Faculty Bibliography
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The Research Handbook on Health, AI and the Law explores the use of AI in healthcare, identifying the important laws and ethical issues that arise from its use. Adopting an international approach, it analyses the varying responses of multiple jurisdictions to the use of AI and examines the influence of major religious and secular ethical traditions.
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Health care delivery is shifting away from the clinic and into the home. Even prior to the COVID-19 pandemic, the use of telehealth, wearable sensors, ambient surveillance, and other products was on the rise. In the coming years, patients will increasingly interact with digital products at every stage of their care, such as using wearable sensors to monitor changes in temperature or blood pressure, conducting self-directed testing before virtually meeting with a physician for a diagnosis, and using smart pills to document their adherence to prescribed treatments. This volume reflects on the explosion of at-home digital health care and explores the ethical, legal, regulatory, and reimbursement impacts of this shift away from the 20th-century focus on clinics and hospitals towards a more modern health care model. This title is also available as Open Access on Cambridge Core.
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In this paper, we examine the primary impact of two categories of food recovery policies on food donation and the secondary impact on food safety, food waste, and food insecurity in U.S. states. As one method of food recovery, food donation can reduce food waste while mitigating food insecurity, and it can be promoted in U.S. states through strong liability protection policies that provide legal protection to food donors and through tax incentivization policies that financially reward food donors via deductions and/or credits. To provide an initial evaluation of the effects of these policies, we coded each state’s food recovery policies in 2012 and 2018 and compared strong policies versus weak policies. Using data from multiple sources, we found that states with stronger liability protection policies had more food donations, and states that provide tax incentivization had more food waste. Although our analyses were correlational, rather than causal, and were reliant upon limited data, our results demonstrate that the current food recovery policy landscape in U.S. states does relate to important food waste outcomes. We discuss the implications of these findings for crafting more effective policies that encourage food recovery.
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For fans of Thinking Fast and Slow and The Power of Habit, a groundbreaking new study of how disrupting our well-worn routines, both good and bad, can rejuvenate our days and reset our brains to allow us to live happier and more fulfilling lives.Have you ever noticed that what is thrilling on Monday tends to become boring on Friday? Even exciting relationships, stimulating jobs, and breathtaking works of art lose their sparkle after a while. People stop noticing what is most wonderful in their own lives. They also stop noticing what is terrible. They get used to dirty air. They stay in abusive relationships. People grow to accept authoritarianism and take foolish risks. They become unconcerned by their own misconduct, blind to inequality, and are more liable to believe misinformation than ever before. But what if we could find a way to see everything anew? What if you could regain sensitivity, not only to the great things in your life, but also to the terrible things you stopped noticing and so don’t try to change? Now, neuroscience professor Tali Sharot and Harvard law professor (and presidential advisor) Cass R. Sunstein investigate why we stop noticing both the great and not-so-great things around us and how to “dishabituate” at the office, in the bedroom, at the store, on social media, and in the voting booth. This groundbreaking work, based on decades of research in the psychological and biological sciences, illuminates how we can reignite the sparks of joy, innovate, and recognize where improvements urgently need to be made. The key to this disruption—to seeing, feeling, and noticing again—is change. By temporarily changing your environment, changing the rules, changing the people you interact with—or even just stepping back and imagining change—you regain sensitivity, allowing you to more clearly identify the bad and more deeply appreciate the good.
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The Justices seem to want to avoid a major decision about whether Trump can serve as President—but if they do so they may set off a national crisis.
