Scott Westfahl, Leveraging Lawyer Strengths and Training Them to Be More Effective in a Crisis, in Crisis Lawyering: Effective Legal Advocacy in Emergency Situations (Ray Brescia & Eric K. Stern eds., NYU Press forthcoming Feb. 2021).
Categories:
Legal Profession
Sub-Categories:
Legal Services
,
Professional Responsibility
,
Legal Education
Type: Book
Nicholas Stephanopoulos & Jowei Chen, The Race-Blind Future of Voting Rights, 130 Yale L.J. (forthcoming 2021).
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Race & Ethnicity
,
Elections & Voting
Type: Article
Lucian A. Bebchuk & Roberto Tallarita, The Illusory Promise of Stakeholder Governance, 105 Cornell L. Rev. (forthcoming Dec. 2020).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Law
,
Shareholders
,
Corporate Governance
Type: Article
Abstract
Corporate purpose is now the focus of a fundamental and heated debate, with rapidly growing support for the proposition that corporations should move from shareholder value maximization to “stakeholder governance” and “stakeholder capitalism.” This Article critically examines the increasingly influential “stakeholderism” view, according to which corporate leaders should give weight not only to the interests of shareholders but also to those of all other corporate constituencies (including employees, customers, suppliers, and the environment). We conduct a conceptual, economic, and empirical analysis of stakeholderism and its expected consequences. We conclude that this view should be rejected, including by those who care deeply about the welfare of stakeholders. Stakeholderism, we demonstrate, would not benefit stakeholders as its supporters claim. To examine the expected consequences of stakeholderism, we analyze the incentives of corporate leaders, empirically investigate whether they have in the past used their discretion to protect stakeholders, and examine whether recent commitments to adopt stakeholderism can be expected to bring about a meaningful change. Our analysis concludes that acceptance of stakeholderism should not be expected to make stakeholders better off. Furthermore, we show that embracing stakeholderism could well impose substantial costs on shareholders, stakeholders, and society at large. Stakeholderism would increase the insulation of corporate leaders from shareholders, reduce their accountability, and hurt economic performance. In addition, by raising illusory hopes that corporate leaders would on their own provide substantial protection to stakeholders, stakeholderism would impede or delay reforms that could bring meaningful protection to stakeholders. Stakeholderism would therefore be contrary to the interests of the stakeholders it purports to serve and should be opposed by those who take stakeholder interests seriously.
John Palfrey & Urs Gasser, The Connected Parent: An Expert Guide to Parenting in a Digital World (forthcoming Oct. 6, 2020).
Categories:
Family Law
,
Technology & Law
Sub-Categories:
Children's Law & Welfare
,
Networked Society
Type: Book
Abstract
Today's teenagers spend about nine hours per day online. Parents of this ultra-connected generation struggle with decisions completely new to parenting: Should an eight-year-old be allowed to go on social media? How can parents help their children gain the most from the best aspects of the digital age? How can we keep kids safe from digital harm? John Palfrey and Urs Gasser bring together over a decade of research at Harvard to tackle parents' most urgent concerns. The Connected Parent is required reading for anyone trying to help their kids flourish in the fast-changing, uncharted territory of the digital age.
Cass R. Sunstein & Adrian Vermeule, Law and Leviathan (forthcoming Sept. 15, 2020).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Administrative Law & Agencies
,
Government Accountability
,
Government Transparency
,
Politics & Political Theory
,
Legal Ethics
Type: Book
Abstract
"Cass Sunstein and Adrian Vermeule argue that the administrative state can be redeemed, as long as public officials are constrained by what they call the morality of administrative law. Law and Leviathan elaborates a number of principles that underlie this moral regime. Officials who respect that morality never fail to make rules in the first place. They ensure transparency, so that people are made aware of the rules with which they must comply. They never abuse retroactivity, so that people can rely on current rules, which are not under constant threat of change. They make rules that are understandable and avoid issuing rules that contradict each other. These principles may seem simple, but they have a great deal of power. Already, without explicit enunciation, they limit the activities of administrative agencies every day. But we can aspire for better. In more robust form, these principles could address many of the concerns that have critics of the administrative state mourning what they see as the demise of the rule of law. The bureaucratic Leviathan may be an inescapable reality of complex modern democracies, but Sunstein and Vermeule show how we can at last make peace between those who accept its necessity and those who yearn for its downfall." -- Harvard University Press
Cass R. Sunstein, Too Much Information: Understanding What You Don't Want to Know (MIT Press, forthcoming Sept. 1, 2020).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Book
Abstract
How much information is too much? Do we need to know how many calories are in the giant vat of popcorn that we bought on our way into the movie theater? Do we want to know if we are genetically predisposed to a certain disease? Can we do anything useful with next week's weather forecast for Paris if we are not in Paris? In Too Much Information, Cass Sunstein examines the effects of information on our lives. Policymakers emphasize “the right to know,” but Sunstein takes a different perspective, arguing that the focus should be on human well-being and what information contributes to it. Government should require companies, employers, hospitals, and others to disclose information not because of a general “right to know” but when the information in question would significantly improve people's lives. Sunstein argues that the information on warnings and mandatory labels is often confusing or irrelevant, yielding no benefit. He finds that people avoid information if they think it will make them sad (and seek information they think will make them happy). Our information avoidance and information seeking is notably heterogeneous—some of us do want to know the popcorn calorie count, others do not. Of course, says Sunstein, we are better off with stop signs, warnings on prescriptions drugs, and reminders about payment due dates. But sometimes less is more. What we need is more clarity about what information is actually doing or achieving.
I. Glenn Cohen, Eli Y. Adashi, Sara Gerke, César Palacios-González & Vardit Ravitsky, The Regulation of Mitochondrial Replacement Techniques Around the World, 21 Ann. Rev. Genomics & Hum. Genetics (forthcoming Aug. 31, 2020).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Genetics & Reproduction
Type: Article
Abstract
Mitochondrial replacement techniques (MRTs, also referred to as mitochondrial replacement therapies) have given hope to many women who wish to have genetically related children but have mitochondrial DNA mutations in their eggs. MRTs have also spurred deep ethical disagreemensts and led to different regulatory approaches worldwide. In this review, we discuss the current regulation of MRTs across several countries. After discussing the basics of the science, we describe the current law and policy directions in seven countries: the United Kingdom, the United States, Canada, Australia, Germany, Israel, and Singapore. We also discuss the emerging phenomenon of medical tourism (also called medical travel) for MRTs to places like Greece, Spain, Mexico, and Ukraine. We then pull out some key findings regarding similarities and differences in regulatory approaches around the world.
Fundamental Rights and Conflict Among Rights (Mary Ann Glendon & Pierluca Azzaro eds., Franciscan Univ. Press, forthcoming Aug. 21, 2020).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Religion & Law
,
Human Rights Law
Type: Book
Abstract
How far have we come putting into practice what was declared in the Universal Declaration of Human Rights, which this year marks its 70th anniversary? How can the Church respond today to the new challenges threatening these rights, whether relativism, fundamentalism, and persecution or new types of poverty and oppression? And with whom can the Church engage on these issues? With states, religious leaders, international institutions, cultural institutions, or first and foremost with global civil society? In addition, what are the roots of fundamental rights, and what response can there be to the danger of a multiplication of rights that can paradoxically threaten concepts on the rule of law and human dignity? These are the fundamental questions addressed and debated by the experts whose essays appear in this book. Fundamental Rights and Conflicts among Rights is divided into four parts: Genesis and Meaning of the Idea of Religious Liberty, Laicité and Natural Law, Birth and Transformation of the Culture of Liberty and Human Rights, and the Multiplication of Rights and the Risk of Destruction of the Idea of Right. Throughout the volume, prestigious international experts analyze these issues. Among them are Giuseppe Dalla Torre (Libera Università Maria SS. Assunta), Jean Louis Ska (Pontificio Istituto Biblico), Robert P. George (Princeton University), Marta Cartabia (vice president of the Italian Constitutional Court), Carlos Ignacio Massini (Mendoza, Argentina), Barbara Zehnpfennig (Universität Passau), Mary Ann Glendon (Harvard University), Joseph H. Weiler (New York University), and Roberto Baratta (Macerata, Italia). The volume also contains an essay by Cardinal Pietro Parolin, secretary of state, on "The Church's Interlocutors in the Debate and in the Affirmation of Human Rights."
Jesse Choper, Richard Fallon, Jr., Michael Dorf & Frederick Schauer, Leading Cases in Constitutional Law: A Compact Casebook for a Short Course (West Acad. Pub. 2020 ed.).
Categories:
Constitutional Law
,
Legal Profession
Sub-Categories:
Legal Education
Type: Book
Guhan Subramanian, Dealmaking: The New Strategy of Negotiauctions (W. W. Norton & Co., 2d ed., forthcoming Aug. 4, 2020).
Categories:
Banking & Finance
,
Civil Practice & Procedure
Sub-Categories:
Commercial Law
,
Negotiation & Alternative Dispute Resolution
Type: Book
Micha Kaiser, Manuela Bernauer, Cass R. Sunstein & Lucia A. Reisch, The Power of Green Defaults: The Impact of Regional Variation of Opt-out Tariffs on Green Energy Demand in Germany, 174 Ecological Econ. (forthcoming Aug. 2020).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
,
International, Foreign & Comparative Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Empirical Legal Studies
,
Climate Change
,
Energy & Utilities Law
,
Renewable Resources Law
,
European Law
Type: Article
Abstract
The present paper focuses on green defaults as demand-side policies supporting the uptake of renewable energy in Germany. It sets out to gain a better understanding of whether and for whom green electricity defaults work. The present study is one of the first to use a large-scale data set to investigate this question. We combine micro-level data from the German Socio-Economic Panel (GSOEP) covering private households (including a wealth of individual information) with macro-level information such as population density of a region and proportion of energy suppliers in a given region that use a green opt-out tariff within their basic supply. We show that in Germany, green defaults, automatically enrolling customers in renewable energy sources, tend to stick, especially but not only among those who are concerned about the problem of climate change. This finding, based on real-world rather than experimental evidence, attests to the power of automatic enrollment in addressing environmental problems in Germany and potentially beyond, including climate change, and also adds to the growing literature on the substantial effects of shifting from opt-in to opt-out strategies.
An Oral History of the Special Olympics in China Vol. 3: Finding and Keeping a Job (William P. Alford, Mei Liao & Fengming Cui eds., forthcoming July 31, 2020).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Disability Rights
,
Gaming & Sports Law
,
East Asian Legal Studies
Type: Book
An Oral History of the Special Olympics in China Vol. 1: Overview (William P. Alford, Mei Liao & Fengming Cui eds., forthcoming July 27, 2020).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Disability Rights
,
Gaming & Sports Law
,
East Asian Legal Studies
Type: Book
An Oral History of the Special Olympics in China Vol. 2: The Movement (William P. Alford, Mei Liao & Fengming Cui eds., forthcoming July 31, 2020).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Disability Rights
,
Gaming & Sports Law
,
East Asian Legal Studies
Type: Book
Lloyd L. Weinreb, Leading Constitutional Cases on Criminal Justice (2020 ed., forthcoming July 21, 2020).
