Faculty Bibliography

The Justices of the Supreme Court increasingly claim to be originalists. Yet close examination reveals that the Court’s actual reliance on originalist analysis is highly selective. In large swathes of cases, the avowedly originalist Justices make little or no effort to justify their rulings by reference to original constitutional meanings. Nor do most of them show much disposition to grant certiorari in many cases that might enable them to overrule past, nonoriginalist decisions. This Article defines and documents the phenomenon of selective originalism. Having done so, the Article then explores the cultural and jurisprudential conditions in which selective originalism, which typically abets substantively conservative decisionmaking, has developed and now flourishes. The doctrine of stare decisis, the Article argues, plays an important role in enabling selective originalism. Because it seldom either requires or forbids precedent-based decisionmaking by the Supreme Court, it allows the Court to be originalist when it chooses but not to be originalist when it chooses. In light of this appraisal of the significance of stare decisis in the Supreme Court, the Article criticizes the practice of selective originalism for its inconsistency and disingenuousness. But the Article also explores the obvious question that criticisms frame: Why do the selectively originalist Justices not respond by articulating a more complex doctrine that would seek to justify their only-selective reliance on originalist premises? We would misunderstand selective originalism, the Article argues, if we derided its misleading pretensions and probed no further. The self-avowed originalist Justices almost certainly experience themselves as duty-bound to overturn nonoriginalist holdings in some cases, though not in all, even when the doctrine of stare decisis is too weak to dictate their conclusions as a strict matter of law. And the reasons why, I argue, contain lessons for originalists and nonoriginalists alike: A clear-eyed appraisal of the Justices' functions should inspire the conclusion that the Supreme Court, unlike other courts, is a predominantly lawmaking tribunal that must bear responsibility for the practical and moral desirability of changes that it effects in the fabric of constitutional law. In light of the Court's distinctive functions, conclusions about what the Justices ought to do, and indeed have obligations to do, are often best understood as embodying judgments about judicial role morality in addition to law.

The Council of Europe, Europe's most important human rights organization, is developing a legally binding instrument for the development, design, and application of AI systems. This “Convention on Artificial Intelligence, Human Rights, Democracy and the Rule of Law” (AI Convention) aims to protect human rights against the harms of AI. The AI Convention may become the first legally-binding international treaty on AI. In this article, we highlight the implications of the proposed AI Convention for the health and human rights protection of patients. We praise the following characteristics. Global regulation for technology that easily crosses jurisdictions. The human rights-based approach with human rights assessment. The actor-neutral, full-lifecycle approach. The creation of enforceable rights through the European Human Rights Court. We signal the following challenges. The sector-neutral approach. The lack of reflection on new human rights. Definitional issues, and The process of global negotiations. We conclude that it is important for the Council of Europe not to compromise on the wide scope of application and the rights-based character of the proposed AI Convention.

A majority of the Justices today are self-described textualists. Yet even as these jurists insist that “the text of the law is the law,” they appeal to “substantive” canons of construction that stretch statutory text in the direction of favored values, from federalism to restraining the administrative state. The conflict between these commitments would seem obvious — and indeed, candid textualists have long acknowledged that there is a “tension” here. But textualist theorists have also advanced several arguments to assuage or finesse that tension, and the sheer availability of those arguments has given the textualist Justices’ resort to these devices a respectability that, we argue here, it does not deserve.With the Justices now openly debating the compatibility of textualism and substantive canons, this Article surveys and critically assesses the assorted efforts to square this particular circle. Those strategies include (1) recharacterizing substantive canons as elements of the “background” against which Congress legislates, (2) linking them to “constitutional values,” and (3) restricting their use to resolving “ambiguities.” Each of those defenses, we argue, either commits textualists to jurisprudential positions they ordinarily denounce or, at best, implies such a narrow scope for substantive canons that nothing resembling their current use would survive. The Article thus concludes that textualists should either abandon their reliance on substantive canons or else concede that their textualism is not what they have often made it out to be.