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Poor nutrition and food insecurity are drivers of poor health, diet-related diseases, and health disparities in the U.S. State Medicaid Section 1115 demonstration waivers present opportunities to pilot food-based initiatives to address health outcomes and disparities. Several states are now leveraging 1115 demonstrations, but the scope and types of utilization remain undefined. To fill this gap, we conducted a systematic analysis of state Medicaid Section 1115 applications and approvals available on Medicaid.gov through July 1, 2023. We found that 19 approved and pending 1115 waivers address nutrition, with 11 submitted or approved since 2021. Fifteen states provide or propose to provide screening for food insecurity, referral to food security programs, and/or reporting on food security as an evaluation metric. Thirteen provide or propose to provide coverage of nutrition education services. Ten provide or propose to provide direct intervention with healthy food. The primary target populations of these demonstrations are individuals with chronic diet-sensitive conditions, mental health or substance use disorders, and/or who are pregnant or post-partum. Since 2021, state utilization of Medicaid 1115 demonstrations to address nutrition has accelerated in pace, scope, and population coverage. These findings and trends have major implications for addressing diet-related health and healthy equity in the U.S.
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As the Israel-Hamas war provokes claims about unacceptable speech, the ability to debate difficult subjects is in renewed peril.
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As Biden’s campaign shifts into high gear, you don’t need fantasy to believe he can win.
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In new research, Alma Cohen finds that the political affiliations of Circuit Court judges influence decisions in a much wider variety of cases than previously thought.
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Similar investments are often taxed differently, rendering our system less efficient and fair. In principle, fundamental reforms could solve this problem, but they face familiar obstacles. So instead of major surgery, Congress usually responds with a Band-Aid, denying favorable treatment to some transactions, while preserving it for others. These loophole-plugging rules have become a staple of tax reform in recent years. But unfortunately, they often are ineffective or even counterproductive. How can Congress do better? As a case study, we analyze Section 1260, which targets a tax-advantaged way to invest in hedge funds. This analysis is especially timely because a multi-billion dollar litigation is pending about this rule. This Article proposes a three-step approach. First, when faced with a new type of tax planning, policymakers should decide whether a response is really necessary. How harmful is the transaction? How feasible is it to target this transaction without also burdening “good” transactions, which don’t involve the same abuse? This first phase determines what we call “the normative presumption” about the transaction. Second, Congress should define which transactions are potentially problematic. An “initial filter” should exempt transactions that clearly don’t pose the relevant concern. Third, once a transaction is deemed to be potentially problematic, a sophisticated test is needed to check whether it actually is. Admittedly, a sophisticated test is costly to administer. This is why initial filters are needed to limit how often it is used. Along with proposing this three-part framework, this Article offers a novel critique of a sophisticated test the government has begun using: a “delta” test, which measures how closely investments track each other. Although delta is often considered the gold standard, we show how easy it is to manipulate. The trick is to add contingencies (e.g., so the investment terminates when the price reaches a specified level). To head off this gaming, we recommend an alternative test that focuses on value instead of on changes in value–and, more generally, on enduring features instead of temporary quirks.
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Changing America’s founding document may seem prohibitively difficult, but there’s a proven path to getting it done.
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Scientific evidence regularly guides policy decisions, with behavioural science increasingly part of this process. In April 2020, an influential paper proposed 19 policy recommendations (‘claims’) detailing how evidence from behavioural science could contribute to efforts to reduce impacts and end the COVID-19 pandemic. Here we assess 747 pandemic-related research articles that empirically investigated those claims. We report the scale of evidence and whether evidence supports them to indicate applicability for policymaking. Two independent teams, involving 72 reviewers, found evidence for 18 of 19 claims, with both teams finding evidence supporting 16 (89%) of those 18 claims. The strongest evidence supported claims that anticipated culture, polarization and misinformation would be associated with policy effectiveness. Claims suggesting trusted leaders and positive social norms increased adherence to behavioural interventions also had strong empirical support, as did appealing to social consensus or bipartisan agreement. Targeted language in messaging yielded mixed effects and there were no effects for highlighting individual benefits or protecting others. No available evidence existed to assess any distinct differences in effects between using the terms ‘physical distancing’ and ‘social distancing’. Analysis of 463 papers containing data showed generally large samples; 418 involved human participants with a mean of 16,848 (median of 1,699). That statistical power underscored improved suitability of behavioural science research for informing policy decisions. Furthermore, by implementing a standardized approach to evidence selection and synthesis, we amplify broader implications for advancing scientific evidence in policy formulation and prioritization.
