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Ten Tips for Legal Empiricists
No full textThis essay offers practical tips from leading legal empirical researchers to assist new scholars who are entering the field. Topics include developing meaningful research questions, designing robust survey methodologies, balancing qualitative and quantitative approaches, ensuring data transparency, fostering interdisciplinary collaboration, and navigating ethical considerations in empirical work. Drawing from their own unique challenges and successes, scholars Michael D. Frakes, Janet Freilich, Mark A. Lemley, Lisa Larrimore Ouellette, David L. Schwartz, Jessica Silbey, Neel U. Sukhatme, Saurabh Vishnubhakat, Melissa F. Wasserman, Jordana Goodman, and Christa Laser illuminate what they wished they would have known going into empirical research and the pitfalls to avoid. Although many examples focus on intellectual property law, the principles outlined here are broadly applicable to all legal empirical scholarship. This essay aims to serve as a concise and accessible resource for aspiring empiricists seeking to produce impactful, methodologically sound research. Co-edited by Jordana Goodman and Christa Laser
Why Did Prosecution Strengthen President Trump in the 2024 Election?
No full textWhy did criminal prosecution strengthen President Donald Trump\u27s electoral prospects in the 2024 federal election? It was not supposed to be this way: after President Trump\u27s 2024 New York state conviction, many speculated that President Trump\u27s felon status would imperil his political career. In fact, the opposite occurred: federal and state criminal prosecutions reenergized President Trump\u27s 2024 presidential candidacy. Contemporary criminal law theories-traditional individualist, expressivist, and critical-struggle to explain why. This Article advances a theory of criminal coalescence to explain why the Trump prosecutions led the former President to political victory. Criminal coalescence is the intensification of mass support for criminal defendants who become icons within a social or political community. This occurs in two steps. First, communities engage in iconic identification-relating to a prosecuted individual seen not merely as a defendant, but as an icon representing shared meanings, values, and grievances. Second, prosecution, rather than discrediting the defendant, elevates his symbolic status within these communities-leading to symbolic solidarity. If President Trump is seen as an icon of antiestablishment values and personal freedom, these communities rally around him in defense of their perceived American ideals. Contemporary and historical examples-from Luigi Mangione to Karen Read to Rosa Parks-show this sociological pattern across time, regardless of the left-right political valence. This Article concludes by arguing instead for a civic prosecutorial discretion rooted in criminal law minimalism, a higher standard for politically sensitive prosecutions. This prosecutorial policy transcends two often invoked claims-accusations of lawfare (prosecutorial restraint) on the one hand and the maxim of no one is above the law (prosecutorial zeal) on the other
Legislating for the Future
Get PDFPublic policy must address threats that will manifest in the future. Legislation enacted today affects the severity of tomorrow’s harms arising from biotechnology, climate change, and artificial intelligence. This Essay focuses on Congress’s capacity to confront future threats. It uses a detailed case study of financial crises to show the limits and possibilities of legislation to prevent future catastrophes. By paying insufficient attention to Congress, the existing literature does not recognize the full nature and extent of the institutional challenges in regulating systemic risk. Fully recognizing those challenges reveals important design insights for future-risk legislation.
We first examine Congress as an institution to show that forces are stacked against its ability to enact legislation addressing future harms. Features of Congress’s internal organization and procedures, incentives of legislators and industry actors, the evolving complexity of many regulated industries, and the reality that statutes tend to erode in effectiveness over time collectively mean that lawmakers will tend to underproduce legislation aimed at preventing future harms. The stars will occasionally align for landmark legislation, like after the financial crises that generated new regulatory statutes in the 1930s and 2010. But as a general matter, the playing field is tilted against Congress taking action.
This tilted playing field, we argue, points toward a roadmap for how Congress should seek to regulate the risk of major crises when it periodically does have the opportunity to do so. We posit several possible answers to this question, each informed by the institutional features that will generally make it hard for Congress to adjust or strengthen certain future-risk legislation once passed. Congress ought to use automatic triggers so that its legislation updates itself in response to changing conditions; extend expansive authority to agencies with explicit discretion for agencies to address threats that may have been unforeseen at the time of earlier legislation; create strong regulatory minimums that agencies can increase but not decrease, as a safeguard against agency capture or inaction; and encourage enforcement efforts by a diverse range of federal, state, and private actors. Better understanding Congress’s institutional limitations, in short, can provide a roadmap for how to enact more effective regulatory legislation in the future
Can Judicial Resistance Last?
