New Innovation Models in Medical AI

ABSTRACT In recent years, scientists and researchers have devoted considerable resources to developing medical artificial intelligence (AI) technologies. Many of these technologies—particularly those that resemble traditional medical devices in their functions—have received substantial attention in the legal and policy literature. But other types of novel AI technologies, such as those related to quality improvement andContinue reading “New Innovation Models in Medical AI”

Ford’s Underlying Controversy

ABSTRACT Personal jurisdiction—the doctrine that determines where a plaintiff can sue—is a mess. Everyone agrees that a court can exercise personal jurisdiction over a defendant with sufficient in-state contacts related to a plaintiff’s claim. This Article reveals, however, that courts diverge radically in their understanding of what a claim is. Without stating so outright, someContinue reading “Ford’s Underlying Controversy”

Criminalized Students, Reparations, and the Limits of Prospective Reform

Introduction Criminalization of students occurs when schools refer children to criminal law enforcement for everyday disciplinary infractions—infractions that school administrators and counselors could appropriately manage.[2] The states bring criminal charges against students for school-specific crimes, like “disrupting class,” and general order-related crimes like “disorderly conduct.”[3] Criminal court judges and prosecutors substitute in for school administratorsContinue reading “Criminalized Students, Reparations, and the Limits of Prospective Reform”

The Political Economy of WTO Exceptions

ABSTRACT In a bid to save the planet from rising temperatures, the European Union is introducing a carbon border adjustment mechanism—essentially a levy on imports from countries with weak climate rules. The United States, Canada, and Japan are all openly mulling similar proposals. The Biden Administration is adopting new Buy American rules, while countries aroundContinue reading “The Political Economy of WTO Exceptions”

Antitrust Harm and Causation

Introduction This article addresses a question at the core of antitrust enforcement: how should government enforcers or other plaintiffs identify and address harm from antitrust violations? The inquiry naturally breaks into three issues: proof of the kind of harm that antitrust law requires, proof of causation, and formulation of effective remedies. The best criterion forContinue reading “Antitrust Harm and Causation”

Insuring the ‘Uninsurable’: Catastrophe Bonds, Pandemics, and Risk Securitization

ABSTRACT In principle, governments could protect against the potential economic devastation of future pandemics by requiring businesses to insure against pandemic-related risks. In practice, though, insurers do not currently offer pandemic insurance. Although they may well be able to obtain sufficient actuarial data to set pandemic underwriting standards and rate tables, insurers are concerned thatContinue reading “Insuring the ‘Uninsurable’: Catastrophe Bonds, Pandemics, and Risk Securitization”

Stealth Governance: Shareholder Agreements and Private Ordering

ABSTRACT Corporate law has embraced private ordering—tailoring a firm’s corporate governance to meet its individual needs. Firms are increasingly adopting firm-specific governance through dual-class voting structures, forum selection provisions, and tailored limitations on the duty of loyalty. Courts have accepted these provisions as consistent with the contractual theory of the firm, and statutes, in manyContinue reading “Stealth Governance: Shareholder Agreements and Private Ordering”

A Duty of Loyalty for Privacy Law

ABSTRACT Data privacy law fails to stop companies from engaging in self-serving, opportunistic behavior at the expense of those who trust them with their data. This is a problem. Modern tech companies are so entrenched in our lives and have so much control over what we see and click that the self-dealing exploitation of peopleContinue reading “A Duty of Loyalty for Privacy Law”

The Rediscovered Stages of Agency Adjudication

ABSTRACT Modern administrative law understands the Administrative Procedure Act (APA) to establish an informal and a formal procedural mode of two types of agency action: rulemaking and adjudication. This Article argues that this understanding, which is sound as applied to rulemaking, is wrong as applied to adjudication. Revisiting the voluminous and long-neglected research that informedContinue reading “The Rediscovered Stages of Agency Adjudication”

A Reign of Error: Property Rights and Stare Decisis

ABSTRACT Mistakes matter in law, even the smallest ones. What would happen if a small but substantively meaningful typographical error appeared in the earliest published version of a U.S. Supreme Court opinion and remained uncorrected for several decades in versions of the decision published by the two leading commercial companies and in several online databases?Continue reading “A Reign of Error: Property Rights and Stare Decisis”