Faculty Bibliography

How we became so burdened by red tape and unnecessary paperwork, and why we must do better. We’ve all had to fight our way through administrative sludge–filling out complicated online forms, mailing in paperwork, standing in line at the motor vehicle registry. This kind of red tape is a nuisance, but, as Cass Sunstein shows in Sludge, it can also also impair health, reduce growth, entrench poverty, and exacerbate inequality. Confronted by sludge, people just give up–and lose a promised outcome: a visa, a job, a permit, an educational opportunity, necessary medical help. In this lively and entertaining look at the terribleness of sludge, Sunstein explains what we can do to reduce it. Because of sludge, Sunstein, explains, too many people don’t receive benefits to which they are entitled. Sludge even prevents many people from exercising their constitutional rights–when, for example, barriers to voting in an election are too high. (A Sludge Reduction Act would be a Voting Rights Act.) Sunstein takes readers on a tour of the not-so-wonderful world of sludge, describes justifications for certain kinds of sludge, and proposes "Sludge Audits" as a way to measure the effects of sludge. On balance, Sunstein argues, sludge infringes on human dignity, making people feel that their time and even their lives don’t matter. We must do better.

Peter Singer is well known for having made a powerful case for a vastly greater commitment, by each of us individually and by society, to the alleviation of global poverty. He is also well known for his views regarding the lives of “profoundly intellectually disabled humans,” going so far as to make the case that [t]here will surely be some nonhuman animals whose lives, by any standard, are more valuable than the lives of some humans. A chimpanzee, dog, or pig, for instance, will have a higher degree of self-awareness and a greater capacity for meaningful relations with others than a severely retarded infant or someone in a state of advanced senility. The case Singer makes for global poverty alleviation is in sharp tension with his treatment of disability in three important interrelated respects. First, Singer’s argument for poverty alleviation exemplifies well his call for a reason-based ethics grounded in an equal consideration of the interests of all parties affected by one’s decisions. However, his treatment of disability is troublingly imprecise as to matters of life and death. At times, he seeks to parry opposing positions more rhetorically than substantively, and he also evidences rigid preconceptions, impervious to the experience of persons with a disability, that lead to self-reinforcing conclusions. Second, whereas he readily and admirably challenges conventional constructs in discussing poverty alleviation, he embraces them when considering disability. And third, although he clearly states that he expects his writing to spur concrete action with regard to poverty alleviation, when taken to task for the implications of his writing about disability, he resists engaging with consequences it may have. This is not only concerning for those who urge greater attention to dignitarian concerns but also raises questions about the manner in which he has applied his own utilitarian analysis. This article proceeds by first laying out the rationale for and essence of Singer’s argument that there is an obligation to do what one can to alleviate global poverty. In Part 2, it sets forth the foundations for his treatment of disability, culminating in his conclusion that, should parents wish, “killing a disabled infant is not morally equivalent to killing a person. Very often it is not wrong at all.” Part 3 examines tensions between these two positions before concluding that Singer might better advance his goal of global poverty alleviation were he to approach disability with a blend of rigor, imagination, and concern for the impact of his work comparable to that which characterizes his treatment of poverty.

This Report presents a summary of the discussion at a workshop that explored in a comparative and cross-disciplinary manner the phenomenon of indirect discrimination (or practices with discriminatory impact) during the COVID-19 pandemic. The participants included academics, advocates, and mandate holders in the United Nations and regional human rights systems. The discussion included the theory and practice of antidiscrimination norms and alternative framings for analyzing the same harms, in contexts of judicial, legal, and political strategy.

Security is often a non-excludable public good. On the one hand, it benefits the people who buy it; on the other, it also benefits those who live near the people who buy it. It benefits those neighbors even if they refuse to share in the cost of the security themselves. Security also entails economies of scale. In part because of the positive externalities involved, people economize when they purchase security together. Rather than each pay to protect him- or herself, they save resources if they purchase their security together.

Commentaries and Cases on the Law of Business Organizations: 2021-2022 Statutory Supplement

This site provides a more accessible version of the Delaware General Corporation Law (DGCL), and a guide to the Federal Proxy Rules.

In this Chapter, we survey the common law’s adventures with creditor protection over the course of American history with a special focus on Delaware. We examine the evolution of the equitable doctrines that judges have used to answer a question that arises time and again: What help, if any, should the common law be to creditors that suffer losses due to the purported carelessness or disloyalty of corporate directors and officers? Judges have struggled to answer that question, first deploying Judge Story’s “trust fund doctrine” and then molding fiduciary duty law to fashion a remedy for creditors. This reached a high point in the early 2000s as judges flirted with recognizing a “deepening insolvency.” Delaware’s judges effectively abandoned this project in a series of important decisions around the time of the financial crisis. In this “third generation,” judges told creditors to look to other areas of law to protect themselves from opportunistic misconduct, such as bankruptcy law, fraudulent transfer law, and their loan contracts. The question has arisen time and again and today’s “settled” law is unlikely to represent the end of history in creditor protection.