No full textDespite the mixed results, for now a deep reverence for judicial review has reasserted itself across the land. Poll after poll shows that Americans believe that a President should obey the courts, even if many paradoxically also want leaders who will break some eggs to make big changes. But what in fact is the role of courts in a democracy in a deeper sense? In our view, ensuring the survival of democracy in a populist age turns on this crucial question. Having realistic expectations of what judges can do to help and a clear understanding of how their involvement can be counterproductive is essential to minimizing unconstitutional harms and clearing pathways for the political mobilization that can truly heal democracy
The Ethics of Industry-Funded Speakers’ Bureaus—How They Disseminate Innovation and Could Corrupt Medicine
No full textIt is often said that a business without marketing is dead. But when a medical product is marketed irresponsibly, it is patients who may pay with their lives. In this context, Wieberdink et al1 examine participation in industry-sponsored speakers’ bureaus by academic clinical faculty, conceptualizing the practice as a form of conflicted and irresponsible pharmaceutical marketing. Reviewing 129 US allopathic medical school conflict-of-interest (COI) policies, they found that less than 40% prohibit industry speakers’ bureau participation outright, while 19% impose conditional restrictions, such as requiring that faculty retain control over presentation content. Wieberdink et al1 advocate for a total ban.
This perspective examines whether such a ban is justified, contextualizing the speakers’ bureau model within its epistemic, regulatory, and historical dimensions. We conclude that even if banned by universities, industry likely would redirect funding to other channels of influence, a phenomenon akin to placing a finger in a stream only to see the water flow around it. To truly reduce economic COIs from biopharmaceutical companies in the production and dissemination of medical product evidence, as Wieberdink et al1 support, would require a complete overhaul of the US health care system, including who is funded as well as how clinical trials, the US Food and Drug Administration (FDA), medical journals, and continuing medical education are funded. Absent such a full overhaul, we conclude with a practical strategy for reducing conflicts from speakers’ bureau participation in the educational sector
“Quasi-Judicial”: A History and Tradition, by Beau J. Baumann & Jed H. Shugerman
No full text“I do not say the office is either Executive or Judicial; I think it rather distinct from both, though it partakes of each, and therefore some modification, accommodated to those circumstances ought to take place.” – James Madison on the Comptroller, June 29, 1789
On Monday, December 8th, the Supreme Court will hear oral arguments in Trump v. Slaughter. The case presents a pivotal challenge to Humphrey’s Executor, the New Deal precedent underpinning so-called independent agencies. In Humphrey’s, the Hughes Court unanimously held that Congress could shield administrators from presidential removal if they exercised “quasi-judicial” or “quasi-legislative” functions. Since the 1980s, originalists have scorned these “quasi” categories, viewing them as a departure from the Constitution’s mandate for unitary presidential control over administration.
Yet recent findings challenging the unitary executive theory (UET) fortuitously shed light on the quasi-judicial category’s historical pedigree. But these findings have been put forward by scholars with separate research agendas. In our newly available essay on SSRN, we synthesize hidden throughlines in the new literature. We argue the quasi-judicial function from Humphrey’s is compatible with original public meaning. More profoundly, it embodies a “history and tradition” integral to the Anglo-American constitutional project—far more primordial than even originalist credentials can suggest
A Historical Case for a Robust But Non-Remedial Seventh Amendment
No full textIn Jarkesy, the Supreme Court rightly held that the Seventh Amendment required a jury trial for a case fundamentally similar to common law fraud, and it rightly limited the scope of the “public rights” exception to the Seventh Amendment. Grounded in historical and originalist methods, this essay makes four suggestions after Jarkesy: Following Jarkesy, the judiciary should continue a more robust enforcement of the Seventh Amendment right to a jury trial. The courts should eliminate the “public rights” exception to the Seventh Amendment, which does not appear to have an original link to the Seventh Amendment. The “public rights” exception seems to have been a pragmatic spil-over from Article III “judicial power” jurisprudence, where it also has limited support in original public meaning. Relatedly, the courts should more informally enforce Article III “judicial power,” which has a more ambiguous original public meaning. If the courts de-emphasize Article III’s “private rights” protections, then the counterbalance from a “public rights” exception would be less necessary, and thus it would be possible to abandon the dubious public rights/private rights distinction entirely. The original public meaning of checks-and balances supports a more modest functional approach to the separation of powers. As these questions are more a matter of an individual right to a jury than a structural separation-of-powers matter, individual waiver of the Seventh Amendment right would be more valid. Whereas Jarkesy focused on both substance and remedy in interpreting “the common law,” the scope of the “common law” should be based on the substance (the right, the wrong, or the duty), and not the remedy.