Categories:
Criminal Law & Procedure
,
Constitutional Law
Sub-Categories:
Criminal Justice & Law Enforcement
Type: Book
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale Univ. Press, forthcoming July 14, 2020).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Judges & Jurisprudence
,
Supreme Court of the United States
,
Politics & Political Theory
,
Courts
Type: Book
Abstract
The Supreme Court has never simply evaluated laws and arguments in light of permanent and immutable constitutional meanings, and social, moral, and yes, political ideas have always played into Supreme Court justices’ impressions of how they think a case should be decided. Mark Tushnet traces the ways constitutional thought has evolved from the liberalism of the New Deal and Great Society to the Reagan conservatism that has been dominant since the 1980s. Looking at the current crossroads in the constitutional order, Tushnet explores the possibilities of either a Trumpian entrenchment of the most extreme ideas of the Reagan philosophy, or a dramatic and destabilizing move to the left. Wary of either outcome, he offers a passionate and informed argument for replacing judicial supremacy with popular constitutionalism—a move that would restore the other branches of government’s role in deciding constitutional questions.
Jeannie Suk Gersen, Could the Supreme Court’s Landmark L.G.B.T.-Rights Decision Help Lead to the Dismantling of Affirmative Action?, NewYorker.com (June 27, 2020).
Categories:
Government & Politics
,
Discrimination & Civil Rights
,
Labor & Employment
Sub-Categories:
Civil Rights
,
Discrimination
,
Gender & Sexuality
,
LGBTQ Rights Law
,
Judges & Jurisprudence
,
Statutory Interpretation
,
Supreme Court of the United States
,
Employment Discrimination
Type: Other
Abstract
In 1946, William K. Wimsatt and Monroe C. Beardsley argued, in their classic essay, “The Intentional Fallacy,” that critics interpreting a literary work should cast aside pursuit of the author’s intent. “The poem belongs to the public,” they wrote, because “it is embodied in language, the peculiar possession of the public.” The New Criticism, a movement that dominated the academic study of literature in mid-century, asserted that only close analysis of the words and structure of the text—not external knowledge about the author, politics, morality, or a reader’s feelings—was the key to understanding its meaning. Salvatore Eugene Scalia, a professor of Italian literature at Brooklyn College, was an adherent of this theory. He also advocated for “literalness” in reading and translation, to avoid “yielding to the temptation” to follow one’s own language’s conventions in interpreting the words of the text. The New Criticism fell from prominence in the nineteen-eighties, but its impact became discernible in another field, through Professor Scalia’s only child, who was appointed to the Supreme Court in 1986, the same year that the elder Scalia died. Justice Antonin Scalia became the country’s most important expositor of textualism, the influential method of legal interpretation wherein “the text is the law, and it is the text that must be observed,” regardless of what lawmakers may have intended in passing the law. Since the nineteen-eighties, textualism has been favored by legal conservatives—but, in more recent decades, its focus on the words of a text has become influential with liberal judges, too. Last Monday, under the shadow of Antonin Scalia, who died in 2016, the current conservative Justices aired their strife over his textualist legacy in Bostock v. Clayton County, a landmark gay-and-transgender-rights case.
Jonathan Zittrain, Twitter’s Least-Bad Option for Dealing With Donald Trump, Atlantic (June 26, 2020, 10:15 AM).
Categories:
Government & Politics
,
Technology & Law
,
Constitutional Law
Sub-Categories:
First Amendment
,
Executive Office
,
Government Accountability
,
Politics & Political Theory
,
Networked Society
,
Communications Law
Type: Other
David Kennedy, Global Governance in Crisis Time, Vital Interests (June 25, 2020).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Politics & Political Theory
,
National Security Law
,
Developing & Emerging Nations
,
Foreign Relations
,
International Law
,
Nonprofit & Nongovernmental Organizations
,
Comparative Law
Type: Other
Jonathan Zittrain, Is Digital Contact Tracing Over Before It Began?, Medium (June 25, 2020).
Categories:
Health Care
,
Technology & Law
,
Government & Politics
Sub-Categories:
State & Local Government
,
Health Law & Policy
,
Networked Society
,
Medical Technology
Type: Other
Benjamin Eidelson, Unbundling DACA and Unpacking Regents: What Chief Justice Roberts Got Right, Balkinization (June 25, 2020).
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Immigration Law
,
Administrative Law & Agencies
,
Congress & Legislation
,
Executive Office
,
Government Accountability
,
Government Benefits
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Politics & Political Theory
Type: Other
Katrine Bach Habersaat, Cornelia Betsch, Margie Danchin, Cass R. Sunstein, Robert Böhm, Armin Falk, Noel T. Brewer, Saad B. Omer, Martha Scherzer, Sunita Sah et al., Ten Considerations for Effectively Managing the COVID-19 Transition, Nature Hum. Behav., June 24, 2020.
Categories:
Health Care
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Health Law & Policy
,
International Law
,
Nonprofit & Nongovernmental Organizations
Type: Article
Abstract
Governments around the world have implemented measures to manage the transmission of coronavirus disease 2019 (COVID-19). While the majority of these measures are proving effective, they have a high social and economic cost, and response strategies are being adjusted. The World Health Organization (WHO) recommends that communities should have a voice, be informed and engaged, and participate in this transition phase. We propose ten considerations to support this principle: (1) implement a phased approach to a ‘new normal’; (2) balance individual rights with the social good; (3) prioritise people at highest risk of negative consequences; (4) provide special support for healthcare workers and care staff; (5) build, strengthen and maintain trust; (6) enlist existing social norms and foster healthy new norms; (7) increase resilience and self-efficacy; (8) use clear and positive language; (9) anticipate and manage misinformation; and (10) engage with media outlets. The transition phase should also be informed by real-time data according to which governmental responses should be updated.
Sara Gerke, Timo Minssen & I. Glenn Cohen, Ethical and Legal Challenges of Artificial Intelligence-Driven Health Care, in Artificial Intelligence in Healthcare (Adam Bohr & Kaveh Memarzade eds., 2020).
Categories:
Government & Politics
,
Health Care
,
International, Foreign & Comparative Law
,
Technology & Law
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
Executive Office
,
Bioethics
,
Food & Drug Law
,
Health Law & Policy
,
Comparative Law
,
European Law
,
Cyberlaw
,
Information Privacy & Security
,
Intellectual Property Law
,
Medical Technology
,
Networked Society
Type: Book
Abstract
This chapter will map the ethical and legal challenges posed by artificial intelligence (AI) in health care and suggest directions for resolving them. Section 1 will briefly clarify what AI is and Section 2 will give an idea of the trends and strategies in the United States (U.S.) and Europe, thereby tailoring the discussion to the ethical and legal debate of AI-driven health care. This will be followed in Section 3 by a discussion of four primary ethical challenges, namely (1) informed consent to use, (2) safety and transparency, (3) algorithmic fairness and biases, and (4) data privacy. Section 4 will then analyze five legal challenges in the U.S. and Europe: (1) safety and effectiveness, (2) liability, (3) data protection and privacy, (4) cybersecurity, and (5) intellectual property law. Finally, Section 5 will summarize the major conclusions and especially emphasize the importance of building an AI-driven health care system that is successful and promotes trust and the motto “Health AIs for All of Us”.
Jeannie Suk Gersen, How the Charges Against Derek Chauvin Fit Into a Vision of Criminal Justice Reform, NewYorker.com (June 17, 2020).
Categories:
Criminal Law & Procedure
,
Legal Profession
,
Government & Politics
Sub-Categories:
Criminal Justice & Law Enforcement
,
Criminal Prosecution
,
Government Accountability
,
Legal Reform
Type: Other
Cass R. Sunstein, Are Food Labels Good? (June 15, 2020).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Consumer Finance
,
Health Care
Sub-Categories:
Consumer Protection Law
,
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
,
Food & Drug Law
Type: Other
Abstract
Do people from benefit from food labels? When? By how much? Public officials face persistent challenges in answering these questions. In various nations, they use four different approaches: they refuse to do so on the ground that quantification is not feasible; they engage in breakeven analysis; they project end-states, such as economic savings or health outcomes; and they estimate willingness-to-pay for the relevant information. Each of these approaches runs into strong objections. In principle, the willingness-to-pay question has important advantages. But for those who has that question, there is a serious problem. In practice, people often lack enough information to give a sensible answer to the question how much they would be willing to pay for (more) information. People might also suffer from behavioral biases (including present bias and optimistic bias). And when preferences are labile or endogenous, even an informed and unbiased answer to the willingness to pay question may fail to capture the welfare consequences, because people may develop new tastes and values as a result of information.
I. Glenn Cohen, Lawrence O. Gostin & Daniel J. Weitzner, Digital Smartphone Tracking for COVID-19: Public Health and Civil Liberties in Tension, 323 JAMA 2371 (2020).
Categories:
Health Care
,
Technology & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Health Law & Policy
,
Comparative Law
,
Medical Technology
,
Networked Society
,
Information Privacy & Security
Type: Article
Abstract
Contact investigations have been a vital public health strategy, most recently in controlling tuberculosis and sexually transmitted infections including HIV. Yet, the sheer scale of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) infections poses major challenges to contact investigations. Strategies in China, Singapore, South Korea, and Taiwan have supplemented traditional manual approaches with digital surveillance through smartphone applications. The US has not used digital surveillance as a tool, but Google, Apple, the Massachusetts Institute of Technology (MIT), as well as 2 pan-European consortia and a variety of independent efforts are developing Bluetooth smartphone technology to enable rapid notification of users that they have had a close exposure to individuals diagnosed with medically verified coronavirus disease 2019 (COVID-19). How does digital tracking differ from manual tracing? Although digital surveillance has the distinct advantages of scale and speed, does it confer sufficient public health benefit to justify adoption given privacy concerns? How do the design choices of digital contact tracing systems affect public health and privacy?
Philipp Lorenz-Spreen, Stephan Lewandowsky, Cass R. Sunstein & Ralph Hertwig, How Behavioural Sciences Can Promote Truth, Autonomy and Democratic Discourse Online, Nature Hum. Behav., June 15, 2020.
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Law & Behavioral Sciences
,
Networked Society
,
Information Commons
,
Communications Law
Type: Article
Abstract
Public opinion is shaped in significant part by online content, spread via social media and curated algorithmically. The current online ecosystem has been designed predominantly to capture user attention rather than to promote deliberate cognition and autonomous choice; information overload, finely tuned personalization and distorted social cues, in turn, pave the way for manipulation and the spread of false information. How can transparency and autonomy be promoted instead, thus fostering the positive potential of the web? Effective web governance informed by behavioural research is critically needed to empower individuals online. We identify technologically available yet largely untapped cues that can be harnessed to indicate the epistemic quality of online content, the factors underlying algorithmic decisions and the degree of consensus in online debates. We then map out two classes of behavioural interventions—nudging and boosting— that enlist these cues to redesign online environments for informed and autonomous choice.
Annette Gordon-Reed, The Problem of Police Powers for People Living While Black, NYR Daily (June 13, 2020, 5:00 pm).
