Faculty Bibliography

On the assumption that five Supreme Court Justices—Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—are prepared to overrule Roe v. Wade and join an opinion resembling Justice Alito’s draft in Dobbs v. Jackson Women’s Health Org. (“the draft”), we have some questions.

And Congress should claw it back.

Ryan Doerfler argues that real change requires us to strip the court of its authority while Elie Mystal writes that the best approach is to flood the court with more justices.

In moral and political philosophy, some people emphasize the importance of searching for “reflective equilibrium,” in which (broadly speaking) general principles align with convictions about particular cases, and vice-versa. There is a close analogue in constitutional law; the search for reflective equilibrium plays a central role. Some theories of constitutional interpretation seem to call for results that are inconsistent with “fixed points” in constitutional law (where “fixed points” are understood as particular holdings, such as Brown v. Board of Education, to which people have exceedingly strong commitments). The risk to fixed points strongly counts against such theories. The reason is that among the reasonable candidates, any theory of interpretation must be defended on the ground that it would make our constitutional order better rather than worse. It follows that if a theory would lead to rejection to fixed points, it has a clear strike against it. Many participants in debates about constitutional theory implicitly agree on this point, and they had better; there is no way to choose a theory of constitutional interpretation that refuses to seek reflective equilibrium, which means that consideration of fixed points is essential.

This casebook on the law of sexual orientation and gender identity weaves interdisciplinary perspectives into the up-to-date coverage of a rapidly changing legal landscape. It provides comprehensive coverage of the range of legal issues concerning LGBTQ persons, along with scholarly commentary on these issues. It also covers issues of sexuality and gender more broadly. It addresses in depth many significant recent developments, including the Supreme Court's landmark decision interpreting the Civil Rights Act of 1964 as prohibiting discrimination on the basis of gender identity and sexual orientation, and the growing set of religious liberty claims asserted by opponents of LGBTQ equality measures. The book also extensively covers gender identity issues, including the challenges faced by transgender individuals in accessing sex-segregated facilities, adequate healthcare, and equal educational and athletic opportunities.

Index funds present a governance dilemma. On the one hand, index funds provide huge benefits to individual investors, such as low fee and low opportunity cost diversification. On the other hand, their success has so concentrated ownership as to challenge the legitimacy and accountability of customary delegated governance. Given their benefits, legislation should be cautious, provisional, practical and cost-effective. It should rely on Securities and Exchange Commission (SEC) oversight to adjust to evolving markets, and enlist rather than try to supplant market forces. Senate Bill 4241 does not meet these criteria, nor do other blunt efforts to transfer voting power from index funds to investors or other institutions, or worse, to strip investors of governance rights altogether. Better would be reforms such as (a) low-cost quarterly reporting, (b) qualitative disclosures on fund voting policy formation, (c) complex-level conflict of interest rules, and (d) SEC-supervised pilots in which funds provide investors with practical ways to provide information about how they would like governance rights used. Clarifying SEC authority to regulate index providers (e.g., S&P) would also be useful. Finally, the SEC should have at least as much authority to supervise bespoke, risky products that exploit the “index” brand, but lack conventional index funds’ investor-friendly attributes, as it does over index funds themselves.

Rapid developments in artificial intelligence (AI) promise improved diagnosis and care for patients, but raise ethical issues. Over 6 months, in consultation with the American Academy of Ophthalmology Committee on Artificial Intelligence, we analyzed potential ethical concerns, with a focus on applications of AI in ophthalmology that are deployed or will be deployed in the near future. We identified 3 pressing issues: (1) transparency, paradigmatically through the explanation or interpretation of AI models; (2) attribution of responsibility issues for particular harms arising from the use or misuse of AI; and (3) scalability of use cases and screening infrastructure.

A Supreme Court decision could force colleges to move away from affirmative action and create true diversity on campus.

