Faculty Bibliography
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This chapter explores the application of fiduciary duties to regulated financial firms and financial services. At first blush, the need for such a chapter might strike some as surprising in that fiduciary duties and systems of financial regulation can be conceptualized as governing distinctive and non-overlapping spheres: Fiduciary duties police private activity through open-ended, judicially defined standards imposed on an ex post basis, whereas financial regulations set largely mandatory, ex ante obligations for regulated entities under supervisory systems established in legislation and implemented through expert administrative agencies. Yet, as we document in this chapter, fiduciary duties often do overlap with systems of financial regulation. In many regulatory contexts, fiduciary duties arise as a complement to, or sometimes substitute for, other mechanisms of financial regulation. Moreover, the interactions between fiduciary duties and systems of financial regulation generate a host of recurring and challenging interpretative issues. Our motivation in writing this chapter is to explore the reasons why fiduciary duties arise so frequently in the field of financial regulation, and then to provide a structured account of how the principles of fiduciary duties interact with the more rule-based legal requirements that characterize financial regulation. As grist for this undertaking we focus on a set of roughly two dozen judicial decisions and administrative rulings to illustrate our claims.
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Massachusetts was at the center of the national struggle for women's rights. Long before the Civil War, Lucy Stone and other Massachusetts abolitionists opposed women's exclusion from political life. They launched the organized movement at the first National Woman's Rights Convention, held in Worcester. After the war, state activists founded the Boston-based American Woman Suffrage Association and Woman's Journal to lead campaigns across the country. Their activities laid the foundation for the next generation of suffragists to triumph over tradition. Author Barbara Berenson gives these revolutionary reformers the attention they deserve in this compelling and engaging story.
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The practice of paying research participants has received significant attention in the bioethics literature, but the focus has been almost exclusively on consideration of factors relevant to determining acceptable payment amounts. Surprisingly little attention has been paid to what happens once the payment amount is set. What are the ethical parameters around how offers of payment may be advertised to prospective participants? This article seeks to answer this question, focusing on the ethical and practical issues associated with disclosing information about payment, and payment amounts in particular, in recruitment materials. We argue that it is permissible—and indeed typically ethically desirable—for recruitment materials to disclose the amount that participants will be paid. Further, we seek to clarify the regulatory guidance on “emphasizing” payment in a way that can facilitate design and review of recruitment materials.
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Jonathan L. Zittrain, the George Bemis Professor of International Law and Director of the Law Library at Harvard Law School, delivers the annual David L. Lange Lecture in Intellectual Property Law.
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What should we focus upon in marking the 50th anniversary of this somber landmark? I suggest three things: the particulars of King's achievements as a liberal dissident; the trying circumstances he faced at the end of his life; and the virtues of his principal strategy and aim-coalition politics in the service of a decent, egalitarian, multiracial society. At the end of his career, then, King found himself assailed from the right and the left, from those who resented him for challenging pigmentocracy effectively, from those who alleged (mistakenly) that the civil rights movement had changed little on the ground, from those who complained that he had shown too little gratitude and loyalty to LBJ, and from those who charged that he did not adequately condemn American society. A vivid instance is the claim that King opposed affirmative action and kindred efforts to assist racially identified groups. On this side of the Second Reconstruction, having enjoyed for a generation the benefits won with heart-rending sacrifice by King and company, it is all too easy to forget or overlook that prior to the invalidation of de jure segregation, governments could lawfully separate people on a racial basis (which almost always meant consigning people of color to inferior facilities); that prior to the Civil Rights Act, people of color could lawfully be excluded from "private" public accommodations, work sites, hospitals, and unions; that prior to the Voting Rights Act, black voting was openly and brutally nullified by chicanery and violence in many places, including the very state-Alabama-that black voters recently rescued from the clutches of Roy Moore; that prior to Loving v. Virginia in 1967, all of the states of the former Confederacy made it a felony for blacks and whites to intermarry.
