HLS Scholarly Articles
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This collection provides open access to scholarly articles authored or co-authored by faculty, staff, and students of the Harvard Law School. All material in the repository is also harvested by search engines (such as Google Scholar) and Open Archives Initiative data harvesters.
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Publication Absolute Priority, Relative Priority, and Valuation Uncertainty in Bankruptcy - Appendix(University of Pennsylvania Carey Law School, 2025) Roe, Mark; Simkovic, MichaelPublication A Health-Centric Intersectional Approach to Climate Litigation at the European Court of Human Rights(2024) Hefti, Angela; van Kolfschooten, Hannah; Ossom, AmintaClimate change affects everyone’s health. At the same time, because of specific risk factors, some groups have a greater chance of becoming sick as a result of climate change than others. Evaluating these inequitable impacts through a health-centric intersectional approach—which considers overlapping factors like gender, age, residence, and prior health status—reveals significant health risks often overlooked in current human rights based cases. While the climate change litigation movement is thriving, evidence-based intersectional health risks remain surprisingly underexposed. This Article argues that a health-centric intersectional approach to climate change cases can enhance accountability for the impacts of climate change. We demonstrate the advantages of this approach in relation to two climate change cases recently decided by the European Court of Human Rights: Verein KlimaSeniorinnen v. Switzerland and Duarte Agostinho v. Portugal and 32 other States. We further show that a health-centric intersectional approach could avoid certain procedural and substantive pitfalls while responding more readily to climate-related health inequity.Publication The Prosecutor-Oriented Exclusionary Rule(Boston College, 2024) Rubinstein, GuyThe exclusionary rule has long been misunderstood. Scholars and judges perceive it as addressing police officers, warning them that evidence obtained in an unconstitutional search or seizure may be inadmissible in court. But officers typically care little about the ultimate conviction of suspects (as opposed to their arrest) and are therefore minimally deterred by possible suppression of evidence. Even when officers want to prevent suppression, they often do not know the complicated search and seizure rules and do not receive adequate training about them. This Article argues that the exclusionary rule’s deterrent benefits can be better appreciated and realized when understanding the rule as directed primarily to prosecutors, not to police officers. As prosecutor-oriented, the rule promotes lawful policing indirectly, by stimulating prosecutors to proactively encourage local police to adhere to the law. Unlike police officers, prosecutors do fear for the fate of their criminal cases and are therefore motivated to prevent police wrongdoing that could jeopardize them. Prosecutors are also experts on the rules governing searches and seizures in their jurisdiction and know best how to avoid triggering the exclusionary rule. Finally, prosecutors can (and do) positively influence police behavior, despite their lack of formal authority over them. Although many prosecutors around the country have employed various methods to promote lawful policing, others have remained passive. To realize the full deterrent potential of the prosecutor-oriented exclusionary rule, this Article proposes a three-pronged approach consisting of measures grounded in doctrine, politics, and legal ethics.Publication Are Carbon Emissions Associated with Stock Returns?(Oxford University Press (OUP), 2023-04-03) Aswani, Jitendra; Rajgopal, Shivaram; Rajgopal, AneeshAn influential emerging literature documents strong correlations between carbon emissions and stock returns. We re-examine those data and conclude that these associations are driven by two factors. First, stock returns are correlated only with unscaled emissions estimated by the data vendor, but not with unscaled emissions actually disclosed by firms. Vendor-estimated emissions systematically differ from firm-disclosed emissions and are highly correlated with financial fundamentals, suggesting that prior findings primarily capture the association between such fundamentals and returns. Second, unscaled emissions, the variable typically used in academic literature, is correlated with stock returns but emissions intensity (emissions scaled by firm size), an equally important measure used in practice, is not. While unscaled emissions represent an important metric for society, we argue that, for individual firms, emissions intensity is an appropriate measurement choice to assess carbon performance. The associations between emissions and returns disappear after accounting for either of the issues above.Publication American Convention on Human Rights(Oxford University Press, 1969) Neuman, Gerald; Duhaime, BernardPublication Financial Regulation: Still Unsettled a Decade After the Crisis(American Economic Association, 2019-02-01) Tarullo, DanielA decade after the darkest moments of the financial crisis, both the US financial system and the legal framework for its regulation are still in flux. The post-crisis regulatory framework has made systemically important banks much more resilient. They are substantially better capitalized and less dependent on runnable short-term funding. But the current regulatory framework does not deal effectively with threats to financial stability outside the perimeter of regulated banking organizations, notably from forms of shadow banking. Moreover, with the political tide having for the moment turned decisively toward deregulation, there is some question whether the resiliency improvements of the largest banks will be preserved. This article assesses the accomplishments, unfinished business, and outstanding issues in the post-crisis approach to prudential