"Chapter Nine of South Africa’s Constitution is titled, "State Institutions Protecting Constitutional Democracy." Its list of institutions that "strengthen constitutional democracy" includes the Public Prosecutor, the Human Rights Commission, the Auditor-General, and the Electoral Commission. Seen in the context of the Constitution’s written text, these institutions form a branch on a par with Parliament and the President. Textual placement may not be important in itself. The authors of the South African Constitution were on to something important, though. They saw that the traditional Montesqueian enumeration of three and only three branches of government no longer identified the complete set of desiderata for institutional design. Dissatisfaction with the Montesquiean enumeration was apparent as well in Roberto Mangabeira Unger’s False Necessity, published in 1987. That enumeration, Unger wrote, was "dangerous" because it "generates a stifling and perverse institutional logic...." The solution for Unger lay in multiplying the number of branches. He offered several examples: a branch "especially charged with enlarging access to the means of communication, information, and expertise," and a branch - labeled the "destabilization branch" - designed "to give every transformative practice a chance.""– Provided by publisher.

Gordon-Reed reviews several books on Blacks history, including, W. E. B. Du Bois’s Data Portraits: Visualizing Black America: The Color Line at the Turn of the Twentieth Century edited by Whitney Baule-Baptiste and Brilt Rusert, Black Lives 1900: W.E.B. Du Boisat the Paris reposition edited by Julian Rothenstein, with an introduction by Jacqueline Francis and Stephen G. Hall, and A History of Data Visualization and Graphic Communication by Michael Friendly and Howard Wainer.

American workers and families don’t want handouts. They want everybody to play by the same rules.

A judge’s framing of the controversy as a free-speech issue fits a troubling pattern.

The Congressional Review Act gives Congress the power to disapprove of agency rules by simple majority vote. It could provide a way around the filibuster to keep the existing program for dreamers in place

In this article I first describe the basic principles that parents employ in disciplining their children. The description is based on a survey of parents, the major results of which are that parental sanctions are premised on wrongdoing—not on the mere causation of harm; that parental sanctions tend to be greater when wrongdoing results in harm than when it does not; that parental sanctions for intentionally harmful conduct exceed those for negligence; and that parental sanctions are not raised when the probability that wrongdoing would be discovered is low.I then develop a theory to explain the principles of discipline as functional for parents. The kernel of the theory is that the rules of discipline maximize the expected utility of parents—assuming that the utility of parents is reduced by the occurrence of harm and also reflects the well–being of their children.After elaborating the theory, I comment on several related issues, including the possible influence of childhood experience on our preferences as adults over legal rules; and I remark on the similarity between the principles of criminal law and those applied by parents in disciplining their children.

The Supplement includes the entire Uniform Commercial Code as of May 2021, excluding Article 6, and also includes a selection of other federal statutes and regulations, uniform state laws, and Restatement provisions, aiming to include those items most commonly used in commercial law courses. This leads, among other things, to the inclusion of the Truth in Lending Act, Electronic Funds Transfer Act, the Federal Tax Lien Act, the Uniform Electronic Transactions Act, excerpts from the CISG, and from the ICC’s uniform rules for letters of credit. The Bankruptcy Code, as of June 1, 2021, is reproduced in full. Unlike the UCC, there are no official comments for the Bankruptcy Code, and the legislative history is spotty at best. As a result, only the Code is offered here. In addition, selections from Title 18 and Title 28 of the United States Code that are relevant to bankruptcy law are included.

The regulation of mutual funds in the United States arguably contains the world’s most extensive system of fiduciary protection, buttressed by elaborate liability rules and a host of procedural protections and mandatory disclosure requirements designed to facilitate investor protection and choice. The intensity of this regulatory structure is a subject of perennial debate, as public officials and policy analysts attempt to balance the cost of compliance and oversight against benefits to investors. Over time, government officials have made numerous supervisory accommodations to ameliorate the system’s costs and facilitate industry innovations. But, the burdens of this enhanced system of fiduciary protections for mutual funds remain significant and have encouraged industry participants to evade these legal requirements in a number of ways, such as the creation of alternative vehicles for collective investments (including insurance products and managed accounts of various sorts) and the imbedding of regulated mutual funds into other legal structures that escape the full application of the enhanced systemic of fiduciary protections for mutual funds. Technological innovations, such as robo-advising, are likely to accelerate this trend. In this chapter, I explore this important illustration of regulatory arbitrage and suggest areas where aspects of mutual fund regulation might appropriately be extended to functionally similar investment vehicles.

