Faculty Bibliography

In The Democratic Horizon: Hyperpluralism and the Renewal of Political Liberalism, Alessandro Ferrara seeks a philosophical breakthrough from what looks like it could be a pending dead-end for democracy. The best hope, Ferrara superbly maintains, lies through an extension or updating – a “renewal,” as he calls it – of lines of thought bequeathed to us, by John Rawls and others, under the name of political liberalism. Somewhere near the crux of Ferrara’s reflection stands a class of institutional fixtures whose name is missing from his title. I mean the class “constitution.” I use that word to name a country’s scriptural basic law, its publicly cognizable corpus of canonically worded sentences ordaining the country’s basic institutional framework. My suggestion will be that it is no less tellingly a “constitutional” than a “democratic” horizon that Ferrara’s work, in conjunction with Rawls’, shows us to be facing.

Integration of the corporate and individual income taxes can be achieved by providing shareholders a credit for corporate taxes paid with respect to corporate earnings distributed as dividends. When such integration was previously considered in the United States, proponents emphasized that it could reduce or eliminate many of the familiar distortions of a classical corporate income tax. Integration would also provide a framework for addressing current concerns for tax incentives for U.S. companies to shift income to foreign affiliates in lower-taxed countries or to expatriate in "inversion" transactions. A recent Congressional proposal for a corporate dividend deduction coupled with withholding on dividends could achieve equivalent results, while also reducing effective U.S. corporate tax rates.

Nuclear reactors entail massive nontransferrable site-specific investments. The resulting appropriable quasi-rents offer the mob a lucrative target. In exchange for large fees, it can either promise to “protect” the utility (and silence the reactor's local opponents) or “extort” from it (and desist from inciting those opponents). Using prefecture-level Japanese panel data covering the years 1980 to 2010, I find that extortion rates rise when a utility announces plans to build a reactor. The evidence is consistent with a straightforward account: once news about a utility's plans to build a new reactor leaks, the mob moves in to appropriate the large quasi-rents from the utility, and stays to do what it does everywhere else—extort regular payments from local businesses. Reprint in the Japanese Journal of Law forthcoming (2017).

In “The Move to Affirmative Consent,” I argue that, though affirmative consent has great appeal because of its respect for norms about good sex that we all share, as a rule intended to be enforced in actual punitive processes, whether on campus or in the criminal justice system, it will be vastly overinclusive, deeply repressive, and socially conservative in its enforcement of traditional gender roles. I show how affirmative consent reforms represent a partial victory (and thus also a partial defeat) for dominance feminists ultimately seeking to criminalize subjectively unwanted sexual behavior without respect to the intent or knowledge of the accused; the relationship history of the parties; the racial, cultural, or other social distance between the parties; and the character of the complainant’s memory of the events. I further demonstrate how existing affirmative consent rules will allow decision makers to hold people responsible for serious misconduct based on one or more of three states of mind that have been consistently muddled in the debates so far: the accuser’s subjective consent (described as “positive” if it is rests on her positive desire and as “constrained” if she consents to sexual conduct to avoid something she disfavors) and as “performative” if it rests on an indication of consent through physical or verbal signs. Each of these rules includes some conduct that, almost all feminists agree, deserves sanction and should be deterred, but they are all overinclusive in ways that many feminists would reject. One such way, I demonstrate, is an affirmation of female passivity and male activity in sex—a legal affirmation of, and incentive to reawaken, the gender roles of the gilded age. This current contribution asks feminists to consider carefully how affirmative consent will operate in practice, in the real world, before offering it their support.

In this briefing report, we introduce a new concept—war algorithms— that elevates algorithmically-derived “choices” and “decisions” to a, and perhaps the, central concern regarding technical autonomy in war. We thereby aim to shed light on and recast the discussion regarding “autonomous weapon systems.” In introducing this concept, our foundational technological concern is the capability of a constructed system, without further human intervention, to help make and effectuate a “decision” or “choice” of a war algorithm. Distilled, the two core ingredients are an algorithm expressed in computer code and a suitably capable constructed system. Through that lens, we link international law and related accountability architectures to relevant technologies. We sketch a three-part (non-exhaustive) approach that highlights traditional and unconventional accountability avenues. By not limiting our inquiry only to weapon systems, we take an expansive view, showing how the broad concept of war algorithms might be susceptible to regulation—and how those algorithms might already fit within the existing regulatory system established by international law.

