Faculty Bibliography

"Steven Shapin began a classic work with this sentence: "There was no such thing as the Scientific Revolution, and this is a book about it."1 This book’s theme might be put in similar terms. There was no Constitutional Revolution of 1937, and this is a book about it. As the book’s subtitle suggests, the Hughes Court from its inception in 1930 was in large measure a Progressive court, committed in a wide range of areas to the vision of active government associated with the Progressive movement in thought and politics. The Court was not dominated by a deep formalism, though most of the justices, liberals and conservatives alike, had their moments of formalism - and not merely for strategic reasons when controlling precedent forced formalism on them. At one time or another and cumulatively a great deal of the time, all of the justices incorporated ideas about good public policy in their interpretations of the Constitution and federal statutes"– Provided by publisher.

The political convulsions of the past decade have fueled acute interest in constitutional For the past century, the Supreme Court has skeptically scrutinized Congress’s power to enact healthcare laws and other domestic legislation, insisting that nothing in the Constitution gives Congress a general power to “regulate an individual from cradle to grave.” Yet when Congress regulates immigrants, the Court has contradictorily assumed that Congress has “broad, undoubted power” to do whatever it thinks necessary—even though no clause of the Constitution gives Congress any specific immigration power. The Court has explained this discrepancy with reference to the Chinese Exclusion Case, an 1889 decision in which it allegedly held that Congress possesses “sovereign” power to regulate immigrants beyond Congress’s ordinary enumerated powers. Absent this imagined Immigration Clause, the Court has offered no explanation for its anomalous review of Congress’s immigration laws. This Article contests this traditional reading of the Chinese Exclusion Case as well as the consequences that have followed from it. Throughout the first century of congressional and judicial resistance to Congress’s power to regulate immigration, there was a broad consensus that Congress had no freestanding power to regulate immigrants beyond its ordinary powers to regulate everyone else. Far from disrupting this consensus, the author of the Chinese Exclusion Case adhered to it before, during, and after his opinion. It was not until the mid-twentieth century that the Supreme Court retroactively misread the Chinese Exclusion Case to authorize an extraconstitutional federal immigration power. Yet these misreadings have never explained why the Court invalidates ordinary domestic legislation even as it defers to federal immigration laws. In contrast with scholars and immigration advocates who have sought to apply the Court’s ordinarily skeptical scrutiny to the immigration context, we argue that this history highlights the flaws of relying on judicial review to protect disenfranchised minorities from a hostile and overzealous Congress. This review has functioned to muffle the serious legislative debate that animated the resistance to the first century of federal immigration restrictions. Rather than ask the courts to limit federal immigration laws just as they limit federal healthcare laws, we therefore argue that Congress itself should rethink whether Article I permits the expanse of its immigration laws in effect today.

In this essay for the Oxford Handbook of Japanese Politics, I survey the state of (and the research into) the Japanese judiciary. Japan operates a largely honest and meritocratic judiciary. The court's administrative office (and indirectly, the ruling party) can reward and punish judge for the quality of the work they do -- and has. For the most part, the administrative office uses that capacity to reward good work. It can also use the capacity to punish opposition politics -- but self-selection into the judiciary seems to keep the (perceived) need for that political intervention to a minimum.

Recently the literature on free expression has turned to the question, should the law of free expression be adjusted because of the availability of new information technologies (hereafter NIT), and if so, how? The only thing about NIT that distinguishes them from traditional media is that disseminating expression via NIT is much less expensive than doing so via traditional media. The tenor of recent scholarship on NIT and free expression is that the invention of NIT does support some modification of free expression law. This Essay argues that that conclusion might be correct, but that many of the arguments offered in support move much too quickly. The Essay tries to slow them down and in so doing to suggest that the arguments require complex and contestable judgments about exactly how an expansion of expression might elicit new rules regulating it. My goal is to identify the lines of analysis that need to be pursued before we conclude that the existing law of free expression should be modified in response to NIT. In that somewhat limited sense the Essay is contrarian. The Essay’s overall theme is that the First Amendment rules in place probably already accommodate the concerns that motivate arguments for adjusting the law of free expression. The First Amendment, that is, is not obsolete.

