Faculty Bibliography
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The drug-scheduling system, particularly the approach to rescheduling, should be reformed to ensure all beneficial medicines, including marijuana and psilocybin, are available to scientists and patients.
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The right way to counter autocracy.
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The next round of cyberattacks might come from a discussion about knitting.
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On January 20, 2020, I testified before the Massachusetts legislature’s Joint Committee on Housing in favor of two bills then being considered that would have revived rent control in the Commonwealth. My testimony was a head-on attack on the industry arguments against the bills. Their arguments are of course rationalizations of their economic interest. But they make serious wrong and misleading claims about consequences of rent control for the public interest and for its intended beneficiaries. Elected legislators, alas, are responsive both to the massive money spent lobbying against rent control and to some extent in good faith to the industry arguments. My goal, as laid out in the edited testimony published on the LPE Project Blog was to supplement not to displace the narration of blatant injustice and the invocation of a human right to decent housing with arguments in the policy language of the policy makers. The post also includes brief preliminary and concluding comments on the law and political economy approach as I understand it and as it relates to the testimony.
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How did environmental law first emerge in the United States? Why has it evolved in the ways that it has? And what are the unique challenges inherent to environmental lawmaking in general and in the United States in particular? Since its first edition, The Making of Environmental Law has been foundational to our understanding of these questions. For the second edition, Richard J. Lazarus returns to his landmark book and takes stock of developments over the last two decades. Drawing on many years of experience on the frontlines of legal and policy battles, Lazarus provides a theoretical overview of the challenges that environmental protection poses for lawmaking, related to both the distinctive features of US lawmaking institutions and the spatial and temporal dimensions of ecological change. The book explains why environmental law emerged in the manner and form that it did in the 1970s and traces how it developed over sequent decades through key laws and controversies. New chapters, composing more than half of the second edition, examine a host of recent developments. These include how Congress dropped out of environmental lawmaking in the early twenty-first century; the shifting role of the judiciary; long-overdue efforts to provide environmental justice to disadvantaged communities; and the destabilization of environmental law that has resulted from the election of Presidents with dramatically clashing environmental policies. As the nation’s partisan divide has grown deeper and the challenge of climate change has dramatically raised the perceived stakes for opposing interests, environmental law is facing its greatest challenges yet. This book is essential reading for understanding where we have been and what challenges and opportunities lie ahead.
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What should happen when claims for religions accommodation clash when antidiscrimination norms? Increasing conflicts of this sort are arising in the contexts or employment, education, and health care. The distinctively American reliance on litigation exacerbates conflicts of this sort by treating them as winner-take-all disputes. After examining a range of current disputes over religious exemptions and antidiscrimination laws, I will compare alternatives to winner-take-all litigation. These include proportionality review by courts, federalism – allowing decentralized and and contrasting solutions, and negotiated resolutions, which can include settlements, contracts, legislation, and mediation. Because civil wars have erupted over just these kinds of disagreements, the exploration for workable alternatives is a vital task – and the result can produce compromises or converging positions.
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Every year for the last umpteen years (I’ve lost count), shortly before or shortly after Transparency International releases its annual Corruption Perceptions Index (CPI) and associated repor…
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What recent successful governance reforms teach about future reforms of the presidency.
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For decades, when companies learned their employees were considering unionizing, they followed a familiar playbook: do everything possible to fight and frustrate the unionization effort. Leaders often take a union drive personally, and see unions as a threat, failing to see the legitimacy of workers’ demands. But right now, with a tight labor market and rising worker organizing, companies should reconsider this approach, and opt for ones that lead to better outcomes for both workers and employers. An ugly anti-union effort can hurt morale, reputation, and increase turnover. Conversely, companies that take steps like voluntary recognition, partnering to create the best conditions for a fair campaign, and respecting workers’ decision can preserve a positive relationship with their employees.