Despite massive changes in the geographical scope of the conflict that began on 9/11, the strategy and tactics employed, and the identity of the enemy, the 2001 Authorization for Use of Military Force (“AUMF”) remains the principal legal foundation under U.S. domestic law for the President to use force against and detain members of terrorist organizations. For many years, President Obama proclaimed that he wanted to repeal the AUMF and end the AUMF-authorized conflict. By the closing year of his presidency, however, his administration had established the AUMF as the legal foundation for an indefinite conflict against Al Qaeda and associated groups and extended that foundation to cover a significant new conflict against the Islamic State. This transformation of the AUMF is one of the most remarkable legal developments in American public law in the still-young twenty-first century, and it will stand as one of President Obama’s primary legal legacies. In addition to establishing this descriptive claim, this Essay considers how the Obama administration has invoked international law in making arguments about the scope of the AUMF. As the Essay explains, although the Obama administration often maintained that international law was an important constraint on its actions, on a range of issues where international law was unsettled it interpreted it in ways that supported presidential discretion and flexibility under the AUMF.

A landmark dissenting opinion arguing against the death penalty Does the death penalty violate the Constitution? In Against the Death Penalty, Justice Stephen G. Breyer argues that it does: that it is carried out unfairly and inconsistently, and thus violates the ban on “cruel and unusual punishments” specified by the Eighth Amendment to the Constitution. “Today’s administration of the death penalty,” Breyer writes, “involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.” This volume contains Breyer’s dissent in the case of Glossip v. Gross, which involved an unsuccessful challenge to Oklahoma’s use of a lethal-injection drug because it might cause severe pain. Justice Breyer’s legal citations have been edited to make them understandable to a general audience, but the text retains the full force of his powerful argument that the time has come for the Supreme Court to revisit the constitutionality of the death penalty. Breyer was joined in his dissent from the bench by Justice Ruth Bader Ginsburg. Their passionate argument has been cited by many legal experts — including fellow Justice Antonin Scalia — as signaling an eventual Court ruling striking down the death penalty. A similar dissent in 1963 by Breyer’s mentor, Justice Arthur J. Goldberg, helped set the stage for a later ruling, imposing what turned out to be a four-year moratorium on executions.

In this original, far-reaching, and timely book, Justice Stephen Breyer examines the work of the Supreme Court of the United States in an increasingly interconnected world, a world in which all sorts of activity, both public and private—from the conduct of national security policy to the conduct of international trade—obliges the Court to understand and consider circumstances beyond America’s borders. Written with unique authority and perspective, The Court and the World reveals an emergent reality few Americans observe directly but one that affects the life of every one of us. Here is an invaluable understanding for lawyers and non-lawyers alike.

This brief Appreciation of the late Jan Deutsch sketches several "encounters" I had with Deutsch and his thought, and explains how that thought formed part of the underpinning of my thinking about law and, specifically, Critical Legal Studies.

Government can be transparent about its “outputs”: its regulations and its policies, its findings about air and water quality, its analysis of costs and benefits, its assessment of the risks associated with cigarette smoking, distracted driving, infectious diseases, and silica in the workplace. It can also be transparent about its “inputs”: about who, within government, said what to whom, and when, and why. The argument for output transparency is often very strong, because members of the public can receive information that can help them in their daily lives, and because output transparency can improve the performance of both public and private institutions. Where the public stands to benefit, government should be disclosing outputs even without a formal request under the Freedom of Information Act. In fact it should be doing that far more than it now does. The argument for input transparency is different and often weaker, because the benefits of disclosure can be low and the costs can be high. There is good reason for a large increase in output transparency -- and for caution about input transparency.

A potentially renewable provision of the Consolidated Appropriation Act of 2016 forestalling the prospect of human germline modification was signed into law on 18 December 2015 (1). The provision, also known as a rider (an amendment extraneous to the main purpose of the bill to which it is attached), stipulates that “none of the funds made available by this Act [to the FDA] may be used to review or approve an application for an exemption for investigational use of a drug or biological product… in which a human embryo is intentionally created or modified to include a heritable genetic modification” (1). Destined to expire at the conclusion of this fiscal year (30 September 2016), the rider has since been incorporated yet again into the House and Senate appropriation bills for the fiscal year ending 30 September 2017 (2, 3). Subject to ongoing annual renewal, this congressionally legislated ban undermines ongoing conversations on the possibility of human germline modification, its likely distant time horizon notwithstanding (4). Also affected are ongoing efforts of the FDA to review the prevention of mitochondrial DNA diseases through germline modification of human zygotes or oocytes at risk (5).

