release of the Dobbs decision, the public and legal academic conversation quickly shifted to implications for other rights closely connected to substantive due process. Justice Alito’s opinion attempts to argue that abortion’s involvement of “potential life” is what distinguishes abortion from other substantive due process rights. This chapter argues that reproductive technologies, specifically those that involve embryo destruction, are directly implicated by Alito’s language. The Dobbs decision erects a barrier to a federal constitutional right to engage in reproductive technologies involving embryo destruction, raises the possibility that states that prohibit abortion could restrict embryo destruction (though data on public opinion suggests few will), and creates normative questions about embryo destruction that turn on particular theories of embryonic/fetal personhood. The chapter concludes that some who believe abortion should be restricted should also oppose embryo destruction, and that some who oppose abortion restrictions should not oppose restrictions on embryo destruction.

Poor nutrition and food insecurity are drivers of poor health, diet-related diseases, and health disparities in the U.S. State Medicaid Section 1115 demonstration waivers present opportunities to pilot food-based initiatives to address health outcomes and disparities. Several states are now leveraging 1115 demonstrations, but the scope and types of utilization remain undefined. To fill this gap, we conducted a systematic analysis of state Medicaid Section 1115 applications and approvals available on Medicaid.gov through July 1, 2023. We found that 19 approved and pending 1115 waivers address nutrition, with 11 submitted or approved since 2021. Fifteen states provide or propose to provide screening for food insecurity, referral to food security programs, and/or reporting on food security as an evaluation metric. Thirteen provide or propose to provide coverage of nutrition education services. Ten provide or propose to provide direct intervention with healthy food. The primary target populations of these demonstrations are individuals with chronic diet-sensitive conditions, mental health or substance use disorders, and/or who are pregnant or post-partum. Since 2021, state utilization of Medicaid 1115 demonstrations to address nutrition has accelerated in pace, scope, and population coverage. These findings and trends have major implications for addressing diet-related health and healthy equity in the U.S.

This chapter explores the implications of the Supreme Court’s revocation of pregnant person’s right to choose to terminate a pregnancy; specifically, it explores implications for individuals’ right to choose to prevent a pregnancy through the purchase and use of contraceptives.Examining what the justices explicitly stated about the impact of the decision in Dobbs v. Jackson Women’s Health Organization on access to contraception, what they did not discuss, and what are likely and possible effects of the discussion, the chapter explores immediately and grave uncertainty and heightened risk not only of unwanted pregnancies but also of job and wage insecurity for many people who can become pregnant as well as jeopardy to public confidence in the courts and law.

The expected societal impact of quantum technologies (QT) urges us to proceed and innovate responsibly. This article proposes a conceptual framework for Responsible QT that seeks to integrate considerations about ethical, legal, social, and policy implications (ELSPI) into quantum R&D, while responding to the Responsible Research and Innovation dimensions of anticipation, inclusion, reflection and responsiveness. After examining what makes QT unique, we argue that quantum innovation should be guided by a methodological framework for Responsible QT, aimed at jointly safeguarding against risks by proactively addressing them, engaging stakeholders in the innovation process, and continue advancing QT (‘SEA’). We further suggest operationalizing the SEA-framework by establishing quantum-specific guiding principles. The impact of quantum computing on information security is used as a case study to illustrate (1) the need for a framework that guides Responsible QT, and (2) the usefulness of the SEA-framework for QT generally. Additionally, we examine how our proposed SEA-framework for responsible innovation can inform the emergent regulatory landscape affecting QT, and provide an outlook of how regulatory interventions for QT as base-layer technology could be designed, contextualized, and tailored to their exceptional nature in order to reduce the risk of unintended counterproductive effects of policy interventions. Laying the groundwork for a responsible quantum ecosystem, the research community and other stakeholders are called upon to further develop the recommended guiding principles, and discuss their operationalization into best practices and real-world applications. Our proposed framework should be considered a starting point for these much needed, highly interdisciplinary efforts.

As the Israel-Hamas war provokes claims about unacceptable speech, the ability to debate difficult subjects is in renewed peril.

As Biden’s campaign shifts into high gear, you don’t need fantasy to believe he can win.

In new research, Alma Cohen finds that the political affiliations of Circuit Court judges influence decisions in a much wider variety of cases than previously thought.

