Faculty Bibliography

Safe and effective heritable editing of the human genome is years away from the clinic because of formidable technical, statutory, regulatory, and societal challenges. In particular, we note the fledgling state of the science, the imperatives of editing efficiency, specificity, and uniformity, and the extant legal roadblock.

Krysztof Kieslowski’s classic “Decalogue: The Ten Commandments – Ten Short Films About Morality” invites viewers to reflect upon what morality is: Propositions about what worthy actions or decisions are? Unintelligible without support from a deity? The choices – all the choices – one makes while going through everyday life? One of Kieslowski’s characters suggests that motives explain but don’t justify actions, and that all we can do is understand why people act as they do. A character in another Kieslowski film concludes that judging others’ actions lacks humility. The ten films, originally made for Polish television in the late 1980s, present morality through complex narratives that deny us the choice of reducing morality to propositions. In the end, though, the films might better support the thought that narrative is morality. In the course of leading up to this conclusion, this Article examines Kieslowski’s presentation of female characters and the intimations the films contain about his views about religion and its relation to the idea of narrative as morality.

The COVID-19 pandemic represents a massive global health crisis. Because the crisis requires large-scale behaviour change and places significant psychological burdens on individuals, insights from the social and behavioural sciences can be used to help align human behavior with the recommendations of epidemiologists and public health experts. Here we discuss evidence from a selection of research topics relevant to pandemics, including work on navigating threats, social and cultural influences on behaviour, science communication, moral decision-making, leadership, and stress and coping. In each section, we note the nature and quality of prior research, including uncertainty and unsettled issues. We identify several insights for effective response to the COVID-19 pandemic, and also highlight important gaps researchers should move quickly to fill in the coming weeks and months.

Claims trading has become a significant and controversial feature of American bankruptcy practice over the past thirty years. This Report chronicles the rise of claims trading in the second decade of the Bankruptcy Reform Act of 1978 and analyzes the various policy concerns it raises. Most importantly, claims trading has led to, and been accelerated by, the development of an industry of specialized distressed investors who raise billions of dollars of capital to buy and sell the claims of Chapter 11 debtors. Despite attracting periodic concerns from policy-makers, the legal institutions of Chapter 11 appear to have mostly proven capable of handling the concerns raised by claims trading. In sum, the best interpretation of the available empirical evidence is that claims trading and activist investing has, at the very least, not harmed Chapter 11 or distressed corporations and may have actually improved the capacity of the American bankruptcy system to reorganize distressed assets.

Why has the Supreme Court recently granted more writs of certiorari in cases concerning the complex legal test known as the categorical analysis than it has in the last ten years? As background for the uninitiated, the categorical analysis is a tool used by adjudicators to determine when immigration consequences or federal sentencing enhancements are triggered by prior convictions. It is an often misunderstood—and consequently misapplied—analysis that has befuddled adjudicators for decades. The Supreme Court has decided to reaffirm and refine the legal test in several cases over the last few terms. The Court will have the opportunity to do so again this term in two cases, Pereida v. Barr and Shular v. United States. This Article examines several factors that may elucidate why the Court has recently taken a growing interest in the categorical analysis.

In Rucho v. Common Cause, the court could have curbed extreme partisanship.