For decades, the bundling of research services into commissions paid for the execution of securities trades has been the focus of policy discussion and academic debate. The practice whereby asset management firms use investor funds to cover research costs, known as “soft dollar” payments in the United States, resembles a form of kickback or self-dealing. The payments allow asset managers to use investor funds to subsidize the cost of their own research efforts even though those managers charge investors a separate and explicit management fee for advisory services. Why do soft dollars exist? Over the years, defenders of the practice have argued that soft dollars mitigate principal-agent problems between the investment manager and the broker, improve fund performance, and provide a public good in terms of the increased production of research on public companies. This Article evaluates these theoretical law-and-economics arguments through the lens of empirical academic research done in the past as well as an emerging new body of empirical studies exploring the impact of MiFID II, an E.U. Directive that severely restricted the use of soft dollar payments in European capital markets as of January 2018. The weight of empirical evidence suggests that the arguments in favor of soft dollars are not robust. MiFID II’s unbundling of commissions appears to have, on balance, improved European market efficiency by eliminating redundancy and producing information that is of greater value to investors.

With the rising support for stakeholder capitalism and at the urging of its advocates, companies have been increasingly using environmental, social, and governance (ESG) performance metrics for CEO compensation. This Article provides a conceptual and empirical analysis of this trend and exposes its fundamental flaws and limitations. It shows that the use of ESG-based compensation has, at best, a questionable promise and poses significant perils. We identify two structural problems with the use of ESG compensation metrics and provide empirical analysis highlighting their presence in current practices of S&P 100 companies. First, ESG metrics commonly attempt to tie CEO pay to limited dimensions of the welfare of a limited subset of stakeholders. Therefore, even if these pay arrangements were to provide a meaningful incentive to improve the given dimensions, the economics of multitasking indicates that the use of these metrics could well ultimately hurt, not serve, aggregate stakeholder welfare. Second, and most importantly, the push for ESG metrics overlooks and exacerbates the agency problem of executive pay. To ensure that they are designed to provide effective incentives rather than serve the interests of executives, pay arrangements need to be subject to effective scrutiny by outsider observers. However, our empirical analysis shows that in almost all cases in which S&P 100 companies use ESG metrics, it is difficult, if not impossible, for outside observers to assess whether these metrics provide valuable incentives or merely line CEO’s pockets with performance-insensitive pay. Current practices for using ESG metrics, we conclude, likely serve the interests of executives, not of stakeholders. Expansion of such use should not be supported even by those who care deeply about stakeholder welfare.

With the rising support for stakeholder capitalism and at the urging of its advocates, companies have been increasingly using environmental, social, and governance (ESG) performance metrics for CEO compensation. This Article provides a conceptual and empirical analysis of this trend, and exposes its fundamental flaws and limitations. The use of ESG-based compensation, we show, has at best a questionable promise and poses significant perils. Based partly on an empirical analysis of the use of ESG compensation metrics in S&P 100 companies, we identify two structural problems. First, ESG metrics commonly attempt to tie CEO pay to limited dimensions of the welfare of a limited subset of stakeholders. Therefore, even if these pay arrangements were to provide a meaningful incentive to improve the given dimensions, the economics of multitasking indicates that the use of these metrics could well ultimately hurt, not serve, aggregate stakeholder welfare. Second, the push for ESG metrics overlooks and exacerbates the agency problem of executive pay, which both scholars and corporate governance rules have paid close attention. To ensure that they are designed to provide effective incentives rather than serve the interests of executives, pay arrangements need to be subject to effective scrutiny by outsiders. However, our empirical analysis shows that in almost all cases in which S&P 100 companies use ESG metrics, it is difficult if not impossible for outside observers to assess whether this use provides valuable incentives or rather merely lines CEO’s pockets with performance-insensitive pay. The current use of ESG metrics, we conclude, likely serves the interests of executives, not of stakeholders. Expansion of ESG metrics should not be supported even by those who care deeply about stakeholder welfare.