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Senate Republicans’ brief in the Supreme Court surprisingly argues just that.
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Favorite
Benjamin Sachs & Kate Andrias, The Chicken-and-Egg of Law and Organizing: Enacting Policy for Power Building, 124 Columbia L. Rev. (forthcoming 2024).
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In his famous 1960 article, William Prosser identified four privacy torts: Disclosure of Private Facts, False Light Invasion of Privacy, Appropriation of Likeness, and Intrusion Upon Seclusion. Although each was recognized in the Second Torts Restatement and by various courts, the false light tort seems to have foundered. Indeed, starting in the late 1980s, prominent courts rejected it and many academics have expressed grave misgivings about it. Often interpreted as a kind of ‘defamation lite,’ the tort seems to its critics an ill-defined wrong that clever lawyers invoke to evade important limitations on defamation liability. Drawing from case law and an important but underappreciated body of prior scholarship, this article elucidates the distinctive content and role of false light as an authentic invasion-of- privacy tort and explains why its recognition is especially important in our digital world. To appreciate its value requires, first and foremost, grasping that its closest tort sibling is not defamation, but instead public disclosure. Like that tort and unlike defamation, false light applies only to a subset of subject matters – those that are genuinely private and are not newsworthy – and only when highly offensive images or messages pertaining to the plaintiff are widely disseminated to the public. In short, as Melville Nimmer once noted, the sound judgment undergirding false light is this: if causing humiliation or grave offense by disseminating accurate depictions or accounts of private matters is actionable, it should be no less actionable when the putative representations are false. In an era of deepfakes and other privacy-invading misrepresentations, courts should embrace the tort of false light.
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When a resident of an anti-abortion state goes to a prochoice state to get an abortion, which law applies to that person? To the abortion provider? To anyone who helps them obtain the abortion? Since Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade, states have passed conflicting laws regarding abortion, and courts will need to determine whether anti-abortion states can apply their laws to persons or events outside their territory either through civil lawsuits or criminal prosecution. This article canvasses the major disputes likely to arise over conflicts of abortion law and the arguments on both sides in those cases. It addresses both common law analysis and the constitutional constraints on application of state law under the Full Faith and Credit Clause and the Due Process Clause, and it comes to some conclusions both about what laws should apply in different fact settings and how the choice of law analysis should proceed.Since Dobbs focused on the “history and tradition” behind rights under the Due Process Clause, and because the constitutional test for “legislative jurisdiction” that regulates when a state can apply its law to a controversy is partly based on the Due Process Clause, we start with the prevalent approaches to conflicts of law available to judges at the time the Bill of Rights was adopted in 1791 and when the Fourteenth Amendment was adopted in 1868, focusing on the “comity” approach championed by Justice Joseph Story. We consider also the First Restatement’s vested rights approach in vogue between the end of the nineteenth century and the middle of the twentieth century. We then move to modern choice of law analysis to determine which law applies when a person leaves their state to obtain an abortion. We will consider the Second Restatement’s “most significant relationship” test, the “comparative impairment” approach, the “better law” and “forum law” approaches, as well as the emerging Third Restatement of Conflict of Laws rules being drafted right now by the American Law Institute.One set of cases involves conduct that is wholly situated within the borders of the anti-abortion state. That state has full authority under the Constitution to regulate its internal affairs and to apply its laws to people who distribute or use anti-abortion medication there or who otherwise assist residents in violating its laws prohibiting or limiting access to abortion. Anti-abortion states have full authority to regulate conduct within their borders. However, the First Amendment protects people who provide information about the availability of abortion services in other states where it is legal, and the constitutional right to travel should protect those who transport someone out of state to get an abortion in a prochoice state or who subsidize the cost of such out-of-state travel.A second set of cases concerns cross-border torts where conduct in a prochoice state has effects in an anti-abortion state. Courts traditionally apply the law of the place of injury to those cases if it was foreseeable that the conduct would cause the injury there. But there are traditional exceptions to the place of injury rule that should apply in the abortion context when the place of conduct defines the conduct as a fundamental right and immunizes the actor from liability or places a duty or an affirmative privilege on the abortion provider to provide the care. Courts should