Faculty Bibliography

In what follows, I offer a short response to a review by William Baude and Stephen Sachs of Common Good Constitutionalism (Polity 2022). The response is by no means exhaustive, but focuses on the central and crippling deficiencies of the review, deficiencies that specialists in jurisprudence have previously pointed out in their work. Baude and Sachs confidently imagine that their particular, highly idiosyncratic versions of positivism and originalism provide the yardstick against which all public law theories should be measured. They present as unquestioned axioms of legality and legal interpretation in our legal order what are, in fact, highly controversial views, which do not correspond to or derive from any recognized version of positivism in jurisprudence. Indeed they go so far as to imply at several points that agreement with their nonstandard approach is the sine qua non of genuine scholarship. Baude and Sachs’ approach in effect tries to pass off as a deep sociolegal consensus claims that are highly contestable and contested, claims for which they provide essentially no evidence.The main consequence of these errors is that Baude and Sachs silently assume away the non-positivist premises of the classical legal tradition. This fundamental error infects all the subsidiary points in the review, which repeatedly misconceive the claims of the classical legal tradition by treating those claims as erroneous or unnecessary positivist arguments, rather than trying to understand them on their own very different terms. Unless and until Baude and Sachs learn to learn, as it were, they will remain unable to engage in any interesting way with the rich variety of American legal theory.

Secessionists typically have several goals. One is getting out from under rule by an oppressive “foreign” center, where the oppression takes the form of violations of what the secessionists and objective observers reasonably understand to be their basic rights. This paper, to be appear in a collection “Constitutional Law and Politics of Secession” edited by Antoni Abat i Ninet (Routledge), deals with secessionist movements in relatively prosperous regions that haven’t suffered from the effects of classical nineteenth century colonialism, whose residents aren’t in general grossly mistreated by the policies adopted by the larger nation of which they are part. The paper focuses on two goals other than relief from gross oppression. The first is policy autonomy, meaning the ability of the secessionist region/nation to determine for itself a wide range of policy goals without requiring the approval of the center/nation of which they were a part. The second is recognition in Charles Taylor’s sense, meaning the acknowledgement by the international community that the secessionist region/nation has a distinctive national identity (which is different from the formal idea of recognition in international public law). The paper is fundamentally Coasean. It rests on propositions about the bargaining power of the secessionist region/nation in a world in which modern technologies of multi-level governance are available. The most important of those technologies are asymmetrical federalism (within the nation in which the secessionist region is located) and networks of bilateral and multilateral treaties in which the newly independent secessionist nation and its “parent” both participate, along with older technologies such as confederation. With those technologies in hand, the parent nation and the secessionist region/nation will reach accommodations about both domestic and non-domestic policy that reflect their relative bargaining power. The Coasean point is that relative bargaining power needn’t (and probably doesn’t) change merely upon the achievement of independence by the secessionist nation.

So far, the evidence of what Trump didn’t do on January 6th holds the strongest potential for making a successful criminal case against him.

This Article presents a systematic consideration of how administrative law doctrines apply to banking supervision, an unusual form of administrative practice that rests on an iterative relationship between banks and supervisors. First, it describes the rationales for, and process of, bank supervision. Second, this Article uses recent administrative law arguments lodged by banking interests against key supervisory practices as the springboard for an analysis of why our largely “trans-substantive” administrative law can be problematic in the context of specific mandates given by Congress to administrative agencies. It argues that courts considering how administrative law doctrine applies to agency practices must contemplate more fully the substantive law the underpins the mission and organization of the agency. When these statutory provisions are taken appropriately into account, arguments that supervisory practices are consistent with administrative law requirements are substantially strengthened. Third, this Article demonstrates how even a more tailored application of contemporary administrative law doctrines would miss a critical feature of banking supervision—that it is premised on an ongoing relationship between banks and supervisors. Judicial review of agency action usually focuses on discrete agency actions, thereby eliding this critical fact. As a result, administrative law doctrines such as the “practically binding” test for agency guidance are peculiarly inapposite. Lastly, this Article offers a tentative proposal for shifting the administrative law review of supervisory actions to focus on how banking agency processes manage the iterative nature of the supervisory relationship.

Voice-based AI-powered digital assistants, such as Alexa, Siri, and Google Assistant, present an exciting opportunity to translate healthcare from the hospital to the home. But building a digital, medical panopticon can raise many legal and ethical challenges if not designed and implemented thoughtfully. This paper highlights the benefits and explores some of the challenges of using digital assistants to detect early signs of cognitive impairment, focusing on issues such as consent, bycatching, privacy, and regulatory oversight. By using a fictional but plausible near-future hypothetical, we demonstrate why an “ethics-by-design” approach is necessary for consumer-monitoring tools that may be used to identify health concerns for their users.