Political discourse and survey research both suggest that many Americans believe constitutional protections for free expression extend more broadly than what is reflected in the black letter law. A notable example of this has been the claim--sometimes explicitly constitutionalized--that content moderation undertaken by digital platforms infringes on users' legally protected freedom of expression. Such claims have proven both rhetorically powerful and politically durable. This suggests that laypeople's beliefs about the law--distinct from what the state of the law actually is--could prove important in whether content moderation policies are democratically and economically successful. This Article presents the results of an experiment conducted on a large, representative sample of Americans to address questions raised by the phenomenon of constitutionalized rhetoric about digital platforms and content moderation. The experimental results show that commonly-held but inaccurately broad beliefs about the scope of First Amendment restrictions are linked to lower support for content moderation. These results highlight an undertheorized difficulty of developing widely acceptable content moderation regimes, while also demonstrating a surprising outcome when correcting misrepresentations about the law.

May a threatened state use force against armed nonstate actors situated in another state without the other state's permission? Proponents of the “Unable or Unwilling Doctrine” ("UUD") answer in the affirmative, provided that the territorial state in which the nonstate actors are based is either unable or unwilling to tackle the threat by itself. Opponents reject the UUD, arguing that it has no place within existing international law. The intense, multi-layered debates over the UUD have thus far been grounded primarily in the international law of self-defense. Moreover, both proponents and opponents of the doctrine have tended to treat its two prongs as interchangeable, such that the legality of a use of force or the consequences that follow from it are unaffected by which of the two explains the territorial state’s failure to negate the threat to the targeted state. This Article challenges both of these features of UUD analysis. Our first contention is that, while states enjoy limited leeway to use defensive force against nonstate actors in another state’s territory, the prerogative to enter the territorial state without other authorization is rooted in principles of necessity, not self-defense. In turn—and here we reach our second main contention—grounding the UUD in necessity suggests that, for cases in which the territorial state is unable, rather than unwilling, to deal with the threat, the threatened state is obligated to compensate the territorial state for harm caused by its unpermitted entry. Our third contribution is to explain why compensation might be owed, as a matter of equity, even for the entry itself as a (justified) violation of sovereignty. All of these claims, we contend, are bolstered by interpreting international law through the lens of private law, particularly the Anglo-American law of tort and restitution and its rules for the imposition of liability in cases of "private necessity."

The book presents a modern approach to understanding U.S. antitrust law, illuminating the economic analysis that dominates modern antitrust analysis in a straightforward way that minimizes technical jargon and makes the underlying economic ...

What precisely is stock market short-termism? For an issue that pervades corporate governance thinking, rhetoric, and policymaking, one would think that we know well what it is. But much that’s called stock market short-termism is not properly categorized as such. This distinction—between true stock-market short-termism and false short-termism—is the focus of this article.

According to King: "All segregation statutes are unjust because segregation distorts the soul and damages the personality. [...]King insists on distinguishing his disobedience of law from that of his antagonists: "In no sense do I advocate evading or defying the law, as would the rabid segregationist. FOUR YEARS AFTER King wrote "Letter from Birmingham Jail," the Supreme Court upheld King’s conviction for contempt of court even if the injunction he violated was itself illegal. When Justice Potter Stewart quipped in the case, Walker v. City of Birmingham, that "respect for judicial process is a small price to pay for the civilizing hand of law," he sided with those who feared that protest had gotten out of hand; who believed that assertions of individual conscience had degenerated into egotistical pretensions; who held that talk of civil disobedience threatened to unleash chaos, and that attraction to King and sympathy for the sufferings of African Americans had tempted too many to abandon conventions that are crucial to stability in a large, complex, conflicted polity.

