Faculty Bibliography

War used to be a lucrative business. It was waged as a matter of course to expand territory, convert the religion of populations, resolve disputes, collect an unpaid debt, restore property, or punish another sovereign for a treaty violation. This was not only true as a matter of practical statecraft. It was also the accepted ethical prescription of Just War Theory. The modern jus ad bellum has transformed our view of war: From an instrument of self-interest, enforcement and punishment war has been proclaimed an evil which must be carried out only as a last resort and in self-defense. Yet, in this undoubtedly progressive move, we have also lost something – our ability to articulate the precise goals of the war, and consequently, to determine when the war must end. When self-defense is the only legitimate justification for waging war, every goal must be articulated in terms of self-defense and self-defense, in turn, becomes articulated through an endless array of goals: installing a democratic government in enemy territory, improving child literacy, empowering girls and women through education, enhancing agricultural production, building infrastructure or eliminating all terrorist threats around the globe. While the question of whether a military campaign is justified as a matter of self-defense is often debated, the question of what goals actually promote self-defense remains largely unaddressed. The problem lies not so much in lack of attention; rather, it is that even where a just cause of self-defense exists, the law is inadequate in giving us sufficient guidance on what and how much counts as a legitimate security interest. As a result, we can have no consensual vision of what victory can or should look like. Nor do we have a clear metric by which we can argue about it. In a world of perpetual threats, our existing legal framework invites perpetual war.

The longest running professional responsibility book on the market, Problems in Professional Responsibility for a Changing Profession has been thoroughly updated by its current and two new authors. It has retained its original problem-oriented focus on practical issues faced by lawyers in everyday practice, current issues faced by the profession, and its unique section examining the demographics, structure, and organization of the legal profession. The need of our profession to take account of our changing world is apparent in every chapter of the new edition.

As used in this paper, “proportionality” names a protocol for use in deciding questions of the constitutionality of laws. The protocol is typically understood to consist of a four- or five-step order of decisional march, of which there are multiple close-kindred versions in circulation. Debates about the virtues, vices, and variations of the protocol and its deployment routinely construct the theater of action as a court of law engaged in judicial constitutional review. Adjudicative use of the protocol is what we think of as the central case. An aim of this paper is to achieve some first steps towards figuring out what relevance, if any, the protocol of proportionality might have for “extended” cases (as we may call them) of constitutional discourses outside the courts. I try here to think about the protocol’s pertinence, if any, to political-practice idealizations in which other political actors displace independent judiciaries as sole or final arbiters of constitutional compliance.

At the federal level in the United States, development of regulations is governed by the Administrative Procedure Act (APA), the statute by which Congress authorized various federal agencies to develop rules with the force of law, under a process called “notice and comment rulemaking.” In 2011, the Department of Health and Human Services (HHS) published in the Federal Register an “Advanced Notice of Proposed Rule Making” (ANPRM) to begin the first public discussion in decades about amending the Federal Policy for the Protection of Human Subjects, also known as the “Common Rule.” Over 1,100 public comments were submitted. In 2015, HHS along with several other federal agencies issued a “Notice of Proposed Rule Making” (NPRM), the second step in the process toward revising the Common Rule. This time, the agencies received nearly 2,200 public comments. Courts have interpreted the APA to require that agencies consider public comments with an “open mind” susceptible to persuasion, although this does not require an agency to actually change what has been proposed. Given the relatively lax legal standard for engaging with public comments, it seems clear that despite widespread opposition to several key changes that have been proposed to the Common Rule, the agencies are free to finalize the rule essentially as set forth in the NPRM. In our view, this would be an extremely worrisome outcome, but one offering little to no legal recourse—and given the pace of change to the Common Rule over the past several decades, not one likely to be corrected any time soon.

