Faculty Bibliography

The striking thing about medieval Islamic criminal law is that it featured a jurisprudence of doubt and lenity facing off against political practices of control and severity. Principles of Islamic criminal law placed interpretive authority in the group of scholar-jurists who gained expertise to read divine texts to say what the Law is (sharīʿa). Practices of Islamic criminal law authorized executive authorities—caliphs, sultans, and their agents—power over law enforcement (siyāsa). Principles informed the task of expert jurists and state-appointed judges in defining legitimate punishment derived from Islam’s foundational texts. Practices informed the wide array of severe punishment that law enforcement officials meted out regularly, with a justification that it was “in the public interest” (maṣlaḥa). Principles often justified limited punishment by means of “deterrence” (zajr) and “spiritual rehabilitation” (kaffāra). Practices often justified unrestrained punishment as a means of maintaining law and order, social control, or might as right. The principles of punishment, practices of punishment, and justifications for punishment typically operated in siloes separated by a wide plain. This chapter explores the ground where they met.Examining both principles and practices of medieval Islamic criminal law can shed light on some of the most pressing questions of old criminal law (Islamic and otherwise): What is the extent of convergence or divergence between Islam’s principles and practices? How, from juristic or social-political accounts of criminal justice, can we explain the types of punishments we see on the books and in the world as we know it?To answer these questions, I will explore the principles-practices divergence by first examining the legal sources. Then I will review them alongside narratives of social-political practices. For the legal principles, I draw on previous work outlining medieval Islamic criminal law and the expansive role of doubt in substantive law and in criminal procedure. To explore the practices, I canvas Maḥmūd Shaljī’s seven-volume Encyclopedia of Punishment (Mawsūʿat al-ʿadhāb), in which he collects all mentions of “punishment” from a well-known set of historical chronicles and other literary sources from the eighth century onward. I supplement his sources with the less-covered Seljuq, Mamlūk, and Ottoman-era accounts of punishment that Christian Lange (2012), Carl Petry (2008), and others have collected in their studies. By combining views of criminal law from the pens of medieval jurists together with accounts of contemporaneous acts reporting on their less verbose executive counterparts, I offer depictions of how each side tended to approach crime and punishment.

[...]this peculiarity of Estrellita’s case, added to the fact that it was the first writ of habeas corpus filed on behalf of an animal in Ecuador, explains our initial uncertainty about the scope of the case. The 2008 Ecuadorian Constitution recognizes nature as a rights holder, so any person or community can request a court or public authority to protect the rights of nature or Pachamama, the Quechua word for Mother Earth. [...]the Constitutional Court’s ruling in Estrellita’s case, the rights of nature had only referred to the protection of animals considered as species, not as individuals. [...]we may be killing animals belonging to different families, destroying the group’s genetic diversity, and leaving only siblings who may not mate. [...]we argued that if the Ecuadorian Constitutional Court decided to exclude individual animals from the protection of the rights of nature, then it would be forced to answer an impossible question:

We review experimental research on judicial decision-making with a focus on methodological issues. First, we argue that only experiments with relatively high realism, in particular real judges as study subjects, plausibly generalize to judicial decision-making in the real world. Most experimental evidence shows lay subjects to behave very differently from expert judges in specifically legal tasks. Second, we argue that studying the effects of non-law is not a substitute for studying the effects of law since large unexplained residuals could be attributed to either. Direct experimental studies of the law effect are few and find it to be puzzlingly weak. Third, we review the substantive findings of experiments with judges, distinguishing between studies investigating legal and non-legal factors and paying close attention to the nature of the experimental task.