This brief essay, to appear in the Cambridge Companion to the Rule of Law (Marti Loughlin & Jens Meierhenrich eds.), describes what critical legal scholars said – or perhaps more accurately – would have said – about the concept of the rule of law. Describing critical legal studies as a project in American legal thought rather than analytical jurisprudence, it argues that “the rule of law” is an ideological project, and can come in various versions – liberal, social democratic, and more. It addresses Morton Horwitz’s critique of E.P. Thompson’s assertion that the rule of law is an unqualified human good, and situates the CLS critique of the rule of law within more general discussion of the rule of law by Hayek and Fuller. It concludes by applying ideology-critique to the rule of law, arguing that in whatever form it takes the rule of law contributes to a culture of justification, which may indeed be an unqualified human good.

Interview given by Professor Dr. Roberto Mangabeira Unger to Revista de Ciências do Estado.

In his paper for this collection on the history of the Law and Modernization program at the Yale Law School and in several other papers, David Trubek "affectionately" attributes a role to me, as a sort of angel of destruction or a fox in the chicken coop, a "nightmare." This is exaggerated! I did, however, play a part in supporting the emergence from the program of legal academic projects–the Law and Society Association, the field of law and development and critical legal studies–that rejected some of the meliorist liberal Cold War assumptions of the program’s initial formulation. This paper describes the personal, political and intellectual trajectory that brought me, like many others of my generation of children of the 1950s liberal establishment, to redefine myself as a “radical."

Our report begins by providing an overview of the costs and benefits of cloud technology for financial companies; we find that cloud technology can offer significant benefits to financial companies. We then describe the current regulatory frameworks that apply to financial institutions’ use of third-party technology providers, including cloud service providers, in various jurisdictions. Next, we describe key provisions of DORA that apply to cloud and other technology service providers and how such provisions are similar to or diverge from the current frameworks described in the previous section. We conclude by recommending that the EU revise DORA in certain key respects to better align with the approach in other jurisdictions as DORA’s divergences from other jurisdictions’ regulation of cloud and other third-party technology services may unnecessarily discourage the adoption of such services by financial companies.

To the Uttermost Parts of the Earth shows the vital role played by legal imagination in the formation of the international order during 1300–1870. It discusses how European statehood arose during early modernity as a locally specific combination of ideas about sovereign power and property rights, and how those ideas expanded to structure the formation of European empires and consolidate modern international relations. By connecting the development of legal thinking with the history of political thought and by showing the gradual rise of economic analysis into predominance, the author argues that legal ideas from different European legal systems - Spanish, French, English and German - have played a prominent role in the history of global power. This history has emerged in imaginative ways to combine public and private power, sovereignty and property. The book will appeal to readers crossing conventional limits between international law, international relations, history of political thought, jurisprudence and legal history.

This year’s Supplements contain numerous amendments to the Bankruptcy Code. They are from the COVID-19 Bankruptcy Relief Extension Act of 2021, the Consolidated Appropriations Act, and the Bankruptcy Administrative Improvement Act of 2020. The Supplement also contains new UCC comments on protected series and the effect of bad faith purchase at an Article 9 sale. It also contains minor amendments to the Bankruptcy Rules and the bankruptcy related provisions of Title 28. In the course of a career, the number of state and federal statutes that a serious practitioner of commercial law would likely consult must surely reach into the hundreds. Not many practitioners would try to carry such statutes around, either in books or in their heads. But a few statutes are used over and over. Together, those few form the core of two basic subjects in commercial law, secured transactions and bankruptcy. Those core statutes are reproduced in this slender volume.

The recording, aggregation, and exchange of personal data is necessary to the development of socially-relevant machine learning applications. However, anecdotal and survey evidence show that ordinary people feel discontent and even anger regarding data collection practices that are currently typical and legal. This suggests that personal data markets in their current form do not adhere to the norms applied by ordinary people. The present study experimentally probes whether market transactions in a typical online scenario are accepted when evaluated by lay people. The results show that a high percentage of study participants refused to participate in a data pricing exercise, even in a commercial context where market rules would typically be expected to apply. For those participants who did price the data, the median price was an order of magnitude higher than the market price. These results call into question the notice and consent market paradigm that is used by technology firms and government regulators when evaluating data flows. The results also point to a conceptual mismatch between cultural and legal expectations regarding the use of personal data.