By revealing a community in radical transition, constitutional crises expose money’s relationship to the market. That essential dynamic is more easily disregarded in routine times. Modern commentators deflect analysis further by imputing a basic divide between real and monetary activity. This essay retheorizes that relationship using the Civil War experience as a setting. The exercise illuminates money as a practice that constructs the market architecture across crises and calms. First, contriving a public unit of account creates commensurability in value and makes possible prices. That accomplishment is, at the same time, an arresting act of constitutional reorganization. To create a money, communities literally transmute political obligation into a unit and enable that entity to circulate: modern money is a sovereign liability that can offset individual indebtedness. Consonant with that faculty, the initiative expands public capacity and realigns private relations. Second, enabling money as a medium structures its operation. Money issues from public and private market actors who are advantaged by their ability to create it and it attracts users into its measurement system through their demand for that medium. Those features – discrete issue and particularized demand – are inherent to the phenomenon of circulation and, in turn, affect production. Third, a government curates exchange by enforcing those transactions in money that it approves. As it defines “commodities,” shapes contract, and develops property, the polity dredges the monetary channels of exchange. In the face of money’s sweeping effects as a unit of account, medium of exchange, and mode of payment, its disregard in modern economic theory is a major default. Analyzing money creation exposes it as the structure that configures economic activity.

Erie Railroad Co. v. Tompkins is the most important case that no one who isn’t a lawyer has ever heard of. Viewed narrowly, it holds that a federal court, when deciding issues subject to state law, has to defer to the opinions of state courts. That proposition is often false. But the problem with Erie isn’t this narrow result; the problem is its reasoning. As the Supreme Court would later put it, Erie overruled, not just a past line of cases, but “a particular way of looking at law.” Erie rejected a category of law—sometimes called general common law, or just “general law”—which was fundamental to our federal system, and the absence of which has left us unable to understand basic aspects of American jurisprudence. This lecture, delivered on the occasion of the author’s appointment as Antonin Scalia Professor of Law, explores what life will look like after Erie—how the law will operate on the happy and glorious day when Erie has been overturned. This is not a prediction that Erie will be overturned. Though some legal seismologists have discerned rumblings in that direction, we have no guarantee that courts will get things right: the arc of jurisprudence does not always bend toward intellectual coherence. Rather than make predictions, it sets out a research agenda, attempting to think through some of the problems overruling Erie may pose—so that when the time comes to reconsider Erie, those who do so will have a clear path to follow. The most important feature of life after Erie may not be any particular doctrines the courts enforce, but the attitude with which they enforce them. To reject Erie is to recognize, as Francis Bacon put it, and as Justice Scalia noted in Rogers v. Tennessee, that the judge’s “office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law.” When this power to make law is conferred by a statute or a constitution, maybe a judge can lawfully wield it. But one hopes that, after Erie, we will recognize this authority as one that no officials, least of all judges, have any right to arrogate to themselves.

Recently in Israel, a woman was mistakenly implanted with an embryo that is genetically related to another couple. Unfortunately, this case is not an isolated occurrence, as other cases of embryo mix-ups have been reported in several countries, including the USA, China, the UK and various other countries within the European Union. Cases of mixed-up embryos are ethically and legally complex: the woman who carried the pregnancy and the woman who is genetically related to the resulting child—both of whom endured emotionally and physically demanding infertility treatments—along with their partners, may be unwilling to relinquish parental rights over the child.This article explores four possible approaches, found in numerous common law jurisdictions, which can be used to address cases involving embryo mix-ups. Our analysis reveals several avenues through which legal parentage can be established. It can be done through gestation and the marital presumption, genetic connections, by adhering to the principle of the best interests of the child, or by recognising multiple individuals as legal parents. We review the advantages and disadvantages of each approach, but we have one clear recommendation: resolving embryo mix-up cases should be done proactively through the establishment of legislation and guidelines, rather than relying on post hoc individual court decisions. Such legislation and guidelines should guarantee the consistency of values throughout diverse reproductive contexts and mandate that fertility clinics and medical professionals provide individuals with comprehensive information regarding the potential risks associated with assisted reproductive treatments.

