Faculty Bibliography

“A decision the Court and the Nation will come to regret.” Ten years ago, the United States Supreme Court struck down two local school board initiatives meant to reverse extreme racial segregation in public schools. The sharply divided 5-4 decision in Parents Involved in Community Schools v. Seattle School District marked the end of an era of efforts by local authorities to fulfill the promise of racially integrated education envisioned by the Supreme Court in 1954 in Brown v. Board of Education. In a searing landmark dissent, Justice Stephen Breyer warned this was “a decision the Court and the Nation will come to regret.” A decade later, the unabated resegregation of America’s schools continues to confirm Justice Breyer’s fears, as many schools and school districts across the country are more racially segregated today than they were in the late 1960s. Edited and introduced by Justice Breyer’s former law clerk—and accompanied by a sobering update on the state of segregated schools in America today—this volume contains the full text of Justice Breyer’s most impassioned opinion, a dissent that Justice John Paul Stevens called at the time “eloquent and unanswerable.” The cautionary words of Justice Breyer should echo in classrooms across the country and in the hearts and minds of parents and schoolchildren everywhere.

Democrats are the party of working people. Ahead of the 2020 election, we advanced ideas and plans that we believed would, in ways big and small, make our democracy and our economy work better for all Americans. Across this country, voters agreed with us — and gave us a majority in Washington so that we could deliver on those promises.

After building toward such a moment for half a century, pro-life legal efforts aren’t likely to stop there.

This talk takes a comparative law look at shared methods of interpretation for textualists in two very different legal systems: American law and Islamic law. The focus is on the history and use of certain legal canons—principles of interpretation that judges derive from a kind of interpretive common law and use to resolve ambiguity when confronting novel issues that the text alone does not plainly address. For reasons that a comparative law look will make clear, there is an area of shared textual/linguistic legal canons with shared features about how language works: metacanons. Recognizing them in each system and across systems can inform how best to define textual canons, and to what ends American judges should use them in an era of increased use of legal canons but decreased Court-Congress dialogue.

For the Balkinization symposium on Richard L. Hasen, Cheap Speech: How Disinformation Poisons Our Politics-and How to Cure It (Yale University Press, 2022).

Afternoon Keynote at Revisiting and Archiving Civil Rights and Atlanta in the 1960s: Introducing the Mayor Ivan Allen Digital Archive.

Unlike shareholder value maximization (SV), which merely calls on corporate leaders to maximize shareholder value, enlightened shareholder value (ESV) combines this prescription with guidance to consider stakeholder interests in the pursuit of long-term shareholder value maximization. ESV is being increasingly embraced by many actors: it was adopted by the U.K. Companies Act, is being considered for inclusion in the Restatement of Corporate Governance Law, and is broadly supported by both corporate leaders and institutional investors. This article examines whether replacing SV with ESV can be expected to benefit stakeholders or society. We begin by arguing that the appeal of ESV and the enthusiasm for it among supporters is grounded in a misperception about how frequent "win-win situations" are. In reality, corporate leaders often face significant trade-offs between shareholder and stakeholder interests, and such situations are exactly those for which the specification of corporate purpose is important. Furthermore, we explain that, under certain standard assumptions, SV and ESV are always operationally equivalent and prescribe exactly the same corporate choices. We then relax these assumptions and consider arguments that using ESV is beneficial in order to (i) counter the tendency of corporate leaders to be excessively focused on short-term effects, (ii) educate corporate leaders to give appropriate weight to stakeholder effects, (iii) provide cover to corporate leaders who wish to serve stakeholders, and/or (iv) protect capitalism from a backlash and deflect pressures to adopt stakeholder-protecting regulation. We show that each of these arguments is flawed. We conclude that, at best, replacing SV with ESV would create neither value nor harm. However, to the extent that ESV would give the false impression that corporate leaders can be relied on to protect stakeholders, the switch from SV to ESV would be detrimental for stakeholders and could impede or delay reforms that could truly protect them. This paper is part of a larger research project of the Harvard Law School Corporate Governance on stakeholder capitalism and stakeholderism. Other parts of this research project include The Illusory Promise of Stakeholder Governance by Lucian A. Bebchuk and Roberto Tallarita, Will Corporations Deliver Value to All Stakeholders? by by Lucian A. Bebchuk and Roberto Tallarita, For Whom Corporate Leaders Bargain by Lucian A. Bebchuk, Kobi Kastiel, and Roberto Tallarita, Stakeholder Capitalism in the Time of COVID by Lucian A. Bebchuk, Kobi Kastiel, and Roberto Tallarita, and The Perils and Questionable Promise of ESG-Based Compensation by Lucian A. Bebchuk and Roberto Tallarita.