Categories:
Criminal Law & Procedure
,
Discrimination & Civil Rights
Sub-Categories:
Criminal Justice & Law Enforcement
,
Discrimination
,
Race & Ethnicity
Type: Other
Christine A. Desan & Nadav Orian Peer, The Constitution and the Fed after the COVID-19 Crisis, Just Money (June 10, 2020).
Categories:
Banking & Finance
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Banking
,
Economics
,
Secured Transactions
,
Financial Markets & Institutions
,
Congress & Legislation
Type: Other
Abstract
The COVID-19 financial response brought a seismic shift in the allocation of authority between Congress, the Treasury, and the Federal Reserve. According to the classic division of labor, Congress claims the “power of the purse” or the constitutional authority to appropriate public funds; the Treasury holds responsibility over the spending and taxing that puts those orders into effect; and the Federal Reserve engages in money creation as part of its role making monetary policy and acting as lender of last resort. Drawing on that theory of separated powers, the essay reconstructs the traditional ways of thinking that distinguished money creation by the Fed from the congressional power of the purse. Most notably, approaches to the Fed have downplayed the distributive implications of its money creation powers by casting them as merely a stabilizing force, either backstopping private lending in times of panic or maintaining the health of credit markets more generally. We then analyze the COVID-19 liquidity facilities at the heart of the Federal government’s response to the current crisis. Established by the Fed, these facilities are shaped in non-transparent ways by the Treasury’s authority to protect the Fed from losses. With only $450 billion in congressional appropriations, the facilities are anticipated to lend $4.5 trillion, an amount the size of the 2019 federal budget. In our view, the facilities collapse the traditional narrative that distinguished Fed money creation from congressional appropriations. We conclude that that traditional narrative was problematic from the start. Congress’s inability to take responsibility over Fed credit support calls for a more structural reform in our financial system- one compatible with democratic governance and distributive justice.
Jeannie Suk Gersen, Can the Constitution Reach Trump’s Corruption?, NewYorker.com (June 9, 2020).
Categories:
Constitutional Law
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Constitutional History
,
Corruption
,
Executive Office
,
Judges & Jurisprudence
,
Politics & Political Theory
,
Separation of Powers
,
Supreme Court of the United States
,
Foreign Relations
Type: Other
I. Glenn Cohen, Tina Stevens & Stuart Newman, Biotech Juggernaut: Hope, Hype, and Hidden Agendas of Entrepreneurial, 54 Law & Soc’y Rev. 524 (2020)(book review).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Bioethics
,
Medical Technology
Type: Article
Amanda L. Tyler, Brian T. Fitzpatrick, Charles Fried, John F. Manning, Justice Ruth Bader Ginsburg & Richard H. Fallon, Jr., In Memoriam: Professor David L. Shapiro, 133 Harv. L. Rev. 2452 (2020).
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
,
Legal Education
,
Legal Scholarship
,
Legal Services
Type: Article
I. Glenn Cohen, Nikolas Bowie, Megan Jones & Eli Y. Adashi, Preventing Female Genital Mutilation in the United States: The Legal Threat to Effective Action, 110 Am. J. Pub. Health 813 (2020).
Categories:
Criminal Law & Procedure
,
Discrimination & Civil Rights
,
Health Care
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Criminal Prosecution
,
Civil Rights
,
Discrimination
,
Gender & Sexuality
,
Congress & Legislation
,
State & Local Government
,
Health Law & Policy
,
Human Rights Law
,
Treaties & International Agreements
Type: Article
Abstract
FGM can cause short-term complications such as severe pain, hemorrhage, tetanus infection, and urine retention.2 Long-term consequences include recurrent urinary tract infections, cyst formation, sexual difficulties, and increased risk of childbirth complications and newborn deaths.2 While some claim religious or ethnographic reasons for the practice, others view it as sustained by myths of femininity and virginity, and intended to cure vaginal "uncleanliness," prevent "deviant" premarital sexual activity, preserve "purity," and hinder sexual pleasure.2 FGM is a globally recognized human rights violation rendered unlawful under several international treaties. THE COURT'S DECISION On November 20, 2018, Judge Bernard A. Friedman of the US District Court for the Eastern District of Michigan found in Nagarwala that the statute exceeded the federal government's enumerated powers and thus declared the statute unconstitutional.3 The federal government, the court made clear, has no authority to police local or state criminal activity; such authority should be left to the states.3 The Department of Justice declined to prosecute its appeal and the US Sixth Circuit Court of Appeals refused a request by the House of Representatives to intervene, making Judge Friedman's opinion the final word.4,5 Most criminal laws are passed and enforced by states, as Congress has the power to pass legislation only in areas in which the Constitution grants it authority. "4(p31) It also accords with the interpretation of Congress, which passed the FGM ban after finding that no "single State or local jurisdiction [could] control [FGM]" or protect against the physical, psychological, and civil injury it causes.5 Second, the district court mischaracterized FGM as a noncommercial "form of physical assault" rather than as a paid-for health care service within the national market of licensed medical providers. 3(p22) As federal prosecutors argued, "FGM is usually performed by trained practitioners," and the statute "contemplates criminalizing FGM undertaken by medical practitioners in a commercial healthcare setting, which is in and of itself economic activity.
Human Rights in a Time of Populism: Challenges and Responses (Gerald L. Neuman ed., 2020).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
Type: Book
Abstract
The electoral successes of right-wing populists since 2016 have unsettled world politics. The spread of populism poses dangers for human rights within each country, and also threatens the international system for protecting human rights. Human Rights in a Time of Populism examines causes, consequences, and responses to populism in a global context from a human rights perspective. It combines legal analysis with insights from political science, international relations, and political philosophy. Authors make practical recommendations on how the human rights challenges caused by populism should be confronted. This book, with its global scope, international human rights framing, and inclusion of leading experts, will be of great interest to human rights lawyers, political scientists, international relations scholars, actors in the human rights system, and general readers concerned by recent developments.
Philosophical Foundations of the Law of Equity (Irit Samet-Porat, Henry Smith & Dennis Klimchuk eds., 2020).
Categories:
Disciplinary Perspectives & Law
,
Civil Practice & Procedure
Sub-Categories:
Private Law
,
Remedies
,
Legal Theory & Philosophy
Type: Book
Abstract
The law of Equity, a latecomer to the field of private law theory, raises fundamental questions about the relationships between law and morality, the nature of rights, and the extent to which we are willing to compromise on the rule of law ideal to achieve social goals. In this volume, leading scholars come together to address these and other questions about underlying principles of Equity and its relationship to the common law: What relationships, if any, are there between the legal, philosophical, and moral senses of 'equity'? Does Equity form a second-order constraint on law? If so, is its operation at odds with the rule of law? Do the various theories of Equity require some kind of separation of law and equity-and, if they do, what kind of separation? The volume further sheds light on some of the most topical questions of jurisprudence that are embedded in the debate around 'fusion'.
Hal S. Scott, An Essay on the Fed and the U.S. Treasury: Lender of Last Resort and Fiscal Policy (May 21, 2020).
Categories:
Banking & Finance
,
Government & Politics
Sub-Categories:
Banking
,
Risk Regulation
,
Finance
,
Administrative Law & Agencies
,
Congress & Legislation
,
Government Accountability
Type: Other
Abstract
This essay explores the evolution of my thinking on risky emergency lending to banks and non-banks. The Fed is now, in the Pandemic, engaging in lending with significant credit risk. While it appears these are Fed programs, in fact this lending is controlled by, and may be largely determined, by the Treasury. This is proper but should be clear. Lending with significant credit risk is a fiscal decision and should be made by the elected government not by an independent agency, whether made to banks or non-banks. And it should be the Treasury’s role, as advised by the Fed, to determine when there is significant credit risk. When there is no significant credit risk, the Fed should make the lending decision, without control or approval of the Treasury, again whether to banks or non-banks, as part of their role as liquidity supplier and lender of last resort. If there is disagreement as to whether there is significant credit risk the Treasury’s view should prevail.
Sabrineh Ardalan & Katherine Peeler, Don’t Believe the Trump Administration’s Misinformation: Domestic Violence Survivors Can Get Asylum in the United StatesPhysicians for Human Rights (May 20, 2020).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Legal Profession
,
Health Care
,
Government & Politics
Sub-Categories:
Gender & Sexuality
,
Discrimination
,
Immigration Law
,
Government Transparency
,
Health Law & Policy
,
Refugee & Asylum Law
,
Clinical Legal Education
Type: Other
Jeannie Suk Gersen, How Concerning Are the Trump Administration’s New Title IX Regulations?, NewYorker.com (May 16, 2020).
Categories:
Discrimination & Civil Rights
,
Government & Politics
,
Family Law
Sub-Categories:
Civil Rights
,
Discrimination
,
Gender & Sexuality
,
Education Law
,
Administrative Law & Agencies
,
Politics & Political Theory
Type: Other
Abstract
This spring, the coronavirus pandemic has upended college and university life, as campus classes, dormitories, and social activities have been abruptly displaced by online instruction. As exams and graduation ceremonies proceed virtually this month, some schools are announcing plans to cancel or delay the fall semester or to run it partly or entirely online. On May 6th, amid this chaos and uncertainty, Betsy DeVos’s Department of Education issued its regulations on Title IX, which impose new legal requirements on how schools must conduct their discipline processes for sexual harassment and assault. Immediately, prominent civil-rights attorneys expressed outrage. Catherine Lhamon, the chair of the U.S. Commission on Civil Rights and the assistant secretary for civil rights in Obama’s Education Department, tweeted that DeVos is “taking us back to the bad old days . . . when it was permissible to rape and sexually harass students with impunity.” Fatima Goss Graves, the president and C.E.O. of the National Women’s Law Center, wrote, “We refuse to go back to the days when rape and harassment in schools were ignored and swept under the rug.” In a statement, Nancy Pelosi called the new regulations “callous, cruel and dangerous, threatening to silence survivors and endanger vulnerable students in the middle of a public health crisis.” It was unclear, however, precisely what aspects of the regulations were so extreme and alarming.
Noah Feldman, The Arab Winter: A Tragedy (Princeton Univ. Press, forthcoming May 12, 2020).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Foreign Law
Type: Book
Abstract
The Arab Spring promised to end dictatorship and bring self-government to people across the Middle East. Yet everywhere except Tunisia it led to either renewed dictatorship, civil war, extremist terror, or all three. In The Arab Winter, Noah Feldman argues that the Arab Spring was nevertheless not an unmitigated failure, much less an inevitable one. Rather, it was a noble, tragic series of events in which, for the first time in recent Middle Eastern history, Arabic-speaking peoples took free, collective political action as they sought to achieve self-determination. Focusing on the Egyptian revolution and counterrevolution, the Syrian civil war, the rise and fall of ISIS in Syria and Iraq, and the Tunisian struggle toward Islamic constitutionalism, Feldman provides an original account of the political consequences of the Arab Spring, including the reaffirmation of pan-Arab identity, the devastation of Arab nationalisms, and the death of political Islam with the collapse of ISIS. He also challenges commentators who say that the Arab Spring was never truly transformative, that Arab popular self-determination was a mirage, and even that Arabs or Muslims are less capable of democracy than other peoples. Above all, The Arab Winter shows that we must not let the tragic outcome of the Arab Spring disguise its inherent human worth. People whose political lives had been determined from the outside tried, and for a time succeeded, in making politics for themselves. That this did not result in constitutional democracy or a better life for most of those affected doesn’t mean the effort didn’t matter. To the contrary, it matters for history—and it matters for the future.