This Article develops an interpretive theory for statutes that originate as Uniform Acts promulgated by the Uniform Law Commission. Although overlooked in the literature on statutory interpretation, state-enacted Uniform Acts are ubiquitous. They shape our life cycles—governing birth, adoption, marriage, divorce, and death—and structure trillions of dollars in daily commercial transactions. Largely focusing on textualism, today’s dominant form of statutory interpretation, we focus on the interpretive consequences of two unusual features of state-enacted Uniform Acts. First, the text of every Uniform Act directs courts to interpret it to “promote uniformity.” Second, each provision is ac-companied by an official explanatory comment, analogous to a user manual for interpreters. We argue that, in light of these features, foundational textualist principles obligate courts to consider legislative intent as expressed in the official comments—a form of what textualists would otherwise dismiss as legislative history—when they interpret a statute originating as a Uniform Act. More specifically, the Article explores what we call the “directives” and “signals” that state legislatures send when they enact a Uniform Act. As en-acted statutory text, the promote-uniformity clause directs courts to treat the official comments as persuasive authorities on the statute’s meaning. Moreover, even if a legislature enacts only a portion of a Uniform Act, the legislature signals that courts should treat the comments as persuasive authorities by virtue of the choice to incorporate language from a Uniform Act rather than some alternative text. Moving from theory to practice, we develop a canon of construction for interpreting this significant but understudied species of positive law. We also present a series of puzzles and complications arising from “hybrid” enactments of bespoke and Uniform statutory language. More generally, by colliding textualist theory with the two-step political economy of state-enacted Uniform Acts, the Article broadens our understanding of textualism and adapts it to this critical but overlooked category of statute.

This Chapter tells the story of the author’s Chair – the Royall Chair at Harvard Law School – and of its donor and his marks. Isaac Royall, Jr., was during his lifetime the largest slaveholder in colonial Massachusetts. The Isaac Royall, Jr., brand has risen, and fallen, and risen again, and fallen again in political struggles spanning from his grandfather’s arrival in Maine as an indentured servant, to Isaac Royall, Jr.’s own precipitous flight from Boston after the commencement of the American revolution, to his former slave Belinda’s struggle for her due at his hands in which she denounced him for exploiting her, to Harvard University’s acceptance of his bequest of the Royall Chair, to the University’s adoption of his heraldic shield as a symbol of the Law School, to the conversion of the hagiographical Royall House museum to the Royall House and Slave Quarters, to a years-long struggle over racial justice at the Law School. It is the story of both the fragility and the durability of a brand that is rich in social meaning and unimportant enough to be transformed into the language of ever-shifting contemporary political struggle. It ends in medias res, the author being uncertain what comes next.

Amid growing concerns for the effects that corporations have on stakeholders, supporters of stakeholder governance advocate relying on corporate leaders to use their discretion to protect stakeholders, and they seem to take corporate pledges to do so at face value. By contrast, critics question whether corporate leaders have incentives to protect stakeholders and to follow though pledges to do so. We provide empirical evidence that can contribute to resolving the debate between these rival views. The most celebrated pledge by corporate leaders to protect stakeholders was the Business Roundtable’s 2019 Statement on the Purpose of a Corporation (the “BRT Statement”). The BRT Statement expressed a commitment to deliver value to all stakeholders, not just shareholders, and was widely viewed as a major milestone that would usher in “stakeholder capitalism” and significantly improve the treatment of stakeholders. If any companies could be expected to follow through on stakeholder rhetoric, those whose CEOs signed the highly visible BRT Statement would be natural candidates to do so. We review a wide array of hand-collected corporate documents of the 128 U.S. public companies that joined the BRT Statement (the “BRT Companies”). Examining the two-year period following the issuance of the BRT Statement, we obtain the following six findings: First, the numerous BRT Companies that updated their corporate governance guidelines during the two-tear period generally did not add any language that improves the status of stakeholders and, indeed, most of them chose to retain a commitment to shareholder primacy in their guidelines. Second, as of the end of the two-year period, most of the BRT Companies had governance guidelines that reflected a shareholder primacy approach. Third, in SEC submissions or securities filings responding to the over forty shareholder proposals that were submitted to BRT Companies regarding their implementation of the BRT Statement, most of the BRT Companies explicitly stated that their joining the BRT Statement did not require any such changes, and none of them accepted that the Statement required any changes. Fourth, all of the BRT Companies had and retained corporate bylaws that reflect a shareholder-centered view. Fifth, in their proxy statement following the BRT Statement, the great majority of the BRT did not even mention their joining the BRT Statement, and, among the minority of companies that did mention it, none indicated that their endorsement required or was expected to result in any changes in stakeholder treatment. Sixth, the BRT Companies all continued to pay directors compensation that strongly aligns their interests with shareholder value and avoided any use or support of stakeholder-oriented metrics. Overall, our findings support the view that the BRT Statement was mostly for show and that BRT Companies joining it did not intend or expect it to bring about any material changes in how they treat stakeholders.