Experiments of Living Constitutionalism urges that the Constitution should be interpreted so as to allow both individuals and groups to experiment with different ways of thinking, whether we are speaking of religious practices, family arrangements, political associations, civi associations, child-rearing, schooling, romance, or work. Experiments of Living Constitutionalism prizes diversity and plurality; it gives pride of place to freedom of speech, freedom of association, and free exercise of religion; it cherishes federalism; it opposes authoritarianism in all its forms. While Experiments of Living Constitutionalism has considerable appeal, my purpose in naming it is not to defend it, but to contrast it to Common Good Constitutionalism, with the aim of specifying the criteria on which one might embrace or defend any approach to constitutional law. My central conclusion is that we cannot know whether to accept or reject Experiments of Living Constitutionalism, Common Good Constitutionalism, democracy-reinforcing approaches, moral readings, originalism, or any other proposed approach without a concrete sense of what it entails--of what kind of constitutional order it would likely bring about or produce. No approach to constitutional interpretation can be evaluated without asking how it fits with the evaluator's "fixed points," which operate at multiple levels of generality. The search for reflective equilibrium is essential in deciding whether to accept a theory of constitutional interpretation.

A central function of the central bank is to act as the lender of last resort. Why did it fail to do so?

In the current ESG debate, one leading theory argues that diversified investors have a financial incentive to reduce negative corporate externalities, such as greenhouse gas emissions, because they internalize those externalities within their investment portfolio. This Essay examines how this “portfolio primacy” theory interacts with the multiple layers of fiduciary duties of investment and corporate managers. Using a hypothetical emissions reduction in ExxonMobil as a paradigmatic case, I show that portfolio primacy creates a fiduciary deadlock: a situation in which multiple fiduciary relationships—between investment advisers and fund investors, between corporate managers and shareholders, and between controlling and minority shareholders—come into conflict with each other. I argue that, within the existing structure of fiduciary law, portfolio primacy will prove ineffective in promoting ambitious social and environmental goals. Indeed, the only way to solve the fiduciary deadlock is to abandon the central tenet of portfolio primacy.

The 13th edition of this comprehensive casebook draws from its history and current debates to create a lively and rich set of materials appropriate for introductory as well as advanced courses. It contains a substantial chapter on legislative process and statutory interpretation so that the casebook can be used for an introductory legislation and regulation course as well as for administrative law classes. With one new editor (Eloise Pasachoff, Georgetown University), this latest edition makes a number of changes: Pares down existing material from the current edition and supplement, with shorter excerpts and consolidated notes throughout. Includes the latest administrative law decisions from the Supreme Court, often as lead cases, such as West Virginia v. EPA, United States v. Arthrex, Seila Law v. CFPB, FCC v. Prometheus Radio, Wooden v. United States, Concepcion v. United States, Carr v. Saul, TransUnion v. Ramirez, and more. Includes relevant new cases from the courts of appeals and district courts, addressing topics such as the constitutionality of SEC ALJ adjudications, decisionmaker bias, length of comment periods, application of Kisor v. Wilkie, Chevron waiver, and more. Replaces some teaching cases with material that is more accessible to students, including a new case for “logical outgrowth” and new materials on exceptions to notice-and-comment rulemaking. Updates transparency materials to cover the latest Supreme Court decisions on FOIA exemptions, address current events and disputes (including over the Presidential Records Act and various privileges), and show how the mandates from the 2016 FOIA Amendments have been litigated. Discusses the end of the Trump Administration and first 20 months of the Biden Administration, including firings or forced resignations of agency leaders, reversals in presidential directives and agency policies, rulemaking trends, the COVID-19 pandemic, and more. Adds new material on public administration and budgeting. Updates factual, legal, and policy materials throughout the book, with a focus on current issues and examples that appeal to students. The casebook continues to incorporate primary materials outside of judicial decisions (including statutes, administrative materials, IG and GAO reports, and proposed legislation). It also uses a wide range of secondary materials, from law review articles (classic and recent) to social science studies to think tank reports. And it considers strategic choices by agencies and challengers to agency action, not only in the courts but also in the White House and Congress. The new edition retains many of the casebook's classic cases and commentary as well as its modular approach, allowing instructors to choose the order of topics. Although there is considerable new material, the casebook's arrangement remains stable, facilitating continued use by those who have adopted the 12th edition. Adopters have access to slides, writing assignments, examination questions, and more. As occurred with the prior edition, the casebook will be updated annually through a free online supplement for students.