In Cedar Point Nursery v. Hassid, the Supreme Court holds that a California regulation granting union organizers limited access rights to agricultural property interferes with the property owners’ right to exclude and therefore constitutes a per se physical taking. But the Court also decides that there are exceptions to its per se takings rule. Most relevant, the Court holds that the government, without effecting a taking, can require property owners to cede access rights as a condition of receiving benefits or in order to avoid a risk posed to the public, as long as the benefits conveyed or the risks avoided constitute a legitimate police power purpose and as long as the access condition bears an essential nexus and rough proportionality to that purpose. This essay shows that Cedar Point is wrong on its own terms because the union access provision that the Court holds to be a taking fits comfortably within the Court’s exception to its takings rule. This is so for two reasons. One, the access regulation – and the general labor statute it implemented – was part of California’s approach to ending violence that had come to define agricultural union organizing in the 1960s and 1970s, violence so rampant that many contemporaries described it as “war.” Two, the access provision facilitated the negotiation of collective bargaining agreements containing robust mechanisms for pesticide safety, pesticides whose use posed a dire threat to farmworker and consumer health. Understood this way, the access provision is germane to two quintessential police power purposes: public safety and health. Moreover, the limited access rights provided by the regulation bear a clear nexus to those purposes and are, to say the least, roughly proportional to the costs they help avoid.

Doerfler discusses how to fix the US Supreme Court. With the leak of a draft opinion in Dobbs v. Jackson Women’s Health Organization formally overruling Roe v. Wade, progressives’ worst fears about an ever more reactionary Supreme Court appear set to come true. The Supreme Court’s refusal to guarantee meaningful, positive rights to US citizens (let alone noncitizens) goes far beyond abortion. In addition to failing to provide positive rights, the Supreme Court has, throughout its history, actively impeded Congress from providing such rights through ordinary legislation. By invoking its power under Article III to make "exceptions" to the Supreme Court’s jurisdiction over most cases and its total discretion over the existence of "inferior" federal courts, Congress could–and should–insulate legislation like the Women’s Health Protection Act from judicial invalidation by including a provision withdrawing from any court the right to consider challenges to the constitutionality of that law.

In this Article, we use hand-collected data to shed light on a troubling development in bankruptcy practice: distressed companies, especially those controlled by private equity sponsors, often now prepare for a Chapter 11 filing by appointing bankruptcy experts to their boards of directors and giving them the board’s power to make key bankruptcy decisions. These directors often seek to wrest control of self-dealing claims against shareholders from creditors. We call these directors “bankruptcy directors” and conduct the first empirical study of their rise as key players in corporate bankruptcies. While these directors claim to be neutral experts that act to maximize value for the benefit of creditors, we argue that they suffer from a structural bias because they often receive their appointment from a small community of repeat private equity sponsors and law firms. Securing future directorships may require pleasing this clientele at the expense of creditors. Indeed, we find that unsecured creditors recover on average 20% less when the company appoints a bankruptcy director. While other explanations are possible, this finding shifts the burden of proof to those claiming that bankruptcy directors improve the governance of distressed companies. Our policy recommendation, however, does not require a resolution of this controversy. Rather, we propose that courts regard bankruptcy directors as independent only if an overwhelming majority of creditors whose claims are at risk supports their appointment, making them accountable to all sides of the bankruptcy dispute.

Most jurists and scholars today take for granted that the U.S. Constitution imposes unwritten but judicially enforceable limits on how Congress and the President may construct their interrelationships by statute. This “juristocratic” understanding of the separation of powers is often regarded as a given or inherent feature of American constitutionalism. But it is not. Instead, it emerged from a revanchist reaction to Reconstruction. As an ascendent white South violently returned to power in Washington, its intellectual supporters depicted a tragic era in which an unprincipled Congress unconstitutionally paralyzed the President in pursuit of an unwise and unjust policy of racial equality. Determined to prevent Reconstruction from reoccurring, historians, political scientists, and a future Supreme Court Justice by the name of William Howard Taft demanded judicial intervention to prevent Congress from ever again weaving obstructions around the President. This Lost Cause dogma became Supreme Court doctrine in Myers v. United States. Authored by Chief Justice Taft, the opinion was the first to condemn legislation for violating an implied legal limit on Congress’s power to structure the executive branch. It is today at the heart of an ongoing separation-of-powers counterrevolution. That counterrevolution has obscured, and eclipsed, a more normatively compelling conception of the separation of powers—one that locates in representative institutions the authority to constitute the separation of powers by statute. This “republican” conception accepts as authoritative the decision of the political branches as to whether a bill validly exercises the Necessary and Proper Clause to carry into execution the powers and interrelationships of Congress, the President, and the executive branch. Where the juristocratic separation of powers undermines both the legal legitimacy of the Court and the democratic legitimacy of the political branches, the republican separation of powers sustains an inherently provisional constitutional order—one grounded in deliberation, political compromise, and statecraft.