Mallory v. Norfolk Southern Railway Co. presents the question whether the Fourteenth Amendment’s Due Process Clause prohibits Pennsylvania from requiring corporations to consent to general jurisdiction in order to do business there. The answer to that question is no. Neither the Court’s precedent nor the original Fourteenth Amendment forbids Pennsylvania from requiring such consent, nor from exercising jurisdiction once consent is secured. What may invalidate Pennsylvania’s requirement, however, is the Court’s modern doctrine on the “dormant” component of the Commerce Clause, which is currently thought to restrict state laws imposing serious burdens on out-of-state economic actors. The difference between due process and dormant commerce matters: substantive requirements of the Fourteenth Amendment may not be relieved by Congress or by treaty, while dormant commerce restrictions might be. The Court should not limit state jurisdiction under a mistaken due process theory that in passing also limits the authority of Congress (and of the President and Senate). Instead, the regulation of interstate corporate activity should be left up to the Interstate Commerce Clause, to be addressed by the state courts on remand.

Platón tuvo una desafortunada experiencia personal de la cosa pública. Quizás por ello escribió las Leyes, diálogo en donde uno de los personajes, el ateniense, lleva continuamente el debate a la idea de que el objetivo de la ley es guiar a los ciudadanos hacia la virtud, hacerlos nobles y sabios. El gran filósofo griego insiste en que el buen gobierno no puede darse por sentado y en que la razón es la clave del avance: No puede ser una casualidad que el nombre de esta institución tan maravillosa, la ley (nomos), se relacione de forma tan sugerente con la razón (nous).

This Paper uncovers a striking feature of statutory interpretation that joins the rise of “new new new” textualism on today’s Supreme Court and elsewhere. It reveals the increasing sway of the now infamous canons of construction across two very different legal systems: American law and Islamic law. These two systems of law share many of the same legal canons despite the radically different institutional structures, origins, and commitments of each system historically and today. They are perhaps maximally different. Probing each system individually then juxtaposing the two reveals shared, ‘meta’ features of legal canons between them. To be sure, such comparison may seem improbable, difficult, or meaningless at first blush. But after overcoming hurdles of the improbable, it becomes clear that the existence, continued use, and recent resurgence of legal canons in both systems suggest that the common features of their shared canons—metacanons—play out in almost every interpretation. This Article explores the nexus between the two. The idea of metacanons, beyond showing the value of comparison, helps delineate how and why the current U.S. Supreme Court must choose between using legal canons to bolster rule-of-law coherence or to mediate democratic values. My basic argument is twofold. First, I argue that courts demonstrably have abandoned the notion of court-congress dialogue in applications of legal canons today in ways that resonate closely with the differing structures of Islamic law Muslim jurists in older systems of Islamic law had initially adopted a similar notion but recognized as fictive long ago. Second, I argue that the facts of similar legal canons in disparate legal systems, both lacking in institutional dialogue, meaningfully informs the raging debates about both the means and the ends of statutory interpretation. These facts call for resolution and new approaches to the judicial use of legal canons, with an eye on metacanonical inquiries. In the end, I argue that our era of declining (or fictitious) institutional dialogue between Courts and Congress mean that legal canons in today’s Supreme Court are once again interpretive tools solely for judicial interpreters, who now face a choice. Judges who have dispensed with the myth of dialogue should seek more coherent use of canons to bolster rule-of-law values. Identifying the universal features of metacanons can aid that path. Or, judges should re-open the channels of dialogue and deploy the canons to mediate the ongoing cases and controversies about changing values in light of constitutional norms and congressional preferences. This is a path that Islamic law judges did not (and could not) pursue. But thrown into relief by metacanons, this path offers a unique prospect for advancing American democracy.

This chapter is an essay, literally an attempt, to present and solve a puzzle about Wesley Newcomb Hohfeld. In addition to being a doctrinal legal scholar, he was – and is justly renowned for his work as – a legal theorist, legal philosopher, and logician operating without, but anticipating, the formal grammar of logic (deontic logic, specifically1). Given the huge influence of his work, he had surprisingly few publications, resulting in a high yield of impact per page – and, indeed, per year of his short life.2 Wesley Hohfeld was also a law professor who had difficulty getting his students to see the value of his method as a tool for learning and mastering legal argument.