Written in honor of the great torts scholar Aaron Twerski, this article critically analyzes disturbing developments in New York negligence law as it applies to police who injure innocent bystanders. With the New York Court of Appeals’ 2022 decision in Ferreira v. City of Binghamton as a focal point, it argues that Ferreira and other contemporary decisions have largely betrayed the promise of the 1929 Court of Claims Act, which waived state and municipal immunity for police torts. While courts may be warranted in recognizing certain limits on police negligence liability that do not apply to private actors, the current regime, which purports to grant municipalities immunity not only for most instances of police nonfeasance but also for most instances of misfeasance, is indefensible. That decisions from New York’s high court have reached this untenable position largely reflects, in our view, both its misapplication of basic rules of negligence law and a failure to take seriously the principle of civil recourse that animates tort law and private law more generally. As such, they serve as a stark reminder of how important it is for courts and scholars to combine doctrinal expertise with sound judgment—precisely the salutary combination embodied in Professor Twerski’s torts scholarship.

Algorithms are designed to learn user preferences by observing user behaviour. This causes algorithms to fail to reflect user preferences when psychological biases affect user decision making. For algorithms to enhance social welfare, algorithm design needs to be psychologically informed.

Disqualification after impeachment prevents the return of unfit leaders to power by barring their re-election—but for how long? This article examines international human rights decisions on the duration of post-impeachment disqualification, including an important 2022 opinion of the European Court of Human Rights, along with the experience of impeachment in the United States. The neglected history of impeachment in U.S. states adds dimensions to the thinner narrative of impeachment at the U.S. federal level. The European insistence on keeping disqualification proportionate resonates with a minority practice of partial disqualification in the states. Nonetheless, the European Court’s prohibition of irreversible lifelong disqualification may be too rigid for democracies under threat.

Dobbs v. Jackson Women’s Health Organization radically revised the constitutional “right to privacy,” declaring that such a right does not protect the decision to have an abortion. Less appreciated is that it expressly left intact the constitutional right to “informational privacy.” In so doing, Dobbs became the next in a line of cases establishing constitutional protections for privacy alongside, and distinct from, both the substantive due process caselaw on intimate decision-making and the Fourth Amendment. This right to informational privacy has deep roots in our legal order, notwithstanding its vaguer history at the Supreme Court. It appears in the jurisprudence of all but one federal circuit as well as most state courts, and in an array of doctrinal settings, reflecting its intuitive cultural and normative force. This Article explores the surprisingly robust constitutional right to informational privacy post-Dobbs, and in particular its implications for abortion-related medical records—a particularly potent source of potential evidence, and deep privacy concerns, in a post-Dobbs world. Whatever else Dobbs is, it is also an invitation to take this value seriously—and for scholars and advocates to press the development of an “informational privacy” jurisprudence that survives, and to some extent counteracts, the erosion of decisional privacy.

A large academic literature discusses the nondelegation doctrine, which is said to bar Congress from enacting excessively broad or excessively discretionary grants of statutory authority to the executive branch or other agents. The bulk of this literature accepts the existence of the doctrine, and argues only about the terms of its application or the competence of the courts to enforce it. In this essay, we argue that there is no such nondelegation doctrine: A statutory grant of authority to the executive branch or other agents never effects a delegation of legislative power Agents acting within the terms of such a statutory grant are exercising executive power, not legislative power. Our argument is based on an analysis of the text and history of the Constitution, the case law, and a critique of functional defenses of the nondelegation doctrine that have been proposed by academic.

Judges perform very different analyses when investors ask for protection. When the petitioning party is a shareholder, the court will deploy broad equitable doctrines with an eye towards reaching a fair result. On the other hand, creditors typically find a much less sympathetic ear, as courts typically march through technical analyses such as examining whether the offending party violated a contract term, with far less concern for whether the outcome is fair. In an era where many firms are highly leveraged, the end result is that the role of the courts in regulating investor opportunism and creating boundaries for “market” conduct has been greatly diminished, with consequences for both real-world corporate behavior and the development of the law.

