Faculty Bibliography

This brief essay, forthcoming in the NLU Delhi Journal of Legal Studies, describes several versions of transformative constitutionalism., all of which are aimed at transforming a deeply unsatisfying status quo. Most scholarship on the topic has focused on material deprivation and inequality, with some attention to cultural conditions. After describing some of the well-known institutional implications of materially transformative constitutionalism, the essay turns to cultural transformations, which are in general anti-cosmopolitan, and distinguishes between anti-colonial and reactionary cultural transformative constitutionalism.

It is rational to care about proximity; closer is often better. Proximity bias can be found when people overweight proximity and are willing (for example) to suffer serious welfare losses in terms of health or wealth in return for modest welfare gains as a result of proximity. In extreme cases, proximity bias leads people to stay where they are, at significant cost to their own welfare. Proximity bias is paralleled by proximity neglect, which can be found when people underweight the welfare benefits of proximity. Proximity bias can be seen as a product of present bias, though it often has additional or distinctive characteristics (including overestimation of the welfare costs of getting from one place to another). Extreme forms of proximity bias can be counted as pathological (“hodophobia”). There is clear evidence of the importance of proximity, and suggestive evidence of proximity bias, in diverse contexts, including medical care; vaccination; eviction; voting; and public assistance. Proximity bias has significant implications for policy and law. It suggests that there may be large effects from increasing (or reducing) proximity or making proximity less (or more) salient, perhaps through the use of debiasing, online alternatives, or various forms of choice architecture.

This is an analysis of how Title VI of the Civil Rights Act of 1964 applies to claims of campus antisemitism, prepared for a public hearing of the U.S. Commission on Civil Rights held on February 19, 2026.

Can AI be liberal? In what sense? One answer points to the liberal insistence on freedom of choice, understood as a product of the commitment to personal autonomy and individual dignity. Mill and Hayek are of course defining figures here, emphasizing the epistemic foundations for freedom of choice. "Choice Engines," powered by AI and authorized or required by law, might promote liberal goals (and in the process, produce significant increases in human welfare). A key reason is that they can simultaneously (1) preserve autonomy, (2) respect dignity, and (3) help people to overcome inadequate information and behavioral biases, which can produce internalities, understood as costs that people impose on their future selves, and also externalities, understood as costs that people impose on others. Different consumers care about different things, of course, which is a reason to insist on a high degree of freedom of choice, even in the presence of internalities and externalities. AI-powered Choice Engines can respect that freedom, not least through personalization. Nonetheless, AI-powered Choice Engines might be enlisted by insufficiently informed or self-interested actors, who might exploit inadequate information or behavioral biases, and thus co5mpromise liberal goals. AI-powered Choice Engines might also be deceptive or manipulative, again compromising liberal goals, and legal safeguards are necessary to reduce the relevant risks. Illiberal or antiliberal AI is not merely imaginable; it is in place. Still, liberal AI is not an oxymoron. It could make life less nasty, less brutish, less short, and less hard - and more free.

Extremism is often made possible or fueled by group polarization: Like-minded people, engaged in discussions with one another, adopt a more extreme position in line with their prediscussion inclinations. Group polarization often promotes and influences norm entrepreneurs, who in turn help direct, unify, and energize those who listen to them, who in turn direct and energize norm enterpreneurs. The result can be a kind of spiral or tornado. Because of habituation, understood as diminishing sensitivity to stimuli, the energy provided by a transgressive or outre position is often less intense on Wednesday than it was on Monday, which means that norm entrepreneurs are often incentivized to up the ante. Spare as they are, these points suggest the importance of seeing extremism as a product of dynamic interactions among (1) group polarization; (2) norm entrepreneurship; and (3) habituation and thrill-seeking. These interactions might be formalized and subjected to empirical testing.

We examine how priority of workers’ claims vis-à-vis secured claims in insolvency varies across jurisdictions and over time as a window into the shifting treatment of distributional or social justice considerations in private law. Existing literature focuses on the extent to which laws in the Global South are either legal transplants from European countries belonging to the same legal family or have more recently adhered to “neoliberal” prescriptions from the United States or international organizations. Our findings highlight the limits of these theories by showing (i) Global South-driven legal innovation and diffusion, with Mexico’s 1917 constitution granting workers’ claims priority over secured claims nearly two decades before comparable French legislation was enacted, and (ii) significant persistence—and, in some cases, growing recognition—of priority for workers’ claims across jurisdictions, despite strong contrary pressures from international organizations such as the World Bank and UNCITRAL. We also discuss the role of state capacity in explaining legal heterodoxy in the Global South and describe the growth of sub rosa legal reforms that circumvent workers’ priority in bankruptcy through new categories of insolvency-proof security interests.