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This chapter describes the principal arguments about intellectual property rights as mechanisms for promoting the public interest, as opposed to particular private interests. Public interest arguments typically feature in balancing accounts of intellectual property rights that evince concern for the distribution of benefits as well as for the production of new works or inventions. Public interest rationales also often feature in justifications both for the rights themselves and for limitations or exceptions to those rights when private control of an intellectual resource would not promote the general welfare. The chapter considers patents, copyright, trademarks, and related rights, including the right of publicity. It concludes by examining various challenges faced by public interest accounts.
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Driven by a deplorable trend of unlawful attacks on health-care facilities and workers in armed conflicts throughout the world, on May 3, 2016, the UN Security Council (UNSC) adopted Resolution 2286 calling for an end to such attacks. The Secretary-General followed with recommendations of concrete measures for implementation. However, unlawful attacks on health care have continued or intensified in many conflicts, notably in Syria. We, academic institutions, civil society, and co-sponsoring Member States, convened a side event during the 72nd UN General Assembly to focus global attention on this issue and the imperative that Resolution 2286 be implemented.
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Drawing on three case studies, this Essay contends that the proper role of law in managing uses of traditional knowledge is highly contextual. In some settings, distributive justice, cultural diversity, and group identity formation would be promoted by according indigenous groups more power to control or to benefit from uses of knowledge developed and sustained by their members, while in other settings, respect for individual autonomy and the promotion of semiotic democracy counsel against providing the groups that power. The Essay then outlines two alternative legal frameworks, either of which could accommodate this complex combination of competing values. The first would incorporate in a multilateral treaty a set of provisions that, by increasing the risk that unauthorized use of traditional knowledge would result in forfeiture of intellectual property rights, would put pressure on private firms to accede to reasonable requests made by the governments of developing countries and by representatives of indigenous groups. The second would augment and harness public discourse concerning the morality of particular uses of traditional knowledge by creating a disclosure obligation, disconnected from intellectual property law, analogous to the labelling requirements commonly imposed on the producers of food, clothing, and drugs.
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David W. Kennedy, Law, Development, and Distribution, The Role of Law in the Production of Inequality: Anthropological and Historical Perspectives, Rapoport Ctr. for Human Rights & Justice, Univ. Tex. Law Sch., Austin, Tex. (Mar. 30, 2018).
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Law, Development, and Distribution, The Role of Law in the Production of Inequality: Anthropological and Historical Perspectives, Rapoport Ctr. for Human Rights & Justice, Univ. Tex. Law Sch., Austin, Tex. (Mar. 30, 2018).
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David Kennedy, A World of Struggle: How Power, Law and Expertise Shape Global Political Economy (Reprint ed. with Afterword, 2018).
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James K. Sebenius, R. Nicholas Burns & Robert H. Mnookin, Kissinger the Negotiator: Lessons from Dealmaking at the Highest Level (2018).
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"In this groundbreaking, definitive guide to the art of negotiation, three Harvard professors offer a comprehensive examination of one of the most successful dealmakers of all time, Henry Kissinger, and some of his most impressive achievements, including the Paris Peace Accords for which he won the 1973 Nobel Peace Prize. Political leaders, diplomats, and business executives around the world—including every President from John F. Kennedy to Donald J. Trump—have sought the counsel of Henry Kissinger, a brilliant diplomat and political scientist whose unprecedented achievements as a negotiator have been universally acknowledged. Now, Kissinger the Negotiator provides a groundbreaking analysis of Kissinger’s overall approach to making deals and his skill in resolving conflicts—expertise that holds powerful and enduring lessons. Based on in-depth interviews with Kissinger himself about some of his most difficult negotiations and an extensive study of his writings, James K. Sebenius of Harvard Business School, R. Nicholas Burns of the Kennedy School of Government, and Robert H. Mnookin of Harvard Law School crystallize the key elements of the former Secretary of State’s approach. Taut and instructive, Kissinger the Negotiator mines the long and fruitful career of this elder statesman and shows how his strategies not only apply to contemporary diplomatic challenges but also to other realms of negotiation, including business, public policy, and law. Essential reading for current and future leaders, Kissinger the Negotiator is an invaluable guide to reaching agreements." -- Harper Collins
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When data from all aspects of our lives can be relevant to our health - from our habits at the grocery store and our Google searches to our FitBit data and our medical records - can we really differentiate between big data and health big data? Will health big data be used for good, such as to improve drug safety, or ill, as in insurance discrimination? Will it disrupt health care (and the health care system) as we know it? Will it be possible to protect our health privacy? What barriers will there be to collecting and utilizing health big data? What role should law play, and what ethical concerns may arise? This timely, groundbreaking volume explores these questions and more from a variety of perspectives, examining how law promotes or discourages the use of big data in the health care sphere, and also what we can learn from other sectors. This document contains the Introduction to the book, which also summarizes all the chapters in the volume.