Trademark scholars widely agree that our current system for evaluating what rights a trademark owner should have over others’ uses of their (or similar) marks is broken. Courts too readily find too many acts to be infringing even when they’re harmless or actually useful to consumers. Trademark practitioners, meanwhile, while often quite approving of broad interpretations of trademark law, widely recognize that our trademark registration system has significant practical problems. What we haven’t done is try to unite concerns over the expansion of trademark rights with concerns over the registration system and explain their relationship to each other. Registration offers some of the most challenging puzzles in trademark law. Consider: If the mark REDSKINS for a football team is disparaging and its trademark registration therefore invalid, can trademark law nonetheless protect the team against unauthorized uses of the term? This question became more than theoretical when a district court recently upheld the invalidation of the REDSKINS registrations, a ruling now on appeal and likely headed to the Supreme Court. Or suppose the PTO determines that, in the abstract, an applied-for trademark is likely to cause confusion with another previously registered mark. If the applicant decides to use the mark anyway, without a registration, should the PTO’s determination bind a federal court asked to determine whether the new mark, as actually used, causes confusion with that previously registered mark? The Supreme Court just decided this issue in a way that generated large-scale uncertainty about the new relationship between registration and infringement liability. These questions, and a number of others, highlight the need for renewed attention to trademark registration as such. Registration provides opportunities to limit trademark’s current structurelessness. Specifically, registration works best in a system that doesn’t aim to search out and extirpate every possible instance of confusion, instead recognizing multiple reasons that we might avoid fact-intensive confusion inquiries and either ban or allow certain market behaviors. Moreover, maintaining the registration system requires the investment of substantial government and private resources, which is currently almost irrelevant at the enforcement stage. Applicants and the PTO spend much time and effort crafting the equivalent of an exquisitely detailed origami crane; rather than considering the details, courts then ask the equivalent of “is this paper folded?” and move on. Not only is this a waste of resources, but it also leads courts to misunderstand the proper scope of a registration. There are a number of changes, ranging from small tweaks to sweeping statutory reforms and the rejection of the Supreme Court’s ahistorical conclusion that registration is a matter of factual accident rather than an important distinction between types of marks, that could improve the law to the benefit of trademark owners and nonowners alike.

Many people insist on drawing a line between active choosing and paternalism, but that line is often illusory. Whenever private or public institutions override people’s desire not to choose, and insist on active choosing, they are likely to be behaving paternalistically, through a kind of choice-requiring paternalism. Active choosing can be seen as a form of libertarian paternalism if people are permitted to opt out of choosing in favor of a default (and in that sense not to choose). This is a distinctive approach – “simplified active choosing” – and in many contexts, it has considerable appeal. By contrast, active choosing is a form of nonlibertarian paternalism insofar as people are required to choose. These points have implications for a range of issues in law and policy, suggesting that those who favor active choosing, or insist on it, may well be overriding people’s preferences (for better or for worse).

In 2012, the American Law Institute asked us to serve as reporters for a new Restatement of Consumer Contracts. Recognizing that many innovations in American contract law in the past generation occurred in the area of consumer transactions, the project seemed timely and challenging. We discovered that many of these innovations are controversial and seemingly subject to conflicting approaches in the case law and heated debates among commentators. We also discovered that prior attempts to devise a unified set of rules have largely failed. We therefore decided to take a new approach to our search for, and restatement of, the emerging rules. In addition to identifying the majority rules, we used an empirical approach that involved collecting, coding, and systematically analyzing the entire body of court decisions on relevant questions. We identified the degree of support that different rules garnered in courts and the rate at which they were adopted or rejected over time. We thus discovered which rulings and rationales serve as guiding pre­cedent. We based the black-letter rules in the final draft of the Restatement of Consumer Contracts on these findings (complementing them with qualitative support). In this Essay, we present our empirical approach to searching for the law and legal precedent, discuss its conceptual and normative foundations, and describe some of the doctrinal debates it helped resolve.

Advances in medicine often depend on the effective collection, storage, research use, and sharing of human biological specimens and associated data. But what about the sources of such specimens? When a blood specimen is drawn from a vein in your arm, is that specimen still you? Is it your property, intellectual or otherwise? Should you be allowed not only to consent to its use in research but also to specify under what circumstances it may be used? These and other questions are at the center of a vigorous debate over the use of human biospecimens in research. In this book, experts offer legal, regulatory, and ethical perspectives on balancing social benefit and human autonomy in biospecimen research. After discussing the background to current debates as well as several influential cases, including that of Henrietta Lacks, the contributors consider the rights, obligations, risks, and privacy of the specimen source; different types of informed consent under consideration (broad, blanket, and specific); implications for special patient and researcher communities; and the governance of biospecimen repositories and the responsibilities of investigators.