Eli Y. Adashi & I. Glenn Cohen, The Case for Remedial Germline Editing-The Long-term View, 323 JAMA 1762 (2020).
Categories:
Technology & Law
,
Health Care
Sub-Categories:
Bioethics
,
Genetics & Reproduction
,
Health Law & Policy
,
Medical Technology
Type: Article
Sabrineh Ardalan, The Trump Administration, COVID-19, and the Continuing Assault on the Rights of Asylum Seekers and Refugees, Kaldor Centre for Int’l Refugee Law, COVID-19 Watch (May 11, 2020).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Government & Politics
,
Health Care
Sub-Categories:
Immigration Law
,
Executive Office
,
Politics & Political Theory
,
Health Law & Policy
,
Refugee & Asylum Law
Type: Other
Jeannie Suk Gersen, A Fair Examination of the Allegations Against Joe Biden Can Strengthen the #MeToo Movement, NewYorker.com (May 6, 2020).
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Discrimination
,
Gender & Sexuality
,
Elections & Voting
,
Executive Office
,
Government Accountability
,
Politics & Political Theory
Type: Other
Abstract
A truth that burst into public view with #MeToo in 2017 was that sexual exploitation in its many forms has been ubiquitous and experienced largely by women. So anyone following the story of #MeToo could hardly find it shocking that, after a promising primary season with a record number of excellent female candidates, the first Presidential election since the movement’s rise has come down to a race between two men who have both been accused of sexual assault. Tara Reade has accused Joe Biden of sexually assaulting her twenty-seven years ago, and several women have accused him of unwanted touching. More than a dozen women have accused Donald Trump of sexual assault and misconduct, and he has bragged on tape about grabbing women’s genitals. It is unlikely that the Democratic Party will abandon their only candidate who remains in the race, and who leads Trump in polls. So many liberals, who are justifiably desperate to turn the page on the horrors of Trump’s Presidency, are grasping at the world of difference between Trump and Biden—and viewing Reade’s sexual-assault allegation more skeptically than #MeToo has allowed in recent times. This moment may prove to be a pivotal chapter of #MeToo, which marks its more mature reckoning with its deeper goals. And, in fact, there is a no more fitting person to embody that development than Biden, whose long career has repeatedly positioned him at the levers of power in the government’s responses to sexual violence.
Todd Rakoff, Inequality, Discrimination, and the Covenant Not to Compete: A Commentary on Orly Lobel, Exit, Voice & Innovation, 57 Hous. L. Rev. 843 (2020).
Categories:
Discrimination & Civil Rights
,
Labor & Employment
,
Banking & Finance
Sub-Categories:
Contracts
,
Economics
,
Civil Rights
,
Discrimination
,
Gender & Sexuality
,
Housing Law
,
Race & Ethnicity
,
Social Welfare Law
,
Employment Discrimination
,
Employment Practice
,
Labor Law
Type: Article
Abstract
Do the gendered phenomena highlighted in the preceding article by Professor Lobel amount to discrimination? In this Commentary, I argue that although these phenomena may well contribute to social inequality and deserve attention as such, on the whole, they do not constitute discrimination as it is ordinarily understood.
Cass R. Sunstein, On the Wrongness of Lies (May 6, 2020).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Other
Abstract
Why are lies wrong? The Kantian answer sees lies as a close cousin to coercion; they are a violation of individual autonomy and a demonstration of contempt. By contrast, the utilitarian answer is that lies are likely to lead to terrible consequences, sometimes because they obliterate trust, sometime because they substitute the liar’s will for that of the chooser, who has much better information about the chooser’s welfare than does the liar. The utilitarian objection to paternalistic lies is akin to the utilitarian embrace of Mill’s Harm Principle. It is possible to see the Kantian view as a kind of moral heuristic, welcome on utilitarian grounds. The Kantian and utilitarian objections to lying have implications for the family, the workplace, advertising, commerce, and politics, and also for constitutional law.
Jonathan Zittrain, Entering the Minefield of Digital Contact Tracing, Medium (May 5, 2020).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Health Law & Policy
,
Information Privacy & Security
,
Networked Society
,
Medical Technology
Type: Other
Abstract
People across America and the world remain under strong advisories or outright orders to shelter in place, and economies largely shut down, as part of an ongoing effort to flatten the curve of the most virulent pandemic since 1918. The economic effects have been predictably staggering, with no clear end in sight. Until a vaccine or other transformative medical intervention is developed, the broad consensus of experts is that the only way out of mass sheltering in place, if hospital occupancy curves are to remain flattened, entails waiting for most of the current cases to resolve, and then cautiously and incrementally reopening. That would mean a sequence of allowing people out; promptly testing anyone showing symptoms — and even some who are not; identifying recent proximate contacts of those who test positive; and then getting in touch with those contacts and, if circumstances dictate, asking or demanding that they individually shelter until the disease either manifests or not. The idea is to promptly prune branches of further disease transmission in order to keep its reproductive factor non-exponential.
Maggie Goff & T. Keith Fogg, Nonparty Remote Electronic Access to Tax Court Records, 167 Tax Notes Fed., May 4, 2020, at 771.
Categories:
Civil Practice & Procedure
,
Government & Politics
,
Taxation
,
Technology & Law
Sub-Categories:
Practice & Procedure
,
Litigation & Settlement
,
Administrative Law & Agencies
,
Courts
,
Government Transparency
,
Tax Policy
,
Taxation - Federal
,
Taxation - Personal Income
,
Information Privacy & Security
,
Networked Society
Type: Article
Jeannie Suk Gersen, The Supreme Court Confronts Trump’s Challenge to the Separation of Powers, NewYorker.com (May 2, 2020).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Executive Office
,
Government Accountability
,
Politics & Political Theory
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Separation of Powers
Type: Other
I. Glenn Cohen, Informed Consent and Medical Artificial Intelligence: What to Tell the Patient?, 108 Geo. L.J. 1425 (2020).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Medical Technology
,
Networked Society
Type: Article
Abstract
Imagine you are a patient who has been diagnosed with prostate cancer. The two main approaches to treating it in the United States are active surveillance versus the surgical option of radical prostatectomy. Your physician recommends the surgical option, and spends considerable time explaining the steps in the surgery, the benefits of (among other things) eliminating the tumor and the risks of (among other things) erectile dysfunction and urinary incontinence after the surgery. What your physician does not tell you is that she has arrived at her recommendation of prostatectomy over active surveillance based on the analysis of an Artificial Intelligence (AI)/Machine Learning (ML) system, which recommended this treatment plan based on analysis of your age, tumor size, and other personal characteristics found in your electronic health record. Has the doctor secured informed consent from a legal perspective? From an ethical perspective? If the doctor actually chose to “overrule” the AI system, and the doctor fails to tell you that, has she violated your legal or ethical right to informed consent? If you were to find out that the AI/ML system was used to make recommendations on your care and no one told you, how would you feel? Well, come to think of it, do you know whether an AI/ML system was used the last time you saw a physician? This Article, part of a Symposium in the Georgetown Law Journal, is the first to examine in depth how medical AI/ML interfaces with our concept of informed consent. Part I provides a brief primer on medical Artificial Intelligence and Machine Learning. Part II sets out the core and penumbra of U.S. informed consent law and then seeks to determine to what extent AI/ML involvement in a patient’s health should be disclosed under the current doctrine. Part III examines whether the current doctrine “has it right,” examining more openly empirical and normative approaches to the question. To forefront my conclusions: while there is some play in the joints, my best reading of the existing legal doctrine is that in general, liability will not lie for failing to inform patients about the use of medical AI/ML to help formulate treatment recommendations. There are a few situations where the doctrine may be more capacious, which I try to draw out (such as when patients inquire, when the medical AI/ML is more opaque, when it is given an outsized role in the final decision-making, or when the AI/ML is used to reduce costs rather than improve patient health), though extending it even here is not certain. I also offer some thoughts on the question: if there is room in the doctrine (either via common law or legislative action), what would it be desirable for the doctrine to look like when it comes to medical AI/ML? I also briefly touch on the question of how the doctrine of informed consent should interact with concerns about biased training data for AI/ML.
Mark Tushnet, 'A Motive, Not A Judgment': Reflections on Kieslowski’s Invitation to Think About Morality (Apr. 30, 2020).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Arts & Entertainment Law
,
Law & Humanities
,
Legal Theory & Philosophy
Type: Other
Abstract
Krysztof Kieslowski’s classic “Decalogue: The Ten Commandments – Ten Short Films About Morality” invites viewers to reflect upon what morality is: Propositions about what worthy actions or decisions are? Unintelligible without support from a deity? The choices – all the choices – one makes while going through everyday life? One of Kieslowski’s characters suggests that motives explain but don’t justify actions, and that all we can do is understand why people act as they do. A character in another Kieslowski film concludes that judging others’ actions lacks humility. The ten films, originally made for Polish television in the late 1980s, present morality through complex narratives that deny us the choice of reducing morality to propositions. In the end, though, the films might better support the thought that narrative is morality. In the course of leading up to this conclusion, this Article examines Kieslowski’s presentation of female characters and the intimations the films contain about his views about religion and its relation to the idea of narrative as morality.
William A. Klein, J. Mark R Ramseyer & Stephen M. Bainbridge, Business Associations: Agency, Partnerships, LLCs, and Corporations, 2020 Statutes and Rules (Found. Press 2020 ed., forthcoming Apr. 27, 2020).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Law
,
Business Organizations
Type: Book
Samantha Power, Threats Are Ahead. National Security Can't Look Backward,TIME , Apr. 27, 2020, at 64.
Categories:
Government & Politics
,
Health Care
Sub-Categories:
Executive Office
,
National Security Law
,
Politics & Political Theory
,
Health Law & Policy
Type: Article
Abstract
The author calls for a review of the concept of U.S. national security amid the Covid-19 pandemic. She cites the potential of seismic events to unite even politically divided Americans behind a common cause. He also criticizes several measures taken by the administration of President Donald Trump to address the pandemic.
Jack Goldsmith & Andrew Keane Woods, Internet Speech Will Never Go Back to Normal, Atlantic (Apr. 25, 2020).
Categories:
Technology & Law
,
Constitutional Law
,
Government & Politics
Sub-Categories:
First Amendment
,
Fourth Amendment
,
Government Accountability
,
Government Transparency
,
Information Privacy & Security
,
Networked Society
Type: Article
Jeannie Suk Gersen, Finding Real Life in Teaching Law Online, NewYorker.com (Apr. 23, 2020).