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History and experience teach us that our Constitution and laws can be instruments of racial discrimination and oppression as well as tools for advancing freedom and equality. The substance of our laws matters, and there is much to be learned from innovative policies and legal strategies around the country. In addition to laws promoting health equity and racial justice at the state, tribal, and local levels, a new federal Executive Order has the potential to drive major positive change if fully and properly implemented. Just as important, however, is linking legal advocacy with dynamic social movements, shrewd communication strategies, and courageous civic leadership that insists on transformative change. In this article, I briefly recount the turbulent relationship between law and equity in our nation; discuss the elements that can lead to major progress through law; and recommend specific steps that different actors can take to move an equity and opportunity agenda forward.
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This Viewpoint reviews California’s recently proposed CalRx initiative to manufacture biosimilar insulin, highlights challenges facing the initiative, and suggests ways in which, if successful, the initiative could serve as a model for state-managed development of drugs other than insulin, reduce drug prices, and provide other benefits.
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Global Climate Change and US Law (Michael Gerrard, Jody Freeman & Michael Burger eds., 3d ed. 2023).
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This comprehensive examination of U.S. law as it relates to climate change completely updates and reconsiders material from the prior editions while also adding extensive new material. It offers an increased emphasis on all aspects of energy regulation, as well as additional material on emerging issues such as adaptation and geoengineering. The legal landscape around climate change is complex, unstable, and expanding. Scientists continue to publish new findings, policy makers regularly adopt new regulations, and petitioners file new litigation, nationwide and around the world. Hence the need for this third edition. Most of it is completely new, and the few chapters carried over from the second edition have been thoroughly updated.
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There are reforms that can be enacted without harming civil liberties, like reducing the jurisdiction of the Court over essentially political issues.
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Part 1 of a three-part series on oral arguments in Turkiye Halk Bankasi A.S. v. United States, a case that raises the question whether the U.S. government can criminally prosecute corporations owned by foreign states.
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In Common Good Constitutionalism, Professor Adrian Vermeule expounds a constitutional vision that might “direct persons, associations, and society generally toward the common good.” The book must be taken seriously as an intellectual challenge, particularly to leading theories of originalism. That said, the challenge fails. The book fails to support its hostility toward originalism, to motivate its surprising claims about outcomes, or even to offer an account of constitutionalism at all. Its chief objections to originalism are unpersuasive and already answered in the literature it cites. The book does highlight important points of history and jurisprudence, of which originalists and others might need to take account; yet those points remain underdeveloped. In the end, the book might be best understood as what Vermeule once called a “constitutional manifesto”: a work of “movement jurisprudence” whose political aims come into conflict with theoretical rigor.
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Both in the history of western law generally and in the American constitutional order in particular, broad delegation that empowers executive government, in conjunction with the administrative state, is not best understood as an alternative and competitor to lawful government by the people. Rather it may be a means of lawful government by the people, an exercise rather than a betrayal of popular sovereignty. In particular, it may be the way in which the people of some given polity have called upon law to protect and enforce popular sovereignty in an oligarchic world, one in which corporations and economic elites exploit and abuse their legal entitlements, including through judicial processes. Delegated executive authority, and the resulting executive and administrative state, might best be seen as a kind of gigantic force that the many have created and deployed to protect themselves from the abuses of the few.
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In some circles, there is a misconception that within government, the only or principal uses of behavioral science consist of efforts to nudge individual behavior (sometimes described, pejoratively and unfairly, as “tweaks”). Nothing could be further from the truth. Behavioral science has been used, and is being used, to help inform large-scale reforms, including mandates and bans directed at companies (as, for example, in the cases of fuel-economy mandates and energy efficiency mandates). Behavioral science has been used, and is being used, to help inform taxes and subsidies (as, for example, in the cases of cigarette taxes, taxes on sugar-sweetened beverages, and subsides for electric cars). Behavioral science has been used, and is being used, to help inform nudges imposed on companies (with such goals as reducing greenhouse gas emissions, improving occupational safety, and protecting personal privacy). Some important interventions are indeed aimed at individuals (as with fuel economy labels, nutrition labels, and calorie labels, and automatic enrollment in savings plans); sometimes such interventions have significant positive effects, and there is no evidence that they make more aggressive reforms less likely. It is preposterous to suggest that choice-preserving interventions, such as nudges, “crowd out” more aggressive approaches.
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Cement-truck drivers went on strike. A lawsuit by their company may pave the way for restricting workers’ rights.