Similar investments are often taxed differently, rendering our system less efficient and fair. In principle, fundamental reforms could solve this problem, but they face familiar obstacles. So instead of major surgery, Congress usually responds with a Band-Aid, denying favorable treatment to some transactions, while preserving it for others. These loophole-plugging rules have become a staple of tax reform in recent years. But unfortunately, they often are ineffective or even counterproductive. How can Congress do better? As a case study, we analyze Section 1260, which targets a tax-advantaged way to invest in hedge funds. This analysis is especially timely because a multi-billion dollar litigation is pending about this rule. This Article proposes a three-step approach. First, when faced with a new type of tax planning, policymakers should decide whether a response is really necessary. How harmful is the transaction? How feasible is it to target this transaction without also burdening “good” transactions, which don’t involve the same abuse? This first phase determines what we call “the normative presumption” about the transaction. Second, Congress should define which transactions are potentially problematic. An “initial filter” should exempt transactions that clearly don’t pose the relevant concern. Third, once a transaction is deemed to be potentially problematic, a sophisticated test is needed to check whether it actually is. Admittedly, a sophisticated test is costly to administer. This is why initial filters are needed to limit how often it is used. Along with proposing this three-part framework, this Article offers a novel critique of a sophisticated test the government has begun using: a “delta” test, which measures how closely investments track each other. Although delta is often considered the gold standard, we show how easy it is to manipulate. The trick is to add contingencies (e.g., so the investment terminates when the price reaches a specified level). To head off this gaming, we recommend an alternative test that focuses on value instead of on changes in value–and, more generally, on enduring features instead of temporary quirks.

Background: Clinicians and their employers, concerned with privacy and liability, are often hesitant to support the recording of clinical encounters. However, many people wish to record encounters with healthcare professionals. It is therefore important to understand how existing law applies to situations where an individual requests to record a clinical encounter. Methods: We searched for and reviewed relevant legal documents that could apply to recording clinical encounters. We limited the scope by purposefully examining relevant law in nine countries: Australia, Brazil, Canada, France, Germany, India, Mexico, the United Kingdom and the United States. We analyzed legal texts for consents needed to record a conversation, whether laws applied to remote or face-to-face conversations and penalties for violations. Findings: Most jurisdictions have case law or statutes, derived from a constitutional right to privacy, or a wiretapping or eavesdropping statute, governing the recording of private conversations. However, little to no guidance exists on how to translate constitutional principles and case law into advice for people seeking to record their medical encounters. Interpretation: The law has not kept pace with people’s wish to record clinical interactions, which has been enabled by the arrival of mobile technology.

Changing America’s founding document may seem prohibitively difficult, but there’s a proven path to getting it done.

US cities are regulating private use of technology more actively than the federal government, but the likely effects of this phenomenon are unclear. City lawmaking could make up for national regulatory shortfalls, but only if cities can thread the needle of special interests and partisanship.

Scientific evidence regularly guides policy decisions, with behavioural science increasingly part of this process. In April 2020, an influential paper proposed 19 policy recommendations (‘claims’) detailing how evidence from behavioural science could contribute to efforts to reduce impacts and end the COVID-19 pandemic. Here we assess 747 pandemic-related research articles that empirically investigated those claims. We report the scale of evidence and whether evidence supports them to indicate applicability for policymaking. Two independent teams, involving 72 reviewers, found evidence for 18 of 19 claims, with both teams finding evidence supporting 16 (89%) of those 18 claims. The strongest evidence supported claims that anticipated culture, polarization and misinformation would be associated with policy effectiveness. Claims suggesting trusted leaders and positive social norms increased adherence to behavioural interventions also had strong empirical support, as did appealing to social consensus or bipartisan agreement. Targeted language in messaging yielded mixed effects and there were no effects for highlighting individual benefits or protecting others. No available evidence existed to assess any distinct differences in effects between using the terms ‘physical distancing’ and ‘social distancing’. Analysis of 463 papers containing data showed generally large samples; 418 involved human participants with a mean of 16,848 (median of 1,699). That statistical power underscored improved suitability of behavioural science research for informing policy decisions. Furthermore, by implementing a standardized approach to evidence selection and synthesis, we amplify broader implications for advancing scientific evidence in policy formulation and prioritization.