While artificial intelligence has substantial potential to improve medical practice, errors will certainly occur, sometimes resulting in injury. Who will be liable? Questions of liability for AI-related injury raise not only immediate concerns for potentially liable parties, but also broader systemic questions about how AI will be developed and adopted. The landscape of liability is complex, involving health-care providers and institutions and the developers of AI systems. In this chapter, we consider these three principal loci of liability: individual health-care providers, focused on physicians; institutions, focused on hospitals; and developers.

The question of whether federal agencies or the courts should have the right to interpret legislation may seem technical, but it significantly affects the power of the government.

This article uses Ernst Fraenkel’s concept of the “dual state” as the vehicle for examining the role of “lynch law” as a mode of governance of African Americans in the United States from 1865 to 1940 (roughly). It begins with a largely jurisprudential inquiry placing my interpretation of Ernst Fraenkel’s distinction between the normative state and the prerogative state in dialogue with a version of American Legal Realism, in which law consists entirely of “moves” such as permissible distinctions and analogies that are treated (sociologically) as acceptable by relevant professional communities. Seen through that lens the distinction between the normative state and the prerogative state thins out. The arbitrariness Fraenkel associates with the prerogative state infects the normative state and the prerogative state is pervaded by norms that aren’t mere simulacra of legal norms. The two kinds of state are different in degree rather than in kind—but differences in degree can matter. Part II uses the revised distinction in a preliminary examination of lynch law in the U.S. South. Lynch law was not an example of Fraenkel’s prerogative state; the norms enforced through lynch law might have been popular versions of norms drawn from the prerogative state. And yet “lynch law” was different not only in content from the rules of law formally applicable to all people in the United States but also in the lived experience of those subject to lynch law. Lynch law might not have been arbitrary in the sense that it had no knowable normative content, but, perhaps because the norms were popular rather than legislated or formal, it was substantially vaguer than the formal law and significantly less able to guide the choices made by those subject to it.

There can be a serious tension between the commitment to cost-benefit analysis and a realistic appreciation of the limits of official knowledge. Without significant efforts to reduce those limits, that analysis might be inadequately informed. Whenever regulators face significant informational deficits, or what is sometimes called “the knowledge problem,” it is important to explore tools that take advantage of what the private sector knows; market-friendly approaches, such as economic incentives, have important advantages on that count. An advanced regulatory system should also try to reduce the knowledge problem through three routes: (1) creative use of notice-and-comment rulemaking; (2) retrospective analysis of regulations and their costs and benefits; and (3) advance testing, as a way of informing ex ante analysis. For the future, the most promising approach is (3).

If the high court adopts Alito’s draft opinion, it will be a legal tidal wave that sweeps away a swath of rights unlike anything America has ever seen.