Abstract Over the past three decades, the US has developed a robust body of gender asylum law, including claims of women subject to sexual violence or other serious harm for reasons of gender. This body of law both reflects and has been a catalyst for larger shifts in US jurisprudence recognising the international treaty law basis of domestic asylum law. For years such progress was stymied by a dominant Cold War ideological decision-making paradigm and a woefully inadequate and politicised administrative bureaucracy. The growth of a domestic and international women’s rights movement, and more meaningful engagement by the US judiciary, have resulted in substantial changes. Although progress remains incomplete, today there is a significant body of administrative and federal judicial case law incorporating gender into the interpretation of key categories in refugee law, including gender-defined particular social groups (PSG) and gender-based claims under the political, race and religion grounds in the definition of refugee. These more principled developments have proven vulnerable to politics, particularly under the administration of President Donald J. Trump. However, a new approach, based in part on a clearer, regulatory articulation of doctrine, holds promise for the development of a more coherent and principled body of jurisprudence. This article places US gender asylum in the context of the larger political landscape (i.e., the Cold War, and post-Cold War politics). The article also attempts to draw the links between the development of gender asylum law and larger social and legal change movements, including a domestic and international women’s rights movements focused on issues of sexual violence and violence in the home or “domestic violence.”

In The Words That Made Us: America’s Constitutional Conversation, 1760-1840, Akhil Reed Amar writes of the parlous state of democracy in the United States. He argues that our problems are due, in part, to citizens’ failure to understand their responsibilities. The quality of our “constitutional conversation,” in which we talk about the nature of our government and our aspirations for it, is extremely poor. This is, in large measure, due to scholars’—historians’ and law professors’—unwillingness to create a “usable past” that would help Americans understand their duties to the country and to one another. He sees his book as a means of starting an enriched “constitutional conversion.” Along with his diagnosis of American malaise, Amar presents his own version of the origins of the Revolution (winding the clock back to 1760, before the more traditional starting period of 1763-1765), discusses the politically volatile 1790s, and creates portraits of the most well-known figures of that period. Amar’s presentation should start a vivid conversation about the nature of American civic life, past and present.

By sharply favoring debt over equity, the U.S. corporate tax does considerable economic damage, writes professors Mark Roe and Michael Troege. Instead, they suggest we take a look at Allowance for Corporate Equity—or ACE—which fixes a tax-deductible cost to equity based on government bond rates.

Perhaps the wave of authoritarian populism has begun to recede. Rebuilding liberal constitutionalism in its aftermath now requires some attention, as Andrew Arato and András Sajó suggest. (This intervention addresses some but not all of the questions they raise.)

Algorithmic recommendations and decisions have become ubiquitous in today's society. Many of these and other data-driven policies are based on known, deterministic rules to ensure their transparency and interpretability. This is especially true when such policies are used for public policy decision-making. For example, algorithmic pre-trial risk assessments, which serve as our motivating application, provide relatively simple, deterministic classification scores and recommendations to help judges make release decisions. Unfortunately, existing methods for policy learning are not applicable because they require existing policies to be stochastic rather than deterministic. We develop a robust optimization approach that partially identifies the expected utility of a policy, and then finds an optimal policy by minimizing the worst-case regret. The resulting policy is conservative but has a statistical safety guarantee, allowing the policy-maker to limit the probability of producing a worse outcome than the existing policy. We extend this approach to common and important settings where humans make decisions with the aid of algorithmic recommendations. Lastly, we apply the proposed methodology to a unique field experiment on pre-trial risk assessments. We derive new classification and recommendation rules that retain the transparency and interpretability of the existing risk assessment instrument while potentially leading to better overall outcomes at a lower cost.

The Commission on the Supreme Court’s findings may end up helping to set reform in motion, rather than stopping it in its tracks.

The self-governing republic works only if it expresses the will of the majority. But one party is now committed to minoritarian rule by any means.

Power to the People proposes that some forms of populism are inconsistent with constitutionalism, while others aren’t. By providing a series of case studies, some organized by nation, others by topic, the book identifies these populist inconsistencies with constitutionalism-and, importantly, when and how they are not. Opening a dialogue for the possibility of a deeper, populist democracy, the book examines recent challenges to the idea that democracy is a good form of government by exploring possibilities for new institutions that can determine and implement a majority’s views without always threatening constitutionalism.