Categories:
Legal Profession
Sub-Categories:
Legal Education
Type: Other
William P. Alford, Introduction to Part VI — Quantifying Disability, in Disability, Health, Law, and Bioethics 223 (I. Glenn Cohen, Carmel Shachar, Anita Silvers & Michael Ashley Stein eds., 2020).
Categories:
Discrimination & Civil Rights
,
Health Care
Sub-Categories:
Disability Rights
,
Disability Law
,
Health Law & Policy
Type: Book
Abstract
The four chapters in this part, each in its own way, raise and begin to propose answers to the enormously challenging question of society’s responsibilities toward persons with disabilities when it comes to the provision of healthcare. Although all four are one in recognizing and documenting the all too abundant and profound ways in which persons with disabilities are disadvantaged (many of which are not obvious to persons whose lives are not touched by disability), they differ markedly in their proposals to rectify these problems.
Mark Tushnet & Bojan Bugaric, Populism and Constitutionalism: An Essay on Definitions and Their Implications (Apr. 21, 2020).
Categories:
Government & Politics
,
Constitutional Law
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Politics & Political Theory
,
Judges & Jurisprudence
,
Courts
,
Executive Office
,
Comparative Law
,
European Law
Type: Other
Abstract
Around the world governments characterized by observers as populist have taken power. Many of their actions have been incompatible with tenets of modern liberalism. This has generated commentary suggesting that populism is itself incompatible with constitutionalism. This Essay challenges that commentary. We agree that some variants of populism are incompatible with modern liberal constitutionalism but argue that the tension between populism as such and constitutionalism as such, though real, is significantly narrower than much commentary suggests. We begin in Section II by offering “barebones” definitions of populism and constitutionalism so that we can tease out precisely what the tension between them is. Section III turns to case studies of challenges to judicial independence, of the use of referendums, and of innovative methods of determining the public’s views. As with our discussion of defining populism and constitutionalism, here we attempt to identify whether (or the degree to which) the case studies demonstrate a tension between populism and constitutionalism. Our conclusion is that sometimes we can see such a tension and sometimes we cannot, and that the analysis of specific populisms and their policies in relation to constitutionalism must be highly sensitive to context. Section IV applies the argument to two developments in the United Kingdom: the Brexit referendum and the attempt by Boris Johnson to prorogue Parliament and the ensuing decision by the UK Supreme Court finding the prorogation unlawful. Here our conclusion once again that analysis of populism’s relation to constitutionalism must be sensitive to context: The referendum was flawed but not in ways that cast a bad light on populism as such, and the prorogation, while perhaps unlawful, was not clearly anti-constitutional. Overall we argue against generalized claims about populism as such and constitutionalism as such. There are many populisms and at least a few constitutionalisms, and scholars and observers should direct their attention to the questions posed by specific actions taken by individual populist governments. Sometimes populist governments will act in anti-constitutional ways, and sometimes they will not. We believe that this conclusion is appropriately deflationary.
Sabrineh Ardalan, EU and US Border Policy: Externalisation of Migration Control and Violation of the Right to Asylum, in Securitising Asylum Flows: Deflection, Criminalisation and Challenges for Human Rights 282 (Valsamis Mitsilegas, Violeta Moreno-Lax & Niovi Vavoula eds., 2020).
Categories:
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
Immigration Law
,
Human Rights Law
,
Refugee & Asylum Law
,
European Law
Type: Book
Lucian A. Bebchuk & Roberto Tallarita, The Illusory Promise of Stakeholder Governance: Presentation Slides (Apr. 20, 2020).
Categories:
Corporate Law & Securities
,
Disciplinary Perspectives & Law
Sub-Categories:
Corporate Governance
,
Shareholders
,
Securities Law & Regulation
,
Empirical Legal Studies
Type: Other
Abstract
The presentation slides in this document provide an overview of our study, The Illusory Promise of Stakeholder Governance, which will be published by the Cornell Law Review in December 2020. The document is based on presentations slides we prepared for March 2020 presentations at Columbia Law School and Harvard Law School. Corporate purpose is now the focus of a fundamental and heated debate, with rapidly growing support for the proposition that corporations should move from shareholder value maximization to “stakeholder governance” and “stakeholder capitalism.” Our study critically examines the increasingly influential “stakeholderism” view, according to which corporate leaders should give weight not only to the interests of shareholders but also to those of all other corporate constituencies (including employees, customers, suppliers, and the environment). We conduct a conceptual, economic, and empirical analysis of stakeholderism and its expected consequences. We conclude that this view should be rejected, including by those who care deeply about the welfare of stakeholders. Stakeholderism, we demonstrate, would not benefit stakeholders as its supporters claim. To examine the expected consequences of stakeholderism, we analyze the incentives of corporate leaders, empirically investigate whether they have in the past used their discretion to protect stakeholders, and examine whether recent commitments to adopt stakeholderism can be expected to bring about a meaningful change. Our analysis concludes that acceptance of stakeholderism should not be expected to make stakeholders better off. Furthermore, we show that embracing stakeholderism could well impose substantial costs on shareholders, stakeholders, and society at large. Stakeholderism would increase the insulation of corporate leaders from shareholders, reduce their accountability, and hurt economic performance. In addition, by raising illusory hopes that corporate leaders would on their own provide substantial protection to stakeholders, stakeholderism would impede or delay reforms that could bring meaningful protection to stakeholders. Stakeholderism would therefore be contrary to the interests of the stakeholders it purports to serve and should be opposed by those who take stakeholder interests seriously.
Howell E. Jackson & Steven L. Schwarcz, Pandemics and Systemic Financial Risk (Apr. 19, 2020).
Categories:
Banking & Finance
,
Health Care
Sub-Categories:
Finance
,
Risk Regulation
,
Financial Markets & Institutions
,
Health Law & Policy
Type: Other
Abstract
The coronavirus has produced a public health debacle of the first-order. But the virus is also propagating the kind of exogenous shock that can precipitate – and to a considerable degree is already precipitating – a systemic event for our financial system. This currently unfolding systemic shock comes a little more than a decade after the last financial crisis. In the intervening years, much as been written about the global financial crisis of 2008 and its systemic dimensions. Additional scholarly attention has focused on first devising and then critiquing the macroprudential reforms that ensued, both in the Dodd-Frank Act and the many regulations and policy guidelines that implemented its provisions. In this essay, we consider the coronavirus pandemic and its implications for the financial system through the lens of the frameworks we had developed for the analysis of systemic financial risks in the aftermath of the last financial crisis. We compare and contrast the two crises in terms of systemic financial risks and then explore two dimensions on which financial regulatory authorities might profitably engage with public health officials. As we are writing this essay, the pandemic’s ultimate scope and consequences, financial and otherwise, are unknown and unknowable; our analysis, therefore, is necessarily provisional and tentative. We hope, however, it may be of interest and potential use to the academic community and policymakers.
Michael Eber, Cass R. Sunstein, James K. Hammitt & Jennifer Yeh, The Modest Effects of Fact Boxes on Cancer Screening (Apr. 19, 2020).
Categories:
Health Care
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Health Law & Policy
Type: Other
Abstract
As health care becomes increasingly personalized to the needs and values of individual patients, informational interventions that aim to inform and debias consumer decision-making are likely to become important tools. In a randomized controlled experiment, we explore the effects of providing participants with published fact boxes on the benefits and harms of common cancer screening procedures. Female participants were surveyed about breast cancer screening by mammography, while male participants were surveyed about prostate cancer screening by prostate-specific antigen (PSA) testing. For these screening procedures, we expect consumers to have overly optimistic prior beliefs about the benefits and harms. We find that participants update their beliefs only modestly and change their stated preferences to seek screening even more modestly. Participants who scored higher on a numeracy test updated their beliefs and preferences about screening more in response to the fact boxes than did patients who scored lower on the numeracy test. More-numerate subjects also seem to become more anxious in response to the risk information.
Jeannie Suk Gersen, Who’s In Charge of the Response to the Coronavirus?, New Yorker (Apr. 19, 2020).
Categories:
Constitutional Law
,
Health Care
,
Government & Politics
Sub-Categories:
Congress & Legislation
,
Executive Office
,
Federalism
,
Politics & Political Theory
,
Separation of Powers
,
State & Local Government
,
Government Accountability
,
Health Law & Policy
Type: Other
Jonathan Zittrain & John Bowers, A Start-Up is Using Photos to ID You. Big Tech Can Stop It From Happening Again, Wash. Post (Apr. 14, 2020, 3:58 PM EDT).
Categories:
Technology & Law
Sub-Categories:
Information Privacy & Security
,
Networked Society
,
Cyberlaw
,
Digital Property
Type: News
Jack Goldsmith, The Growth of Press Freedoms in the United States Since 9/11 (Apr. 13, 2020).
Categories:
Constitutional Law
,
Technology & Law
,
Government & Politics
Sub-Categories:
First Amendment
,
National Security Law
,
Communications Law
,
Networked Society
,
Information Privacy & Security
Type: Other
Abstract
The number, frequency, and seriousness of leaks of classified information have grown sharply in the last two decades. The government has reacted to these leaks with several initiatives to stop or deter them. Journalists and their allies, in turn, have complained that these initiatives have narrowed press freedoms and damaged the First Amendment. This essay argues that the journalists are wrong. The last two decades have witnessed an unprecedented growth in press freedoms in the national security context, and greater protection for journalists in their reporting of national security secrets. The indictment of Julian Assange is no violation of this norm, and in many ways confirms it.
Caroline O. Buckee, Satchit Balsari, Jennifer Chan, Mercè Crosas, Francesca Dominici, Urs Gasser, Yonatan H. Grad, Bryan Grenfell, M. Elizabeth Halloran, Moritz U. G. Kraemer, Marc Lipsitch, C. Jessica E. Metcalf, Lauren Ancel Meyers, T. Alex Perkins, Mauricio Santillana, Samuel V. Scarpino, Cecile Viboud, Amy Wesolowski, Andrew Schroeder, Aggregated Mobility Data Could Help Fight COVID-19, 368 Science 145 (2020).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Health Law & Policy
,
Information Privacy & Security
,
Networked Society
Type: Article
Gerald L. Neuman, Human Rights Responses to the Populist Challenge, in Human Rights in a Time of Populism: Challenges and Responses 250 (Gerald L. Neuman ed., 2020).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Law
,
Human Rights Law
,
Treaties & International Agreements
,
Nonprofit & Nongovernmental Organizations
Type: Book
Abstract
This concluding essay draws on the insights of earlier chapters and provides the author's own conclusions regarding how monitoring bodies in the human rights system should deal with the challenges created by the current wave of exclusionary populism. As the varied accounts illustrate, one size does not fit all. Moreover, international human rights institutions should not address populism as such, but should rather continue to focus on the specific human rights violations that populism leads to, and on the violations that have contributed to the rise of populism. Meanwhile, human rights institutions should also be attentive to the criticisms that populists have directed against the international human rights system, some of which (as examples show) may be meritorious even within a human rights analysis. These recommendations would not solve the problem that the spread of populism poses, but they would enable human rights institutions to contribute positively toward particular solutions.