In Brockamp, the Supreme Court faced the issue of whether the three-year time limit for filing an administrative tax refund claim in Code Sec. 6511 was subject to equitable tolling.8 Without discussing whether the time period was jurisdictional (and apparently assuming that it was not), the Court held that, even if the Irwin presumption applied to this time period, a combination of factors would rebut any presumption that equitable tolling could apply: (1) the time limits were set forth in an "unusually emphatic form"; (2) the statute set forth the limitations in a "highly detailed technical manner," by reiterating the limitations period in multiple subsections; (3) the statute specified numerous exceptions to the filing deadline, which did not include equitable tolling9; (4) the granting of equitable tolling would require tolling substantive limitations on the amount of recovery, for which there was no direct precedent (see Code Sec. 6511 (b) lookback amount limitations); and (5) granting equitable tolling could create serious administrative problems by forcing the Internal Revenue Service (IRS) to respond to large numbers of late claims.10 In Holland, the Supreme Court revisited Brockamp when addressing whether the one-year statute of limitations for asking a federal district court to engage in habeas review of a state death penalty conviction was subject to equitable tolling.11 In distinguishing the habeas statute from the one in Brockamp, the Court found that the presumption in favor of equitable tolling was not rebutted because (1) the language of the limitations provision was not unusually emphatic, (2) the statute did not "reiterate" its time limitation, (3) the one exception the statute enunciated (tolling during state collateral review proceedings) was a necessary procedural measure to account for exhaustion of state remedies, (4) the application of equitable tolling would not affect the substance of a habeas petitioner's claim, and (5) the subject matter at issue, habeas corpus, pertains to an area in which equitable considerations often factor (which "reinforced" the presumption in favor of tolling), unlike the area of refund claim administration.12 Refunds claims present a special problem for the IRS because most tax returns qualify as refund claims making the number of claims huge, over 90 million according to Brockamp, and the consequent administrative problems if equitable tolling applied significant. [...]in Rubel, the IRS gave a taxpayer an incorrect deadline for filing a Tax Court petition in written correspondence.19 Likewise, in Matuszak, an IRS employee orally gave an unrepresented taxpayer the wrong last date to file a petition.20 In Nauflett, an employee of the IRS's Taxpayer Advocate Service orally gave another unrepresented taxpayer an incorrect final filing date.21 Although these cases arose in the innocent spouse context, rather than under Code Sec. 6330, they illustrate the contexts in which a failure to allow for equitable tolling can be outcome-determinative for litigants. In each of these cases, the tax clinic at Harvard Law School filed an appeal from the dismissal for lack of jurisdiction of the case by the Tax Court and in each case the circuit court upheld the dismissal and did not get to the issue of equitable tolling because of the ruling on jurisdiction. In one of the Code Sec. 6330(d)(1) cases described above in which the tax clinic at Harvard represented the petitioner on appeal, the Fourth Circuit found that the IRS language was not confusing enough to justify equitable tolling.25 The Ninth Circuit declined to even consider the taxpayer's equitable-tolling arguments, reasoning that Code Sec. 6330(d)(l)'s deadline was jurisdictional.26 B. Extraordinary Circumstances Sometimes Prevent Taxpayers from Meeting Tax Court Filing Deadlines In other cases, taxpayers experience extraordinary circumstances that prevent them from timely filing petitions with the Tax Court.

How do judges think about partisan gerrymandering? This chapter, by two law professors, is an answer to that question. The authors highlight both parallels between racial and partisan gerrymandering and divergences in the legal logic.