This chapter discusses the practical challenges to scaling up restorative justice in the United States. Existing restorative justice programmes handle only a tiny fraction of the criminal docket. The chapter focuses on two related problems – the need to recruit enough facilitators to handle the increased caseload, and the difficulty of avoiding bureaucratisation and centralisation. It seems unlikely (and probably impossible) for programmes to meet the increased demand without abandoning a volunteer model and becoming dependent on state funding. Yet any shift towards professionalisation would appear to threaten the central premise of restorative justice, which is to return control over conflicts to stakeholders and local communities. I argue that this is a false choice. This chapter argues that recruiting part-time paid facilitators from the local community would improve restorative justice programming by making facilitators more representative and responsive to the local community. Using community-centred public defender services as a model, this chapter also argues that community-based programmes can accept state funding without sacrificing independence, flexibility and local responsiveness. Those designing restorative justice programmes should focus on safeguarding the core restorative justice principles of stakeholder control and informal, flexible and locally responsive processes rather than resisting all forms of professionalisation and institutionalisation.

Microdosing psychedelic substances (“microdosing”) is a growing trend that has gained significant media and scientific attention. The practice typically involves consuming low doses of psychedelics, such as psilocybin or lysergic acid diethylamide (“LSD”), two or three times per week, over the course of weeks or months. Many claim that microdosing improves attention, creativity, or mood. Some say it reduces pain as well as symptoms of anxiety, depression, and migraine or cluster headaches. Others fear it has not been proven safe or effective by randomized controlled trials. Nevertheless, the microdosing trend is growing against the backdrop of a broader psychedelic renaissance characterized by increasing interest in researching, legalizing, consuming, and commercializing psychedelics. This Article is the first to address the legal status of microdosing under local, state, and federal law. It analyzes the national trend toward psychedelic legal reform and how it affects the legal status of people who microdose. Since 2019, over a dozen U.S. cities have decriminalized psychedelics, making their possession in each city a low priority for law enforcement. The following year, during the 2020 presidential election, the psychedelic renaissance reached a turning point. Through ballot initiatives, the District of Columbia partially decriminalized psychedelics, and Oregon became both the first state to decriminalize psychedelics and the first to legalize the production, sale, and supervised adult use of psilocybin. In 2022, Colorado became the second state to partially decriminalize psychedelics and create a legal market for their supervised administration. Related legislation has been proposed in about a dozen other states, including California, New York, Massachusetts, Illinois, and New Hampshire. However, despite the growing popularity of microdosing, these jurisdictions have largely overlooked the practice and thus raised numerous equity and public health concerns. This Article analyzes available scientific evidence for microdosing, summarizes its risks and benefits, and analyzes how existing and proposed legislation affect the practice. It concludes with recommendations for the safe and equitable integration of microdosing into existing, proposed, and future psychedelics regulation. As more jurisdictions decriminalize or legalize psychedelics, they can use the Article as a resource and guide.

For five straight cycles (the 1970s through the 2010s), Section 5 of the Voting Rights Act dominated redistricting in states covered by the provision. In these states, district plans had to be precleared with federal authorities before they could be implemented. Preclearance was granted only if plans wouldn’t retrogress, that is, reduce minority representation. Thanks to the Supreme Court’s 2013 decision in Shelby County v. Holder, Section 5 is no longer operative. So what happened to minority representation in formerly covered states after Section 5’s protections were withdrawn? This Article is the first to tackle this important question. We examine all states’ district plans before and after the 2020 round of redistricting at the congressional, state senate, and state house levels. Our primary finding is that there was little retrogression in formerly covered states. In sum, the number of minority ability districts in these states actually rose slightly. We also show that formerly covered states were largely indistinguishable from formerly uncovered states in terms of retrogression. If anything, states unaffected by Shelby County retrogressed marginally more than did states impacted by the ruling. Lastly, we begin to probe some of the factors that might explain this surprising pattern. One possible explanation is the status quo bias of many mapmakers, which is reflected in their tendency to keep minority representation constant. Another potential driver is many line-drawers’ reluctance to use retrogression as a partisan weapon. This reluctance is evident in the similar records of all redistricting authorities with respect to retrogression, as well as in the absence of any relationship between retrogression and change in plans’ partisan performance.