Some of the Supreme Court Justices and scholars who support a reinvigoration of the nondelegation doctrine would allow for an exception for grants of authority relating to foreign affairs. Others have criticized such an exception as unprincipled or as reflecting improper “foreign affairs exceptionalism.” This Article argues against a foreign affairs exception to the nondelegation doctrine but contends that the doctrine should be applied less strictly when a statutory authorization relates to an area of independent presidential power. The President has more independent power relating to foreign affairs than domestic affairs, so this limitation on the nondelegation doctrine will do more work in the foreign affairs area. But the President does not have unlimited power over foreign affairs and has some independent constitutional power relating to domestic affairs, so it is inaccurate and potentially misleading to refer to a “foreign affairs” exception. After establishing this point, the Article identifies several ways in which independent presidential power is relevant to the nondelegation doctrine, which we call situations of “redundant authorizations,” “unlocking authorizations,” and “independent discretion authorizations.” The Article then analyzes a number of broad statutory authorizations relating to foreign affairs and domestic security and finds that some but not all of them can be justified by reference to the President’s independent powers. The Article concludes by considering the relevance of this analysis to the application of the “major questions doctrine,” and it explains why that doctrine likely poses less of a threat to authorizations related to foreign affairs than scholars have maintained.

This Research Handbook deals with the politics of constitutional law around the world, using both comparative and political analysis, delivering global treatment of the politics of constitutional law across issues, regions and legal systems. Offering an innovative, critical approach to an array of key concepts and topics, this book will be a key resource for legal scholars and political science scholars. Students with interests in law and politics, constitutions, legal theory and public policy will also find this a beneficial companion.

People buy some goods that they do not enjoy and wish did not exist. They might even be willing to pay a great deal for such goods, whether the currency involves time or money. One reason involves signaling to others; so long as the good exists, nonconsumption might give an unwanted signal to friends or colleagues. Another reason involves self-signaling; so long as the good exists, nonconsumption might give an unwanted signal to an agent about himself or herself. Yet another reason involves a combination of network effects and status competition; nonconsumption might deprive people of the benefits of participating in a network, and thus cause them to lose relative position. With respect to real-world goods (including activities) of this kind, there is typically heterogeneity in relevant populations, with some people deriving positive utility from goods to which other people are indifferent, or which other people deplore. Efforts to measure people’s willingness to pay for goods of this kind will suggest a welfare gain, and possibly a substantial one, even though the existence of such goods produces a welfare loss, and possibly a substantial one. We might call this the Barbie Problem: Notwithstanding the success of the (terrific) 2023 movie, it is reasonable to speculate that many children, and even more parents, wish that there was no such thing as Barbie, even if children play with Barbie, and even if parents purchase Barbie. Ties and high heels might count as Barbies. Collective action, private or public, is necessary to eliminate goods that people consume but wish did not exist. Legal responses here are limited, but they might be contemplated when someone successfully maneuvers people into a situation in which they are incentivized to act against their interests, by consuming a product or engaging in an activity they do not enjoy, in order to avoid offering an unwanted signal.

The Facing History team always emphasised the importance of integrating head and heart in learning, especially in learning about hard issues. Madam Ogata, a political scientist from Japan and daughter of a diplomat, was trained at the University of California and became a professor and a dean in Japan before her appointment as the first woman to lead the UN High Commissioner for Refugees. Movements to recognise individual human rights challenge the historical conceptions of borders. Once each individual is understood to be a rights bearer of equal dignity, the rationales of family privacy and state sovereignty no longer shield violations of individual rights from view and action. In the wake of intergroup violence, the usual calls urge reconciliation or sufficient quelling of the disturbance to permit peaceful coexistence.