The following three essays deal with diverse aspects of the doctrine of proportionality. The first argues that rationality review in U.S. constitutional law, which deals with challenges to legislation on the ground that the legislation violates a general right to liberty rather than any specific enumerated right, could be improved by expressly incorporating several features of proportionality doctrine. The second addresses the often made claim that proportionality analysis leads to “rights inflation,” and offers a doctrinal account and a politico-cultural account of that phenomenon. The third, to appear in a collection co-edited by Vicki C. Jackson and Mark Tushnet, tentatively titled New Frontiers in Proportionality Analysis (Cambridge University Press, 2017), argues that some cases treated as “easy’ under proportionality doctrine, are actually more difficult, and that recognizing their difficulty supports, to some degree, the adoption of the kind of categorical analysis that proportionality doctrine is thought to reject.

The article reports on the rule imposed by the U.S. Department of Labor (DOL) which imposes the trust law duty of care or the prudent investor rule under the Employee Retirement Income Security Act (ERISA) on investment advisors of individual retirement account (IRA) owners or to retirement plan beneficiaries. Topics discussed include duties of trustees under the trust law duty of loyalty, and the role of an investment policy statement in sound fiduciary investment practice.

"This book studies ideological divisions within Chinese legal academia and their relationship to arguments about the rule of law. The book describes argumentative strategies used by Chinese legal scholars to legitimize and subvert China's state-sanctioned ideology. It also examines Chinese efforts to invent new, alternative rule of law conceptions. In addition to this descriptive project, the book advances a more general argument about the rule of law phenomenon, insisting that many arguments about the rule of law are better understood in terms of their intended and actual effects rather than as analytic propositions or descriptive statements. To illustrate this argument, the book demonstrates that various paradoxical, contradictory and otherwise implausible arguments about the rule of law play an important role in Chinese debates about the rule of law. Paradoxical statements about the rule of law, in particular, can be useful for an ideological project"--Page [4] of cover.