To prove copyright infringement, a plaintiff must convince a jury that the defendant copied from the plaintiff’s work rather than independently creating it. To prove copying, especially in cases involving music, it’s common for plaintiffs and their experts to argue that the similarities between the parties’ creative works are so great that it is simply implausible that the defendant’s work was created without copying from the plaintiff’s work. Unfortunately, in its present form, the argument is mathematically illiterate; it assumes, without any underlying evidence, that the experts know or could reasonably estimate how likely it is that a song with similarity level x to another, earlier song was created without copying from the earlier song. Until the state of the underlying art changes, it is reasonable for experts to testify about the existence of similarities between works, but it is unsupported and unreasonable for them to testify about the likelihood that those similarities came about from copying. We don’t know that likelihood in the absence of evidence about base rates: how common it is for a song to have similarity level x with some other song in the corpus of existing songs, and how common it is for that similarity to come from copying or from independent creation (or from both songs copying a shared antecedent). Until that knowledge is available, testimony about the probability of copying should be deemed inadmissible under Federal Rule of Evidence 702.

This Article presents evidence that some state prosecutors use their discretion to reduce racial disparities in criminal sentences. This finding challenges the prevailing view that prosecutors compound disparities. Given prosecutors' positions as mediators in a sequential system, this Article analyzes how prosecutors respond to disparities they inherit from the past--and interprets their impacts in light of the accumulated disparities that already exist when they first open their case files. Specifically, I estimate how the sentencing penalty for prior convictions differs by defendant race using North Carolina state court records from 2010 to 2019. I find that the increase in the likelihood of a prison sentence for an additional prior conviction was 25% higher for white than Black defendants with similar arrests and criminal records. While Black and white defendants without criminal records were incarcerated at similar rates, white defendants with records were incarcerated at significantly higher rates. And the longer the record, the greater the divergence. To understand this finding, I link an original survey of 203 prosecutors to their real-world cases. This survey-to-case linkage helps reveal how prosecutors' beliefs about past racial bias influence their decision-making. I find that the subset of prosecutors who attribute racial disparities in the criminal legal system to racial bias have lower prison rates for Black defendants with criminal records than facially similar white defendants, thereby offsetting past disparities. In concrete terms, racial disparities in North Carolina prison rates in 2019 would have increased by 20% had the state mandated equal treatment of defendants with similar case files. These findings should lead reformers to exercise caution when considering calls to limit or eliminate prosecutorial discretion. Blinding prosecutors to defendant race--a policy that jurisdictions are increasingly implementing--may inadvertently increase disparities by neutralizing the offsetting effects of some prosecutors. While race-blind charging ensures that prosecutors do not introduce new bias, it also ensures that any past bias is passed through to current (and future) decisions.

Special purpose acquisition companies (SPACs) were the financial-legal hit of 2021, before they weren't. Breaking records and displacing, to an extent, conventional initial public offerings (C-IPOs), even as C-IPOs also boomed, SPACs spiked, in part, because-in addition to myths about their financial attributes, which others have de-bunked several myths about SPAC law circulated widely and persistently. SPAC promoters claimed that (1) securities regulations ban projections from being used in C-IPOs, (2) liability related to projections was lower and more certain in SPACs than it was (and is), (3) the Securities and Exchange Commission (SEC) registration process delays C-IPOs more than SPACs, (4) the SEC changed SPAC accounting rules in early 2021, (5) this "change" was the primary reason the SPAC wave slowed and peaked, and (6) the Investment Company Act clearly does not apply to SPACs. Consistent with these being myths, de-SPACs from 2021 are experiencing significant levels of litigation-even higher than in C-IPOs. These myths were aimed primarily not at unsophisticated retail investors, but business journalists, sophisticated SPAC sponsors, and owner-managers of SPAC targets. They illustrate a broader and under-appreciated fact that complex financial-legal innovation permits promoters to exploit the "credence good" character of professional advice, perpetuate "deep fraud," and distort markets and asset prices more and longer than conventional theory assumes. To moderate deep fraud's market distortions, proposed SEC reforms should be finalized to improve SPAC disclosure, enhance investor understanding of their risks, and reduce regulatory uncertainties that contribute to legal myths about SPACs, but the inherent complexity of the product may require an ongoing role for regulators to speak clearly about SPAC law and its uncertainties.