Under the Court’s new rules, the Justices appear not to have made any mistakes.

The relationship between Christianity and biotechnology is mediated by the moral clarity with which Christianity views the sacredness of life, especially the distinctiveness of humans in God’s creation. The significant role of humans in the orthodox doctrine of creation might suggest that Christianity views technologies that enhance the physical quality of human life favorably while disfavoring those that impinge on the sanctity of life. There is no such dichotomy, however; the emerging biotechnology landscape is increasingly morally and doctrinally complex. The benefits of biotechnology for enhancing the body and overcoming disease have obscured questions about God’s created order, whether it should be altered, the conditions under which such alterations could be an expression of biblical stewardship or, conversely, a form of idolatry, and whether laws such as intellectual property that incentivize manipulation of biological matter should be of greater concern to Christianity. The frontiers of biotechnology raise challenges for foundational Christian doctrines of creation, stewardship, and redemption directed at the well-being of spirit, soul, and body. Christianity has selectively engaged with biotechnology, with implications for the development of moral intuitions necessary to discern between stewardship and the abuse of creation, and between worship of the Creator and worship of His creation. This chapter offers a framing of Christianity’s role in the significant policy choices that face societies as advances in biology increasingly blur, on one hand, the boundaries between humans and the rest of God’s creation and, on the other hand, the boundaries between humans and what humans create.

The use of generative AI promises to continue to grow rapidly. Consequently, leaders must understand the risks and challenges of this new technology and develop policies and practices to guide its usage. This article explains the areas of concern and offers guidance in addressing them.

Technological progress can topple industry titans. But in the electricity industry, entrenched power can stymie disruptive change by setting rules that block competition and reinforce the status quo. In this paper, I chronicle how regional power sector governance — the decisionmaking processes and structures used to change industry rules — is impeding innovation that could challenge incumbent firms, business models, and technologies. I limit my inquiry to control over electric transmission, the channels of interstate commerce essential for keeping the lights on. Twenty-five years ago, amidst a seismic industry shift to competition, federal utility regulators (FERC) empowered new entities to coordinate the industry through interstate markets and integrated planning. To receive regulatory approval, these new Regional Transmission Organizations (RTOs) had to demonstrate that their governance was free from industry control. FERC believed that RTO “independence” was necessary to foster confidence in the fairness of RTO transmission service and attract investment to RTO-run markets. The RTO model of procuring reliable power through markets spread quickly. While RTOs have since rewritten industry rules and invented new markets, their governance is unchanged. I argue that RTO governance is now holding the industry back for the benefit of last century’s power players. The industry is in the early phase of a technological revolution, but the commercial interests and individual entities that held formal power and informal influence in regional decisionmaking processes are largely the same today as they were twenty-five years ago. As a result, regional rules tend to cater to incumbents’ interests, to the detriment of competition, consumers, and innovation. I explain why RTO governance stagnated, detail how the power industry changes its the rules, and outline a path for FERC reforms. Despite the drawbacks of RTOs, I contend that independent control over transmission operations and planning is indispensable for moving the industry forward.

