Emad H. Atiq, Professor of Law & Philosophy (with coauthor Matt Duncan)
“I Feel Your Pain: Acquaintance and the Limits of Empathy,” Oxford Studies in Philosophy of Mind, vol. 4 (2024).
The kind of empathy that is communicated through expressions like “I feel your pain” is important, but peculiar. For it seems to require something perplexing and elusive: sharing another’s experience. In this chapter, Atiq and Duncan clarify how empathy, in the regimented sense of sharing another’s pain, is possible and why it is important. Central to their account is the concept of being acquainted with—that is, directly aware of—pain. Explaining how empathy is both possible and important involves clarifying the nature of acquaintance: its limits, epistemic role, and motivational significance. The authors argue that agents have both epistemic and moral reasons to share other people’s pain because pain-sharing is the source of a species of character-building knowledge that we have no other way of accessing except through acquaintance with pain.
Kevin Clermont, Robert D. Ziff Professor of Law
“Skirmishing Toward a General Theory of Evidence and Proof,” The International Journal of Evidence & Proof, vol. 29, no. 1 (2024).
Traditional probability fundamentally assumes bivalence and additivity: there is only truth and falsity, whose odds add to one. The consequence is many problems and paradoxes for factfinding, all attributable to the assumptions’ exclusive focus on random uncertainty.
By contrast, multivalent belief theory abjures those two assumptions, thereby allowing consideration of epistemic uncertainty. This theory divides the factfinder’s state of mind into three, not two, gradated concepts: belief, uncommitted belief representing epistemic unknowns, and disbelief. This theory utilizes a more general but perfectly valid logic that accounts for all relevant kinds of uncertainty and so explains the law’s wise practices.
In practice, legal factfinding rightly rejects probabilism. It favors instead the multivalent theory of evidential proof based on inner convictions or beliefs. Other theories compete with multivalent belief theory in trying to overhaul probabilism to fit practice, but they prove clumsy in achieving that goal.
James Grimmelmann, Tessler Family Professor of Digital and Information Law
“The Fine Line Between Persuasion and Coercion,” Communications of the ACM, vol. 68, no. 1 (2025).
In 2020 and 2021, at the height of the COVID-19 pandemic, social media platforms were awash in dangerous health misinformation. These posts included false claims about the dangers of vaccines, false claims about the health benefits of alternative treatments, and much more. This was a problem for public health— and it was also a content-moderation problem for the platforms. Federal officials in the White House and at the Centers for Disease Control frequently contacted the platforms to point out posts that flew in the face of science. The platforms used this information to decide which posts to remove.
This kind of content moderation raises a sharp legal question. Many of these posts, even the ones that are blatantly false, are protected speech under the First Amendment. The government generally cannot compel platforms to remove legal content. But platforms can decide on their own to remove health misinformation and other content, and the government is mostly free to persuade platforms to do so.
In Murthy v. Missouri, decided in June 2024, the U.S. Supreme Court wrestled with the line between coercion and persuasion. It held that users suing the government must show there is a “concrete link” between government pressure and the removal of their specific posts. As long as platforms “exercise their independent judgment” over content moderation, there is no First Amendment violation.
In this column, Grimmelmann describes the history of the Murthy case and explain how it leaves platforms free to set their own content-moderation policies on controversial issues.
Valerie Hans, Charles F. Rechlin Professor of Law
“Judgment by Peers: Lay Participation in Legal Decision Making,” Annual Review of Law and Social Science, vol. 20 (2024).
Almost two-thirds of countries worldwide rely on laypersons as legal decision makers in criminal cases, and a substantial number use laypersons to resolve civil disputes. Laypersons participate as jurors, lay judges, lay magistrates, and members of lay courts. Their participation enhances factfinding by incorporating community views and values into legal decision making. Lay participation can also increase the transparency and legitimacy of law and the courts and promote democracy. As a result, some countries have adopted lay participation in recent decades. Yet, concerns about competence and bias have led other countries to circumscribe or abolish their systems of lay participation. This review describes the different roles that laypersons play as legal decision makers and the work that they do. It also describes the competing trends to expand or limit lay participation in legal decision making. After summarizing the research evidence, this article concludes that there is much value in judgment by peers.
Erik Hovenkamp, Professor of Law
“Antitrust’s Refusal-to-Deal Doctrine: The Emperor Has No Clothes,” CPI Antitrust Chronicle (2024).