This Article tests the claims of supporters of stakeholder capitalism (“stakeholderism”) in the context of the COVID pandemic. Supporters of stakeholderism advocate encouraging and relying on corporate leaders to use their discretion to serve stakeholders such as employees, customers, suppliers, local communities, and the environment. The pandemic followed and was accompanied by peak support for, and broad expressions of commitment to, stakeholderism from corporate leaders. Nonetheless, and even though the pandemic heightened risks to stakeholders, we document that corporate leaders negotiating deal terms failed to look after stakeholder interests. We conduct a detailed examination of all the $1B+ acquisitions of public companies that were announced from April 2020 to March 2022, totaling 122 acquisitions with an aggregate consideration exceeding $800 billion. We find that deal terms provided large gains for the shareholders of target companies, as well as substantial private benefits for corporate leaders. However, although many transactions were viewed at the time of the deal as posing significant post-deal risks for employees, corporate leaders largely did not obtain any employee protections, including payments to employees who would be laid off post-deal. Similarly, we find that corporate leaders failed to negotiate for protections for customers, suppliers, communities, the environment, and other stakeholders. After conducting various tests to examine whether this pattern could have been driven by other factors, we conclude that it is likely to have been driven by corporate leaders’ incentives not to benefit stakeholders beyond what would serve shareholder interests. While we focus on decisions in the acquisition context, we explain why our findings also have implications for ongoing-concern decisions, and we discuss and respond to potential objections to our conclusions. Overall, our findings have significant implications for long-standing debates on the corporate treatment of stakeholders. In particular, our findings are inconsistent with the implicit-promises/team-production view that corporate leaders of an acquired company should and do look after stakeholder interests; on this view, fulfilling implicit promises to protect stakeholder interests serves shareholders’ ex-ante interest in inducing the stakeholder cooperation and investment that are essential to corporate success. Our work also supports the agency critique of stakeholder capitalism which suggests that, due to their incentives, corporate leaders cannot be relied upon to look after stakeholder interests and to live up to pro-stakeholder rhetoric.

This Essay analyzes and assesses the approach of governmental entities to the bankruptcy filings of large, regulated companies. Regulated firms often enter Chapter 11 seeking to exploit bankruptcy law provisions that allow them to take actions that their regulators could block outside of bankruptcy, thereby undermining regulatory enforcement and oversight. As a result, governmental entities often react defensively to a bankruptcy filing, asserting that bankruptcy law does not displace their power over the regulated firm. This tactic is often unsuccessful, as we show by describing the doomed efforts of the Federal Energy Regulatory Commission (FERC) to maintain their statutory authority over Chapter 11 firms. We argue that governments would fare better - and the public interest would be better served - if they participated in, instead of resisting, the bankruptcy process, including by acquiring expertise in bankruptcy law and providing financial support to distressed companies. We illustrate this argument with a case study contrasting the approaches of the California State Attorney General's Office and the County of Santa Clara to the 2019 bankruptcy filing of a hospital system, Verity Health System of California. The County of Santa Clara succeeded in achieving its policy goals where the California Attorney General (like FERC) failed, because the County retained bankruptcy lawyers and took bankruptcy law on its own terms, acting in bankruptcy instead of against bankruptcy.