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Adriaan Lanni, From Anthropology to Sociology: New Directions in Ancient Greek Law Research, in Ancient Greek Law in the 21st Century 157 (Paula Perlman ed., 2018).
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David W. Kennedy, Remarks, Critical Research in International Law (CRIL): An intensive doctoral retreat, Stockholm Ctr. for Int’l Law & Justice, Stockholm, Swed. (Mar. 11-13, 2018).
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Remarks, Critical Research in International Law (CRIL): An intensive doctoral retreat, Stockholm Ctr. for Int’l Law & Justice, Stockholm, Swed. (Mar. 11-13, 2018).
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Presidents have come to dominate the making, interpretation, and termination of international law for the United States. Often without specific congressional concurrence, and sometimes even when it is likely that Congress would disagree, the President has developed the authority to: (a) make a vast array of international obligations for the United States, through both written agreements and the development of customary international law; (b) make increasingly consequential political commitments for the United States on practically any topic; (c) interpret these obligations and commitments; and (d) terminate or withdraw from these obligations and commitments. While others have examined pieces of this picture, no one has considered the picture as a whole. For this and other reasons, commentators have failed to appreciate the overall extent of presidential unilateralism in this area, as well as the extent to which presidents are able to shift between different pathways of authority in order to circumvent potential restraints. This trend, moreover, has become more pronounced in recent years. In many ways, the growth of this vast executive control over international law resembles the rise of presidential power in other modern contexts ranging from administrative law to covert action. Unlike in those other contexts, however, there is no systematic regulatory or judicial apparatus to guide or review the exercise of presidential discretion in this context. This is true even though international law often plays a significant role in the U.S. legal system and has direct and indirect effects on U.S. institutions and persons. After presenting a descriptive account of the rise of presidential control over international law, the Article turns to normative issues. It argues that, although much of this practice has a plausible legal foundation, some recent presidential actions relating to international agreements, and some supportive claims made by commentators, are questionable in light of generally accepted principles relating to the separation of powers. It also explains why presidential control over international law should become significantly more transparent, and it considers the costs and benefits of additional accountability reforms.
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The rise of fake news highlights the erosion of long-standing institutional bulwarks against misinformation in the internet age. Concern over the problem is global. However, much remains unknown regarding the vulnerabilities of individuals, institutions, and society to manipulations by malicious actors. A new system of safeguards is needed. Below, we discuss extant social and computer science research regarding belief in fake news and the mechanisms by which it spreads. Fake news has a long history, but we focus on unanswered scientific questions raised by the proliferation of its most recent, politically oriented incarnation. Beyond selected references in the text, suggested further reading can be found in the supplementary materials.
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David W. Kennedy, Montesquieu Lecture: Law, Expertise and Global Political Economy, Tilburg University, Tilburg, Neth. (Mar. 8, 2018).
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Montesquieu Lecture: Law, Expertise and Global Political Economy, Tilburg University, Tilburg, Neth. (Mar. 8, 2018).
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Mark Tushnet, Advanced Introduction to Comparative Constitutional Law (Edward Elgar 2nd ed., 2018).
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Einer Elhauge & Damien Geradin, Global Antitrust Law and Economics (Foundation Press 3rd ed. 2018).