Defining a just economy in a tenuous social-political time. If we can agree that our current social-political moment is tenuous and unsustainable—and indeed, that may be the only thing we can agree on right now—then how do markets, governments, and people interact in this next era of the world? A Political Economy of Justice considers the strained state of our political economy in terms of where it can go from here. The contributors to this timely and essential volume look squarely at how normative and positive questions about political economy interact with each other—and from that beginning, how to chart a way forward to a just economy. A Political Economy of Justice collects fourteen essays from prominent scholars across the social sciences, each writing in one of three lanes: the measures of a just political economy; the role of firms; and the roles of institutions and governments. The result is a wholly original and urgent new benchmark for the next stage of our democracy.

The doctrine of vertical precedent requires that courts, except for a jurisdiction’s highest court, must follow an on-point precedent or distinguish it. Lawyers are typically taught that distinguishing a precedent requires a court to articulate why the current case is justifiably treated in a different manner than the precedent. Exclusive legal Positivists are troubled by the phenomenon of distinguishing, because the notion of justification built into the idea of distinguishing precedent appears to call for substantive normative reasoning by lower courts. To respond to this apparent problem, Raz has suggested a model of legal reasoning that treats “distinguishing precedent” as a kind of legal change rather than as law-application. This article contends that the Razian strategy cannot work because it simply gets the law wrong: lower courts are not generally empowered to amend the law. An undistorted description of the practice must recognize that courts engage in small-scale moral reasoning when they distinguish vertical precedents. The last half of the article utilizes several Indiana cases on the affirmative duties of landowners to illustrate the power and authenticity of our anti-positivistic account.

Motley wrote the original complaint in Brown v. Board of Education.

When policymakers focus on costs and benefits, they often find that hard questions become easy – as, for example, when the benefits clearly exceed the costs, or when the costs clearly exceed the benefits. In some cases, however, benefits or costs are difficult to quantify, perhaps because of limitations in scientific knowledge. In extreme cases, policymakers are proceeding in circumstances of uncertainty rather than risk, in the sense that they cannot assign probabilities to various outcomes. We suggest that in difficult cases in which important information is absent, it is useful for policymakers to consider a concept from poker: “freerolls.” A freeroll exists when choosers can lose nothing from selecting an option but stand to gain something (whose magnitude may itself be unknown). In some cases, people display “freeroll neglect.” In terms of social justice, John Rawls’ defense of the difference principle is grounded in the idea that behind the veil of ignorance, choosers have a freeroll. In terms of regulatory policy, one of the most promising defenses of the Precautionary Principle sees it as a kind of freeroll. Some responses to climate change, pandemics, and financial crises can be seen as near-freerolls. Freerolls and near-freerolls must be distinguished from cases involving cumulatively high costs and also from faux freerolls, which can be found when the costs of an option are real and significant, but not visible. “Binds” are the mirror image of freerolls; they involve options from which people are guaranteed to lose something (of uncertain magnitude). Some regulatory options are binds, and there are faux binds as well.

Mediation is a widely used approach to eviction diversion: over 65% of court-adjacent programs aimed at keeping tenants housed employ mediation at some stage. Many mediation programs that facilitate landlord-tenant disputes have their roots in foreclosure mediation programs that were used during The Great Recession. However, federal intervention during the mortgage foreclosure crisis incentivized parties, especially Plaintiffs, to participate in mediation, thus helping to level power asymmetries at-the-table. Eviction mediation programs do not benefit from any equivalent federally-set incentives schemes. Absent these levers or other policies addressing the root causes of housing instability, eviction mediation programs must bear the weight of many broken systems through thoughtful process design. Using a dispute system design (DSD) approach, this Article suggests options for how eviction mediation programs can “deliver justice.” Programs should be tailored to increase incentives for landlords, lower stakes for tenants, and calibrate power inequities between the parties. Designing eviction mediation programs with these considerations in mind not only helps address housing instability, it safeguards mediation and mediators from miscarrying justice.