Bounded rationality recognizes that human behavior departs from the perfect rationality assumed by neoclassical economics. In this book, Sanjit Dhami and Cass Sunstein explore the foundations of bounded rationality and consider the implications of this approach for public policy and law, in particular for questions about choice, welfare, and freedom. The authors, both recognized as experts in the field, cover a wide range of empirical findings and assess theoretical work that attempts to explain those findings. Their presentation is comprehensive, coherent, and lucid, with even the most technical material explained accessibly. They not only offer observations and commentary on the existing literature but also explore new insights, ideas, and connections. After examining the traditional neoclassical framework, which they refer to as the Bayesian rationality approach (BRA), and its empirical issues, Dhami and Sunstein offer a detailed account of bounded rationality and how it can be incorporated into the social and behavioral sciences. They also discuss a set of models of heuristics-based choice and the philosophical foundations of behavioral economics. Finally, they examine libertarian paternalism and its strategies of “nudges.”

We were lucky last time. A multitude of law-abiding individuals and fortunate events stopped the “quiet” phase of the coup to keep Donald Trump in power. That could well change in 2024.

On June 24, 2002, the US Supreme Court ended the constitutional right to abortion in Dobbs v Jackson Women’s Health Organization. The Court’s majority decision authored by Justice Samuel Alito was substantially the same as a draft opinion leaked a month earlier. The regulation of abortion will now be decided by the states. In this Viewpoint, we explain the Dobbs ruling and what it means for physicians, public health, and society.

Originalism, textualism and judicial restraint all got short shrift in this term’s major environmental-regulations decision.

But what if their big and fast moves, eviscerating some constitutional rights and inflating others, are bound for collision?

The Consumer Operated and Oriented Plans (CO-OPs), the subject of Section 1322 of the Affordable Care Act (ACA), were to constitute “qualified nonprofit health insurance issuers.” Designed with an eye toward increasing competition with the extant commercial and nonprofit insurance sector, the CO-OPs were to enhance consumer choice as well as hold down prices on the state and federal exchanges. To achieve these ends, the consumer-governed state-licensed CO-OPs were to target the individual and small-group markets. At least one qualified CO-OP was to be established in each and every state. By the fall of 2013, however, coincident with the first open enrollment period of the ACA, only 23 CO-OPs were on tap. At the time of this writing, only three of these CO-OPs remain operational in the states of Maine, Montana, and Wisconsin. Viewed in hindsight, the thorough dissolution of the CO-OPs was the product of incremental financial privation effectuated by congressional opponents of the ACA. In this Commentary, we revisit the ontogeny of the CO-OP construct, review its partisan dismantling, and explore the potential resurrection thereof.

The world does not need a world government to govern itself. Roberto Mangabeira Unger argues that there is an alternative: to build cooperation among countries to advance their shared interests. We urgently need to avert war between the United States and China, catastrophic climate change, and other global public harms. We must do so, however, in a world in which sovereign states remain in command. The opportunity for self-interested cooperation among nations is immense. Unger shows how different types of coalitions among states can seize on this opportunity and avoid the greatest dangers that we face. Unger offers a way of thinking about international relations as well as a transformative program: a realism with hope and a way to develop the international diversity that we want without the international anarchy that we fear. His ideas challenge the disillusionment and fatalism that threaten to overwhelm us.

Some have informally suggested that the process of obtaining an expungement order from the Kansas court system is simple and straightforward. We review the process for obtaining such an order in Kansas, and demonstrate the falsity of this suggestion.

Health technology is advancing at a rapid clip, with many of these technologies appearing on consumer products like smartphones and tablets. Federal regulators have responded to these changes with a flexible approach that allows firms to manufacture a ‘general wellness product’ (‘GWP’) without being subject to regulation typically applied to ‘devices’ that diagnose or treat a disease or condition. Using currently available medical products and devices from across a spectrum of diseases, we describe how firms can use this existing regulatory framework to develop innovative products by ‘skating the line’ between mostly unregulated GWPs and regulated devices. On the one hand, we find that skating the line offers a variety of benefits, including potential improvements to product development, innovation, and patient access to medical technologies. On the other hand, we show that this technique has potential costs to patient safety, competition, and data sharing. Skating the regulatory line between GWP and devices, in other words, offers important benefits but is not without risks. Any further regulatory action to address such risks should be careful to leave significant unregulated space for product development.

The court’s reasoning could restrict federal regulation in many areas, making it more difficult for agencies to protect consumers, set standards for health and safety, and regulate financial markets, among other things.