The draft opinion of Justice Samuel Alito, Jr. in Dobbs v. Jackson Women’s Health Organization embraces a form of due process traditionalism. More specifically, it is founded on Burkean arguments, emphasizing the importance of respect for traditions and (secondarily) Thayerian arguments, emphasizing the need to give the democratic process room to maneuver. With Burkean and Thayerian arguments at work, the Alito draft offers a distinctive understanding of the Due Process Clause, which allows substantive protection of rights only if they are vindicated by tradition and essential to “ordered liberty” as the United States has long understood it. Rooted in due process traditionalism, the Alito draft is not an “originalist” opinion, and it would not be simple to defend it in originalist terms. Within the opinion’s own logic, a major challenge is to accept due process traditionalism without simultaneously throwing a variety of emphatically nontraditionalist or anti-traditionalist substantive due process cases into doubt, even though they have nothing to do with abortion (including the right to engage in same-sex sexual relations and the right to same-sex marriage). There are uneasy relationships between the traditionalist thrust of the Court’s opinion and the Court’s nontraditionalist or antitraditionalist jurisprudence in other areas of constitutional law, including free speech, takings, and equal protection, where the Court has repudiated multiple traditions, understanding itself as a kind of “forum of principle,” in a way that produces far more expansive understandings of rights than could be justified by an inquiry into tradition and ordered liberty. For example, the Court has rejected free speech traditionalism (in protecting libel), takings clause traditionalism (in protecting against regulatory takings), and equal protection traditionalism (in protecting against sex discrimination). A central reason must be that the Court believes in some forms of moral progress, and has at least some faith in the judicial capacity to incorporate certain forms of moral progress into constitutional law.

Modern constitutional theory deals almost exclusively with the mechanisms for controlling the exercise of public power. In particular, the focus of constitutional scholars lies in explaining and justifying how courts can effectively keep the exercise of public power within bounds. But there is little point in worrying about the excesses of government power when the government lacks the capacity to get things done in the first place. In this Article, we examine relations between the courts, constitutionalism, and state capacity other than through limiting state power. Through a series of case studies, we suggest how courts confront the problem of state building, and how the question of state capacity informs constitutional doctrine. Our studies consist of litigation over life-saving medication in Brazil, “engagement” remedies in South Africa, the problem of pretrial detention in India, and the validity of India’s recent biometric identification project. As we show, state capacity is a crucial variable in the development of constitutional doctrine—and while engaging with the issue of state capacity, courts often play a role in facilitating its expansion. The case studies identify a number of mechanisms that courts use to encourage capacity development: providing incentives to enhance capacity, guiding and directing the state to perform specific actions, compensating for weak capacity by absorbing the problem, and endorsing measures that purport to increase capacity. We then offer an expressly idealized model by which courts can negotiate capacity-related concerns. Courts can, in certain instances, respond to the problem of state capacity through weak-form, dialogic, experimentalist forms of review. The precise role that courts can and should play in this regard remains to be fully studied, but focusing on the question of state capacity allows us to better explain contemporary constitutional doctrine in several jurisdictions, and highlights the challenges involved in at once creating and limiting state power.

In support and promotion of the recent International Review of the Red Cross edition on counterterrorism, a conversation with Naz Modirzadeh and Dustin Lewis on whether and how we can reconcile the current clash between a growing global counterterrorism architecture and impartial humanitarian activities.

The COVID-19 pandemic has highlighted that leveraging medical big data can help to better predict and control outbreaks from the outset. However, there are still challenges to overcome in the 21st century to efficiently use medical big data, promote innovation and public health activities and adequately protect individuals’ privacy. The metaphor that property is a “bundle of sticks” applies equally to medical big data. Understanding medical big data in this way raises a number of questions, including: Who has the right to make money off its buying and selling, or is it inalienable? When does medical big data become sufficiently stripped of identifiers that the rights of an individual concerning the data disappear? How have different regimes such as the General Data Protection Regulation in Europe and the Health Insurance Portability and Accountability Act in the US answered these questions differently? In this chapter, we will discuss three topics: (1) privacy and data sharing, (2) informed consent, and (3) ownership.

As a constitutional scholar, I believe that the lawyers seeking disqualification have a steep hill to climb in all of these cases—especially when their arguments based on the 14th Amendment collide with the First Amendment and its protection of free speech.