The idea of judicial dialogue entered into scholarly discussion in the late twentieth century and is used in connection with different phenomena at the transnational and domestic levels. In the transnational context, it refers to exchanges among courts and judges that belong to different national and international legal regimes. In the domestic context, judicial dialogue refers to interaction between courts and other branches of government, particularly legislatures. Each phenomenon is associated with a form of politics. Transnational judicial dialogue occurs in a literal sense when judges communicate and network with each other, but it also occurs in a figurative sense when judges engage in comparative legal research and consider each other’s work. Either way, it can resemble a specialized form of international relations, in which courts seek to bolster their own standing by affiliating themselves with more prestigious peers, and to exercise soft power and influence over less prestigious peers. Transnational dialogue is often opaque or invisible to outsiders and usually lacks domestic political ramifications. In a handful of settings, however, judges who make conspicuous use of foreign law by explicitly citing it in high-profile or controversial opinions can expect to face normative criticism for doing so.Dialogue at the domestic level is associated with alternative forms of judicial review that give legislatures the power to override or avoid judicial rulings of unconstitutionality. Such institutional configurations are said to strike a balance between legislative and judicial supremacy, and to take the sting out of the charge that constitutional courts are inevitably ‘countermajoritarian.’ Scholarly use of the dialogue concept envisions a discursive form of constitutional politics that is differentiated from, and superior to, the usual politics surrounding judicial review. However, it is unclear whether such a distinctive and elevated species of politics can be achieved in practice. On the one hand, if ‘dialogue’ is defined in a thin fashion as including any back-and-forth on constitutional questions between legislatures and courts, the concept becomes so broad as to be indistinguishable from ordinary politics. On the other hand, if ‘dialogue’ is defined in a thick fashion as substantive exchange on the merits of constitutional questions, there may be no country capable of satisfying the definition. The case of Canada, often held up as the leading example of judicial dialogue, illustrates the severe definitional challenges surrounding the concept.

This article addresses the intersection of three important topics: sexual assault, police misconduct, and employer liability for employee torts. As to the last of these, while there have long been debates among jurists in the U.S. concerning the proper scope of respondeat superior liability, courts have mostly adhered to an approach that focuses on whether the employee acted for the purpose of serving the employer’s interests. The narrowness of this purpose-based test, as compared to available alternatives, makes it imperative for lawyers, judges, and scholars to be attentive to other, less well-known, bases for employer liability. In Sherman v Department of Public Safety, the Delaware Supreme Court applied a particular version of one such doctrine – the “aided-by-agency” doctrine – to hold a police department accountable for its officer’s sexual assault of an arrestee. By articulating this doctrine in a thoughtful and circumscribed manner, the Court affirmed its reputation as a leader in the development of agency law, while also providing a helpful framework that can be applied to hold certain employers liable when employees take advantage of their employment-based authority over their victims to perpetrate assaults.

Do people like financial nudges? To answer that question we conducted a survey presenting people with 36 hypothetical scenarios describing financial nudges. We varied levels of transparency (i.e. explaining how the nudge worked), framing (nudges framed in terms of spending, or saving), and ”System” (nudges could either target System 1 or System 2). Participants were a random sample of 2,000 people drawn from a representative Australian population. All financial nudges were tested across six domains: approval, perceived benefit, perceived ethics, perceived manipulation, the likelihood of use, as well as the likelihood of use if the nudge were to be proposed by a bank. Results indicate that people generally approve of financial nudges, rating them as neutral to positive across all domains (except for manipulation, which was reverse coded). We find effects of framing and System. People have strong and significant preferences for System 2 nudges, and nudges framed in terms of savings. Transparency was not found to have a significant impact on how people rate financial nudges. Financial nudges continue to be rated positive, regardless of the messenger. Looking at demographics, we find that participants who were female, younger (under 35), living in urban areas and richer (earning over 80,000 AUD) were most likely to favour financial nudges. We discuss the implications for these results as applied to the financial sector.

To allow Donald Trump to appear on the 2024 presidential ballot, the courts will need to explain why any ruling that keeps the former president in the running doesn't itself betray the Constitution.