The attached paper is a draft of the concluding chapter in a book about religion in relation to other social systems (governments, economic markets, and secular social groups and entities). Prior chapters reviewed multiple theories and many empirical studies, as well as social-science scholarship, bearing on the relative advantages and costs of the four types of systems as they attempt to provide multiple kinds of benefits for human individuals and groups. The attached table of contents may give a more concrete sense of those inquires. A general theme that emerged was that the four systems not only have relative advantages and disadvantages that vary by type of benefit or cost, but also by specific context and over time, as there are changes in external factors like social scale and technological developments. Some general trends are identified in the prior chapters. The final chapter is deliberately cast as a reflective essay. It speculates about the future of religion over the next several centuries (e.g., to the year 2500), and identifies three categories of predictions: virtually complete decline; fluctuating endurance; and morphological evolution. It then considers high-level arguments for and against them. For example: (1) The virtually complete secularization model seems supported by trends in some advanced economies, e.g., in western Europe and more recently in the US, by reflection on efficiency improvements in the other social systems, and by arguments about the impact of science and reason on religious beliefs. But the better and more comprehensive global demographic evidence indicates a very different pattern of trends. The essay reflects on likely explanations of the conflict between prediction and evidence, ranging from the differential fertility rates of secular and religious groups to theological moves in all dominant world religions that aim to blunt the apparent conflict between reason and religion. (2) The fluctuating endurance model is supported by some painstaking historical accounts of the development of religions over the centuries. But it is also called into question by historical studies of the evolution of religions over the millennia, and by recent multidisciplinary work on cultural evolution. (3) The same historical and multidisciplinary work also supports the plausibility of expecting another fairly fundamental evolution in the features of those world religions, or spinoffs from them, that will be successful in the future. To explore this possibility more systematically, the paper first offers ideal-type general descriptions of three prior stages – religion for good personal fortune; religion for public goods; and religion for pro-social norms – and offers thoughts on how the later stages each involved changes along multiple but related dimensions of religion and how those changes were related to changes in the typical external human environment. Finally, the paper then speculates about a plausibly emerging fourth stage – religion for expanding circles – in which there is more emphatic, widespread, and effective emphasis on norms relating to moral concern for out-groups and future generations, and ties such shifts to mega-changes (like greater globalization and environmental sustainability challenges) in the modern human environment. It then imagines, as a thought experiment, how the seven typical mechanisms of the dominant world religions might be modified in the fourth stage.

Pepper & Nettle use an evolutionary framework to argue that “temporal discounting” is an appropriate response to low socioeconomic status (SES), or deprivation. We suggest some conceptual refinements to their “appropriate-response” perspective, with the hope that it usefully informs future research on and public policy responses to the relationship between deprivation and temporal discounting.

When should a court interpreting some statutory provision consider information besides the text—legislative history, surrounding provisions, practical consequences, the statute’s title, etc.? This might be one of the most asked questions of statutory interpretation. One recurring answer in the Court’s cases is the “plain meaning rule,” which is something of a compromise. If the statute’s meaning is “plain,” the other information can’t be considered. If it isn’t plain, the information comes in. The rule seems to make obvious sense as an intermediate position between strict textualism and some form of pragmatism. And yet, once we think a little more deeply about the plain meaning rule, we ought to see that its basic structure is puzzling. Information that is relevant shouldn’t normally become irrelevant just because the text is clear. And vice versa: irrelevant information shouldn’t become useful just because the text is less than clear. We can sketch some conditions under which this puzzling structure could be justified, but we highly doubt that they could justify the plain meaning rule in its current form.