Academic freedom is under attack from both the left and the right. The very notion of academic freedom is at stake as liberals and conservatives attack exercises of it that do not align with their political goals. Moreover, those who purport to champion academic freedom frequently end up attempting to restrict it. This trend has accompanied an atmosphere of fear about speaking freely. At this moment, we desperately need explicit discussions about academic freedom. Those who believe in the value of academic freedom must wrest it from disingenuous invocations and truly defend it by wrestling with its genuine difficulties, including by acknowledging the tensions it may create with evolving antidiscrimination principles and practices.

By organizing and running free health centers, the Black Panthers not only delivered much needed social provisions. They also empowered participants to envision and pragmatically move toward new…

The fragility of the right to an abortion has become synonymous with the fragility of the Court’s legitimacy.

If the right of a woman to decide whether to have a baby won’t qualify as a guaranteed right, then neither will most of the rights you have long assumed are yours.

In 2019, more than 100 CEOs of US public companies signed a Business Roundtable statement in which they pledged to deliver value to all stakeholders, not just shareholders. Have their companies lived up to this commitment? A forthcoming study based on a wide array of hand-collected corporate documents shows that, two years later, Business Roundtable companies generally have retained corporate governance principles and practices that reflect traditional shareholder primacy.

There has been growing support for replacing the traditional corporate purpose with so-called “enlightened shareholder value,” which would guide firms to consider stakeholder interests when pursuing long-term shareholder value maximization. But such a move would not benefit stakeholders and might in fact be counterproductive.

Financial crises, twice in so many decades, have exposed our monetary hardwiring as a critical issue of governance. That circuitry starts with a public unit – the dollar – created and backed by the federal government, but it appoints commercial banks to amplify and spread that money at the retail level. The design does more than delegate distribution to banks. By privileging banks as money creators, it also enables them to determine distribution. Operating according to criteria that are privately determined, banks decide which recipients will benefit from the expansion of a medium that is public. The process is clearly discriminatory.The hybrid state at the monetary core of the market has never been justified according to democratic criteria. Retail banks prevailed in their partnership with the state because they had strategic advantages in creating credit money, not because they were experts in allocating that medium fairly or most efficiently. That history, recovered here, was lost to an economic narrative that located banks as intermediaries vetted by the competitive marketplace. Public spending does not dilute the problem; all such spending occurs through the same banked conduits. By contrast, the federal government could follow historical examples and directly issue dollars. Direct-issue dollars would alleviate recessionary conditions without adding to the national debt. They could be targeted directly to populations most in need, enhancing distributive equity, and policed by the Federal Reserve, dividing public authority over money creation in a new way. Most importantly, the strategy would begin to democratize money’s design.

Digital applications (apps) are commonly used across the research ecosystem. While apps are frequently updated in the course of clinical and behavioral research, there is limited guidance as to when an app update should trigger action related to human research participant protections and who should be responsible for monitoring and reviewing these updates. We term this the “update problem” and argue that, while it is the principal investigator's duty to track all relevant updates, the level of involvement and re-review by the institutional review board (IRB) of an approved research protocol should vary depending on whether the update may be classified as minor, not minor, or significant. Minor updates require at most annual notification of the IRB, updates that are not minor require prompt notification of the IRB, and significant updates may require full board re-review or another response. We also suggest how these policies might be implemented.