After performing an abortion in 1973, Dr. Kenneth Edelin was indicted and convicted of manslaughter. Dr. Edelin’s conviction was reversed 50 years ago. However, the conflict between the medical and legal systems, the use of abortion prosecution to control patients and providers, and the framing of a fetus as a person feel just as relevant to today’s abortion landscape.

Reported instances of AI-assisted, blanket denials of coverage have increased in recent years, particularly for Medicare Advantage plans, resulting in insurers facing criticism, class action lawsuits, investigations from Congress, and key providers leaving their networks. To ensure a fair healthcare system, action is needed to improve transparency in how AI tools approve or deny claims, and address provider burnout and patient burden due to navigating prior authorization requests and appeals.

Fresh out of college, we were a bunch of misfits, in a chaotic, run-down communal home, desperately trying to figure out who we were meant to be.

Although the obvious effect of settlement is to save litigants the costs of trial, settlement also influences deterrence—and for two reasons. First, because settlement is agreed upon by plaintiffs, it raises their expected return from litigation and thus the probability of suit. This augments deterrence. Second, because settlement is agreed upon by defendants, it lowers their expected costs of litigation and therefore dilutes deterrence. The primary objective of the article is to identify the net effect of settlement on deterrence and on social welfare in a model of accidents, liability, and litigation. The conditions for the bringing of suit in the model are not only that plaintiffs be willing to go to trial, but also that their anticipated settlements would exceed their pretrial costs.

In our 2025 book, Algorithmic Harm, we contend that the use of algorithms can benefit consumers in many ways (largely because of greater personalization), but that it can also cause harm in the face of information deficits and behavioral biases (again, largely because of greater personalization). Unsophisticated consumers, as we call them, are especially vulnerable to algorithmic harm. In this short response to a set of excellent comments on our book, we explore some of the benefits of personalization; some of the costs of forbidding it; some challenges, in terms of feasibility, to our preferred approaches; and the intriguing question whether and in what sense algorithms might be said to have an unconscious.

Wolford v. Lopez presents the Supreme Court with a novel question: may states require property owners to affirmatively consent before armed persons enter private property that is held open to the public? Hawaii enacted such a default rule after New York State Rifle & Pistol Association v. Bruen instructed courts to assess modern gun regulations by analogy to historical restrictions that are “relevantly similar” in “how and why” they burden the right to armed self-defense. In Wolford, the parties have turned to colonial-era hunting statutes limiting armed entry onto private land, but they disagree fundamentally about what those laws represent. This Essay shows how Wolford crystallizes the level-of-generality problem embedded in Bruen’s historical framework. Outcomes often turn on the frame courts choose for “the relevant tradition”: defined too narrowly, no analogue fits; defined too broadly, almost anything does. Wolford poses that problem on both “why” and “how.” On “why,” the parties and lower courts dispute whether Founding-era hunting laws targeted “poaching” alone or broader concerns about armed trespass. On “how,” they dispute whether bans tied to “enclosed” or “improved” land map onto the modern category of “private property open to the public.” Reexamining the record through property history clarifies what the hunting laws can—and cannot—do in the analogical analysis. Even an “anti-poaching” frame does not resolve whether the laws addressed theft of game or a broader bundle of concerns including trespass, property damage, and violence associated with armed strangers. And “enclosure” and “improvement” functioned as publicly legible property signals—proxies for claim and notice—rather than precursors to contemporary zoning-era distinctions between residential and commercial space. The Essay closes by arguing that when history is genuinely ambiguous and competing constitutional values are in tension, courts should be transparent about the level-of-generality choices that drive outcomes and candid about the extent to which those choices inevitably reintroduce means-ends reasoning under another name.

Long before the federal onslaught, a Twin Cities museum showed what it meant to find a home in America.

Tort law is a dynamic body of doctrine that both shapes, and is shaped by, technological, institutional, and moral change. In their introduction to A Research Agenda for Tort Law, Editors Ellen M. Bublick, Foundation Professor of Law and Civil Justice at the Sandra Day O’Connor College of Law, and John C. P. Goldberg, Morgan and Helen Chu Dean and Professor of Law, Harvard Law School, map the contributions of leading torts scholars to questions concerning future directions for tort law scholarship. The volume’s three parts—Doctrinal Frontiers, Tort Law in Action, and Tort Law and Technological and Theoretical Change—address issues ranging from how courts identify new injuries and new torts, to which types of institutions and actors should address wrongs and harm, to the ways in which legal doctrines and educational institutions should accommodate artificial intelligence. The Editors suggest that, as in times past, tort experts of the future will at once be attentive to longstanding core principles of tort law and attuned to evolving technology and norms.