Gerald L. Neuman, Populist Threats to the International Human Rights System, in Human Rights in a Time of Populism: Challenges and Responses 1 (Gerald L. Neuman ed., 2020).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Executive Office
,
Politics & Political Theory
,
Human Rights Law
,
International Law
,
Comparative Law
,
Foreign Relations
Type: Book
Abstract
This chapter frames the discussion that follows by examining the concept of populism, which is debated among political scientists, and the negative effects that populism may produce on internationally recognized human rights. The chapter emphasizes an understanding of populism as a form of politics that employs an exclusionary notion of the people as opposed to disfavored groups that are unworthy and that purports to rule on behalf of the people, whose will should not be constrained. The chapter describes both internal and external effects of populists' rise to power. Domestically, populist governance threatens the human rights of the excluded group, but also poses danger for members of the majority, as leaders seek to entrench themselves in power and undermine checks. Externally, the influence of populism on foreign policy reduces support for the international human rights regime, in a manner that has become increasingly problematic as populists gain power in more countries that previously played key roles in maintaining it.
Cass R. Sunstein, The Siren of Selfishness, N.Y. Rev. Books, Apr. 9, 2020, at 33 (reviewing Lisa Duggan, Mean Girl: Ayn Rand and the Culture of Greed (2019)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Humanities
,
Legal Theory & Philosophy
,
Law & Economics
Type: Article
Samantha Power, We Can't Beat Covid by OurselvesN.Y. Times, Apr. 9, 2020, at A27.
Categories:
International, Foreign & Comparative Law
,
Government & Politics
,
Health Care
Sub-Categories:
Executive Office
,
Health Law & Policy
,
Foreign Relations
,
International Humanitarian Law
,
Developing & Emerging Nations
,
Nonprofit & Nongovernmental Organizations
Type: News
Louis Kaplow & Scott Duke Kominers, On the Representativeness of Voter Turnout (Harv. L. Sch. John M. Olin Center Discussion Paper No. 1030, Apr. 8, 2020).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Elections & Voting
Type: Article
Abstract
Prominent theory research on voting uses models in which expected pivotality drives voters' turnout decisions and hence determines voting outcomes. It is recognized, however, that such work is at odds with Downs's paradox: in practice, many individuals turn out for reasons unrelated to pivotality, and their votes overwhelm the forces analyzed in pivotality-based models. Accordingly, we examine a complementary model of large-N elections at the opposite end of the spectrum, where pivotality effects vanish and turnout is driven entirely by individuals' direct costs and benefits from the act of voting itself. Under certain conditions, the level of turnout is irrelevant to representativeness and thus to voting outcomes. Under others, \anything is possible"; starting with any given distribution of preferences in the underlying population, there can arise any other distribution of preferences in the turnout set and thus any outcome within the range of the voting mechanism. Particular skews in terms of representativeness are characterized. The introduction of noise in the relationship between underlying preferences and individuals' direct costs and benefits from voting produces, in the limit, fully representative turnout. To illustrate the potential disconnect between the level of turnout (a focus of much empirical literature) and representativeness, we present a simple example in which, as noise increases, the turnout level monotonically falls yet representativeness monotonically rises.
Sara Gerke, Boris Babic, Theodoros Evgeniou & I. Glenn Cohen, The Need For a System View to Regulate Artificial Intelligence/Machine Learning-Based Software as Medical Device, npj Digital Med., art. no. 53, Apr. 7, 2020.
Categories:
Health Care
,
Technology & Law
,
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Bioethics
,
Food & Drug Law
,
Medical Technology
Type: Article
Abstract
Artificial intelligence (AI) and Machine learning (ML) systems in medicine are poised to significantly improve health care, for example, by offering earlier diagnoses of diseases or recommending optimally individualized treatment plans. However, the emergence of AI/ML in medicine also creates challenges, which regulators must pay attention to. Which medical AI/ML-based products should be reviewed by regulators? What evidence should be required to permit marketing for AI/ML-based software as a medical device (SaMD)? How can we ensure the safety and effectiveness of AI/ML-based SaMD that may change over time as they are applied to new data? The U.S. Food and Drug Administration (FDA), for example, has recently proposed a discussion paper to address some of these issues. But it misses an important point: we argue that regulators like the FDA need to widen their scope from evaluating medical AI/ML-based products to assessing systems. This shift in perspective—from a product view to a system view—is central to maximizing the safety and efficacy of AI/ML in health care, but it also poses significant challenges for agencies like the FDA who are used to regulating products, not systems. We offer several suggestions for regulators to make this challenging but important transition.
Holger Spamann, Scott Hirst & Gabriel Rauterberg, Corporations in 100 Pages (2020).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Law
,
Securities Law & Regulation
,
Shareholders
,
Corporate Governance
,
Mergers & Acquisitions
Type: Book
Abstract
This book is a primer on corporate law for law students and anyone else interested in the foundations of corporate law. The book provides a self-contained, accessible presentation of the field’s essentials: what corporations are, how they are governed, their interactions with their investors and other stakeholders, major transactions (M&A), and parallels with alternative entities including partnerships. Optional background chapters cover the investor ecosystem, contemporary corporate governance, and corporate finance. The book’s exposition of doctrine and policy is nuanced and sophisticated yet short and simple enough for a quick read.
Benjamin Eidelson, Respect, Individualism, and Colorblindness, 129 Yale L.J. 1600 (2020).
Categories:
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Fourteenth Amendment
,
Race & Ethnicity
,
Legal Theory & Philosophy
,
Supreme Court of the United States
,
Judges & Jurisprudence
Type: Article
Abstract
What principle underlies the Supreme Court’s “colorblind” or “anticlassification” approach to race and equal protection? According to the Court and many commentators, the answer lies in a kind of individualism—a conviction that people should be treated as individuals, not as instances of racial types. Yet the Court has said almost nothing about what it means to treat someone “as an individual.” This Article excavates the philosophical foundations of that idea. And in so doing, it offers a framework for understanding, and then evaluating, the Court’s assertions that the government fails to treat people as individuals when it classifies them by race. Rightly understood, the Article argues, treating people as individuals means showing respect for their individuality—a central facet of their moral standing as persons. To evaluate the claimed linkage between individualism and colorblindness, then, one first has to consider what respect for a person’s individuality involves. Drawing on the philosophical literatures on respect and autonomy, the Article offers an answer to that question: Treating someone as an individual requires taking due account of the information conveyed by her self-defining choices. But that answer entails that respect for a person’s individuality does not inherently require, or even favor, disregard of information carried by her race. The Article thus offers an internal critique of the Supreme Court’s avowedly “individualistic” approach to race and equal protection; it shows that the central moral argument for colorblindness rests on too shallow an account of what individualism itself demands. Building on that conclusion, the Article then turns to suggestions that racial distinctions—whatever their intrinsic moral status—are nonetheless stamped with social meanings that render them disrespectful of a person’s individuality. Even if such a symbolic norm might justify limiting integrative race-based state action, the Article contends, the recognition that no more basic moral wrong is at work should transform how the colorblindness project is carried out. Most fundamentally, that recognition should prompt the Court to enforce colorblindness, if it does, with regret rather than indignation. And most concretely, it should lead the Court to decide cases and write opinions in ways that avoid further entrenching respect conventions that operate as obstacles to valuable means of racial repair. In sum, with the Court poised to double-down on colorblindness in the years ahead, this Article surfaces the internal challenges that an intellectually serious form of the doctrine would need to address and charts the course that a more reflective colorblindness doctrine might take.
Deborah Anker, The History and Future of Gender Asylum Law and Recognition of Domestic Violence as a Basis of Protection in the United States, 45 Hum. Rts. 14 (2020).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Legal Profession
Sub-Categories:
Gender & Sexuality
,
Immigration Law
,
Discrimination
,
Refugee & Asylum Law
,
Treaties & International Agreements
,
Human Rights Law
,
International Law
,
Clinical Legal Education
Type: Article
Adrian Vermeule, The Right Constitutional Philosophy for This Moment, Atlantic (Mar. 31, 2020, 5:30 AM).
Categories:
Constitutional Law
,
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Constitutional History
,
Legal Theory & Philosophy
,
Law & Political Theory
,
Politics & Political Theory
,
Judges & Jurisprudence
,
Supreme Court of the United States
Type: Other
Andrew Manuel Crespo, Probable Cause Pluralism, 129 Yale L.J. 1276 (2020).
Categories:
Criminal Law & Procedure
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Fourth Amendment
,
Criminal Justice & Law Enforcement
,
Judges & Jurisprudence
Type: Article
Abstract
The constitutionality of a search or seizure typically depends upon the connection between the target of that search or seizure and some allegation of illegal behavior — a connection assessed by asking whether the search or seizure is supported by probable cause. And yet, central as probable cause is to the Fourth Amendment’s administration, no one seems to know what it means, or how it operates. Indeed, the Supreme Court has gone so far as to insist that it is “not possible” to define the term, holding instead that the probable cause inquiry entails no more than the application of “common-sense” to “the totality of the circumstances.” That doctrinal approach is routinely criticized as an “I know it when I see it” mode of jurisprudence that is ill equipped to safeguard civil liberties in the face of competing and weighty law enforcement demands. Viewed charitably, however the Supreme Court’s refusal to elaborate on the meaning of probable cause stems from an understandable desire for doctrinal flexibility in the face of widely varying law enforcement-civilian interactions. This tension between doctrinal flexibility and structure is the animating dilemma of probable-cause jurisprudence — a dilemma that this Article attempts to navigate, and ultimately to resolve. To do so, it urges a rejection of an often invoked (if not always followed) tenet of Supreme Court doctrine: probable cause unitarianism. That dominant idea, expressly endorsed in many of the Court’s leading precedents, holds that whatever probable cause means, it ought to entail the same basic analytic method, judged by the same substantive standard, from one case to another. On close inspection, however, the Supreme Court does not always practice what it preaches. Rather, beneath the surface of its probable cause canon there are seeds of an alternative — and superior — conception of probable cause, which this Article terms probable cause pluralism. On this view, “probable cause” is an open-textured and capacious idea that can comfortably encompass multiple distinct analytic frameworks and multiple different substantive standards, each of which can be tailored to the unique epistemological and normative challenges posed by different types of Fourth Amendment events. Probable cause, as the case may be, can be statistically driven or intuitively assessed; it can demand compelling evidence of illegal behavior or only an occasionally satisfied profile; it can presume the credibility of some types of witnesses, while treating others with deserved skepticism or disbelief. It can, in short, come to mean something, so long as it gives up on meaning any one thing in all cases. Because probable cause’s pluralism is both nascent and implicit, it is also undertheorized, having escaped sustained or comprehensive analysis by either the Court or its commentators. As a result, probable cause pluralism, in its current form, is at best a stunted and haphazard collection of disparate and disconnected ideas. This Article’s central contribution is to bring those ideas together, refining and synthesizing them into a comprehensive account of what a pluralist theory of probable cause could and should like in practice. Specifically, by organizing probable cause around three central analytic axes — which in turn ask how to assess evidentiary claims, how to assess proponents of such claims, and how to determine the certainty thresholds for those two assessments — the Article constructs a universally applicable framework for determining the constitutionality of any given search or seizure. With that framework in hand, scholars and jurists will be better equipped to reason through all the many and varied cases to come, and better able to assess all the many cases that have come before.