West Virginia v. Environmental Protection Agency1 is the Supreme Court’s most important administrative law decision in decades. The opinion’s significance is due principally to the Court’s embrace of an aggressive version of the so-called “major questions doctrine” (MQD), which appears to require unusually explicit statutory authorization before agencies may undertake “major” regulatory actions. The West Virginia Court claims that this strong MQD is based on longstanding precedent, and that its use has salutary effects on the policymaking process. Neither claim is accurate. In Part I of this Article, we show that the strong version of the MQD embraced by the West Virginia Court is in fact relatively new; the extent of the doctrinal innovation is obscured by the fact that the MQD label has been unhelpfully attached to several related but distinct interpretive techniques, which we disentangle. In Part II, we turn to the impact of this new MQD on the policymaking process, focusing in particular on democratic accountability. While the MQD’s proponents claim that this doctrine protects separation-of-powers principles and the prerogatives of Congress, in fact the new MQD is more likely to weaken democratic accountability by shifting power from the elected branches to the courts, undermining transparency, and exacerbating the already excessive tendency toward minoritarian obstruction in Congress. The West Virginia Court’s aggressive MQD would likely have other effects; perhaps most importantly, this version of the MQD makes it much more difficult for the federal government to address new problems under broadly worded statutes. Both the MQD’s supporters and its detractors anticipate that the doctrine will result in less, and less aggressive, federal regulation. For purposes of this Article, though, our critique of the MQD focuses less on its impact on policy outcomes (though we think this is very important), and more on the impact of the MQD on the policymaking process, especially the extent to which the MQD makes that process less democratic.

The American death penalty finds itself in an unusual position. On the ground, the practice is weaker than at any other time in our history. Eleven jurisdictions have abandoned the death penalty over the past fifteen years, almost doubling the number of states without the punishment (twenty-three). Executions have declined substantially, totaling twenty-five or fewer a year nationwide for the past six years, compared to an average of seventy-seven a year during the six-year span around the millennium (1997-2002). Most tellingly, death sentences have fallen off a cliff, with fewer the fifty death sentences a year nationwide over the past six years – compared to highs of over three hundred per year in the mid-1990s. The last two years have seen only eighteen death sentences per year nationwide – fewer than two per capital jurisdiction. This article examines the dynamics underlying this great decline of the American death penalty and assesses the likelihood of its continued diminution. At the same time capital punishment is withering in practice, the prospects for constitutional abolition via judicial decree have also decreased substantially, as the U.S. Supreme Court has shown marked hostility toward constitutional regulation of the death penalty. This new hostility replaces a jurisprudence that was increasingly hospitable to extensive regulation – even judicial abolition – of American capital punishment. The Court’s recent decisions threaten to jettison the jurisprudential commitment to “evolving standards of decency” as the touchstone for interpreting the Eighth Amendment in favor of a more limited originalist approach to gauging “cruel and unusual” punishments. The Court also appears eager to discourage end-stage litigation and to remove obstacles to both state and federal executions. The simultaneous decline of public support for the death penalty and judicial regulation of the death penalty has produced “abolition in waiting” – a marginalized practice that will remain on the books until changes in the composition of the Court permit reassessment of the death penalty’s constitutionality.

“We need to make it easier to build electricity transmission lines.” This plea came recently not from an electric utility executive but from Senator Sheldon Whitehouse, one of the Senate’s champions of progressive climate change policy. His concern is that the massive scale of new climate infrastructure urgently needed to meet our nation’s greenhouse gas emissions reduction policy goals will face a substantial obstacle in the form of existing federal, state, and local environmental laws. A small but growing chorus of politicians and commentators with impeccable green credentials agrees that reform of that system will be needed. But how? How can environmental law be reformed to facilitate building climate infrastructure faster without unduly sacrificing its core progressive goals of environmental conservation, distributional equity, and public participation? That hard question defines what this Article describes as the Greens’ Dilemma, and there are no easy answers. We take the position in this Article that the unprecedented scale and urgency of required climate infrastructure requires reconsidering the “Grand Bargain” of the 1970s that established stronger environmental protection in exchange for more challenging infrastructure development. Green interests, however, largely remain resistant even to opening that discussion. As a result, with few exceptions, reform proposals thus far have amounted to modest streamlining “tweaks” compared to what we argue will be needed to accelerate climate infrastructure sufficiently to achieve national climate policy goals. To move beyond tweaking to a “New Grand Bargain,” we explore how to assess the trade-off between speed to develop and build climate infrastructure, on the one hand, and ensuring adequate conservation, distributional equity, and public participation on the other. We outline how a new regime would leverage streamlining methods more comprehensively and, ultimately, more aggressively than has been proposed thus far, including through federal preemption, centralizing federal authority, establishing strict timelines, and providing more comprehensive and transparent information sources and access. The Greens’ Dilemma is real. The trade-offs inherent between building climate infrastructure quickly enough to achieve national climate policy goals versus ensuring strong conservation, equity, and participation goals are difficult. The time for serious debate is now. This is the first law review article to lay the foundation for that emerging national conversation.