In an attempt to protect its dominant position in the market for incorporations, Delaware recently relaxed the constraints on public company controllers. This article analyzes how the relaxation of controller constraints is expected to affect public investors and the economy. In particular, we show that this relaxation should be expected to: (i) provide controllers with substantial private benefits through six channels that we identify and discuss; (ii) impose even larger costs on public investors and thereby generate considerable efficiency costs and reductions in corporate value; (iii) transform ownership patterns over time-leading both to an increase in the prevalence of controlled companies and to a decline in the ownership stakes held by controllers; and (iv) lower the quality of investor protection in U.S. controlled companies to a level significantly below that observed in other advanced economies. We also demonstrate that market forces and private ordering cannot be relied on to adequately address the above concerns. The looming risks we identify for both public investors and the broader economy raise serious concerns for anyone interested in investor protection and economic performance.

Coercive, non-pro-rata debt restructurings, driven often by private equity sponsors, have become a major force for fixing distressed companies. The coercive recapitalization is promoted—by stressed companies, their owners, their advisors, and favored creditors—as avoiding bankruptcy and reducing the firm’s financial stress by extending the runway for its operations to recover and take off. If generally true, this would be reason to expect the upward trend in their frequency to persist. But the positive characteristics promoted cannot be pervasively found in the data and post-deal results of these new-style restructurings. First, a majority of the coercively restructured firms end up filing for bankruptcy anyway. For a coercive effort whose justification is largely to avoid bankruptcy, this bankruptcy-anyway trend is not a good sign. Second, the participants typically do not exchange their debt for stabilizing equity but instead take higher-priority debt that further destabilizes the weakened firm’s overly-indebted capital structure. The distressed firm’s unstable capital structure persists. As a consequence, low credit ratings and defaults follow many of the restructurings that do not end up bankrupt. A thinned-out equity layer remains in control, with distorted incentives. Those that go bankrupt anyway face a longer, more complicated than typical bankruptcy. Third, efficiency justifications commonly offered—like avoiding the expense of bankruptcy—are questionable and perhaps untrue. After all, coercive debt restructurings are themselves expensive; the relevant bankruptcy comparison should be to bankruptcy’s “prepackaged” variety, which is short, taking about as long as coercive debt restructuring. And saving bankruptcy expense does not work for most coercive LMEs, because a majority ends up bankrupt anyway. Fourth, while the contracting ecosystem has not instantly reacted and needs time to evolve, anti-coercion elements that undermine or even bar the new style restructurings are emerging. Fifth, underrecognized qualities of the coercive restructurings are as consistent with value grabs as with efficient restructuring. While inefficient rent-seeking deals can persist and repeat for some time, their costs render them less stable and less able to withstand pressure than more efficient structures. If most of these five features are important—we present evidence that all are plausible and potentially important—then the coercive recapitalization induces, in the finance vocabulary, overinvestment, locking capital in less-than-worthwhile investments for longer than is efficient. From a lawyer’s perspective, that could raise troubling fiduciary duty questions. From a market-wide perspective, regular overinvestment and inefficient recapitalizations will tend to favor terms and transactions that diminish the extent of inefficient recapitalizations going forward. It remains to be seen whether frictions in updating contracts and `whether resistance from those who benefit from not updating them will slow or even stop that evolution. But more of a contest seems to be brewing than conventional wisdom suggests.

This Viewpoint discusses new guidance on responsible use of artificial intelligence.

Early in his life, Sanders left the streets of Brooklyn for the woodlands of Vermont. What did the man bring to the state—and what did the state bring to the man?

Whatever the party of the new president, elected in 2028, it would be worthwhile for the incoming administration to consider eight ideas, to be explicitly embodied in executive orders or presidential memoranda: (1) a clear commitment to the independence of the Federal Reserve Board, certainly with respect to monetary policy; (2) a broad commitment to freedom of speech and the press, building on constitutional requirements; (3) a firm commitment not to interfere with the prosecutorial decisions of the Department of Justice; (4) an insistence on the centrality of cost-benefit analysis, designed to work against both overregulation and underregulation; (5) new restrictions on the pardon power, designed to regularize relevant processes; (6) reasonable (not excessive or expressive) restrictions on conflicts of interest and self-dealing, applicable to executive branch officials and the president personally; (7) a presumption against suits brought by the president in his personal capacity (a voluntary presidential disability, meant to parallel and accompany presidential immunity); (8) perhaps most controversially, a presumption (not a rule) against prosecution, by the current administration, of members of the previous administration. All of these ideas would have to be specified, but they are worthy of serious consideration, no matter the political party of the new administration.