Dobbs v. Jackson Women’s Health Organization is an open challenge to the Court’s authority, and perhaps broadly reflects a spirit of legal self-help that is running through the land.

States spend tens of billions of dollars each year to help implement humanitarian programs in conflicts across the world. Yet, in practice, counterterrorism objectives increasingly prevail over humanitarian concerns, often resulting in devastating effects for civilian populations in need of aid and protection in war. Not least, confusion and misapprehensions about the power and authority of States relative to the United Nations Security Council to set policy preferences and configure legal obligations contribute significantly to this trajectory. In a new guide for States published by the Harvard Law School Program on International Law and Armed Conflict (HLS PILAC), Dustin A. Lewis, Radhika Kapoor, and Naz K. Modirzadeh argue that it is possible — and, they believe, urgently called for — to arrest this trajectory and safeguard principled humanitarian action. In their view, short-term and ad-hoc solutions are less likely to uphold the humanitarian imperative. Instead, the authors present a framework for States to reconfigure the relations between these core commitments by deciding to assess the counterterrorism architecture through the lens of impartial humanitarianism. The authors also identify key questions that States may answer to help formulate and instantiate their values, policy commitments, and legal positions in order to advance the humanitarian imperative and uphold respect for principled humanitarian action in connection with carrying out the Security Council’s counterterrorism decisions.

Legal scholarship has not previously considered the role of advocacy history in Supreme Court advocacy and decision making in any of its iterations. Though well know to expert Supreme Court advocates, hiding in the shadows has been how both Supreme Court advocates and the Justices themselves rely on the advocacy underlying the Court's precedent — both the written briefs and oral argument — in discerning both the meaning of the Court's prior rulings and its precedential weight. The most recently completed Supreme Court Term is emblematic of the relevance to both Supreme Court advocates and the Justices themselves of the advocacy underlying the Court’s prior rulings. It also highlights the role that advocacy history is increasingly playing in the Court's controversial debates concerning whether a prior case should be overruled. This Article seeks to fill that void in existing legal scholarship by bringing out of the shadows the role advocacy history plays at the Court.

The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here legislatures or courts specify whether their enactments or decisions will receive strong- or weak-form treatment. I examine examples of legislative allocations of issues to strong- and weak-form review and identify some practical and conceptual problems with such allocations. Then I examine judicial allocations — of the courts’ own decisions — to Strong- or weak-form categories. Here I consider Thayerian judicial review and what Professor Dan Coenen has called semisubstantive doctrines as examples of judicial choices to give their decisions weak-form effects. My conclusion is that these allocation strategies reproduce within strong- and weakform systems the issues that arise on the level of constitutional design. Weak-form systems and allocation may seem to alleviate some difficultiesassociated with strong-form systems in constitutional democracies. My analysis suggests that those difficulties may persist even when alternatives to strong-form judicial review are adopted.

This symposium explores the role of “fourth branch” institutions, and specifically the role of independent electoral commissions (IECs) in protecting and promoting constitutional democracy. It does so by focusing on the global South, and Asia in particular. It aims to go beyond the “usual suspects” in comparative constitutional law, and put the constitutional experiences of countries such as Indonesia, Kenya, Myanmar, Malaysia, and Sri Lanka at the centre of a decolonized constitutional project and understanding, supplementing them with an examination of more-often-studied systems such as Australia and India.

In response to questions that have been raised since the publication of my article.

Foreign direct investment (FDI) flows are at a low point as a result of not only the COVID-19 pandemic but also restrictive FDI policies adopted in recent years. Investment facilitation has gained in importance as a set of practical measures to increase the transparency and predictability of investment frameworks and promote cooperation to advance development. Investment facilitation can help to reduce the transactional and administrative costs faced by foreign investors and contribute to a resilient and sustainable economic recovery. Discussions on a distinct set of investment facilitation policies and measures have gained momentum in recent years. Negotiations are undertaken at the bilateral and regional levels, for example, in the context of the Regional Comprehensive Economic Partnership (RCEP) or the Sustainable Investment Protocol of the African Continental Free Trade Agreement (AfCFTA). Another important initiative is underway among members of the World Trade Organization (WTO) which are negotiating an Investment Facilitation Framework for Development. This article develops a set of key recommendations for policy-makers on how investment facilitation frameworks can be designed to help attract sustainable FDI for sustainable development and recovery in general. These recommendations can be summarized in three guiding principles: contribute directly to sustainable development, focus on conflict prevention and management, and learn from experiences from other processes such as trade facilitation.