The American penal system is a system of massive, racially unjust incarceration. It is also, to quote the U.S. Supreme Court, a "system of pleas." The latter drives the former, as coercive plea bargaining makes it possible for the state to do two things that are otherwise hard to pull off at once: increase convictions and sentence lengths. Mass incarceration is a predictable result. But while plea bargaining is intensely coercive when leveraged against individuals, the system of pleas has a structural weak point. That Achilles' heel is exposed once we see people facing prosecution not as isolated individuals but rather as a potentially collective community of power. Organized to act together, this community has unique resources. Most notably, they have the power to say "not guilty" when asked "how do you plead?" If done together, this simple but profound act of resistance would bring the penal system to a halt. Courts and prosecutors simply do not have the resources to sustain mass incarceration while affording everyone accused of a crime the constitutionally guaranteed right to a trial. This fact is what makes plea bargaining so essential to mass incarceration in the first place. Plea bargaining unions, with their implicit power to threaten plea bargaining strikes, thus hold a potentially transformative power--a decarceral power, a democratic power--that arises from the penal system's massive overextension. Susan Barton, a formerly incarcerated organizer, floated this idea in the pages of The New York Times with Michelle Alexander one decade ago. In the years since, it has never received focused academic attention and has seen only sporadic and isolated attempts at implementation. This Essay aims to conceptualize and test the limits of Burton's idea, examining both its promise and its hurdles while marking key questions for future exploration.

In the United States, are administrative agencies illegitimate? A threat to democracy? A threat to liberty? A threat to human welfare? Many people think so, and in important ways, they are surely correct. But an understanding of the actual operation of the administrative state in the United States, seen from the inside, makes it exceedingly difficult to object to “rule by unelected bureaucrats” or “an unelected fourth branch of government.” Such an understanding casts a new light on some large and abstract objections from the standpoint of democracy, liberty, and welfare. Indeed, it makes those objections seem coarse and insufficiently uninformed. What is needed is less in the way of arguments from adjectives and nouns, and more conceptual and empirical work on welfare and distributive justice, and on how regulators can increase both.

Environmental cases and cases with implications for environmental law decided by the supreme court during its 2020-21 term.

The Federation of State Medical Boards defines physician sexual misconduct as any ‘behavior that exploits the physician-patient relationship in a sexual way.’ Although several attempts have been made in recent years to clarify its incidence in the United States, physician sexual misconduct is almost certainly underreported. Physician sexual misconduct represents a severe and irreversible violation of the compact underlying the patient–physician relationship and can have far-reaching consequences on the lives of patients and their families. In addition, the credibility of and trust in physicians, both essential to the provision of medical care, could well erode in the eyes of the public at large if egregious cases of physician sexual misconduct are perceived as having gone unpunished. Although all physician licensees accused of sexual misconduct are entitled to the presumption of innocence and due process, complaints made by patients must be taken seriously and vigorously pursued. In this article, we discuss the ongoing challenge of physician sexual misconduct and provide recommendations to improve its reporting and curb its incidence.

Ketanji Brown Jackson is the latest liberal to embrace an approach once associated with conservatives

We offer here a very few thoughts — essentially, only one thought — about a recent argument for a kind of generic originalism. The argument was published by Joel Alicea, a law professor at the Catholic University of America, in a draft paper titled “The Moral Authority of Original Meaning.”[1] Given that the paper claims to ground its argument in the classical legal tradition; that it has been heavily promoted by the quasi-official organs of legal originalism, such as the National Review and the Legal Theory Blog; and that the paper is, if nothing else, strikingly ambitious, a brief response seems warranted.

The Securities and Exchange Commission has put forward for public comment that would mandate immediate disclosure of the acquisition of any equity swap position with a dollar value exceeding $300 million. This paper examines the proposal. I first show that the proposed rule would impose a serious cost – its detrimental effect on hedge fund activism – that the Commission seems to have overlooked. I then discuss the problematic disparity between the treatment of equity swaps and equity securities that the proposed rule would introduce, and I explain that the rationales put forward by the Commission for the proposed rule cannot justify introducing such a disparity. Finally, I identify a number of issues that the Commission should analyze before putting forward for public comment any proposed rule governing disclosure of equity swaps. Without analyzing these issues, I conclude, the Commission would not have an adequately informed basis for adopting the proposed rule.