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Many nudges are designed to make people better off, as judged by themselves. This criterion, meant to ensure that nudges will increase people’s welfare, contains some ambiguity. It is useful to distinguish among three categories of cases: (1) those in which choosers have clear antecedent preferences, and nudges help them to satisfy those preferences (often by increasing “navigability”); (2) those in which choosers face a self-control problem, and nudges help them to overcome that problem; and (3) those in which choosers would be content with the outcomes produced by two or more nudges, or in which ex post preferences are endogenous to nudges, so that without additional clarification or work, the “as judged by themselves” criterion does identify a unique solution for choice architects. Category (1) is self-evidently large. Because many people agree that they suffer self-control problems, category (2) is large as well. Cases that fall in category (3) create special challenges, which may lead us to make direct inquiries into welfare or to explore what informed, active choosers typically select.
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Nudges are choice-preserving interventions that steer people’s behaviour in specific directions while allowing people to go their own way. Some nudges have been controversial, because they are seen as objectionably paternalistic. This study reports on nationally representative surveys in eight diverse countries, investigating how people actually think about nudges and nudging. The study covers Australia, Brazil, Canada, China, Japan, Russia, South Africa, and South Korea. Generally, we find strong majority support for nudges in all countries, with the important exception of Japan, and with spectacularly high approval rates in China and South Korea. We connect the findings here to earlier studies involving the United States, the United Kingdom, Italy, Denmark, France, Germany, and Hungary. The largest conclusion is that while citizens generally approve of health and safety nudges, the nations of the world appear to fall into three distinct categories: (1) a group of nations, mostly liberal democracies, where strong majorities approve of nudges whenever they (a) are seen to fit with the interests and values of most citizens and (b) do not have illicit purposes; (2) a group of nations where overwhelming majorities approve of nearly all nudges; and (3) a group of nations that usually show majority approval, but markedly reduced approval rates. We offer some speculations about the relationship between approval rates and trust.
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Some experts argue that corporate leaders are starving their firms of investment capital by making excessive payouts to shareholders, thereby undermining innovation, employment opportunity, and economic growth. As evidence, they point to S&P 500 firms’ using 96% of their net income for repurchases and dividends. A closer look at the data shows that the amounts going to shareholders at the expense of internal investment are less than claimed. The problem lies in the ratio used—shareholder payouts as a percentage of net income—which fails to take into account offsetting equity issuances as well as actual R&D expenditures. The percentage of income potentially available for investment that goes to shareholders is not 96% but a much more modest 41%. After paying shareholders, S&P 500 firms are at near-peak levels of investment and have huge stockpiles of cash for exploiting future opportunities. There may well be severe corporate governance problems in the S&P 500, but the data suggests that excessive shareholder payouts is not one of them.
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With imperfect private monitoring, a firm selling two experience goods can increase both producer and consumer surplus by bundling. Bundling constrains consumers to buy two products, making consumers better informed and ensuring that they use tougher punishment strategies. Both increased monitoring and increased punishment benefit other consumers, so bundling overcomes a free‐rider problem. The social value of bundling is even larger if consumers cannot attribute a negative signal to the specific product that generated it, or if one of the two goods is a durable and the other is a complementary nondurable. Our results are robust to mixed bundling.
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Janet Halley, Prabha Kotiswaran, Rachel Rebouché & Hila Shamir, Governance Feminism: An Introduction (2018).
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Governance Feminism shows how some feminists and feminist ideas have entered into state and state-like power in recent years. Collecting examples from the U.S., Israel, India, and from transnational human rights law, the authors argue that governance feminism is institutionally diverse and globally distributed—emerging from grassroots activism as well as statutes and treaties, as crime control and as immanent bureaucracy.
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In 1969, Japan launched a massive subsidy program for the "burakumin" outcastes. The subsidies attracted the mob, and the higher incomes now available through organized crime compensated those burakumin who abandoned the legal sector for criminal careers. In the process, the subsidies gave new support to the tendency many Japanese already had to equate the burakumin with the mob. The government ended the subsidies in 2002. We explore the effect of the termination by merging 30 years of municipality data with a long-suppressed 1936 census of burakumin neighborhoods. First, we find that outmigration from municipalities with more burakumin increased after the end of the program. Apparently, the higher illegal income generated by the subsidies had restrained young burakumin from joining mainstream society. Second, we find that once the mob-tied corruption and extortion associated with the subsidies neared its end, real estate prices rose in municipalities with burakumin neighborhoods. With the subsidies gone and the mob in retreat, other Japanese found the formerly burakumin communities increasingly attractive places to live.