Well-functioning trading markets for stocks are critical to the U.S. economy because they promote the productive allocation of capital. They do so by establishing accurate prices for the shares of publicly traded companies and by enabling investors to efficiently enter and exit their investments. However, in recent years, a lack of understanding of our trading markets has fostered concerns that the markets are not functioning effectively for long-term investors. Some critics have even gone so far as to suggest that the equity markets are “rigged” against long-term investors. “The US Equity Markets: A Plan for Regulatory Reform” (“the Report”) addresses these concerns in two distinct ways. First, we seek to inform the public and policymakers about the U.S. equity market structure and evaluate its performance for U.S. investors and public companies. Second, we set forth twenty-six recommendations to enhance the performance of our equity markets. We note that the Securities and Exchange Commission (“SEC”) has the authority to implement all of our recommendations except for three that would require legislative change. These three recommendations are noted with an asterisk in the list below. To inform the public about our trading markets, we have conducted an empirical analysis of U.S. stock orders and executions over the past twenty years. This research allows us to reach conclusions as to how investors and public companies are faring in today’s markets. Overall, we find that our trading markets are performing very well for long-term investors. For example, we find that our markets are highly liquid and that investor transaction costs, as measured by bid-ask spreads, brokerage commissions and price impact, are at record lows. Additionally, instances of extreme volatility have been infrequent and isolated, and can be addressed by our recommendations. We also explain high frequency trading (“HFT”) strategies and “dark pools” and we review the academic literature on each. With regards to HFT strategies, we believe that they are best understood as modern variants of traditional market making and arbitrage strategies that have always existed in equity markets. These strategies can provide important benefits to markets—market making provides investors with liquidity and arbitrage improves the accuracy of stock prices. Our review of the academic literature on HFT strategies finds that they are generally associated with positive effects on market quality, particularly with respect to liquidity, price efficiency, and volatility. With regards to orders that are executed in the “dark,” we find that dark orders are often executed at a better price than the best publicly displayed price. However, our review of the academic literature on the relationship between dark trading and market quality is inconclusive. A number of studies find positive effects from dark trading, such as lower transaction costs, while several others find that dark trading can have negative effects, including a reduction in the accuracy of stock prices. In addition, we explain the key rules that govern trading in the U.S. stock market and their policy goals. These rules were last comprehensively revised over a decade ago and since then, our equity markets have dramatically changed. We explain how. Our recommendations to modernize the existing equity market structure rules are based on three underlying themes: (1) Increase transparency; (2) Strengthen resiliency; and (3) Lower transaction costs by enhancing competition. A list dividing our twenty-six recommendations into these three themes is included at the end of this statement. We hope that dividing our recommendations into these three groups will clarify the order in which policymakers should address our recommendations. Indeed, we strongly suggest that the SEC promptly acts on our recommendations to: (1) Increase transparency and (2) Strengthen resiliency. We believe that the benefits of these reforms to investors and public companies are clear and significant. Furthermore, these reforms should face limited opposition, in part because they do not affect the existing competitive balance between exchanges and broker-dealers. More specifically, the disclosure rules that apply to our equity markets are severely outdated, as they were implemented in 2000 when stocks primarily traded on the floor of an exchange. Enhanced disclosures by exchanges and “dark pools” would allow brokers to better identify the trading venues with the best prices. This will put more money in the pockets of investors, because brokers retain significant discretion about where they will send and execute a customer’s order. Brokers should also be subject to enhanced disclosure requirements so institutional and retail investors can determine whether their broker is getting the best prices for their orders. Strengthening the resiliency of U.S. equity markets would also improve investor confidence by reducing the likelihood of events like the May 6, 2010 “flash crash” or the volatility seen on August 24, 2015 (when hundreds of stocks did not open on time, were subject to multiple trading halts after opening and traded at highly volatile prices). Indeed, most of the existing volatility controls are relatively new, and recent events have provided us with the information that we need to enhance them. Finally, we expect that our recommendations to lower transaction costs by enhancing competition will be our most contentious recommendations. This is because certain of these recommendations are based on the view that stock exchanges have authorities that reduce competition and increase transaction costs for investors. Most notably, exchanges have control over the sources of market data. We therefore recommend that the SEC take incremental steps when possible. The use of pilot programs and independent studies could be especially valuable to ensure that these reforms have a solid analytical basis. Such an approach would promote both the effectiveness of the reforms and the legitimacy of the SEC’s actions. In conclusion, it is our strong view that now is the time for policymakers to act in the best interest of long-term investors by unleashing the benefits of transparent, resilient and competitive equity markets.

Bill C-14 was introduced by the government of Canada in the aftermath of the Supreme Court’s decision which legalized physician-assisted dying in Canada. This article compares the Bill with the decision of the Supreme Court (Carter v. Canada (Attorney General)) and tracks some of the important ways that the proposed Bill departs from the Carter decision. The Article also explores the ways in which the regime proposed under the Bill is both more and less restrictive than the U.S. states that have adopted regimes for assistance in dying. The article also analyzes the approach the Bill has taken to exclude non-citizen non-residents from using assistance in dying in Canada and whether this exclusion is in tension with the spirit of Carter. Finally, the article examines potential constitutional challenges should the Bill become law.

This chapter in Business and the Roberts Court documents the emergence of a highly specialized, elite Supreme Court bar that disproportionately represents business interests. The Court grants the petitions filed by the expert members of the bar at a significantly higher rate and they also prevail on the merits more frequently. This chapter documents the extent of the modern bar’s domination of the Court’s docket, arguments, and rulings and considers the extent to which business interests that serve as the bar’s primary clients are enjoying heightened success before the Court as a result.