The presentation slides in this document provide an overview of our study, The Illusory Promise of Stakeholder Governance, which will be published by the Cornell Law Review in December 2020. The document is based on presentations slides we prepared for March 2020 presentations at Columbia Law School and Harvard Law School. Corporate purpose is now the focus of a fundamental and heated debate, with rapidly growing support for the proposition that corporations should move from shareholder value maximization to “stakeholder governance” and “stakeholder capitalism.” Our study critically examines the increasingly influential “stakeholderism” view, according to which corporate leaders should give weight not only to the interests of shareholders but also to those of all other corporate constituencies (including employees, customers, suppliers, and the environment). We conduct a conceptual, economic, and empirical analysis of stakeholderism and its expected consequences. We conclude that this view should be rejected, including by those who care deeply about the welfare of stakeholders. Stakeholderism, we demonstrate, would not benefit stakeholders as its supporters claim. To examine the expected consequences of stakeholderism, we analyze the incentives of corporate leaders, empirically investigate whether they have in the past used their discretion to protect stakeholders, and examine whether recent commitments to adopt stakeholderism can be expected to bring about a meaningful change. Our analysis concludes that acceptance of stakeholderism should not be expected to make stakeholders better off. Furthermore, we show that embracing stakeholderism could well impose substantial costs on shareholders, stakeholders, and society at large. Stakeholderism would increase the insulation of corporate leaders from shareholders, reduce their accountability, and hurt economic performance. In addition, by raising illusory hopes that corporate leaders would on their own provide substantial protection to stakeholders, stakeholderism would impede or delay reforms that could bring meaningful protection to stakeholders. Stakeholderism would therefore be contrary to the interests of the stakeholders it purports to serve and should be opposed by those who take stakeholder interests seriously.

The coronavirus has produced a public health debacle of the first-order. But the virus is also propagating the kind of exogenous shock that can precipitate – and to a considerable degree is already precipitating – a systemic event for our financial system. This currently unfolding systemic shock comes a little more than a decade after the last financial crisis. In the intervening years, much as been written about the global financial crisis of 2008 and its systemic dimensions. Additional scholarly attention has focused on first devising and then critiquing the macroprudential reforms that ensued, both in the Dodd-Frank Act and the many regulations and policy guidelines that implemented its provisions. In this essay, we consider the coronavirus pandemic and its implications for the financial system through the lens of the frameworks we had developed for the analysis of systemic financial risks in the aftermath of the last financial crisis. We compare and contrast the two crises in terms of systemic financial risks and then explore two dimensions on which financial regulatory authorities might profitably engage with public health officials. As we are writing this essay, the pandemic’s ultimate scope and consequences, financial and otherwise, are unknown and unknowable; our analysis, therefore, is necessarily provisional and tentative. We hope, however, it may be of interest and potential use to the academic community and policymakers.

"The chapter starts with an observation: contemporary elite jurists pursue, vis-à-vis one another, a ‘hermeneutic of suspicion’, meaning that they work to uncover hidden ideological motives behind the ‘wrong’ legal arguments of their opponents, while affirming their own right answers allegedly innocent of ideology. The rise of the hermeneutic of suspicion is a striking manifestations of the contemporary transformation of the relationship between legal elites and political/economic elites. This transformation accompanies and corresponds to the progressive juridification, judicialization and finally constitionalization of the contemporary social order."

The number, frequency, and seriousness of leaks of classified information have grown sharply in the last two decades. The government has reacted to these leaks with several initiatives to stop or deter them. Journalists and their allies, in turn, have complained that these initiatives have narrowed press freedoms and damaged the First Amendment. This essay argues that the journalists are wrong. The last two decades have witnessed an unprecedented growth in press freedoms in the national security context, and greater protection for journalists in their reporting of national security secrets. The indictment of Julian Assange is no violation of this norm, and in many ways confirms it.

Companies and healthcare providers are developing and implementing new applications of medical artificial intelligence, including the artificial intelligence sub-type of medical machine learning (MML). MML is based on the application of machine learning (ML) algorithms to automatically identify patterns and act on medical data to guide clinical decisions. MML poses challenges and raises important questions, including (1) How will regulators evaluate MML-based medical devices to ensure their safety and effectiveness? and (2) What additional MML considerations should be taken into account in the international context? To address these questions, we analyze the current regulatory approaches to MML in the USA and Europe. We then examine international perspectives and broader implications, discussing considerations such as data privacy, exportation, explanation, training set bias, contextual bias, and trade secrecy.