depart from the place of injury rule in those circumstances when conduct is wholly confined to the immunizing (prochoice) state, and that means that an anti-abortion state cannot legitimately punish an abortion provider in a prochoice state who provides care there in reliance on rules of medical ethics that require the care to be provided. Nothing would violate rule of law norms more severely than placing a person under a simultaneous duty to provide care and a duty not to provide that care. On the other hand, anti-abortion states have full authority to regulate out-of-state conduct that does spill over the border into the anti-abortion state, such as shipping abortion medication to a recipient there. Difficult issues of foreseeability and proximate cause arise when an abortion provider prescribes abortion medication in a prochoice state but knows or suspects that the patient will be taking the medication back to the anti-abortion state to ingest. In some fact settings, the foreseeability issue is significant enough that it may rise to a constitutional limitation on the powers of the anti-abortion state to apply its law to out-of-state conduct or to assert personal jurisdiction over the abortion provider. In other cases, the place of injury has the constitutional authority to apply its law to out-of-state conduct that the actor knows will cause unlawful harm across the border but it may or may not have personal jurisdiction over the nonresident provider.A third set of cases involve bounty claims, tort survival lawsuits, or wrongful death suits that an anti-abortion state might seek to create by giving claims to one of its residents against the resident who left the state to get the abortion. Such cases may be viewed as “common domicile” cases by the anti-abortion state since both plaintiff and defendant reside in the anti-abortion state. That may tempt the anti-abortion state to apply its laws to an abortion that takes place in another state even though both conduct and injury occurred in a state that privileges the conduct and immunizes the defendant from liability. However, the law of the place of conduct and injury should apply in those cases since the prochoice law is a “conduct-regulating rule,” and choice of law analysis, traditional rules, and constitutional constraints on legislative jurisdiction all require deference to the law of the prochoice state in such cases. Courts sometimes apply the law of the common domicile when the law at the place of conduct and injury is not geared to regulating conduct there, but the opposite is true for laws directed at conduct, and this article will show why prochoice laws that define abortions as a fundamental right are conduct-regulating rules. The same is true for the question of criminal prosecution. An anti-abortion state has no legitimate authority to punish a resident who leaves the state to get an abortion in a state where abortion is protected as a fundamental right.
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Times v. Sullivan sets a striking principle: without (nearly unobtainable) proof of “actual malice,” public officials can’t win defamation suits. If public persons’ reputations conflict with free discourse, the latter wins. Sullivan is iconic. But it’s increasingly beleaguered, said to immunize lies that tear our polity apart. These fears are well-founded. The Sullivan Regime is broken. But understanding why starts not, as critics suggest, from new technology or constitutional doctrine. It starts from the tort of defamation. What interest does the defamation tort protect? What injury does it redress? Leading accounts look to property, dignity, or other values. But these miss something vital. In our polity, a central, serious harm defamation redresses is democratic disempowerment: the destruction of political efficacy in one’s community. Defamation victims (say, those falsely branded sex offenders) lose more than honor. They lose their ability to be credibly heard, participate in civic discussion, have their voices matter. They are discredited. And in our democracy, where participation is core to personhood, this wrong is profound indeed. This insight shows Sullivan, in balancing vigorous press against defamation suits, wasn’t trading “speech” against “non-speech” (say, politicians’ dignity). Rather, the balance was among speech priorities—vigorous press, and democratically enabled People. Silencing by lawsuits, versus silence by slanders. But Sullivan saw speech on just one side. And in our Viral Age, this error causes crisis: a wave of democratic disempowerment, crashing hardest at democracy’s front lines (school boards, election workers, journalists). Fortunately, seeing the problem shows how we might solve it. End “actual malice” for most public persons, but end all defamation suits brought by the very powerful. Make swifter merits decisions, but re-empower lay juries. Surer defeats for nuisance plaintiffs, but stark damages for egregious defamers. Bold, paradoxical shifts to protect both vigorous critique and democratic participation. And which help tame broader discontents—from baseless conspiracies to bigoted cybermobs. Lastly, most broadly, seeing defamation this way hints at a new private law paradigm: one taking democratic efficacy as a core personal interest (like our bodies, lands, and psyches). Today, this interest faces new threats (like lawless “deplatformings”) but is ill-served by old protectors (like constitutional doctrines). In this context, democracy torts—civil remedies to guard our democratic efficacy—hold great promise.