Economic analysis of competition regulation is most developed in the domain of horizontal mergers, and modern agency guidelines reflect a substantial consensus on the appropriate template for merger assessment. Nevertheless, official protocols are understood to rest on a problematic market definition exercise, to use HHIs and HHIs in ways that conflict with standard models, and more broadly to diverge with how economic analysis of proposed mergers should be and often is conducted. These gaps, unfortunately, are more consequential than is generally appreciated. Moreover, additional unrecognized errors and omissions are at least as important: analysis of efficiencies, which are thought to justify a permissive approach, fails to draw on the most relevant fields of economics; entry is often a misanalyzed afterthought; official information collection and decision protocols violate basic tenets of decision analysis; and single-sector, partial equilibrium analysis is employed despite the presence of substantial distortions (many due to imperfect competition) in many sectors of the economy. This article elaborates these deficiencies, offers preliminary analysis of how they can best be addressed, and identifies priorities for further research.

In evaluating behaviorally informed interventions, policymakers should consider both their welfare effects (including, for example, their potentially negative effects on subjective well-being) and their effects on distributive justice (including, for example, their potentially negative effects on those at the bottom of the economic ladder). Four specific questions are relevant: (1) What are the aggregate effects on social welfare? For purposes of evaluation, it is tempting to focus on increases in participation rates or on cost-effectiveness. The welfare question is much more important, though it raises serious normative, conceptual, and empirical challenges. (2) Who is likely to be helped and who is likely to be hurt? This is a plea for a distributional analysis of the effects of behaviorally informed interventions. (3) What are the expected effects on the least well-off? It is important to ask whether the relevant interventions help or hurt those who have the least, defined in terms of welfare, a point that is connected with “prioritarianism.” (4) Do the benefits to those who are helped exceed the costs to those who are hurt? If the gainers gain more than the losers lose, we have a strong point in favor of the intervention. But the point might not be decisive if, for example, the gainers are well-off to begin with, and the losers are not. The four questions are meant as an objection to efforts to evaluate behaviorally informed interventions in terms of (for example) effects on participation rates; as a plea for analysis of the distributive effects of such interventions; and as a plea for specification and investigation of their welfare effects.

In her Jorde Lecture, Pam Karlan paints a grim picture of American democracy under siege. Together, the malapportioned Senate, the obsolete Electoral College, rampant voter suppression and gerrymandering, and a Supreme Court happy to greenlight these practices, threaten the very notion of majority rule. I share Karlan’s bleak assessment. I’m also skeptical that conventional tools—judicial decisions and congressional statutes—will solve our current problems. So in this response, I explore a pair of less familiar but possibly more potent alternatives: the authority of each chamber of Congress to judge its members’ elections, and presidential enforcement of the Guarantee Clause. These powers are explicitly delineated by the Constitution. They can’t be stymied by either the Senate’s filibuster or the Court’s hostility. And they hold enormous democratic potential, especially if channeled through the procedures I outline.

Following several years of study, the Oxford International Tax Group recently proposed a fundamental reform: the traditional corporate income tax would be replaced by taxation of a corporation’s domestic cash flows. One, perhaps surprising, argument for this proposal is that its incidence would fall primarily on a country’s residents who own shares in domestic and foreign companies. For example, equilibrating changes in floating exchange rates would transform a U.S. tax on U.S. sales by U.S. and foreign corporations into a tax on U.S. shareholders of U.S. and foreign corporations, wherever their sales occurred. The Oxford Group indicates that resulting tax burden is very likely to be progressive. If, however, a progressive tax borne by individual owners of corporate stock is desirable, why not tax shareholders directly? The purpose of this comment is to illustrate the equivalence of the two taxes with a simple numerical example and to stimulate their comparison.