Throughout the history of capitalism law has been a major component of the social and material context that structured social relations of production, creating and legitimating a distinct combination of freedom and coercion, opportunity and imperative, that has been the driving dynamic of capitalism ever since. It did so by structuring access to natural resources for purposes of subsistence and market-oriented production, coordination and cooperation in labor and investment processes, access to means of payment and credit, and the allocation of risk and uncertainty attendant to production. It also differentially constrained market access to labor roles, training, and credit along lines of gender and race, leveraging gendered roles in reproduction and gendered and racialized status subordination into hyper-exploitative gendered and racialized class relations, in turn reinforcing atavistic status subordination even under a veil of juridical equality. Over the past three centuries, it has done so through a series of power struggles among competing groups and ideas, within and outside the legal profession, and structured asymmetric power in social relations along dimensions of class, gender, and race. This article analyzes the role of law and legal theory at major transition points in capitalism, particularly the Gilded Age and the rise of neoliberalism. Repeatedly, in all these battles, academics and judges harnessed legal theory and transposed the broader emerging ideological trends of the professional and managerial class to legitimate and contest the newly emerging, often more exploitative relations. The article ends with implications for the design and justification of a post-neoliberal regime.

Scholars and policy makers have long debated whether securities firms should be allowed to bundle the cost of execution services with the cost of research. Investor advocates condemn the practice whereas industry representatives defend it. In 2018, as part of the Markets in Financial Instruments Directive II (MiFID II) legislative regime, the EU forced the unbundling of commission charges, diverging from US legal standards which still allow ‘soft dollar’ payments for research. The EU’s unbundling regime has challenged global financial services firms, which must now comply with conflicting rules across national boundaries. For more than five years, the US Securities and Exchange Commission provided temporary no-action relief to facilitate compliance with MiFID II, but that relief expired in July 2023, presenting an opportunity to reconsider the impact of MiFID II’s unbundling regime and its implications for US regulators and investors. While this article takes a critical view of soft dollar practices, the story of MiFID II presents contested issues of policy analysis as the agency costs inherent in bundled commissions could be offset by the public benefits of additional research. Unbundling also offers a noteworthy example of an innovation in capital markets regulation flowing from Europe to the United States rather than the other way around.

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Public companies have increasingly embraced environmental, social and governance (ESG) factors in the course of everyday business. However, these ESG considerations are virtually non-existent in merger and acquisition (M&A) transactions. Elon Musk’s recent acquisition of Twitter provides an illustration of this stark disconnect. Prior to the transaction, Twitter pursued numerous ESG goals. In contrast, Musk had taken a skeptical, if not hostile, stance toward ESG. In negotiating the sale, the Twitter board succumbed to “ESG amnesia”—overlooking its ESG commitments in favor of the high-premium all-cash offer from Musk. Twitter is not alone: ESG amnesia is a widespread phenomenon in M&A. We argue that corporate boards have the legal and practical ability to consider ESG in their dealmaking. We examine three of the most significant barriers that might prevent a corporate board from incorporating ESG objectives into transactions—fiduciary duties, negotiation leverage, and contractual feasibility—and demonstrate that, outside of the Revlon context, none of these barriers offers a compelling justification for ESG amnesia. Rather, boards that consider ESG objectives in their dealmaking can be acting entirely consistent with their fiduciary duties. Moreover, boards often have the negotiation leverage and capability to incorporate ESG protections into their contractual agreements. As a result, we argue that ESG considerations should pervade all aspects of managerial decision-making, including decisions about the sale of the company. We conclude with specific recommendations for corporate actors in M&A deals

The bloc of conservative justices on the Supreme Court have dismantled many of the legal precedents on their hit list. What’s in store for the new term?

In Republican and Democratic administrations, regulatory and funding decisions have both been made with close reference to benefit-cost analysis (BCA). With respect to regulation, there has been a great deal of scholarly discussion of BCA and its limits, but almost no attention has been paid to the role of BCA in government funding. That is a serious gap, not least in connection with climate-related risks, such as wildfire, drought, extreme heat, and flooding. In OMB Circular A-94, the Office of Management and Budget has long required applicants for federal funding to demonstrate that the benefits of their projects would exceed the costs. Under Circular A-94, efficiency-based BCA can produce results that fail to maximize welfare and that are also highly inequitable. The 2023 revision of Circular A-94, focused on welfare and equity, reflects an effort to incorporate new academic thinking over the past three decades, which is now—not uncontroversially—being brought directly into policy. At the same time, the new Circular A-94 raises fresh questions about how best to promote welfare, and to consider equity, in practice. Pressing issues involve the use of distributional weights in funding decisions and also the use of averages across populations, which might be seen as a form of distributional weighting. More broadly, the trajectory of this benefit-cost guidance, which predates the guidance for regulation and originally covered regulation, helps uncover the logic under which BCA has been operating and deeper challenges and tensions within BCA, in the past and going forward.