New economic proofs and empirical evidence provide powerful confirmation that, even when horizontal shareholders individually have minority stakes, horizontal shareholding in concentrated markets often has anticompetitive effects. The new economic proofs show that, without any need for coordination or communication, horizontal shareholding will cause corporate managers to lessen competition to the extent they care about their vote share or re-election odds and will cause executive compensation to be less sensitive to firm performance. The new empirical evidence includes two new cross-industry studies which confirm that, just as the proofs predict, increased horizontal shareholding reduces the sensitivity of executive compensation to firm performance and increases the gap between corporate profits and investment. The new empirical evidence also includes two new industry studies that extend to the pharmaceutical industry the two prior industry studies finding that horizontal shareholding had anticompetitive effects in airline and banking markets. I also provide new analysis demonstrating that critiques of the airline and banking industry studies either conflict with the evidence or, when taken into account, increase the estimated adverse price effects from horizontal shareholding. I further provide new theoretical and factual explanations to show why, contrary to the claims of others, non-horizontal shareholder interests, vertical shareholdings, and index fund incentives do not prevent anticompetitive effects from horizontal shareholding. Finally, I provide new legal theories for tackling the problem of horizontal shareholding. I show that when horizontal shareholding has anticompetitive effects, it is illegal not only under Clayton Act §7, but also under Sherman Act §1. In fact, the historic trusts that were the core target of antitrust law were horizontal shareholders. I further show that anticompetitive horizontal shareholding also constitutes an illegal agreement or concerted practice under EU Treaty Article 101, as well as an abuse of collective dominance under Article 102. I conclude by showing that horizontal shareholding not only lessens the market concentration that traditional merger law can tolerate, but also means that what otherwise seem like non-horizontal mergers should often be treated as horizontal. Those implications for traditional merger analysis become even stronger if we fail to tackle horizontal shareholding directly.

This concluding essay draws on the insights of earlier chapters and provides the author's own conclusions regarding how monitoring bodies in the human rights system should deal with the challenges created by the current wave of exclusionary populism. As the varied accounts illustrate, one size does not fit all. Moreover, international human rights institutions should not address populism as such, but should rather continue to focus on the specific human rights violations that populism leads to, and on the violations that have contributed to the rise of populism. Meanwhile, human rights institutions should also be attentive to the criticisms that populists have directed against the international human rights system, some of which (as examples show) may be meritorious even within a human rights analysis. These recommendations would not solve the problem that the spread of populism poses, but they would enable human rights institutions to contribute positively toward particular solutions.

This chapter frames the discussion that follows by examining the concept of populism, which is debated among political scientists, and the negative effects that populism may produce on internationally recognized human rights. The chapter emphasizes an understanding of populism as a form of politics that employs an exclusionary notion of the people as opposed to disfavored groups that are unworthy and that purports to rule on behalf of the people, whose will should not be constrained. The chapter describes both internal and external effects of populists' rise to power. Domestically, populist governance threatens the human rights of the excluded group, but also poses danger for members of the majority, as leaders seek to entrench themselves in power and undermine checks. Externally, the influence of populism on foreign policy reduces support for the international human rights regime, in a manner that has become increasingly problematic as populists gain power in more countries that previously played key roles in maintaining it.

Prominent theory research on voting uses models in which expected pivotality drives voters' turnout decisions and hence determines voting outcomes. It is recognized, however, that such work is at odds with Downs's paradox: in practice, many individuals turn out for reasons unrelated to pivotality, and their votes overwhelm the forces analyzed in pivotality-based models. Accordingly, we examine a complementary model of large-N elections at the opposite end of the spectrum, where pivotality effects vanish and turnout is driven entirely by individuals' direct costs and benefits from the act of voting itself. Under certain conditions, the level of turnout is irrelevant to representativeness and thus to voting outcomes. Under others, anything is possible"; starting with any given distribution of preferences in the underlying population, there can arise any other distribution of preferences in the turnout set and thus any outcome within the range of the voting mechanism. Particular skews in terms of representativeness are characterized. The introduction of noise in the relationship between underlying preferences and individuals' direct costs and benefits from voting produces, in the limit, fully representative turnout. To illustrate the potential disconnect between the level of turnout (a focus of much empirical literature) and representativeness, we present a simple example in which, as noise increases, the turnout level monotonically falls yet representativeness monotonically rises.