Bâli and Dajani's edited collection on federalism and decentralization in North Africa and the Middle East draws needed attention to the importance of the purposes of leading actors in decentralization efforts and the great diversity in motivations to decentralize or federalize state power. Among the editors’ six typologies, an interesting and important one is “Authoritarian Decentralization,” in which apparent decentralization is used to enhance or preserve power at the center. The chapters in this important collection richly reward reading and illustrate both the different valences of the “federalism” idea in different societies and the different structures that may be able to promote rights-respecting and effective governance.

From the constitutional Founding until Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), federal courts routinely applied a body of “general law” to resolve a wide range of legal issues, including issues relating to commercial law, torts, international law, conflict of laws, equity, and procedure. This general law regime became politically fraught and difficult to administer, and the Supreme Court finally repudiated it in Erie, declaring that “there is no federal general common law” and requiring the federal courts to ground all rules in either federal or state law. Erie and its progeny created what this Article terms the “Erie algorithm,” which requires federal courts to convert pre-Erie rules premised on one understanding of law and federal judicial power into rules premised on different understandings of both, almost always with a different meaning and different legal status than prevailed at the Founding and in the nineteenth century. This algorithm undergirds nearly every corner of contemporary federal courts doctrine. Despite its willingness to rethink other major structural constitutional law precedents, the Supreme Court has accepted—and, indeed, embraced—the Erie algorithm and incorporated it throughout modern public law. By contrast, a number of scholars in recent years—primarily but not exclusively originalists—have sought to revive the pre-Erie general law. “General law revivalism,” this Article argues, overlooks how dysfunctional the general law regime had become before Erie and fails to appreciate the incompatibility of that regime with the post-Erie constitutional order. In addition, those who suggest jettisoning Erie have not made the case for absorbing the massive system costs that such an effort would generate. The Article concludes that many strands of originalism are left with “the problem of 1938”: the necessity of reconciling originalist commitments with a legal system fundamentally shaped by Erie and its transformational algorithm.

Alignment of artificial intelligence (AI) encompasses the normative problem of specifying how AI systems should act and the technical problem of ensuring AI systems comply with those specifications. To date, AI alignment has generally overlooked an important source of knowledge and practice for grappling with these problems: law. In this paper, we aim to fill this gap by exploring how legal rules, principles, and methods can be leveraged to address problems of alignment and inform the design of AI systems that operate safely and ethically. This emerging field -- legal alignment -- focuses on three research directions: (1) designing AI systems to comply with the content of legal rules developed through legitimate institutions and processes, (2) adapting methods from legal interpretation to guide how AI systems reason and make decisions, and (3) harnessing legal concepts as a structural blueprint for confronting challenges of reliability, trust, and cooperation in AI systems. These research directions present new conceptual, empirical, and institutional questions, which include examining the specific set of laws that particular AI systems should follow, creating evaluations to assess their legal compliance in real-world settings, and developing governance frameworks to support the implementation of legal alignment in practice. Tackling these questions requires expertise across law, computer science, and other disciplines, offering these communities the opportunity to collaborate in designing AI for the better.

This article, intended as a contribution to a tribute issue of the Revista critica del diritto privato, offers a detailed reading of an early article by Giovanni Marini. Marini provides a richly historicized account of the similar and different trajectories of Continental European and American critical legal studies as they stood in the early 1980s. his most striking argument is that the American extension of rigorous internal critique to the core of the corpus of private law is something that did not happen on the continent perhaps because of the deep cultural prestige in Europe of private law as theorized in the 19th century and understood as an important accomplishment of “European civilization.

The Hiss-Chambers saga stemmed from a stunning accusation, by Whittaker Chambers, that Alger Hiss, a law clerk to Oliver Wendell Holmes, Jr., and a golden boy of Franklin Delano Roosevelt's New Deal, was a Communist who had engaged in espionage on behalf of the Soviet Union. Initially, Chambers's accusation seemed implausible. But the evidence mounted, and Hiss's firm claims of innocence split the country. The Hiss-Chambers saga helped define, for a long period, the right and the left. In all probability, Chambers told the truth. Still, the Hiss-Chambers saga contains many mysteries, one of which is this: Why did Hiss proclaim his innocence for all of his life? What was in his mind? The Hiss-Chambers saga also casts a bright light on contemporary law and politics. There is no question that the Hiss Case helped to define modern conservatism; Chambers' great book, Witness, is one of its foundations. For decades, many conservatives thought that Hiss's guilt confirmed a large point, or a series of large points, about liberalism, the left, godlessness, disloyalty, otherness, loyalty, and patriotism. One could easily draw a straight line from the right-of-center conception of Alger Hiss, in the 40s, 50s, and 60s, to widespread views about enemies-on-the-left today.