The distinction between the First Amendment’s coverage – those human activities the regulation of which is evaluated by invoking the First Amendment – and the protection it affords – the conditions under which a regulation violates the First Amendment – has been an important component of the Amendment’s doctrinal architecture. Recent Supreme Court decisions place significant pressure on the coverage/protection distinction. This Essay examines those cases and the ways in which intuitively attractive results might be precluded by abandoning the distinction. Salvaging those results is possible, but only by deploying analytical moves that run athwart a constitutional “meta-doctrine,” which I call the “too much work” principle. In addition to contributing to understanding the coverage/protection distinction and the Court’s recent decisions, the Essay explains the role that meta-doctrines play in constitutional architecture more generally.

We examine exceptional cases in which judges are called upon to pass judgment on the constitution itself. There are three groups of cases. First, in exceptional cases the validity of the constitution and the legal order is thrown into dispute. The court is asked to rule on the legitimacy of the constitution and, by derivation, on the standing of the court and the legal authority of the judge. Second, on some occasions the judge is asked to rule on the transition from one constitutional order to another. This can occur in the aftermath of a revolution, or when the state is acceding to a new constitutional order. Third, there are some cases in which the health of the constitutional order requires the judge to act not merely beyond the law, as it were, but actually contrary to the law. The judge must act contrary to the rules of the legal order, precisely in order to preserve the health of the legal order. We claim that "constitutional decisionism" is inevitable in all three groups of cases. Courts sometimes have no option but to take it upon themselves to rule upon, and indeed to participate in constituting, the validity of the very constitutional order that gives them their authority, in a kind of bootstrapping.

"This book provides the first comprehensive analysis of the impact of globalization on the Indian legal profession. Employing a range of original data from twenty empirical studies, the book details the emergence of a new corporate legal sector in India including large and sophisticated law firms and in-house legal departments, as well as legal process outsourcing companies. As the book's authors document, this new corporate legal sector is reshaping other parts of the Indian legal profession, including legal education, the development of pro bono and corporate social responsibility, the regulation of legal services, and gender, communal, and professional hierarchies with the bar. Taken as a whole, the book will be of interest to academics, lawyers, and policymakers interested in the critical role that a rapidly globalizing legal profession is playing in the legal, political, and economic development of important emerging economies like India, and how these countries are integrating into the institutions of global governance and the overall global market for legal services." --Publisher

How should we interpret legal instruments? How do we identify the law they create? Current approaches largely fall into two broad camps. The standard picture of interpretation is focused on language, using various linguistic conventions to discover a document's meaning or a drafter's intent. Those who see language as less determinate take a more skeptical view, urging judges to make interpretive choices on policy grounds. Yet both approaches neglect the most important resource available: the already applicable rules of law. Legal interpretation is neither a subfield of linguistics nor an exercise in policymaking. Rather, it is deeply shaped by preexisting legal rules. These rules tell us what legal materials to read and how to read them. Like other parts of the law, what we call "the law of interpretation" has a claim to guide the actions of judges, officials, and private interpreters -- even if it isn't ideal. We argue that legal interpretive rules are conceptually possible, normatively sensible, and actually part of our legal system. This Article thus reframes the theory of statutory and constitutional interpretation, distinguishing purely linguistic questions from legal questions to which language offers no unique answer. It also has two concrete implications of note. It provides a framework for analyzing the canons of interpretation, determining whether they are legally valid and how much authority they bear. And it helps resolve debates over constitutional "interpretation" and "construction," explaining how construction can go beyond the text but not beyond the law.