Neoclassical and credit approaches to money represent dramatically different theories of value. Within the neoclassical tradition, the market exists as a conceptual prior, a place where independent agents compare real goods, exchanging them afterwards to accord with their preferences. That theory identifies value as a pre-existing quality ranked by individual choice. To operate, the theory relies on an approach to money that is oddly self-contradictory: money as a unit of account antedates exchange while money as a medium follows from exchange. By contrast, credit approaches suggest that markets only emerge once commensurability in value exists. To create a unit of account that enables comparison, groups restructure their internal relationships to create money. Members then use money for exchange, producing what is understood as monetary value. Credit theories of money thus imply a dramatically different “market,” one that turns on disparities within an exchanging group rather than the autonomy of individuals to produce “value.”

According to the “portfolio primacy” theory, large asset managers, and in particular large index funds, can and will undertake the role of “climate stewards” and will push corporations to reduce their carbon footprint. This theory is based on the view that index fund portfolios mirror the entire market and therefore have strong financial incentives to reduce market-wide threats, such as climate change. But how much can we rely on portfolio primacy to mitigate the effects of climate change? In this Article, I provide a conceptual and empirical assessment of the potential impact of portfolio primacy on climate change mitigation by examining the scope of action, economic incentives, and fiduciary conflicts of index fund managers. The analysis reveals three major limits, each reinforcing the others, that undermine the promise of portfolio primacy. First, the potential scope of index fund stewardship is narrow, as most companies around the world, including most carbon emitters, are private or controlled companies. Second, index funds internalize only a fraction of the social cost of climate change and therefore have very weak incentives to engage in ambitious climate stewardship. Third, index fund managers advise dozens of index funds with conflicting interests with respect to climate mitigation and therefore face serious fiduciary conflicts that would hamper any ambitious mitigation strategy. This analysis shows that we should have very modest expectations about the role of portfolio primacy in the fight against climate change.

A legal system’s ‘official story’ is its shared account of the law’s structure and sources, which members of its legal community publicly advance and defend. In some societies, however, officials pay lip service to this shared account, while privately adhering to their own unofficial story instead. If the officials enforce some novel legal code while claiming fidelity to older doctrines, then which set of rules—if either—is the law? We defend the legal relevance of the official story, on largely Hartian grounds. Hart saw legal rules as determined by social rules accepted by a particular community. We argue that this acceptance requires no genuine normative commitment; agreement or compliance with the rules might even be feigned. And this community need not be limited to an official class, but includes all who jointly accept the rules. Having rejected these artificial limits, one can take the official story at its word.

The Original Scalia Adrian Vermeule* What follows is a lightly footnoted version of a lecture delivered at Harvard Law School on October 19, 2022, as part of the Herbert W. Vaughan Academic Program…

At the most general descriptive level constitution-making processes can be understood as bargains struck among groups each of which sees advantages in establishing a (temporarily) stable governing order. This essay, a contribution to a handbook on the politics of constitutional law, seeks to identify some more granular processes. Section 1 describes three prominent approaches to theorizing about the politics of constitution-making Ackerman’s theory of “constitutional moments”; Elster’s identification of “upstream” and “downstream” constraints on constitution-making; and studies of post-conflict, post-crisis, and “imposed” constitution making, with a brief discussion of constitution-making in “normal” times. Section 3 offers a sequential account of the politics of constitution-making, beginning with the proposal stage, then turning to the selection of the process by which the constitution will be made before addressing some specific issues associated with constitution-making by constituent assemblies. A discussion of the politics of the drafting process follows, after which the essay considers the politics of adoption/ratification or rejection. The discussion concludes with what some have identified as the “afterlife” of constitutional processes that do not produce a new ratified constitution.