Why are some nudges ineffective, or at least less effective than choice architects hope and expect? Focusing primarily on default rules, this essay emphasizes two reasons. The first involves strong antecedent preferences on the part of choosers. The second involves successful “counternudges,” which persuade people to choose in a way that confounds the efforts of choice architects. Nudges might also be ineffective, and less effective than expected, for five other reasons. (1) Some nudges produce confusion on the part of the target audience. (2) Some nudges have only short-term effects. (3) Some nudges produce “reactance” (though this appears to be rare) (4) Some nudges are based on an inaccurate (though initially plausible) understanding on the part of choice architects of what kinds of choice architecture will move people in particular contexts. (5) Some nudges produce compensating behavior, resulting in no net effect. When a nudge turns out to be insufficiently effective, choice architects have three potential responses: (1) Do nothing; (2) nudge better (or different); and (3) fortify the effects of the nudge, perhaps through counter-counternudges, perhaps through incentives, mandates, or bans.

This brief Essay examines the relationship between so-called first, second, and third generation rights. It is often thought that second and third generation rights supplement and deepen the commitments to human flourishing that underlie first generation rights. The Essay argues that the generations of rights have rather different conceptual underpinnings and that there may be serious conflicts among particular realizations of first, second, and third generation rights. An optimization strategy of the sort suggested by Robert Alexy, suitably adapted, might provide some ad hoc solutions, but it may be that the generations of rights ultimately are irreconcilable (in the large, though of course not in many particular instances).

The Philippines’ Sandiganbayan is the oldest specialised anti-corruption court in the world. Though established mainly to resolve corruption cases more expeditiously, the Sandiganbayan is plagued by delays and inefficiency. This concern prompted recent legislative reforms and has led to calls for other changes as well, including procedural reforms such as further narrowing its jurisdiction, limiting postponements, improving case management, and introducing “continuous trials” rather than scheduling a series of piecemeal hearings stretched out over a long period of time. This brief is part of a series of case studies on special anti-corruption courts. The case studies discuss the courts’ design and whether they have lived up to the expectations that led to their establishment. We draw lessons for their particular country context, but also specialisation of courts more generally. These case studies will be complemented by a forthcoming issue paper discussing and comparing specialised anti-corruption courts around the world.

In 2003 Slovakia established a Special Court, subsequently renamed the Special Criminal Court (SCC), principally for corruption and organised crime cases. The SCC was a response to the domination of the ordinary lower courts by criminal networks and local elites. The SCC attracted considerable criticism from the judicial establishment, due mainly to the higher compensation for SCC judges, but it survived both political and constitutional challenges, albeit in a slightly modified form. Although the SCC has been effective in addressing organised crime and local-level corruption cases, it has issued very few convictions for high-level corruption involving the national elite. Many lay the blame for this situation on the prosecutors rather than on the SCC itself. This brief is part of a series of case studies on special anti-corruption courts. The case studies discuss the court’s design and whether they have lived up to the expectations that led to their establishment. We draw lessons for their particular country context, but also specialisation of courts more generally. These case studies will be complemented by a forthcoming issue paper discussing and comparing specialised anti-corruption courts around the world.

egulators have sought since the 2008 financial crisis to further strengthen the financial system. Yet a core source of weakness and a powerful additional instrument for strengthening the financial system persists unchanged and absent from the regulatory agenda — namely the relentless impact of the corporate tax on the choice between risky debt and safer equity. The tax penalty for equity and the concomitant boost for debt undermines the capital adequacy efforts that have been central to the post-crisis reform agenda. Yet this result is not inevitable. By repurposing tax tools used elsewhere in the world, we show how the safety-undermining impact of the current corporate tax can be ended or even reversed. The best trade-off of goals and practical potential is, first, to reduce the corporate income tax burden on bank equity levels above the required minimum, by according an imputed deduction for the cost of equity capital above the regulatory-required amount. This tax benefit can then, second, be made revenue-neutral to the finances by offsetting it, such as by decreasing the tax deductibility of the riskiest classes of financial system liabilities. That offsetting tax rate can, we show, be quite low, because the financial system’s debt base is wide while its equity base is narrow. Standard bank regulation is command-and-control style. Regulators order what banks can and cannot do; banks resist, lobby to reverse and undermine the commands, find transactional alternatives, and distort their behavior when approaching regulatory constraints. Regulators cannot in many areas know as much as the regulated; with a tax instrument, they do not need to know as much. Existing cross-country and cross-state data show the tremendous potential from this reform to incentivize more safely capitalized banks. The magnitude of the safety benefit should rival the size of all the post-crisis regulation to date. Thus the main thesis we bring forward is not a small or technical claim but a call for a major shift in regulatory style. Authors

This Briefing addresses the ground of religion in asylum cases involving gang violence in Honduras, El Salvador, and Guatemala. It first describes country condition evidence critical to a nuanced understanding of these claims. The Briefing then presents an overview of U.S. asylum law with a focus on religion-based claims and gang violence. Next, the Briefing provides examples of cases in which adjudicators have granted asylum to women and youths who suffered or feared persecution by gangs for reasons of religion, among other grounds. The Briefing concludes with practical guidance regarding how to develop and present asylum cases involving gangs, religion, and the church.