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With textualism’s ascendancy, courts increasingly invoke the canon to assume “ordinary meaning” unless the context indicates otherwise and the rule to enforce “plain meaning” regardless of extratextual considerations. Yet the relationship between ordinary meaning and plain meaning can become confused in practice. Courts use the terms interchangeably, and they conflate them doctrinally. Ordinary meaning and plain meaning are distinct. Ordinary meaning is what the text would convey to a reasonable English user in the context of everyday communication. Plain meaning refers to a judgment that whatever the text conveys in context is clear from the text. Thus, a term’s ordinary meaning is also its plain meaning only when it is clear from how the term is used in the statute that its context is ordinary, as opposed to technical. Courts conflate the two, however, when they assume ordinary meaning under the ordinary meaning canon and then conclude that they are therefore bound to enforce that meaning under the plain meaning rule. As a result, they end interpretation prematurely, excluding extratextual aids that might well show that the ordinary meaning assumption should give way. This Article is the first to investigate the relationship between ordinary meaning and plain meaning. It clarifies their differences, identifies the ways in which they are conflated, and evaluates when they should converge. For textualists, greater clarity on this score illuminates when and how to bring ordinary meaning and plain meaning together in a principled manner. For methodological pluralists, understanding the gap between ordinary meaning and plain meaning opens opportunities to argue beyond the text in our increasingly textualist world.
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“Intentional torts,” “Negligence,” and “Strict Liability” are typically cast as the major categories of tort liability. Conspicuously absent from this list is “Recklessness,” which would seem to fit between intentionality and negligence and is treated in criminal law as a category of its own. And yet recklessness does make sporadic appearances in tort law. Because it lies between categories without constituting a distinct category, recklessness thus can fairly be described as operating “interstitially” within tort law. As we explain, recklessness fulfills this role in two quite different ways. In the law of defamation and fraud, it sets the lower boundary of ‘malice,’ understood as mistreatment of another involving dishonesty or other states of mind inconsistent with good faith. A quite different collection of tort settings in which recklessness plays an important role – one that includes the application of assumption of risk to recreational activities – are those in which courts are prepared to relieve actors of liability notwithstanding that their actions generate a significant risk of harm. In this domain, recklessness marks an upper rather than a lower boundary, namely, the point at which conduct becomes so unjustifiably dangerous that liability will attach. We conclude by suggesting that attention to the different ways in which recklessness serves as a fine-tuning mechanism in tort law may illuminate philosophical debates about the nature of recklessness, as well as jurisprudential inquiries concerning interstitial legal concepts.
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There is anger among many at the growing recognition that this conservative Supreme Court is marching, not resting. That little of the past--like precedent--will constrain it. And that the decisions of the preceding terms--overturning Roe v. Wade, expanding the "right to bear arms," ending affirmative action, among other extraordinary decisions--are just the beginning of a long and cold jurisprudential winter. Many on the Left have responded by proposing ambitious strategies for resisting the Court. There are calls for court packing, and for the impeachment of faithless justices. Two of the most prominent among younger American law professors have declared the "need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism." This response is a mistake. The right strategy to answer people who believe that they are doing right is not to try to convince them their principles are wrong. It is to show them that they are not following their principles. The answer to the growing originalist majority on the United States Supreme Court is not to attack originalism, but to show how incomplete and inconsistent this Court's originalism has become. That is my aim in this essay. Not because arguments change minds. Necessarily. But because they set the predicate for what would be a principled and appropriate response by Congress. It is time for Congress to reclaim the role that the framers of our second Constitution--the Civil War Amendments--intended for it. Because a principled originalism could not resist that claim, and that claim, more than anything else, would liberate rights in America from their current, narrow judicial hold.