The red tape we all must deal with is more than an inconvenience. It wastes time, money, and energy and ultimately robs us of our freedom.

True representative democracy depends on making access to voting a realistic option for all.

Ketanji Brown Jackson’s past is an asset, not a liability.

Once-daily oral tenofovir/emtricitabine is highly effective as pre-exposure prophylaxis (PrEP) against HIV but is dependent on adherence, which may be challenging for men who have sex with men (MSM) and use substances. Digital pill systems (DPS) permit the direct, real-time measurement of adherence, though user perceptions of data privacy in this context are unknown. Thirty prospective DPS users – HIV-negative MSM with non-alcohol substance use – completed in-depth qualitative interviews exploring preferences around privacy, access, and sharing of DPS adherence data. Participants discussed some concerns about the impact of DPS use on personal privacy, and emphasized the need for robust data protections in the technology. Participants were interested in having on-demand access to their adherence data, and were most willing to share data with primary care providers and long-term relationship partners. Future investigations exploring bioethical frameworks around DPS use are warranted, and user preferences should inform best practices for protecting DPS data.

The evidence is clear: it’s time to prosecute Donald Trump Laurence H Tribe and Dennis Aftergut On the supposedly difficult question of ‘criminal intent’, prosecutors should have no trouble convincing a jury. Full speed ahead is the only proper course.

"A treatise for students taking a business organizations class in law school"– Provided by publisher.

In the lead-up to the insurrection, Madison Cawthorn participated in planning meetings and promoted the confrontation with Congress on social media. He has invoked a post-Civil War statute to render him immune from consequences imposed by North Carolina voters.

Companies increasingly use ESG metrics in their compensation packages for CEOs. A new empirical study suggests that this practice has questionable promise and produces significant risks.

Why does Stephen Breyer continue to insist that the Supreme Court is apolitical?

We propose that the U.S. Treasury Department create “Treasury Accounts” as a means of improving access to financial services for many Americans. These would be digital accounts that would facilitate distribution of federal benefits and provide low cost, no-frills payment services. Treasury could create these accounts under existing statutory authority. In addition, Treasury’s substantial experience, dating back several decades, in devising benefit distribution and payment service programs for individuals can serve as the foundation for our proposal. Treasury Accounts could make it easier for those who are underserved by today’s banking system to both open and sustain an account. We propose a limit on account size and rollovers to private accounts to minimize disintermediation of bank deposits. As the public debate heats up over whether to create a U.S. central bank digital currency (CBDC), we explain why Treasury is better suited, at least in the short term, to provide retail accounts than the Federal Reserve, and why this proposal would be a faster, easier way to achieve some of the primary objectives of a CBDC.

When applied in the health sector, AI-based applications raise not only ethical but legal and safety concerns, where algorithms trained on data from majority populations can generate less accurate or reliable results for minorities and other disadvantaged groups.

On November 15, 2021, the US Department of Health and Human Services (HHS) rescinded a Trump-era policy that had directed the US Food and Drug Administration (FDA) to discontinue the premarket reviews of laboratory-developed tests (LDTs), including those for SARS-CoV-2.1 In a statement detailing the reversal, HHS Secretary Xavier Becerra noted that the policy “limited FDA’s ability to address certain problematic COVID-19 tests.”1 Secretary Becerra also noted that restoring the integrity of the regulatory process required that the FDA reinstate its “longstanding approach” to the oversight of the LDTs.1 Given the ever-growing demand for LDTs for detecting SARS-CoV-2, the restoration of integrity to the FDA review process could not be more timely. In this Viewpoint, we review the regulatory oversight of the LDTs, discuss its recent policy permutations, and explore potential future considerations.

I think it is fair to say that based on President Biden’s first State of the Union (SOTU) address, the state of labor’s interests in the Biden Administration is strong. Even before President Biden entered the House Chamber Tuesday night, Biden sent a signal about how central the labor movement is to his presidency. Starting with […]

The article presents the text of a speech by U.S. Supreme Court Justice Stephen Breyer, delivered as formal retirement announcement at the White House on January 27, 2002. Topics of the speech included experiment as a thing that people still think, the letters that George Washington wrote where he said the same thing, and why experiment existed then.