Christine Desan, The Monetary Structure of Economic Activity (Mar. 30, 2020).
Categories:
Disciplinary Perspectives & Law
,
Banking & Finance
,
International, Foreign & Comparative Law
Sub-Categories:
Economics
,
Financial Markets & Institutions
,
Banking
,
Finance
,
Law & Economics
,
International Monetary Systems
Type: Other
Abstract
The modern approach to the market as a place with autonomy depends on a certain view of money. According to that view, money is a neutral technology that expresses individual choices made about real goods and services. But the controversies over money that regularly arise in political communities reveal that money is far from a transparent medium. It is a legal project that structures economic activity. Money literally makes the market. The article extracts a definition of money from the most recent controversy over it. That controversy, the debate over safe assets, suggests that moneys overwhelmingly share a particular character: they are made of sovereign debt, short-term IOUs, that are enabled to act as cash by the sovereign who issues them. The article constructs a thought experiment to illuminate exactly why governments would create money according to this pattern. The experiment suggests, first, that governments gain enormous capacity when they convert in-kind obligations due to them into countable units that can be anticipated, spent, and levied. Second, governments benefit even more when they enable those units to circulate, a feat they manage by enforcing transactions in law – making money the default mode of payment for contracts, torts, property, and other transactions. That activity takes public authority into the intricacies of personal exchange, curating it in ways that condition its exercise. The article explores each of these qualities – the identity of money as sovereign debt and its enhancement as cash – because each of them represents a legal initiative that fundamentally reconfigures a society’s political economy. In that moment, money departs its reputation as a neutral technology and the market loses its claim as the product of private choice. To the contrary, economic exchange depends on a medium made in law and travels within the channels that medium enables through law.
Alma Cohen, Moshe Hazan & David Weiss, Politics and Gender in the Executive Suite (Mar. 25, 2020).
Categories:
Corporate Law & Securities
,
Discrimination & Civil Rights
,
Labor & Employment
,
Government & Politics
Sub-Categories:
Corporate Governance
,
Corporate Law
,
Gender & Sexuality
,
Discrimination
,
Politics & Political Theory
,
Elections & Voting
,
Employment Discrimination
Type: Other
Abstract
We investigate whether CEOs' political preferences are associated with the prevalence and compensation of women among non-CEO top executives at U.S. public companies. We find that "Democratic" CEOs are associated with more women in the executive suite. To explore causality, we use an event study approach to show that replacing a Republican with a Democratic CEO increases female representation. Additionally, we discuss how the lack of an association between CEO political preferences and gender diversity in the boardroom influences our interpretation of these results. Finally, gender gaps in the level and performance-sensitivity of compensation diminish, or disappear, under Democratic CEOs.
Eli Y. Adashi & I. Glenn Cohen, What Would Responsible Remedial Human Germline Editing Look Like?, 38 Nature Biotech. 398 (2020).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Genetics & Reproduction
Type: Article
Sandra Cortesi, Alexa Hasse, Andres Lombana, Sonia Kim & Urs Gasser, Youth and Digital Citizenship+ (Plus): Understanding Skills for a Digital World (Berkman Klein Ctr. Res. Publ’n No. 2020-2, Mar. 20, 2020).
Categories:
Family Law
,
Technology & Law
Sub-Categories:
Children's Law & Welfare
,
Networked Society
Type: Other
Abstract
Digital citizenship has become a topic of growing importance among academics and policymakers alike, at the center of debate and theorization around the skills youth need to navigate and actively participate in our digital world. On a global level, a variety of stakeholders — including government, international organizations, nongovernmental organizations, and academia — have adopted the term to develop and shape formal and informal learning programs that aim to help youth address the challenges and embrace the opportunities the digital environment may present. Yet, there is little consensus as to the broad areas (e.g., safety and well-being, civic and political engagement, identity exploration), and skills within them, digital citizenship should encompass. In this spotlight, Youth and Media explores the concept of digital citizenship, providing an overview of the current dialogue surrounding the term, with a focus on several key questions. Why does digital citizenship matter? Why has the concept become central in discussions about youth (ages 12-18), education, and learning in the 21st century? In a world where the online and offline are increasingly blending, to what extent should we emphasize the role of the “digital” in “digital citizenship”? To what degree do youth feel connected to the term “citizen?” How is the concept of digital citizenship similar to or different from other concepts, such as digital literacy or 21st century skills? How should we approach these concepts to more effectively foster the skills youth need to thrive in today’s society? And to what extent have we as decision-makers, academics, and educators been successful at incorporating youth voices in the development, implementation, and evaluation of digital citizenship initiatives?
Samantha Power, The Courage and Compassion of Catholic Activist Dorothy DayWash. Post, Mar. 8, 2020, at B06 (reviewing John Loughery & Blythe Randolph, Dorothy Day: Dissenting Voice of the American Century (2020)).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
,
Discrimination & Civil Rights
Sub-Categories:
Social Welfare Law
,
Poverty Law
,
Public Interest Law
,
Law & Social Change
,
Religion & Law
,
Biography & Tribute
Type: News
Randall Kennedy, The Journalist and the Murderers, N.Y. Times, Mar. 8, 2020, at BR14 (reviewing Jerry Mitchell, Race Against Time, A Reporter Reopens the Unsolved Murder Cases of the Civil Rights Era (2020)).
Categories:
Discrimination & Civil Rights
,
Criminal Law & Procedure
Sub-Categories:
Criminal Prosecution
,
Civil Rights
,
Race & Ethnicity
,
Discrimination
Type: News
Jesse M. Fried & Holger Spamann, Cheap-Stock Tunneling Around Preemptive Rights, J. Fin. Econ. (forthcoming 2020).
Categories:
Corporate Law & Securities
Sub-Categories:
Shareholders
,
Securities Law & Regulation
Type: Article
Abstract
Preemptive rights are thought to protect minority shareholders from cheap-stock tunneling by a controlling shareholder. We show that preemptive rights, while making cheap-stock tunneling more difficult, cannot prevent it when asymmetric information about the value of the offered shares makes it impossible for the minority to know whether these shares are cheap or overpriced. Our analysis can help explain why sophisticated investors in unlisted firms and regulators of listed firms do not rely entirely on preemptive rights to address cheap-stock tunneling, supplementing them with other restrictions on equity issues.
Elizabeth Bartholet, Contested Child Protection Policies, in The Oxford Handbook of Children and the Law (James G. Dwyer ed., 2020).
Categories:
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Race & Ethnicity
,
Social Welfare Law
,
Children's Law & Welfare
,
Legal Guardianship
Type: Book
Abstract
This chapter discusses the tension over recent decades in child welfare policy in the United States between two conflicting value systems, one focusing on parent and group rights over children, and the other focusing on child rights to grow up with nurturing parental care. It describes the leading legal and policy movements that have promoted keeping children with the family of origin and in the racial, ethnic and national group of origin. It contrasts these with some laws and policies that have instead prioritized protecting children against abuse and neglect, and placing them with nurturing parents including in adoption. It situates domestic US child welfare policy debates within the larger international context.
Johanna Mollerstrom & Cass R. Sunstein, How Special is Democracy?: An Experimental Study of Recommendations in the Minimum Effort Game, Econ. Letters, Mar. 6, 2020.
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Elections & Voting
Type: Article
Abstract
Democratic institutions aggregate voters’ preferences about policy options and thereby help determine which policies are implemented. Previous research has, however, suggested that such institutions can also have a direct, positive effect on cooperative and efficient behavior. In a laboratory experiment, we test this suggestion by comparing the effect of recommendations on how to play that are generated through a group vote to expert-generated recommendations, on play in a minimum effort game. We find no difference between the two: both expert recommendations and democratically generated recommendations increase the efficiency of choices. In addition, we find that merely considering potential recommendations, and knowing that others have done so as well, can help enhance efficient coordination.
Holly Fernandez Lynch, D. James Greiner & I. Glenn Cohen, Overcoming Obstacles to Experiments in Legal Practice, 367 Science 1078 (2020).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
,
Health Care
,
Technology & Law
Sub-Categories:
Empirical Legal Studies
,
Bioethics
,
Legal Ethics
,
Legal Reform
,
Legal Services
,
Science & Technology
Type: Article
Abstract
The importance of evidence-based policy rooted in experimental methods is increasingly recognized, from the Oregon Medicaid experiment to the efforts to address global poverty that were awarded a 2019 Nobel Prize. Over the past several decades, there have been attempts to extend this scientific approach to legal systems and practice. Yet, despite progress in empirical legal studies and experimental social policy research, judges, lawyers, and legal services providers often fail to subject their own practices to empirical study or to be guided by empirical data, with a particular aversion to randomized controlled trials (RCTs) (1). This is troubling, as many questions fundamental to legal practice and those it affects, such as allocation of attorney services, bail decisions, and use of mandatory mediation, could and should be informed by a rigorous evidentiary foundation. Although there are practical obstacles to undertaking legal practice RCTs, they have also been stymied by cultural barriers...
Adrian Vermeule, Neo-?, 133 Harv. L. Rev. F. 103 (2020).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Abstract
Responding to Jeffrey A. Pojanowski, Neoclassical Administrative Law, 133 HARV.L.REV.852 (2020).
Annette Gordon-Reed, Thomas Jefferson's Revolutionary Words, TIME, Mar. 2, 2020, at 46.
Categories:
Government & Politics
,
Legal Profession
,
Discrimination & Civil Rights
,
Constitutional Law
Sub-Categories:
Race & Ethnicity
,
Executive Office
,
Legal History
,
Biography & Tribute
Type: Article
Mark Tushnet, Institutions Protecting Constitutional Democracy: Some Conceptual and Methodological Preliminaries, 70 U. Toronto L.J. 95 (2020).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Constitutional History
,
Law & Political Theory
,
Elections & Voting
,
Corruption
,
Politics & Political Theory
,
Comparative Law
,
Foreign Law
,
Developing & Emerging Nations
Type: Article
Abstract
Chapter 9 of the South African Constitution refers to ‘institutions protecting constitutional democracy’ (IPDs). Contemporary constitution designers have written into new constitutions numerous such institutions, and scholars have begun to identify them as a fourth branch of government alongside the traditional legislative, executive, and judicial branches. This article explores some of the conceptual issues associated with the new fourth branch: what justifies the creation of these IPDs (the short answer: a particular type of conflict of interest); what are their generic characteristics (the short answer: they are reasonably permanent institutions rather than ad hoc or statutory ones, unlike their antecedents); what is their relation to a constitutional court – another twentieth-century innovation; and why should they be understood to be a ‘branch’ of government rather than a congeries of useful innovations (the short answer: like the traditional branches, they perform distinctive function not readily performed by institutions located within those branches)?
Richard J. Lazarus, Seventy-Four Inches, 37 Envtl. F., Mar.-Apr. 2020, at 24.