Why are take up rates incomplete or low when the relevant opportunities are unambiguously advantageous to people who are eligible for them? How can public officials promote higher take up of opportunities? All over the world, these are challenges of the first order. There are three primary barriers to take up: learning costs, compliance costs, and psychological costs. These costs lower the net expected benefit of opportunities, and reduce participation in otherwise advantageous programs. Fully rational agents would consider these costs in their take up decisions, and in light of behavioral biases, such costs loom especially large and may seem prohibitive. Experimental and other evidence suggest methods for reducing the barriers to take up and the effects of behavioral biases. Use of such methods has the potential to significantly increase access to a wide range of opportunities that would increase individual well-being and social welfare.

We study the labor market impacts of retroactively reducing felonies to misdemeanors in San Joaquin County, CA, where criminal justice agencies implemented Proposition 47 reductions in a quasi-random order, without requiring input or action from affected individuals. Linking records of reductions to administrative tax data, we find employment benefits for individuals who (likely) requested their reduction, consistent with selection, but no benefits among the larger subset of individuals whose records were reduced proactively. A field experiment notifying a subset of individuals about their proactive reduction also shows null results, implying that lack of awareness is unlikely to explain our findings.

The Medicare Advantage Program, home to nearly half of the eligible Medicare population, has recently come under increased scrutiny. The Government Accountability Office called on the Centers for Medicare & Medicaid Services to monitor “disenrollment of MA beneficiaries in the last year of life, validate MA-provided encounter data, and strengthen audits used to identify and recover improper payments to MA plans.” The House Subcommittee on Oversight and Investigations of the Committee on Energy & Commerce, dedicated a hearing to “Protecting America’s Seniors: Oversight of Private Sector Medicare Advantage Plans.” In addition, a recently conducted audit of the Office of the Inspector General of the Department of Health and Human Services raised concerns over “denials of prior authorization requests” and “beneficiary access to medically necessary care.” In this article we consider the backdrop for the growing scrutiny of the MA program and the implications thereof to its future trajectory.

The philanthropic sector is highly consequential, particularly in the United States, and the most important policies directed toward this sector are tax policies. Yet most economic analysis of the optimal tax treatment of charitable giving is ad hoc, treating it as a subject unto itself. This article advances a different approach: integrating the tax treatment of charitable giving into the optimal income tax framework that has been developed over the past half century. The results supplement or overturn conventional wisdom. Notably, the analysis of revenue effects and the purported efficiency of subsidies to charitable giving is recast, focusing on the pertinent externalities rather than the direct revenue costs, which themselves are irrelevant in the basic case. Distributive concerns regarding donors are also misplaced because distributive effects can be offset by tax rate adjustments to the broader income tax and transfer system. These ideas are developed systematically, with an emphasis on intuition rather than technical formalism. The analysis also broadens and deepens the assessment of externalities from charitable giving, which are more numerous and heterogeneous than is generally recognized. Finally, refocusing our understanding of the optimal tax treatment of charitable giving identifies important subjects requiring further research.