regulation.Publication Debt Markets Retort to Mandatory Corporate Social Responsibility(Elsevier BV, 2022) Aswani, JitendraThis study examines the debt markets’ response to mandatory CSR as prescribed by the Indian Companies Act 2013. Implementing this rule results in a 43 basis point increase in yield spreads for compliant firms, counteracting the Act’s debt-reducing provisions. The upsurge is attributed to the negative impact of mandatory CSR on expected cash flow. Leveraging a generative artificial intelligence (AI) model, the analysis distinguishes between mandatory CSR governance and expenditure. The former modestly boosts the issue-to-sales ratio by 1.2%, while the latter significantly drives the rise in yield spreads, illuminating the complex effects of mandatory CSR on debt market behavior.Publication Content Moderation by Social Media Intermediaries - Examining Short Termism during the Ukraine Crisis(Harvard Law School, 2023-12-25) Rana, AprajitaSocial Media platforms have long been accused of differential content moderation practices, both by Governments and their users. The Russia-Ukraine war brought this issue to the forefront, where moderation decisions of major technology platforms like Twitter, Meta are being scrutinized, and accused of restricting freedom of speech, moderating legitimate or propaganda incorrectly, and promoting violent content in breach of their own policies. This paper analyzes the moderation decisions of major technology platforms in non-war era, and during the Ukraine crisis, the power dynamics that influenced these decisions, and the short-termism of their Ukraine response strategy which deviated from their purported mission statements. It concludes with examining the social and long-term impact of this decision, and briefly explores if an alternative could have caused long-term impact towards free flow of legitimate information, had the platforms applied their hidden power in regulatory engagements to follow their mission statements, as described.Publication The Distinction between Theology and Ethics: A Critical History(Wiley, 2024-01-16) Lau, SeanABSTRACTThis article sketches an intellectual history of the distinction between Christian theology and Christian ethics. The twists and turns of that history have been obscured by a recent tendency to deny the distinction's usefulness, as part of a wider strategy for reasserting theology's relevance to modern social problems. By contrast, earlier theologians assumed the value of the theology/ethics divide, interpreting it through Aristotelian, neo‐Kantian, and finally Marxist categories. The distinction fell into disrepute because theologians struggled to maintain the distinction consistently and disagreed on the concerns implicated by it, variously using it to affirm the moral subject's agency, the divine/human difference, or the complexity of real people's circumstances. Nonetheless, the distinction has persisted as a useful shorthand for recognizing the limitations of Christian theology, qua a conceptual discourse, in fully apprehending its subject matter of the Christian life.Publication Misdemeanor Declination: A Theory of Internal Separation of Powers(2024) Natapoff, AlexandraMillions of times every year, American prosecutors make the all-important decision whether to decline or file formal criminal charges after police have made an arrest. This declination decision determines whether an arrest will become a full-fledged criminal case and thus whether an individual arrestee will become a defendant. It establishes the classic dividing line between investigation and adjudication, triggering numerous constitutional consequences. Through declination, prosecutors also check and regulate police decision-making within the executive branch. In an era of racialized mass incarceration, prosecutorial declination can function as a mode of equitable gatekeeping, regulating the impact of sloppy or biased policing practices on communities, courts, and the rest of the criminal pipeline. It is therefore a unique structural moment of institutional and constitutional significance. Declination is especially influential because police and prosecutors are the two main decision-makers within the carceral executive branch. This Article conceptualizes the relationship between them as an overlooked example of internal separation of powers, with the declination decision as its most impactful regulatory moment. Administrative law teaches that intrabranch checks are vital, especially when interbranch separation of powers has proven ineffective as it famously has with respect to the penal executive. The prosecutorial declination decision, in turn, is an especially promising intrabranch checking tool. It offers decisional friction, oversight, and accountability within the executive at precisely the moment when good law enforcement decision-making makes a big difference for millions of people. In our massive misdemeanor system, this regulatory promise usually fails. Misdemeanor prosecutors routinely rubber-stamp police arrest decisions and convert arrests automatically into formal charges: namely, they abdicate their screening and checking functions by deferring to police. Misdemeanor declination rates are typically very low—often less than five percent—which means that police effectively get to decide not only who will be arrested but who will be formally charged with a crime. This is not how the criminal system is supposed to work. In administrative law terms, such prosecutorial abdication is a violation of basic branch design and a worrisome species of intrabranch collusion. It is, however, neither universal nor foreordained. Around the country, many newly elected prosecutors have embraced strong misdemeanor declination policies, not only as a way of checking police but increasing equity, efficiency, and accountability. Such policies exemplify how misdemeanor declination is an underappreciated opportunity to regulate the penal executive from within and to mitigate the excesses and injustices of the low-level carceral state.