Artificial intelligence (AI) and Machine learning (ML) systems in medicine are poised to significantly improve health care, for example, by offering earlier diagnoses of diseases or recommending optimally individualized treatment plans. However, the emergence of AI/ML in medicine also creates challenges, which regulators must pay attention to. Which medical AI/ML-based products should be reviewed by regulators? What evidence should be required to permit marketing for AI/ML-based software as a medical device (SaMD)? How can we ensure the safety and effectiveness of AI/ML-based SaMD that may change over time as they are applied to new data? The U.S. Food and Drug Administration (FDA), for example, has recently proposed a discussion paper to address some of these issues. But it misses an important point: we argue that regulators like the FDA need to widen their scope from evaluating medical AI/ML-based products to assessing systems. This shift in perspective—from a product view to a system view—is central to maximizing the safety and efficacy of AI/ML in health care, but it also poses significant challenges for agencies like the FDA who are used to regulating products, not systems. We offer several suggestions for regulators to make this challenging but important transition.

This book is a primer on corporate law for law students and anyone else interested in the foundations of corporate law. The book provides a self-contained, accessible presentation of the field’s essentials: what corporations are, how they are governed, their interactions with their investors and other stakeholders, major transactions (M&A), and parallels with alternative entities including partnerships. Optional background chapters cover the investor ecosystem, contemporary corporate governance, and corporate finance. The book’s exposition of doctrine and policy is nuanced and sophisticated yet short and simple enough for a quick read.

This is the fifth chapter of the book Corporations in 100 Pages (2020), authored by Holger Spamann, Scott Hirst, and Gabriel Rauterberg. The book is an introduction to corporate law for students and anyone else interested in the foundations of corporate law. The book provides an accessible, self-contained presentation of the field’s essentials: what corporations are, how they are governed, their interactions with their investors, and other stakeholders, major transactions (M&A), and parallels with other legal entities, including partnerships. Optional background chapters cover the investor ecosystem, contemporary corporate governance, and corporate finance. The book’s exposition of doctrine and policy is nuanced and sophisticated, yet short and simple enough for a quick read. Chapter 5 explains the law governing “Fiduciary Duties,” which are legal duties imposed on specific individuals (“fiduciaries”) who exercise power on behalf of others. The chapter first provides an overview of corporate fiduciary duties: who owes what to whom, and introduces the principal fiduciary duties of care and of loyalty. The chapter then distinguishes standards of conduct and standards of review, and explains the two main standards of review that apply to fiduciary duties in corporate law, the “business judgment rule” and “entire fairness.” The chapter then explains how these standards of review apply to the paradigm cases of self-dealing and mere carelessness, as well as to cases involving corporate opportunities, bad faith, knowing violations of law, and (lack of) candor or oversight.

This is the seventh chapter of the book Corporations in 100 Pages (2020), authored by Holger Spamann, Scott Hirst, and Gabriel Rauterberg. The book is an introduction to corporate law for students and anyone else interested in the foundations of corporate law. The book provides an accessible, self-contained presentation of the field’s essentials: what corporations are, how they are governed, their interactions with their investors, and other stakeholders, major transactions (M&A), and parallels with other legal entities, including partnerships. Optional background chapters cover the investor ecosystem, contemporary corporate governance, and corporate finance. The book’s exposition of doctrine and policy is nuanced and sophisticated, yet short and simple enough for a quick read. Chapter 7, “Mergers and Acquisitions,” discusses ways of buying all or part of a corporation. The chapter provides an overview of these transactions and introduces key concepts and the main sources of law. The chapter then explains the three ways in which all or part of a corporation can be acquired—by acquiring its assets, acquiring its shares, and through a merger with another corporation—and the legal and practical differences between the three structures and variants thereof. The chapter explains the difference between friendly and hostile transactions, and the legal rules regarding how corporations may permissibly defend themselves against hostile transactions. The chapter also discusses the special considerations and rules that apply to mergers and acquisitions involving controlling shareholders. Finally, the chapter discusses litigation concerning mergers and acquisitions.