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This Viewpoint examines the future role of the Administration for Strategic Preparedness and Response in light of the COVID-19 pandemic.
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This Viewpoint discusses a proposed DHHS rule to address discrimination in clinical algorithms and the need for additional considerations to ensure the burden of liability for biased algorithms is not disproportionately placed on health care professionals.
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The lawyer who wrote Texas’s abortion ban has a bigger project—disempowering the judiciary—that may appeal to liberals, too.
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Hutchinson's lawyer was paid by "Trump World" — and dangled job offers before her for "doing the right thing."
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Third World Approaches to International Law (“TWAIL”) has aspirations to transform the tools and institutions of international law—which have served for centuries to construct, enact, and extend Western exploitation and domination—into tools and institutions for Global South empowerment, agency, and freedom. Characterizing itself as an intellectual and political movement, TWAIL promises to pave a path forward through a combination of scholarship and politics to achieve radical change. In this Article, I argue that TWAIL’s promise is unfulfilled—and that, if TWAIL’s current trajectory continues, its promise is likely to be unfulfillable. I first sketch TWAIL’s origin and key successes, including bringing awareness to the colonial roots and neo-imperial present of international law. Yet I contend that TWAIL’s diverse critical insights have not led to cohesive conceptual, doctrinal, or political positions, which would serve as tools to empower Global South-based actors. I propose that this is, at least partly, due to TWAIL’s ambivalence toward the Third World state, its absence of a theory of legitimate political violence in international law, its failure to identify a methodology of representing the ‘voices’ of the Global South, and the growing influence of an academic ethos I call ‘critique-as-wellness.’ For those motivated by TWAIL’s ambitions, I suggest three possible directions to take: the construction of a grassroots-centered campaign in the service of Global South peoples; the formation of a movement focused on empowering Global South states; or a coalition originating from the Global North aimed at reshaping Western attitudes and actions toward the Global South.
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The "supreme law of the land" includes "this Constitution," and federal officers are "bound, by oath or affirmation, to support this Constitution." In recent years, some people have argued that these words require oath-takers to be originalists and to follow the Constitution's "original public meaning," properly understood. An understanding of this argument requires an exploration of the diverse forms and conceptions of originalism, which raise puzzles of their own. Whether or not we embrace some form of originalism, the broader point is this: the claim that the term "this Constitution" mandates a contested theory of interpretation, including a contested form of originalism, belongs in the same category with many other efforts to resolve controversial questions in law by reference to the supposed dictate of some external authority. Whether maddening or liberating, there is nothing that communication just is, nor is there any such dictate. The choice is ours.
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Securities regulators seem to be more interested in protecting their turf than protecting investors.
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What we ought to do, according to law, isn't always what we ought to do, given the existence of law. Sometimes we need to know what a legal system says we should do, under rules prevailing in a certain time and place. And sometimes we need to know what we should actually do, in the moral circumstances this legal system presents. Many fights between positivists and natural lawyers result from muddying these two inquiries. But we have good reasons, intellectual and moral, to keep them distinct. Even if prevailing social rules have no moral force of their own, those who make claims about them still owe their audiences a moral duty of candor. And the stronger our moral commitments, the more we ought to approach existing legal systems warily. Insisting that the law already reflects good morals can blind us to some very real flaws in our prevailing rules--and to the need for some very hard work in reforming them. To this extent, common-good-constitutionalist claims too often have all "the advantages of theft over honest toil": they can lead us to wish away precisely those disagreements and failings that make social and political institutions so necessary.
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In 1978, Congress created a new federal bankruptcy law that has since become a key part of the American capital markets. In this Article, I examine how large companies and their investors contract to make bankruptcy more or less likely, how distressed firms negotiate with creditors outside of bankruptcy and how companies plan for a Chapter 11 filing and navigate the bankruptcy system. I also survey the strategic moves, ranging from litigation to financing, that activist investors deploy to improve their bargaining power and to earn higher returns. The American bankruptcy system is constantly evolving and prevailing accounts of bankruptcy law quickly become stale, creating a constant need for new empirical research to establish a foundation for policy-making.