The standard conception of executive branch legal review in the scholarship is a quasi-judicial Office of Legal Counsel (“OLC”) dispensing formal, written opinions binding on the executive branch. That conception of executive branch legalism did have a brief heyday in practice. But its institutional underpinnings are unstable. A different approach to executive branch legalism—informal, diffuse, and intermingled in its approach to lawyers, policymakers, and political leadership—is today on the rise. This Article documents, analyzes, and assesses that transformation. Scholars have suggested that the failure of OLC to constrain presidential power in recent publicized episodes means that executive branch legalism ought to become more court-like. They have mourned what they perceive to be a disappearing external, legalistic constraint on the presidency. But executive branch legalism has never been an exogenous or external check on presidential power. It has always been a tool of presidential administration itself. The needs of the president have simply shifted. While earlier presidents looked to executive branch legalism to buttress public legitimacy through a more insulated, more court-like design, the president today looks to executive branch legal review to augment discretion at the retail, or issue-specific, level—to forge pathways to policy and political compromise in highly-contested, consequential, and legalistic terrain. There is much at stake in that transformation. But it is not the disappearance of law as an external constraint on the presidency. Rather, it is a reformation of executive branch legalism as an instrument of presidential power. Exploring that transformation sheds light on presidential power, the making of executive branch law, and the interrelationship between them.

Delloyd J. Guth Visiting Lecture in Legal History: September 17, 2015.

The article presents a reprint of the article "The Other Forever War" by Jack Goldsmith and Matthew C. Waxman, which appeared in the "Time" magazine. It discusses the comprehensive and sustained counterterrorism strategy launched by the U.S. against the Islamic State terrorist group under the administration of President Barack Obama. The controversial use of the 2001 Authorization to Use Military Force (AUMF) as the legal foundation for war against the Islamic State was noted.

This chapter explores the way bioethics is taught as part of U.S. health law. It begins with an overview of changes in several major textbooks in the field that cover bioethics and the law, in terms of their content and the way they organize the field. It then considers the problem of translation and, more specifically, the ways in which the ethical discourse gets translated into a much more formalist legal discourse, by discussing a number of recent court cases, including Sherley v. Sebelius and Isaacson v. Horne. It proceeds by assessing where the field is going, with emphasis on the increased interest in population-level bioethics and the law, including the increased recognition of intellectual property and drug development as topics for both disciplines. The chapter also examines the rise of libertarian bioethics in litigation by focusing on two circuit court cases: Abigail Alliance v. Eschenbach and Flynn v. Holder.

Over the past two years, the harms associated with criminal justice debt have gained widespread attention, which has sparked promising momentum for reforms. Central to understanding those harms is identifying the racially disparate effects of practices in jurisdictions around the country--courts should champion reforms to eliminate those disparities.

In late 2013, the Japanese Supreme Court voided inheritance rules giving non-marital children half the shares of their marital half-siblings. To punish children for the sins of their parents, it explained, violated the equal protection clause of the Constitution. Like the stigma that most traditional societies attached to illegitimacy, the inheritance rules had reflected a simple selection bias: the societies that survive are those where more children live to reproductive age; in harsh environments (the norm until a few centuries ago) whether children survived turned on the level of investment adults made in them; men tend not to invest in children whose paternity they do not know; hence, non-marital children had been substantially less likely to survive; but the stigma attached to illegitimacy and the accompanying legal disabilities had helped minimize the number of such children by channeling sex into stable dyadic relationships. The pre-2013 inheritance rule had promoted that relational stability by helping women hold men to their promises. In order to induce women to marry them, men routinely promise to invest in the children they bear together. The earlier rule had assured women that if their husbands breached those promises in life, they could at least trust the law to favor their children in his death. After 2013, the courts could no longer offer even that assurance.

The link between domestic abuse and housing instability is undeniable; survivors often face housing loss as a direct result of abuse or find themselves homeless after fleeing violence. In an all-too-common scenario, a survivor lives with her abuser, but is not on the lease because the abuser intentionally withholds housing stability as a method of abuse. In those cases, survivors may have to choose between their safety and their housing if they decide to separate from their abusers. Now, however, under the Supreme Judicial Court’s (“SJC”) recent decision in Beacon Residential v. R.P., survivors of domestic violence—including those who aren’t on the lease and are alleged to be “unauthorized occupants” by the landlord—are allowed to intervene as of right in summary process cases under Mass. R. Civ. P. 24 (a)(2) if they claim an interest relating to the apartment subject to the eviction proceedings. Beacon Residential Management, LP v. R.P., SJC-12265, slip op. (Sept. 14, 2017). As a result, thousands of survivors across the Commonwealth, formerly excluded from summary process cases, will have a right to their day in Housing Court.