Amid growing concerns for the effects that corporations have on stakeholders, supporters of stakeholder governance advocate relying on corporate leaders to use their discretion to protect stakeholders, and they seem to take corporate pledges to do so at face value. By contrast, critics question whether corporate leaders have incentives to protect stakeholders and to follow though pledges to do so. We provide empirical evidence that can contribute to resolving the debate between these rival views. The most celebrated pledge by corporate leaders to protect stakeholders was the Business Roundtable’s 2019 Statement on the Purpose of a Corporation (the “BRT Statement”). The BRT Statement expressed a commitment to deliver value to all stakeholders, not just shareholders, and was widely viewed as a major milestone that would usher in “stakeholder capitalism” and significantly improve the treatment of stakeholders. If any companies could be expected to follow through on stakeholder rhetoric, those whose CEOs signed the highly visible BRT Statement would be natural candidates to do so. We review a wide array of hand-collected corporate documents of the 128 U.S. public companies that joined the BRT Statement (the “BRT Companies”). Examining the two-year period following the issuance of the BRT Statement, we obtain the following six findings: First, the numerous BRT Companies that updated their corporate governance guidelines during the two-tear period generally did not add any language that improves the status of stakeholders and, indeed, most of them chose to retain a commitment to shareholder primacy in their guidelines. Second, as of the end of the two-year period, most of the BRT Companies had governance guidelines that reflected a shareholder primacy approach. Third, in SEC submissions or securities filings responding to the over forty shareholder proposals that were submitted to BRT Companies regarding their implementation of the BRT Statement, most of the BRT Companies explicitly stated that their joining the BRT Statement did not require any such changes, and none of them accepted that the Statement required any changes. Fourth, all of the BRT Companies had and retained corporate bylaws that reflect a shareholder-centered view. Fifth, in their proxy statement following the BRT Statement, the great majority of the BRT did not even mention their joining the BRT Statement, and, among the minority of companies that did mention it, none indicated that their endorsement required or was expected to result in any changes in stakeholder treatment. Sixth, the BRT Companies all continued to pay directors compensation that strongly aligns their interests with shareholder value and avoided any use or support of stakeholder-oriented metrics. Overall, our findings support the view that the BRT Statement was mostly for show and that BRT Companies joining it did not intend or expect it to bring about any material changes in how they treat stakeholders.

The distribution of crucial medical goods and services in conditions of scarcity is among the most important, albeit contested, areas of public policy development. Policymakers must strike a balance between multiple efficiency and fairness objectives, while reconciling disparate value judgments from a diverse set of stakeholders. We present a general framework for combining ethical theory, data modeling, and stakeholder input in this process and illustrate through a case study on designing organ transplant allocation policies. We develop a novel analytical tool, based on machine learning and optimization, designed to facilitate efficient and wide-ranging exploration of policy outcomes across multiple objectives. Such a tool enables all stakeholders, regardless of their technical expertise, to more effectively engage in the policymaking process by developing evidence-based value judgments based on relevant tradeoffs.

In corporate law policymaking, there is considerable attention to stock market short-termism. Public discourse pins some noticeable part of the blame for climate change, environmental damage, and mistreatment of stakeholders on stock market short-termism. Presidential candidates raise the issue and castigate the stock market for short-termism; and it’s regularly invoked to justify securities regulation proposals and corporate case-law decisions. Here I examine the extant economic empirical work on stock market short-termism to assess whether it supports making stock market short-termism actionable in a major way for policy purposes. I evaluate it in two dimensions: first to see whether a consensus emerges from the work (none does) and second to see whether the work is conceptually structured to reveal its economy-wide severity. The latter conceptual point – the difficulty in scaling much corporate research to ascertain whether there’s an economy-wide problem – affects not just the stock market short-termism inquiry. The typical research effort seeks to measure whether a local treatment induces more local short-termism, not whether the economy-wide impact is severe. But evaluating short-termism’s economy-wide impact is essential for policymaking; policymakers must consider whether the economy is failing to invest or cutting back on R&D because of a stock market afflicted with a truncated time horizon. Local findings (of the impact on a subset of firms with a particular characteristic, such as short-vesting stock options, rapid stock market trading, or hedge fund activism) need not scale to economy-wide results; some local results will do so only serendipitously; and, finally, there are structural reasons why for stock market short-termism one should expect economy-wide results not to match local results. More than most corporate law issues, the short-termism problem faces a high failure-to-scale hurdle.

The ghost of John Hart Ely haunts the American liberal constitutional imagination. Despite the failure long ago of any progressive constitutional vision in an increasingly conservative Supreme Court, Ely’s conjectures about the superiority of judges relative to legislatures in the protection of...

Emily C. & John E. Hansen Intellectual Property Institute - Twenty-Ninth Annual Conference, International Intellectual Property Law & Policy.