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In a possible first, the heritable transmission of a fatal mitochondrial DNA disease (Leigh syndrome) may have been prevented by replacing the mutation-bearing mitochondria of oocytes with donated mutation-free counterparts. The procedure, carried out by a U.S.-led team, took place in Mexico in circumvention of a statutory U.S. moratorium on mitochondrial replacement. This development calls into question the regulatory utility of a national moratorium in a globalized world wherein cross-border care is increasingly prevalent. This development also calls to account the moral defensibility of a moratorium that acquiesces in the birth of gravely ill children whose afflictions could have been prevented. In this Current Commentary, we outline a potential path forward by analyzing the dual imprint of the moratorium, examining its legislative shortcomings, exploring its motivational roots, considering its national effect, and proposing its unlinking from the related yet distinct ban on editing the genome of the human embryo.
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Mark Tushnet, The Pirate’s Code: Constitutional Conventions in U.S. Constitutional Law, 45 Pepp. L. Rev. 481 (2018).
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A convention is a practice not memorialized in a formal rule but regularly engaged in out of a sense of obligation, where the sense of obligation arises from the view that adhering to the practice serves valuable goals of institutional organization and the public good. Constitutional conventions are important in making it possible for the national government to achieve the goals set out in the Preamble. Over the past twenty years or so, however, such conventions have eroded. This article addresses the role and importance of constitutional conventions in the United States, arguing that conventions' erosion has been accompanied by a configuration of partisan politics that makes it difficult to present a discussion of that erosion in a way that will not itself seem partisan. I argue that contention over claims about departures from conventions takes forms familiar from ordinary common-law reasoning--perhaps not surprising because common-law reasoning rests on judicial decisions that cannot offer canonical textual formulations of the rules the courts apply. This article also discusses some of the ways in which political actors can depart from conventions, and some consequences of such departures. Finally, the Essay takes up some larger questions about constitutional transformation through abandonment or revision of constitutional conventions.
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Richard J. Lazarus, Will 2018 Be the Year of the Bird? If So, Not Necessarily a Good One, Env't F, Mar.-Apr. 2018, at 13.
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When data from all aspects of our lives can be relevant to our health - from our habits at the grocery store and our Google searches to our FitBit data and our medical records - can we really differentiate between big data and health big data? Will health big data be used for good, such as to improve drug safety, or ill, as in insurance discrimination? Will it disrupt health care (and the health care system) as we know it? Will it be possible to protect our health privacy? What barriers will there be to collecting and utilizing health big data? What role should law play, and what ethical concerns may arise? This timely, groundbreaking volume explores these questions and more from a variety of perspectives, examining how law promotes or discourages the use of big data in the health care sphere, and also what we can learn from other sectors.
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Mark Hall, David Orentlicher, Mary Anne Bobinski, Nicholas Bagley & I. Glenn Cohen, Health Care Law and Ethics (Wolters Kluwer 9th ed. 2018).
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This paper analyzes the extent to which the Internet’s global domain name resolution (DNS) system has preserved its distributed resilience given the rise of cloud-based hosting and infrastructure. We explore trends in the concentration of the DNS space since at least 2011. In addition, we examine changes in domains’ tendency to “diversify” their pool of nameservers – how frequently domains employ DNS management services from multiple providers rather than just one provider – a comparatively costless and therefore puzzlingly rare decision that could supply redundancy and resilience in the event of an attack or service outage affecting one provider.
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Rebecca Tushnet, Mix and Match: Transformative Purpose in the Classroom, in The Routledge Companion to Media Education, Copyright, and Fair Use 32 (Renee Hobbs ed., 2018).
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