Context: The opioid epidemic is a major US public health crisis. Its scope prompted significant public outreach, but this response triggered a series of journalistic articles comparing the opioid epidemic to the crack cocaine epidemic. Some authors claimed that the political response to the crack cocaine epidemic was criminal justice rather than medical in nature, motivated by divergent racial demographics. Methods: We examine these assertions by analyzing the language used in relevant newspaper articles. Using a national sample, we compare word frequencies from articles about crack cocaine in 1988–89 and opioids in 2016–17 to evaluate media framings. We also examine articles about methamphetamines in 1992–93 and heroin throughout the three eras to distinguish between narratives used to describe the crack cocaine and opioid epidemics. Findings: We find support for critics' hypotheses about the differential framing of the two epidemics: articles on the opioid epidemic are likelier to use medical terminology than criminal justice terminology while the reverse is true for crack cocaine articles. Conclusions: Our analysis suggests that race and legality may influence policy responses to substance-use epidemics. Comparisons also suggest that the evolution of the media narrative on substance use cannot alone account for the divergence in framing between the two epidemics.

"Over the last century, North Atlantic legal intellectuals developed the philosophical, doctrinal and institutional tools which strategic actors use everyday around the world to press their interests, defeat their rivals, and consolidate their gains. At the same time, however, they promoted ideas about law in global affairs which make it difficult to see law’s constitutive role in the global distribution of wealth. This chapter explores the interactive history of these two innovative strands before offering an alternative approach to law in global affairs which foregrounds law’s role in political and economic struggle ather than its promise of order, its distributional impact rather than its peace-building or humanitarian potential."

This article discusses the ambiguity found in the WTO Anti-Dumping Agreement concerning price suppression analysis. Previous case law has established that investigating authorities undertaking to highlight price suppression must conduct a counterfactual analysis. This article examines the difficulties that investigating authorities face in performing such an analysis when the investigating period overlaps with a financial crisis or other abnormal economic circumstances. It suggests that the Appellate Body was correct to require consideration of how profit margins and costs are affected by market circumstances, but ought to pay further attention to the behavior of firms in imperfectly competitive markets.

The constitutionality of a search or seizure typically depends upon the connection between the target of that search or seizure and some allegation of illegal behavior — a connection assessed by asking whether the search or seizure is supported by probable cause. And yet, central as probable cause is to the Fourth Amendment’s administration, no one seems to know what it means, or how it operates. Indeed, the Supreme Court has gone so far as to insist that it is “not possible” to define the term, holding instead that the probable cause inquiry entails no more than the application of “common-sense” to “the totality of the circumstances.” That doctrinal approach is routinely criticized as an “I know it when I see it” mode of jurisprudence that is ill equipped to safeguard civil liberties in the face of competing and weighty law enforcement demands. Viewed charitably, however the Supreme Court’s refusal to elaborate on the meaning of probable cause stems from an understandable desire for doctrinal flexibility in the face of widely varying law enforcement-civilian interactions. This tension between doctrinal flexibility and structure is the animating dilemma of probable-cause jurisprudence — a dilemma that this Article attempts to navigate, and ultimately to resolve. To do so, it urges a rejection of an often invoked (if not always followed) tenet of Supreme Court doctrine: probable cause unitarianism. That dominant idea, expressly endorsed in many of the Court’s leading precedents, holds that whatever probable cause means, it ought to entail the same basic analytic method, judged by the same substantive standard, from one case to another. On close inspection, however, the Supreme Court does not always practice what it preaches. Rather, beneath the surface of its probable cause canon there are seeds of an alternative — and superior — conception of probable cause, which this Article terms probable cause pluralism. On this view, “probable cause” is an open-textured and capacious idea that can comfortably encompass multiple distinct analytic frameworks and multiple different substantive standards, each of which can be tailored to the unique epistemological and normative challenges posed by different types of Fourth Amendment events. Probable cause, as the case may be, can be statistically driven or intuitively assessed; it can demand compelling evidence of illegal behavior or only an occasionally satisfied profile; it can presume the credibility of some types of witnesses, while treating others with deserved skepticism or disbelief. It can, in short, come to mean something, so long as it gives up on meaning any one thing in all cases. Because probable cause’s pluralism is both nascent and implicit, it is also undertheorized, having escaped sustained or comprehensive analysis by either the Court or its commentators. As a result, probable cause pluralism, in its current form, is at best a stunted and haphazard collection of disparate and disconnected ideas. This Article’s central contribution is to bring those ideas together, refining and synthesizing them into a comprehensive account of what a pluralist theory of probable cause could and should like in practice. Specifically, by organizing probable cause around three central analytic axes — which in turn ask how to assess evidentiary claims, how to assess proponents of such claims, and how to determine the certainty thresholds for those two assessments — the Article constructs a universally applicable framework for determining the constitutionality of any given search or seizure. With that framework in hand, scholars and jurists will be better equipped to reason through all the many and varied cases to come, and better able to assess all the many cases that have come before.