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Supreme Court of the United States
Type: Article
Abstract
The space between jurists and advocate at the Supreme Court is only a little more than six feet during oral arguments. As counsel for the state in Massachusetts v. EPA learned, the exchange of fire over that small divide is highly penetrating and usually hostile.
Dustin A. Lewis, Naz K. Modirzadeh & Jessica S. Burniske, The Counter-Terrorism Committee Executive Directorate and International Humanitarian Law: Preliminary Considerations for States (Harv. L. Sch. Program on Int’l L. & Armed Conflict (HLS PILAC) Legal Briefing, Mar. 1, 2020).
Categories:
International, Foreign & Comparative Law
,
Criminal Law & Procedure
Sub-Categories:
Terrorism
,
Human Rights Law
,
International Humanitarian Law
,
International Law
,
Laws of Armed Conflict
,
Refugee & Asylum Law
,
Treaties & International Agreements
Type: Other
Abstract
In developing international humanitarian law (IHL), States have aimed in part to lay down the primary normative and operational framework pertaining to principled humanitarian action in situations of armed conflict. The possibility that certain counterterrorism measures may be instituted in a manner that intentionally or unintentionally impedes such action has been recognized by an increasingly wide array of States and entities, including the United Nations Security Council and the U.N. Secretary-General. At least two aspects of the contemporary international discourse on intersections between principled humanitarian action and counterterrorism measures warrant more sustained attention. The first concerns who is, and who ought to be, in a position to authentically and authoritatively interpret and apply IHL in this area. The second concerns the relationships between IHL and other possibly relevant regulatory frameworks, including counterterrorism mandates flowing from decisions of the U.N. Security Council. Partly in relation to those two axes of the broader international discourse, a debate has emerged regarding whether the U.N. Security Council may authorize one particular counterterrorism entity — namely, the Counter-Terrorism Committee Executive Directorate (CTED) — to interpret and assess compliance with IHL pertaining to humanitarian action in relation to certain counterterrorism contexts. In a new legal briefing for the Harvard Law School Program on International Law and Armed Conflict (HLS PILAC), Dustin A. Lewis, Naz K. Modirzadeh, and Jessica S. Burniske seek to help inform that debate by raising some preliminary considerations regarding that possibility. The authors focus on the possible implications of States and other relevant actors pursuing various responses or not responding to this debate. One of the authors’ goals is to help raise awareness of this area with a focus on perspectives drawn from international law. Another is to invite a broader engagement with the question of the preservation of the humanitarian commitments laid down in IHL in a period marked by a growing number — and a deepening — of the intersections between situations of armed conflict and measures to suppress terrorism.
Richard J. Lazarus, The Rule of Five: Making Climate History at the Supreme Court (2020).
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Climate Change
,
Supreme Court of the United States
Type: Book
Abstract
When the Supreme Court announced its ruling in Massachusetts v. EPA, the decision was immediately hailed as a landmark. But this was the farthest thing from anyone’s mind when Joe Mendelson, an idealistic lawyer working on a shoestring budget for an environmental organization no one had heard of, decided to press his quixotic case. In October 1999, Mendelson hand-delivered a petition to the Environmental Protection Agency asking it to restrict greenhouse gas emissions from new cars. The Clean Air Act had authorized the EPA to regulate “any air pollutant” that could reasonably be anticipated to endanger public health. But could something as ordinary as carbon dioxide really be considered a harmful pollutant? And even if the EPA had the authority to regulate emissions, could it be forced to do so? Environmentalists urged Mendelson to stand down. Thinking of his young daughters and determined to fight climate change, he pressed on—and brought Sierra Club, Greenpeace, NRDC, and twelve state attorneys general led by Massachusetts to his side. This unlikely group—they called themselves the Carbon Dioxide Warriors—challenged the Bush administration and took the EPA to court. The Rule of Five tells the story of their unexpected triumph. We see how accidents, infighting, luck, superb lawyering, and the arcane practices of the Supreme Court collided to produce a legal miracle. An acclaimed advocate, Richard Lazarus reveals the personal dynamics of the justices and dramatizes the workings of the Court. The final ruling, by a razor-thin 5–4 margin, made possible important environmental safeguards which the Trump administration now seeks to unravel.
Alex Whiting, Prosecution Strategy at the International Criminal Court in Search of a Theory, in Why Punish Perpetrators of Mass Atrocities?: Purposes of Punishment in International Criminal Law 285 (Florian Jeßberger & Julia Genes eds., 2020).
Categories:
Criminal Law & Procedure
,
International, Foreign & Comparative Law
Sub-Categories:
Criminal Prosecution
,
International Law
Type: Book
Abstract
Alex Whiting thoroughly analyzes the submissions by the ICC Office of the Prosecutor and statements made by the Prosecution. He explains the different approaches of the first and the second Prosecutor: The first embraced a theory of ‘disruption and specific deterrence’, seeking to intervene in real time to stop ongoing crimes with the Court being a force for diplomacy and peace. The second Prosecutor, on the other hand, focuses on the judicial tasks of the Court, chooses fewer cases, acts slowly and carefully. This way, the Court moved towards an expressive theory of punishment, investigations and cases are a way of expressing, shaping and enforcing norms. In the end, Whiting concludes that at the ICC’s Office of the Prosecutor theory does not dictate practice – it is the other way round: The Office’s strategy is reactive to and constrained by the dependency on state cooperation and the limits of the ICC’s authority. Only within those constraints, can theories of punishment play a role: ‘robust theories of punishment are a luxory of actors with power’.
Stephen N. Subrin, Martha L. Minow, Mark S. Brodin, Thomas O. Main & Alexandra D. Lahav, Civil Procedure: Doctrine, Practice, and Context (Wolters Kluwer L. & Bus. 6th ed., 2020).
Categories:
Civil Practice & Procedure
,
Legal Profession
Sub-Categories:
Practice & Procedure
,
Legal Education
Type: Book
Cass R. Sunstein, On Neglecting Regulatory Benefits (Feb. 20, 2020).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
Courts
,
Executive Office
Type: Other
Abstract
The administrative state faces a pervasive problem: “benefit neglect,” understood as insufficient attention to the benefits of regulation. In 2017, for example, President Donald Trump issued Executive Order 13771, calling for a regulatory budget of $0 and directing agencies to eliminate two regulations for every regulation that they issue. The order has two laudable ambitions: to reduce the stock of existing regulations and to stem the flow of new regulations. But because it entirely ignores the benefits of regulations and focuses only on costs, it is a singularly crude instrument for achieving those goals. In both theory and practice, it threatens to impose large net costs (including significant increases in mortality and morbidity). It would be much better to abandon the idea of a regulatory budget, focused solely on costs, and instead to engage in two sustained but independent efforts: (1) a continuing “look back” at existing regulations, with the goal of simplifying or eliminating those that are unwarranted, and (2) cost-benefit discipline for new regulations. A third goal, no less important than (1) and (2), should be a very high priority, which is to produce institutional mechanisms to promote issuance of regulations that would have high net benefits (including reductions in mortality and morbidity). Congress, courts, and the executive branch should take steps to combat benefit neglect.
Alan Dershowitz, Defending the Constitution: Alan Dershowitz's Senate Argument Against Impeachment (2020).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Congress & Legislation
,
Executive Office
,
Separation of Powers
Type: Book
Abstract
Alan Dershowitz has been called “one of the most prominent and consistent defenders of civil liberties in America” by Politico and “the nation’s most peripatetic civil liberties lawyer and one of its most distinguished defenders of individual rights” by Newsweek. Yet he has come under intense criticism fire for applying those same principles, and his famed “shoe‑on‑the‑other‑foot test,” to Donald Trump, especially after arguing on the president’s behalf before the U.S. Senate as it deliberated impeachment. Defending the Constitution seeks to refocus the debate over impeachment to the same standard that Dershowitz has upheld for decades: the law of the United States of America, as established by the Constitution. Citing legal examples from a long lineage of distinguished judges and attorneys, and examining the impeachment language in the Constitution itself, Dershowitz proves—first to the U.S. Senate, and now to readers everywhere—that President Trump should not have been impeached, and certainly should not be removed, for causes that do not meet the standards laid out by the founding fathers. This book is Alan Dershowitz’s argument for a return to nonpartisan judgment based on the Constitution, for a preservation of the separation of powers and the checks and balances that make American government great. It is essential reading for anyone interested in or concerned about the impeachment of President Trump, and for everyone who cares about the future of U.S. government and society.
Jonathan Zittrain, A World Without Privacy Will Revive the Masquerade, Atlantic (Feb. 7, 2020).
Categories:
Technology & Law
Sub-Categories:
Networked Society
,
Information Privacy & Security
Type: Other
I. Glenn Cohen & Michelle M. Mello, HIPAA in the Era of Data Sharing—Reply, 323 JAMA 477 (2020).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Information Privacy & Security
,
Medical Technology
Type: Article
John C. P. Goldberg & Benjamin C. Zipursky, Recognizing Wrongs (2020).
Categories:
Civil Practice & Procedure
Sub-Categories:
Torts
Type: Book
Abstract
Tort law is badly misunderstood. In the popular imagination, it is “Robin Hood” law. Law professors, meanwhile, mostly dismiss it as an archaic, inefficient way to compensate victims and incentivize safety precautions. In Recognizing Wrongs, John Goldberg and Benjamin Zipursky explain the distinctive and important role that tort law plays in our legal system: it defines injurious wrongs and provides victims with the power to respond to those wrongs civilly. Tort law rests on a basic and powerful ideal: a person who has been mistreated by another in a manner that the law forbids is entitled to an avenue of civil recourse against the wrongdoer. Through tort law, government fulfills its political obligation to provide this law of wrongs and redress. In Recognizing Wrongs, Goldberg and Zipursky systematically explain how their “civil recourse” conception makes sense of tort doctrine and captures the ways in which the law of torts contributes to the maintenance of a just polity. Recognizing Wrongs aims to unseat both the leading philosophical theory of tort law—corrective justice theory—and the approaches favored by the law-and-economics movement. It also sheds new light on central figures of American jurisprudence, including former Supreme Court Justices Oliver Wendell Holmes, Jr., and Benjamin Cardozo. In the process, it addresses hotly contested contemporary issues in the law of damages, defamation, malpractice, mass torts, and products liability.
I. Glenn Cohen, Commentary on Gestation, Equality and Freedom: Ectogenesis as a Political Perspective, 46 J. Med. Ethics 87 (2020).
Categories:
Discrimination & Civil Rights
,
Health Care
,
Family Law
Sub-Categories:
Gender & Sexuality
,
Reproduction
,
Bioethics
,
Genetics & Reproduction
Type: Article
Geoffrey R. Stone, Louis M. Seidman, Cass R. Sunstein, Mark V. Tushnet & Pamela S. Karlan, The First Amendment (Wolters Kluwer 6th ed., 2020).
Categories:
Constitutional Law
Sub-Categories:
First Amendment
Type: Book
Ronald A. Cass, Colin S. Diver, Jack M. Beermann & Jody Freeman, Administrative Law: Cases and Materials (Wolters Kluwer 8th ed., 2020).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Administrative Law & Agencies
,
Legal Education
Type: Book