For more than seventy years, courts have deferred to reasonable agency interpretations of ambiguous regulations. The Auer principle, as is it is now called, has attracted academic criticism and some skepticism within the Supreme Court. But the principle is entirely correct. In the absence of a clear congressional direction, courts should assume that because of their specialized competence, and their greater accountability, agencies are in the best position to decide on the meaning of ambiguous terms. The recent challenges to the Auer principle rest on fragile foundations, including an anachronistic understanding of the nature of interpretation, an overheated argument about the separation of powers, and an empirically unfounded and logically weak argument about agency incentives, which exemplifies what we call "the sign fallacy."

Environmental law and energy law, two historically disparate fields, seem to be converging. Energy regulation has begun to seriously address environmental concerns for the first time, and environmental law is increasingly becoming a driver of energy policy. This Article describes the legal mechanisms through which greater congruence has been achieved, while acknowledging the still significant and stubborn barriers to true integration, which likely will be difficult to overcome. It shows that federal agencies have taken steps toward greater policy alignment by repurposing existing statutory provisions and relying on previously under-utilized legal authorities for the first time, in a carefully calibrated process of legal innovation. Yet it also shows this process to be meaningfully constrained by the agencies' adherence to their own distinct missions, and by the constraints of their particular statutory authorities. The Article builds on the work of scholars who have lamented the divide between energy and environmental law, and urged that it be dismantled. Most of the accounts to date suggest that environmental rules and energy sector regulation, which are so obviously interrelated, inevitably will be drawn closer together. The analysis here looks more closely at the drivers of convergence to date, and presents a more nuanced picture of events. The trend toward greater policy alignment, while real, is limited. Energy and environmental regulators have not embraced convergence as an independent goal, but rather have achieved it incrementally and indirectly, as a consequence of pursuing their traditional missions during a time of change. These agencies have reacted to numerous external forces--technological innovation, market shifts, scientific developments, federal and state regulatory measures--which have prompted them to respond with their own initiatives. Yet they remain constrained by the bounds of their governing statutes and the confines of their long established regulatory roles. Tellingly, these agencies have tended to justify their policy innovations as necessary to fulfill their own traditional mandates, not to help other agencies realize theirs. The Article ultimately concludes that claims of convergence between the two fields should be tempered. However desirable greater policy congruence might be, it has not been mandated by Congress, explicitly commanded by the President, or centrally directed by anyone else. And it is not inevitable. The most that can be said is that convenient alignments may arise when the imperatives of these different regulators coincide. Thus, the story of “convergence” between energy and environmental goals is one of gradual steps rather than great leaps--of interest-based compatibility rather than love-struck merger.

Critics of current tying doctrine argue that metering ties can increase consumer welfare and total welfare without increasing output and that they generally increase both welfare measures. Contrary to those claims, we prove that metering ties always lower both consumer welfare and total welfare unless they increase capital good output. We further show that under market conditions we argue are realistic (which include a lognormal distribution of usage rates that are independently distributed from per-usage valuations), metering ties always harm consumer welfare, even when output increases. Whether metering ties raise or lower total welfare depends on the dispersion of desired usage, the cost structure, and the dissipation of profits caused by metering. For realistic cost values, metering ties will reduce total welfare if the dispersion in desired usage of the metered good is below 0.62. (For comparison, 0.74 is the dispersion of income in the United States.) If 5% of metering profits are dissipated, metering will reduce total welfare for all cost levels unless the dispersion in desired usage exceeds 150% of the dispersion of income in the United States.