We investigate whether CEOs' political preferences are associated with the prevalence and compensation of women among non-CEO top executives at U.S. public companies. We find that "Democratic" CEOs are associated with more women in the executive suite. To explore causality, we use an event study approach to show that replacing a Republican with a Democratic CEO increases female representation. Additionally, we discuss how the lack of an association between CEO political preferences and gender diversity in the boardroom influences our interpretation of these results. Finally, gender gaps in the level and performance-sensitivity of compensation diminish, or disappear, under Democratic CEOs.

What is the constitutional status of falsehoods? From the standpoint of the First Amendment, does truth or falsity matter? These questions have become especially pressing with the increasing power of social media, the frequent contestation of established facts, and the current focus on “fake news,” disseminated by both foreign and domestic agents in an effort to drive U.S. politics in particular directions. In 2012, the Supreme Court ruled for the first time that intentional falsehoods are protected by the First Amendment, at least when they do not cause serious harm. But in important ways, 2012 seems like a generation ago, and the Court has yet to give an adequate explanation for its conclusion. Such an explanation must begin the risk of a “chilling effect,” by which an effort to punish or deter falsehoods might also and in the process chill truth. But that is hardly the only reason to protect falsehoods, intentional or otherwise; there are several others. Even so, these arguments suffer from abstraction and high-mindedness; they do not amount to decisive reasons to protect falsehoods. These propositions are applied to old questions involving defamation and to new questions involving fake news, deepfakes, and doctored videos. It emerges that New York Times v. Sullivan is an anachronism, and that it should be rethought in light of current technologies and new findings in behavioral science. Government should have authority to control deepfakes and doctored videos, and also certain kinds of “fake news,” when it threatens political processes. It also emerges that Facebook, Twitter, and other social media platforms should do far more than they are now doing to control falsehoods, deepfakes, and doctored videos.

Kent Garrett describes the frustration of being one of only a few students of color.

This chapter addresses a basic difference between the rules governing tort and contract damages. It also explains why this already puzzling divergence is all the more puzzling in virtue of a seemingly intuitive “foreseeable-at-breach” rule that tort law rejects in favor of one that is less restrictive, while contract law rejects in favor of one that is more so. The chapter sets out to explain this phenomenon, in the process defending and illuminating prevailing doctrine. Two cases provide the focal point for this discussion. Hadley v. Baxendale (1854) stands for the rejection, in contract law, of the foreseeable-at-breach rule in favor of foreseeability of loss at the time of contract formation. Vosburg v. Putney (1891), meanwhile, holds that damages may be recovered in a tort action even if not reasonably foreseeable at the time of breach.

A firm sells a dangerous product to a population of heterogeneous consumers. Higher consumer types enjoy higher gross benefits from product use but suffer accidents more often. The firm invests resources to reduce the frequency of accidents. When the consumer's net benefit function (gross benefits minus expected harms) is decreasing in consumer type, the firm contractually accepts liability for accident losses and invests efficiently in product safety. When the consumer's net benefit function is increasing in consumer type, the firm contractually disclaims liability for accident losses and under-invests in product safety. Legal interventions, including products liability and limits on contractual waivers and disclaimers, are necessary to raise the level of product safety.