This article describes in some detail the way in which critical legal scholars in the 1980s read, appropriated and then used versions of some of Jacques Derrida’s ideas, particularly the idea of deconstruction. They first of all understood deconstruction as a procedure close in many ways to the sociological jurists’ and legal realists’ critiques of the conceptual apparatus of classical legal thought. They debated and disagreed about the implications of the resulting Franco-American amalgam and applied different versions of it to contemporary debates about legal reasoning and doctrinal indeterminacy, and then extended them to debates about gender, “identity” and law and economics. The article ends with my own existentialist decisionist reading, from within these debates, of some canonical Derridean aphoristic slogans.

Anticorruption agencies (ACAs), and other bodies entrusted with investigating or prosecuting high-level government corruption, face a daunting task: They must faithfully discharge their anticorruption functions in the near term, but at the same time they must protect, entrench, and strengthen their institutions so that they can carry out these anticorruption functions effectively over the longer term. These objectives are sometimes complementary, but there can often be significant tensions between them. This essay considers some of the strategic challenges that ACA leaders must confront, taking the institutional rules and the agency’s structure, resources, and capacity as exogenous constraints. While such leaders face many strategic challenges, we focus on two. The first concerns case selection strategy. How do (or should) ACAs decide which cases to pursue or prioritize? The second issue concerns communications strategy. How do (or should) ACAs engage with various constituencies—such as politicians, media organizations, activists, international bodies, and the general public—about the ACA’s work? This essay explores these questions, drawing on both existing scholarship and on several in-depth interviews with current and former senior officials from ACAs or comparable bodies.

Chief Justice Roberts's metaphor of judges as umpires has been often criticized for being a bad theory of legal adjudication. Critics of Roberts's metaphor argue that judges are not mechanical reporters of clear-cut normative truths, but little attention has been paid to the question whether calling balls and strikes is indeed mechanical. The traditional theory, shared by both Roberts and his critics, is that "truth in baseball is clear-cut." In this Article, I argue that this theory of baseball is mistaken. Calling balls and strikes, despite its apparent simplicity, is an inherently interpretive practice. It is shaped not only by clear-cut rules, but also by shared practices and unwritten principles on how the game ought to be played.

In the early twenty-first century, constitutionalism confronts numerous pressures and critiques. Some prominent critics are concerned that constitutionalism’s modern form, in which high courts play a large role, limits popular self-governance. By committing their nations to detailed social and economic policies—from neoliberal requirements for balanced budgets to constitutionalized social welfare and environmental rights—many modern constitutions might make promises they cannot keep and be unduly rigid in the face of changing social, economic, and environmental conditions. Meanwhile, the rise of proto-authoritarian elected leaders around the world shows that constitutions are vulnerable to, and may even enable, democratic backsliding. Mark Tushnet and Bojan Bugarič argue that addressing each of these serious concerns through constitutional design and innovation is potentially valuable, but paradoxically, every remedy also carries with it the possibility that it will intensify the very conditions it seeks to ameliorate. Instead, Tushnet and Bugarič propose a “thin” idea of constitutionalism and suggest that we should scale back our expectations for what constitutionalism can achieve. Political mobilization, led by people attuned to the economic and cultural causes of democratic backsliding, is a better bet.

Food and agriculture systems play a prominent role in some of the most pressing social, environmental, and economic challenges, including global rates of diet-related disease, the environmental degradation and climate impacts attributed to food production and transportation, and disparities in food access and food security, especially with recent global shocks to the food supply. While the study of food-related topics like food science and nutrition have a long history, the study of food law and policy is relatively new. This article seeks to examine the field of food law and policy within academia, as a proxy for understanding how national governments and educational systems are equipping future leaders with the knowledge and tools to instigate systemic change. Using data from courses and other academic offerings from nearly 500 universities around the globe, a review of relevant legal scholarship over the past thirty years, and interviews with scholars from each continent, the investigation aims to quantify the global extent of academic focus on food law and policy, illuminate distinctions in academic interest across regions, and document the growth of relevant scholarship in this field over time.