Antitrust’s refusal-to-deal (RTD) doctrine considers situations where a dominant firm excludes rivals by refusing to sell them something that would help them compete. For over a century, the courts have made anticompetitive intent the touchstone of RTD liability. However, virtually everyone understands that this intentbased standard cannot possibly be right, as it would permit antitrust to be abused as a vehicle for egregious free-riding. Courts understand this risk, but rather than replacing the standard, they have merely neutered it by adopting contrived legal tests that make it almost impossible to establish anticompetitive intent. The result is that most judicial analysis of RTDs is little more than a formalistic ritual in which courts apply pointless tests while pretending not to know that the whole doctrine is economically incoherent. Hovenkamp argues that the courts should overturn the intent- based standard, and he suggests an alternative policy framework that avoids the problems in existing doctrine. Among other benefits, this would help to bolster antitrust enforcement against anticompetitive conduct by digital platforms.
Ian Kysel, Associate Clinical Professor of Law
“The World Bank’s 2023 World Development Report: A Missed Opportunity to Recognize that All Migrants Have Rights,” International Migration, vol. 63, no. 1 (2025).
The 2023 World Development Report (WDR, 2023), Migrants, Refugees, and Societies, is a vast resource—intended by its author as a ‘message of hope’— for policymakers responding to human migration across international borders and seeking to understand that ‘well-managed’ migration can be a ‘powerful force for prosperity.’
While the report makes general reference to international human rights law and its application to protect migrants’ rights, as well as to those protections due to migrants under international refugee law, the WDR 2023’s treatment of rights overall is muddled and surprisingly limited. Most concerning, the report does not clearly take the view that all migrants have a set of basic human rights. It does argue, however, that migration contributes most to prosperity when migrants are given basic rights and social protections within host states. This is an important message for policymakers but begs the question of how widely these and other rights and protections are enforced, and thus how politically complex it might be to putthis view into practice.
The short shrift given to international law also clouds the report’s effort to develop novel categorizations of migrants. In addition, new findings from the Migrant Rights Database (MRD), hosted at Cornell University with the support of its Migrations Initiative, help contextualize the WDR 2023’s findings and recommendations as they intersect with human rights law (Migrant Rights Initiative, 2023). MRD data show that while it is now possible to evaluate the rights protections of migrants in national law across countries, regardless of their legal status, states are only doing a middling job protecting labor, health and education rights, the social protections on which the WDR 2023 focuses on in some detail. These data thus reinforce the WDR 2023s emphasis on the importance of securing such rights and social protections in order to ensure the prosperity gains from migration can be more broadly enjoyed.
Frank Pasquale, Professor of Law (with coauthor James J. Varellas)
“Introduction: Improvements, Complements, and Alternatives to Quantitative Analysis in Competition Law and Industrial Regulation,” Journal of Law and Political Economy, vol. 5 (2025).
The fundamental legal, normative, and politico-economic assumptions underpinning both competition law and administrative governance are in a period of considerable flux. Past calls for a renewed economic analysis of law are striking a chord with present scholars. In this issue of the Journal of Law and Political Economy, Pasquale and Varellas commence a specially edited series of articles focused on the value, shortcomings, and potential improvement of quantitative analysis in competition law and regulatory decision-making. This multiyear project aims to provide guidance and insight to advocates, judges, and regulators on the proper nature and scope of quantitative methods in several important areas of law and policy.
Kristen Underhill, Associate Dean for Faculty Research and Professor of Law (with coauthor Kimberly M. Nelson)
“Pulling Out the Rug on Informed Consent—New Legal Threats to Clinicians and Patients,” The New England Journal of Medicine, vol. 392, no. 6 (2025).
In recent years, state legislators in large portions of the United States have enacted new legal strategies to limit access to health care for transgender people. To date, twenty-six states have enacted outright bans on gender-affirming care, which thus far apply only to minors. Other state laws create financial or procedural obstacles to this type of care, such as bans on insurance coverage, requirements to obtain opinions from multiple clinicians, or consent protocols that are stricter than those for other health care. These laws target clinicians who provide gender-affirming care, but all clinicians—in every jurisdiction and specialty— should take note of the intrusive legal actions that are emerging in the regulation of health care for transgender people. Underhill and Nelson consider a new law that allows people to revoke their informed consent to health care retroactively when it is part of gender-affirming care. This is an unusual and destabilizing law, and if other states adopt a similar approach, it could challenge the legal infrastructure underlying U.S. health care.