"This edited collection explores the topic of constitutionalism across borders in the struggle against terrorism, analyzing how constitutional rules and principles relevant in the field of counter-terrorism move across borders. Various chapters underline how constitution-like norms consolidate at the level of international and supranational organizations as a limit to the exercise of public power in the field of counter-terrorism policy, especially counter-terrorism financing. Other chapters examine the extraterritorial application of constitutional rights and the migration of constitutional norms - or anti-constitutional practices - from one state to another. Still others consider how transnational cooperation between states in areas such as intelligence gathering and data sharing may call for updating domestic constitutional law rules or for new international law compacts entrenching rights across borders. What emerges is a picture of the complex interplay of constitutional law, international law, criminal law and the law of war, creating webs of norms and regulations that apply in the struggle against terrorism conducted across increasingly porous borders. The book will be of particular interest to academics and graduate or postgraduate students working in the fields of constitutional law, international law, human rights, comparative law and national security law. It may also be of interest to practitioners concerned with national security, counter-terrorism, and related questions of individual rights"--Page [4] of cover.

It is widely accepted that courts may correct legislative drafting mistakes, i.e., so-called scrivener’s errors, if and only if such mistakes are “absolutely clear.” The rationale is that if a court were to recognize a less clear error, it might be “rewriting” the statute rather than correcting a technical mistake. This Article argues that the standard is much too strict. The current rationale ignores that courts can “rewrite,” i.e., misinterpret, a statute both by recognizing an error and by failing to do so. Accordingly, because the current doctrine is designed to protect against one type of mistake (false positives) but not the other (false negatives), it systematically underrecognizes errors and results in systematic misinterpretation of the law. Using the example of King v. Burwell, this Article shows that the overly strict scrivener’s error doctrine threatens dramatic real-world harm. In King, opponents of the Affordable Care Act exploited a likely, but less than absolutely clear, scrivener’s error to nearly bring down the most significant health reform legislation of the past half century. More still, the challenge only failed because six Justices were willing to accept an implausible textual argument. Furthermore, King is far from sui generis. Recent challenges to ambitious executive branch action, for example, try to take similar advantage of the current doctrine.

Star Wars and Harry Potter would have been hits in any era.

Careful attention to choice architecture promises to open up new possibilities for reducing greenhouse gas emissions – possibilities that go well beyond, and that may supplement or complement, the standard tools of economic incentives, mandates, and bans. How, for example, do consumers choose between climate-friendly products or services and alternatives that are potentially damaging to the climate but less expensive? The answer may well depend on the default rule. Indeed, climate-friendly default rules may well be a more effective tool for altering outcomes than large economic incentives. The underlying reasons include the power of suggestion; inertia and procrastination; and loss aversion. If well-chosen, climate-friendly defaults are likely to have large effects in reducing the economic and environmental harms associated with various products and activities. In deciding whether to establish climate-friendly defaults, choice architects (subject to legal constraints) should consider both consumer welfare and a wide range of other costs and benefits. Sometimes that assessment will argue strongly in favor of climate-friendly defaults, particularly when both economic and environmental considerations point in their direction. Notably, surveys in the United States and Europe show that majorities in many nations are in favor of climate-friendly defaults.

Do echo chambers actually exist on social media? By focusing on how both Italian and US Facebook users relate to two distinct narratives (involving conspiracy theories and science), we offer quantitative evidence that they do. The explanation involves users’ tendency to promote their favored narratives and hence to form polarized groups. Confirmation bias helps to account for users’ decisions about whether to spread content, thus creating informational cascades within identifiable communities. At the same time, aggregation of favored information within those communities reinforces selective exposure and group polarization. We provide empirical evidence that because they focus on their preferred narratives, users tend to assimilate only confirming claims and to ignore apparent refutations.