A few old precedents might come out differently. The overall result would be a Seventh Amendment jurisprudence and an Article III “judicial power” jurisprudence more consistent with original public meaning, but also unlikely to lead to an originalist revolution overturning significant institutions of the administrative state
Policy Options for Antimicrobial Resistance: Exploring Lessons from Environmental Governance
No full textContext: Antimicrobial resistance (AMR) is a pressing global health crisis rooted in complex collective action problems. Despite the urgency, policy responses have not kept pace with the escalating threat of drug resistance. By recognizing the similarities between AMR governance and other shared-resource challenges in environmental governance, this article examines potential strategies for AMR governance.
Methods: An analysis of twelve environmental governance frameworks identified three main approaches to collective action: market-driven, state-led, and community-centered strategies. From these, we purposively selected three case studies to illustrate how each approach could inform AMR policy, focusing on: (1) market-based mechanisms in climate governance, (2) state-led initiatives in water management, and (3) community-led efforts in biodiversity conservation.
Findings: We propose nine policy options for AMR governance (Table 1), drawing inspiration from established strategies in environmental governance. These include Pigouvian taxes, cap-and-trade systems, enhanced public-private partnerships with performance metrics and technology transfer, and access-and-benefit sharing agreements. Framed as adaptable strategies, we emphasize the importance of tailoring each option—or a blend of options—to the economic, political, and healthcare contexts unique to AMR challenges worldwide.
Conclusions: Although environmental governance has not fully resolved the global issues it addresses, its lessons offer valuable guidance for designing adaptive, equitable, and collaborative AMR governance frameworks. Our analysis highlights the importance of a balanced approach, combining state, market, and community engagement to achieve sustainable AMR solutions. Recognizing the limits of environmental governance, we emphasise that effective AMR strategies should integrate ongoing evaluation, international collaboration, and inclusive stakeholder engagement to foster global commitment and meaningful action
Antiracist Expert Evidence
Get PDFSince 2020, when mass protests against racism swept across the United States, scholars, lawyers, and the general public have become increasingly aware that racism permeates society and the criminal legal system, from overt racial animus to the nuanced effects of structural racism. Demonstrating the influence of racism is therefore vital to the practice of criminal defense, yet many attorneys do not know how to prove racism in court. We surveyed over seven hundred criminal-defense attorneys across the United States, and nearly half had never heard of expert witnesses testifying or submitting written reports on racism—what we call “antiracist expert evidence.” This finding would be unremarkable if such experts were unhelpful, but nearly ninety percent of surveyed attorneys expected that antiracist expert evidence would benefit their criminal defense practices.
This Article is the first to provide an empirical, theoretical, and doctrinal examination of the use of expert testimony to prove racism. It first conceptualizes, categorizes, and instantiates six different expressions, manifestations, or mechanisms of racism relevant to criminal defense: (1) racist affiliations and views; (2) racist language, sounds, and imagery; (3) racial stereotypes; (4) racial disparities; (5) implicit racial bias; and (6) the impact of racism on health and behavior. It next presents and analyzes survey results showing criminal-defense attorneys’ levels of familiarity with antiracist expert evidence, their perceptions of its utility, and the barriers they anticipate to its introduction. This Article then examines these barriers and identifies means of overcoming them. By elevating the voices of criminal defenders and reviewing federal and state case law, we seek to spark the collective imagination about how antiracist expert evidence can help level the evidentiary playing field for criminal defendants
The Potential and Perils of Financializing Climate Risk Governance: Insights for Urban Policymakers
Get PDFIn this roundtable discussion, Savannah Cox speaks with three experts about the financialization of climate risk governance: Kelly Hereid, a climate scientist at Liberty Mutual, Madison Condon, an associate professor at Boston University School of Law, and Emma Colven, a lecturer in risk, environment, and society at King’s College London. In this conversation that ranges from Miami to Jakarta, Savannah, Kelly, Madison, and Emma discuss the legal, political, and technical challenges relating to financialized climate risk governance: on one hand, the rise of insurance companies and rating agencies as de facto “risk assessors” and, on the other hand, the proliferation of for-profit climate risk analytics, an emerging field of practice at the intersection of climate models and asset-level decision-making. The conversation examines the relevance of these developments for policymakers in the urban climate adaptation space and highlights their collective concerns about the challenges associated with integrating climate risk analytics into urban governance and decision-making. More specifically, they discuss issues concerning the accuracy and accessibility of climate risk information and how both may shape how urban adaptation plays out