The US Supreme Court created a new doctrine—incorporation—as a temporary way station for newly acquired territories. The doctrine allowed Congress whatever time it needed to ensure that these new lands and its inhabitants were fit to join the United States permanently. The doctrine was also intended to serve an educative role, allowing for what the political elites of the day viewed as the uncivilized territorial subjects the needed time to acculturate to a supposedly superior Anglo-Saxon civilization. Yet a century later, territorial subjects remain unincorporated—and presumably implicitly uncivilized. Territorial subjects are stuck in a colonial status with no obvious path forward. All relevant institutions have shamefully failed them, from Congress and the President to the Supreme Court and federal agencies. In response to these failures, this Article argues that the status of Puerto Rico is a shame on the Constitution and our constitutional culture. It suggests that given that both the courts and the political process have been closed off to advocates who are seeking the end of colonialism in Puerto Rico, the only path forward is to shame the nation as a way to shift the constitutional norms at the heart of the colonial status of the territories. The Article draws from past historical moments to sketch out what role shame can play in constitutional interpretation and changing constitutional norms and jurisprudence.

In considering potential reforms, the Commission should take care to do the following: * Preserve judicial independence. The courts’ job is to apply the law to cases before them. We rely on courts, not only to reach individual judgments of guilt or civil liability, but to enforce the limited powers of different governments and different branches. Correcting for judges’ errors, even serious ones, by shifting these powers to another department would not make that enforcement more reliable. But it would harm the courts’ ability to act as neutral tribunals in particular cases—a crucial element of the rule of law, and for that reason a frequent target of autocracies the world over. America has a nearly unbroken tradition of judicial independence, and we should not break it today. * Put politics in its place. If you want a less political judiciary, you need a more political amendment process. You need to move political fights out of judicial conference rooms and into the statehouses and the halls of Congress. A “court reform” that ignores Article V is reform only in name—because a Court that practices constitutional amendment on the cheap, evading the Constitution in the guise of interpreting it, will forever be a target for partisan capture. * Beware unforeseen consequences. It is much harder to build than to destroy. Traditions of judicial independence built up over time can be demolished rather quickly, and many proposed reforms would have consequences far beyond what we expect. These might include: ** measures that are likely unconstitutional absent amendment, such as supermajority requirements or 18-year terms; ** measures that would be constitutional but dangerous and irresponsible, such as court-packing or jurisdiction-stripping; ** measures that would be lawful but unwise, such as cameras in the Court. The Commission’s greatest contribution might be to raise the profile of smaller-bore reforms, whose consequences can be better assessed (and, if necessary, more easily reversed). There is much that could be improved about the Supreme Court. Over the last century, the Justices have too often mistaken their own rulings for the law they are charged to enforce. But these problems are not yet matters of universal agreement, and they can only be solved by the slow work of persuading others. There are no drastic policy changes that would avoid the need for this work, and there is no sudden crisis that calls out for major reform. Rather, the Commission’s first rule should be to do no harm.

In two recent decisions—Bostock v. Clayton County and Niz-Chavez v. Garland—a majority of the Supreme Court claimed to apply a textualist approach to statutory interpretation, and a dissent charged the majority with applying “literalism” instead. But what is literalism and what, if anything, is wrong with it? This Essay borrows a few ideas from the philosophy of language to try to pin down a more precise sense in which the majority opinions in Bostock and Niz-Chavez were arguably literalistic. The opinions may have been literalistic in the sense that they failed to consider how context pragmatically enriched what the relevant statutes asserted by fixing the operative sense of a polysemous word. If that is right, then one problem with such a literalist approach is that it pushes controversial interpretive choices underground rather than giving a linguistic (or any other sort of) argument for those choices.

FDR wanted the federal government to help with poor relief. He never meant for Uncle Sam to do it alone.

Judicial review gives any five justices power over the whole government. Why?

It is an exciting time to be in reproductive health research. Building on decades of research and new technologies, the opportunities for human reproductive medicine have never been greater. However, reproductive health is a field with additional debates that go beyond research and medicine. To complement the scientific articles in this special issue, Trends in Molecular Medicine discussed ethical questions and societal implications with Eli Y. Adashi, Professor of Medical Science at Brown University (left), and I. Glenn Cohen, Professor of Law at Harvard Law School (right), and talked about the challenges and opportunities that lie ahead for reproductive health research and medicine.

Diagnostic mobile medical apps call for increased regulatory intervention, even if they do not dispense advice or treatment.

The conservative majority’s opinion has declared that voter fraud, not racial discrimination, is a threat to the American system of representation.