Systemic corruption in developing countries often seems intractable. Yet most countries that currently have relatively high public integrity were, at an earlier point in their history, afflicted with pervasive corruption. Studying the history of these countries may therefore make a valuable contribution to modern debates about anticorruption reform. This paper considers the experience of the United States, focusing principally on the period between 1865 and 1941. We find that the U.S. experience calls into question a number of commonly-held views about the struggle against corruption in modern developing countries. First, although some argue that entrenched cultures of corruption are virtually impossible to dislodge, the U.S. experience demonstrates that it is possible to make a transition from a systemically corrupt political system to a system in which public corruption is aberrational. Second, although some have argued that tackling systemic corruption requires a “big bang” approach, the U.S. transition away from systemic corruption would be better characterized as incremental, uneven, and slow. Third, although some have argued that fighting corruption requires shrinking the state, in the U.S. reductions in systemic corruption coincided with a substantial expansion of government size and power. Fourth, some commentators have argued that “direct” anticorruption measures that emphasize monitoring and punishment do not do much good in societies where corruption is pervasive. On this point, the lessons from U.S. history are more nuanced. Institutional reforms played a key role in the U.S. fight against corruption, but investigations and prosecutions of corrupt actors were also crucial, not only because of deterrence effects, but because these enforcement efforts signaled a broader shift in political norms. Progress against corruption in the United States involved a combination of “direct strategies,” such as aggressive law enforcement, and “indirect strategies,” such as civil service reform and other institutional changes.

The development of autonomous artificial intelligence (A-AI) products in health care raises novel regulatory challenges, including how to ensure their safety and efficacy in real-world settings. Supplementing a device-centered regulatory scheme with a regulatory scheme that considers A-AI products as a ‘physician extender’ may improve the real-world monitoring of these technologies and produce other benefits, such as increased access to the services offered by these products. In this article, we review the three approaches to the oversight of nurse practitioners, one type of physician extender, in the USA and extrapolate these approaches to produce a framework for the oversight of A-AI products. Under the framework, the US Food and Drug Administration would evaluate A-AI products and determine whether they are allowed to operate independently of physician oversight; required to operate under some physician oversight via a ‘collaborative protocol’ model; or required to operate under direct physician oversight via a ‘supervisory protocol’ model.

A substantial portion of the US population faces infertility — the National Institutes of Health reports that 15 percent of heterosexual couples are unable to conceive after one year of trying.

On Monday, the supreme court justice issued a worrying signal about his commitment to maintaining press freedoms.

Low-wage workers in the United States face a great deal of precarity in 2022 as a general matter — and the Supreme Court’s overruling of Roe v. Wade last week has increased that precarity for millions. The degree of that precarity varies greatly depending in which state a worker lives. In regions of the U.S. that precarity […]

The crude reality of the political machinations involved in overruling Roe v. Wade makes it galling to read the Court’s self-portrayal as a picture of proper judicial restraint.

The Federal Home Loan Banks are the less well-known siblings of Fannie Mae and Freddie Mac. Since these government-sponsored enterprises were created in 1932, changes in housing finance markets have rendered largely irrelevant their original purpose of increasing the availability of mortgages. Yet the level and scope of their activities have increased dramatically in recent decades. These activities have at times both exacerbated risks to financial stability and obstructed the missions of federal financial regulators. Behind these undesirable outcomes lies the public/private hybrid nature of the FHLBs. The private ownership and control of the FHLBs provide the incentive to take advantage of the considerable public privileges from which they benefit – including an explicit line of credit from the United States Government and an implied guarantee of all their debt similar to that enjoyed before the Global Financial Crisis by Fannie Mae and Freddie Mac. This paper examines the past incidence and future potential for the FHLBs to amplify financial stability risks. It offers a framework for regulatory reform by the Federal Housing Finance Agency to contain these risks and avoid harmful interference with the activities of other federal regulators.

For the sake of the company's stakeholders and investors, let's hope it reverses course on Ben & Jerry’s Israel boycott.

“Informational cascades” can be key in turning the tide against animal cruelty.

The Congressional Review Act (CRA) authorizes fast-track procedures for resolutions disapproving agency rules. The near-universal assumption is that the CRA is relevant only when a new President seeks, with the support of Congress, to cancel regulations promulgated during the previous administration. Yet the CRA has substantially greater unrealized potential. When the agency, the President, and congressional majorities agree on their preferred interpretation of a statute, they can secure formal legislative endorsement of this interpretation through the following two-step maneuver: first, the agency promulgates an interpretive rule that construes the statute to have the opposite of the meaning the agency actually wants--for example, by interpreting a statute to prohibit a regulation that the agency would like to adopt. Next, Congress and the President use the CRA to disapprove that interpretive rule--thus establishing, via a formal exercise of legislative power, that the statute has the meaning the agency rule rejected. This double-negative maneuver would be a lawful way for the Executive and Legislative Branches to clarify, or even to change, statutory law in a manner that bypasses the filibuster and other legislative roadblocks. This Article develops this legal argument and also discusses the practical, political, and normative implications of this novel use of the CRA.