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This chapter begins with an explanation of why, in the United States, philosophical analysis has become a prominent feature of private law scholarship. Historical, sociological, and constitutional peculiarities of the American experience all figure in our account. It then distinguishes two ways in which philosophy has been brought to bear on private law. The first involves the use of analytical and moral philosophy to critique and develop alternatives to policy-driven, welfarist approaches that tend to dominate elite U.S. legal-academic writing. The second harnesses philosophical analysis to defend the intelligibility of ordinary lawyerly discourse about private law as against reductionists (whether deontological and welfarist) who treat legal concepts as empty vessels to be filled with extra-legal content. Our aim is to help scholars understand the current state of private law scholarship in the U.S. and appreciate the role that philosophy can play in the explanatory, justificatory, and critical aspects of the legal academic enterprise.
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A poor-quality dietary pattern is a leading risk factor for chronic disease and death in the United States, and the costs of medical care continue to unsustainably rise. Despite this reality, nutrition training for physicians fails to adequately prepare for them to address the complex factors that influence diet-related disease. Expanding nutrition education for physicians-in-training is imperative to equip them for the growing demand of food is medicine services and is also supported by recent policy efforts in the United States as well as the governing bodies of graduate and undergraduate medical education. A multisector approach that links graduate medical education, clinical care delivery innovation, and health and food policy experts provides momentum to advance nutrition education as a core strategy for food is medicine expansion globally.
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As the environment for litigation and legislative advocacy becomes increasingly hostile at the federal level, many have turned to state legislative advocacy and state court litigation to protect and promote voting rights. This chapter does not discuss every important reform, nor every troubling restriction, being considered at the state level, but rather outlines some key categories of laws that help, or hinder, historically disenfranchised communities with respect to voting. The first part focuses on some of the main ways that people of color, people with disabilities, young voters, and people involved in the criminal justice system are affected by state voting laws. Part two looks at the relatively recent development of state voting rights acts that seek to provide protections for people of color as federal protections are eroded, and even go well beyond the types of protections that have historically been provided by federal legislation.
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The idea of disregarding the U.S. Supreme Court—simply ignoring its decisions—has become a flash point. “Americans will not tolerate defiance of the institution and the rule of law,” remarked one conservative law professor, irate about the possibility that President Joe Biden or other political officials might engage in such behavior. Who has defied the Supreme Court in the past? If leading examples include Andrew Jackson the ethnic cleansing populist or George Wallace the Southern segregationist, the answer has to be: no one good.
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There's far more to his hush money case than meets the eye.
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In the face of war and atrocities, the principles of the 75-year-old document remain sound.
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For decades, college-admissions offices have quietly imposed higher standards on female applicants.
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Can AI safety shed any light on old corporate governance problems? And can the law and economics of corporate governance help us frame the new problems of AI safety? The author identifies five lessons — and one dire warning — on the corporate governance of AI and other socially sensitive technologies that have been made vivid by the corporate turmoil at OpenAI.
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Both antitrust and trademark law are, broadly speaking, “unfair competition” regimes. But the power that the law confers on trademark owners has expanded even as the constraints imposed by antitrust have contracted. In recent years, disputes over the use of trademarks as “keywords” used by search engines and their advertisers to target advertising when a consumer searches online have raised both trademark and antitrust issues. While U.S. trademark law generally considers keyword advertising to be pro-competitive and nonconfusing, a significant court of appeals case held that attempts to suppress such advertising did not violate the antitrust laws. Despite this unfortunate result, disputes over keyword advertising can still teach us important lessons about trademark theory, particularly the economic theory that trademark rights are justified to lower consumers’ search costs.
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Blocked at the federal level, Massachusetts must act by passing a new state law.
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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.