"The Wisdom of Finance takes well-known financial concepts and applies them to our most pressing life issues. The book is philosophical in its approach, but Desai's thesis is peppered with real-life examples of how financial types can and should see the world around them." --Publisher

During the past century, three decisionmaking systems have arisen to accomplish a bankruptcy restructuring — judicial administration, a deal among the firm’s dominant players, and a sale of the firm’s operations in their entirety. Each is embedded in the Bankruptcy Code today, with all having been in play for more than a century and with each having had its heyday — its dominant age. The shifts, rises, and falls among decisionmaking systems have previously been explained by successful evolution in bankruptcy thinking, by the happenstance of the interests and views of lawyers that designed bankruptcy changes, and by the interests of those who influenced decisionmakers. Here I argue that these broad changes also stem from baseline market capacities, which shifted greatly over the past century; I build the case for shifts underlying market conditions being a major explanation for the shifts in decisionmaking modes. Keeping these three alternative decisionmaking types clearly in mind not only leads to better understanding of what bankruptcy can and cannot do, but also facilitates stronger policy decisions today here and in the world’s differing bankruptcy systems, as some tasks are best left to the market, others are best handled by the courts, and still others can be left to the inside parties to resolve.

Trade in agricultural products raises sensitivities, particularly when imports originate from a trading partner experiencing an outbreak of some type of agricultural disease. In this Article, we explain why despite the negative externalities associated with diseased imports, an importing country is generally not permitted to ban such imports outright under WTO law. Rather, it is allowed to do so only under fairly specific circumstances. We also highlight how the recent India – Agricultural Products ruling contributes to the jurisprudence of two issues concerning the SPS Agreement: the interpretation of international standards, and the relationship between the risk assessment and scientific evidence requirements.

Communities of responsibility and the cultures that nurture them take many steps to build. An important step is to honor remarkable individuals with courage and commitment. Raphael Lemkin, Benjamin Ferencz, Luis Moreno Ocampo, Emmanuel Uwurukundo, Samantha Power, filmmaker Edet Belzberg, and Victor Koningsberger deserve recognition and honor. At the same time, we need to emphasize that an upstander does not need extraordinary qualities. Ordinary people can and do stand up in small and big ways against oppression and injustice. Education can help. Speeches can help. When we honor heroes, we should not simply recognize individual courage. Doing so can help to constitute a community around the value of standing up. Joining with others to make it more possible for each next act of upstanding can help even more. Pushing to construct peer cultures of upstanding, reducing fears of speaking out against bullying and discrimination, preparing people to recognize and combat denial, rationalization, and feeling overwhelmed, and building social networks of mutual aid and support, will help us all be upstanders and help us rescue the humanity of others and of ourselves.

The article discusses the history and legacy of the U.S. Supreme Court case Walker v City of Birmingham, particularly its significance to the First Amendment to the U.S. Constitution, the civil rights movement led by Dr. Martin Luther King, Jr., and Jim Crowism in Alabama under then-governor George Corley Wallace.

Wills, Trusts, and Estates

Scholars and judges agree about the importance of constitutional approval — that is, people’s subjective support for their constitution. The Supreme Court has asserted that it owes its very legitimacy to popular backing for its decisions. Academic luminaries have concurred, while also connecting constitutional approval to compliance, durability, and the easing of the countermajoritarian difficulty. Until now, though, no information has been available on either the levels or causes of constitutional support. In this Article, we rectify this shortcoming by presenting the results of a nationally representative survey that we conducted in late 2014. The survey asked respondents about their approval of the federal Constitution and of their state constitution, and about several potential bases for support. We also supplemented the survey by coding dozens of features of state constitutions. This coding allows us to test hypotheses about the relationship between constitutional content and constitutional backing. What we find is illuminating. First, people highly approve of their constitutions — the federal charter more so than its state counterparts. Second, approval is unrelated to what constitutions say; it does not budge as their provisions become more or less congruent with respondents’ preferences. Third, approval is only weakly linked to respondents’ demographic attributes. And fourth, the most potent drivers of approval are constitutional familiarity and pride in one’s state or country. To know it — and to be proud of it — is to love it. These results unsettle several literatures. They mean that people form opinions about constitutions differently than they do about other institutions. They also mean that comparativists may be going down a dead end as they focus ever more intently on constitutional design. But perhaps our study’s clearest implication is for leaders who value popular support for the constitution. Our advice to them is to forget about constitutional change, and instead to try to build the public’s knowledge and appreciation of the charter. Constitutional approval, like statecraft, is ultimately a project of soulcraft.