The Supreme Court faces a real dilemma in the Loper Bright case, in which the Court will explicitly consider whether to overrule the Chevron decision. The dilemma is decades in the making, and arises from the interplay of large structural forces, between which the Court is uneasily positioned. On the one hand, the background conditions of the American administrative state, which produce an array of broad and vague delegations to administrative agencies on highly technical subjects, tend to limit the scope of judicial review of agency legal interpretations. On the other hand, the fundamental importance of judicial review of agency legal authority as a legitimating mechanism for the administrative state presses judges towards plenary review of agency legal interpretations. The combination of these two large-scale pressures creates the deference dilemma. It threatens to make plenary judicial review of agency legal interpretations both intolerable and indispensable. In what follows, I explain this basic problem, explore its causes and sources, and speculate about some possible futures for the Chevron framework in particular and the deference dilemma in general. The most interesting possibility is an express overruling of Chevron, combined however with a reframing of “deference” that preserves much of the content of Chevron under a different label. On this reframing, the overruling majority will say — along lines indicated by Henry Monaghan decades ago — that de novo or plenary judicial review of agency legal interpretations is required by legal sources (either by the Administrative Procedure Act, by Article III, or both), yet will also say that de novo interpretation might of course itself yield the conclusion that, in a given statute, Congress has delegated primary responsibility to agencies to fill in statutory gaps or ambiguities.

An unprecedented account of social stratification within the US legal profession. How do race, class, gender, and law school status condition the career trajectories of lawyers? And how do professionals then navigate these parameters? The Making of Lawyers’ Careers provides an unprecedented account of the last two decades of the legal profession in the US, offering a data-backed look at the structure of the profession and the inequalities that early-career lawyers face across race, gender, and class distinctions. Starting in 2000, the authors collected over 10,000 survey responses from more than 5,000 lawyers, following these lawyers through the first twenty years of their careers. They also interviewed more than two hundred lawyers and drew insights from their individual stories, contextualizing data with theory and close attention to the features of a market-driven legal profession. Their findings show that lawyers’ careers both reflect and reproduce inequalities within society writ large. They also reveal how individuals exercise agency despite these constraints.

Rules are needed for human research in commercial spaceflight.

In March 2023 Silicon Valley Bank, the 16th largest bank in the United States, was forced into FDIC-administered receivership and sold to a private acquirer after it experienced a bank run of a size and speed that were unprecedented in U.S. banking history. Its failure set off runs on two other large U.S. banks, Signature and First Republic, which were also forced into receivership and sold to private acquirers. Though each bank sought liquidity from the Federal Reserve as the lender of last resort, in no case was the lender of last resort successful in averting the bank’s collapse. This article seeks to understand why. We document operational, procedural, and policy flaws in the design of the lender of last resort function and the manner in which it was deployed by banking agencies. We find that these flaws rendered the lender of last resort function ineffective in preventing contagion arising from a liquidity crisis, the very purpose for which it was intended. We then make eleven recommendations for how policymakers can improve the lender of last resort function so that it can prevent the recurrence of similar crises.

In the last two decades, there has been an extraordinary outpouring of careful historical work on two of the most fundamental questions in constitutional law: (1) whether Congress may delegate open-ended discretionary power to the executive branch (or others) and (2) whether Congress may restrict the president’s power to remove high-level officials in the executive branch. The best reading of the new evidence is that there was no robust nondelegation doctrine at the founding period, if there was a nondelegation doctrine at all. Though the issue is closer, the best reading of the new evidence is that during the founding period, the Constitution was understood to authorize Congress to restrict the president’s power of removal, even over principal officers (with important qualifications). Understood in terms of its original public meaning, the Constitution almost certainly allowed Congress to grant very broad discretion to the executive branch and also permitted Congress to limit the president’s removal authority over (some) principal officers. What is remarkable is that in both contexts, no originalist on the Court has been convinced by the relevant evidence, or even seriously grappled with it. Any explanation of the apparent impotence of historical evidence in this context (or others) would be speculative, but there are three plausible accounts. The first points to a simple lack of awareness of the relevant evidence and the crucial role of epistemic communities in constitutional law. The second is Bayesian and spotlights rational updating. The third points to motivated reasoning. All three accounts offer lessons for lawyers and others seeking to marshal historical evidence to disrupt engrained judicial beliefs.