This casebook on the law of sexual orientation and gender identity weaves interdisciplinary perspectives into the up-to-date coverage of a rapidly changing legal landscape. It provides comprehensive coverage of the range of legal issues concerning LGBT persons, along with scholarly commentary on these issues. It also covers issues of sexuality and gender more broadly. It addresses in depth many significant recent developments, including the Supreme Court's landmark decisions on marriage equality in Obergefell and Windsor, and the growing set of religious liberty claims asserted by opponents of LGBT equality measures. Gender identity issues are covered throughout the book.

In 1976, United States Secretary of State Henry A. Kissinger conducted a series of intricate, multiparty negotiations in Southern Africa to persuade white Rhodesian leader Ian Smith to accede to black majority rule. Conducted near the end of President Gerald Ford’s term in office, against substantial U.S. domestic opposition, Kissinger’s efforts culminated in Smith’s public announcement that he would accept majority rule within two years. This set the stage for the later Lancaster House negotiations which resulted in the actual transition to black majority rule. The account in this working paper carefully describes — but does not analyze nor draw lessons from — these challenging negotiations. Forthcoming papers will provide analysis and derive general insights from Kissinger’s negotiations to end white minority rule in Rhodesia.

In the domain of national security, many people favor some kind of Precautionary Principle, insisting that it is far better to be safe than sorry, and hence that a range of important safeguards, including widespread surveillance, are amply justified to prevent loss of life. Those who object to the resulting initiatives, and in particular to widespread surveillance, respond with a Precautionary Principle of their own, seeking safeguards against what they see as unacceptable risks to privacy and liberty. The problem is that as in the environmental context, a Precautionary Principle threatens to create an unduly narrow view screen, focusing people on a mere subset of the risks at stake. What is needed is a principle of risk management, typically based on some form of cost-benefit balancing. For many problems in the area of national security, however, it is difficult to specify either costs or benefits, creating a severe epistemic difficulty. Considerable progress can nonetheless be made with the assistance of four ideas, calling for (1) breakeven analysis; (2) the avoidance of gratuitous costs (economic or otherwise); (3) a prohibition on the invocation or use of illicit grounds (such as punishment of free speech or prying into people’s private lives); and (4) maximin, which counsels in favor of eliminating, or reducing the risk of, the very worst of the worst-case scenarios. In the face of incommensurable goods, however, the idea of maximin faces particular challenges.

Management buyouts (MBOs) are an economically and legally significant class of transaction: not only do they account for more than $10 billion in deal volume per year, on average, but they also play an important role in defining the relationship between inside and outside shareholders in every public company. Delaware courts and lawyers in transactional practice rely heavily on “market-check” processes to ensure that exiting shareholders receive fair value in MBOs. This Article identifies four factors that create an unlevel playing field in that market check: information asymmetries, valuable management, management financial incentives to discourage overbids, and the “ticking-clock” problem. This taxonomy of four factors allows special committees and their advisors to assess the degree to which the playing field is level in an MBO, and (by extension) the extent to which a market canvass can provide a meaningful check on the buyout price. This Article then identifies more potent deal process tools that special committees can use to level the playing field: for example, contractual commitments from management that allow the board to run the process; pre-signing rather than post-signing market checks; information rights rather than match rights; ex ante inducement fees; and approval from a majority of the disinterested shares. This Article also identifies ways that the Delaware courts can encourage the use of these more potent devices when appropriate: through the threat of entire fairness review, the application of Revlon duties, and the weight given to the deal price in appraisal proceedings. The result would be improved deal process design in MBOs and improved capital formation in the economy overall.

This article examines the hedge fund investment strategy of buying junior claims of Chapter 11 debtors and playing an activist role in the bankruptcy process. These hedge funds are often accused of rent-seeking by managers. I use a new methodology to conduct the first empirical study of this investment strategy. I find little evidence that junior activists abuse the bankruptcy process to extract hold-up value. Instead, the results suggest that they constrain managerial self-dealing and promote the bankruptcy policy goals of maximizing creditor recoveries and distributing the firm’s value in accordance with the absolute priority rule.