Jill Elaine Hasday is a Distinguished McKnight University Professor and the Centennial Professor of Law at the University of Minnesota Law School. She teaches and writes about anti-discrimination law, constitutional law, family law, and legal history. After graduating from Yale Law School, she clerked for Judge Patricia M. Wald of the United States Court of Appeals for the D.C. Circuit. Hasday is the author of three books: Family Law Reimagined, Intimate Lies and the Law, and We the Men: How Forgetting Womens Struggles for Equality Perpetuates Inequality. Intimate Lies and the Law won the Scribes Book Award for the best work of legal scholarship published during the previous year and the Foreword INDIES Book of the Year Award for Family and Relationships. Hasdays articles have appeared in many leading law reviews. She spoke with SSRN about her work as an anti-discrimination scholar and how her new book encourages the fight for gender equality by remembering womens place in the history of law.Q: Tell me a little bit about your career path: why did you choose to study, teach, and write about subjects like anti-discrimination law, constitutional law, family law, and legal history specifically?A: I knew I wanted to be a law professor from the first time I learned that job existed. I love how teaching law gives me an opportunity to combine theory and practice. Law professors have the freedom to pursue questions without the pressure of representing clients who have immediate problems to address. But at the same time, teaching and writing about law requires you to be grounded in the reality of what is happening in the world.My specific interest in focusing on law and inequality emerged out of my own life experiences as a woman. I consider myself an anti-discrimination scholar and write from that perspective, whether I am discussing constitutional law, family law, legal history, or something else.Q: You have a new book coming next month (March 2025) called We the Men: How Forgetting Womens Struggles for Equality Perpetuates Inequality, the introduction for which is posted on SSRN. This book looks at the history of womens struggle for equality and emphasizes the importance of remembering womens stories more often and more accurately in order to encourage the work we still have left to do. What served as the catalyst for you writing this book? In other words, why now?A: With the 250th anniversary of the United States approaching in 2026, I felt that now was an especially good time to write a book that includes women at the center of American law and history. We the Men argues that excluding women from Americas dominant stories about itself is not only inaccurate but helps perpetuate inequality. I first began thinking about some of the ideas in the book when I was in law school. I was struck by how often the stories I heard in class treated mens lives as the ordinary baseline and womens lives as exceptions to either skip over or mention as footnotes. I thought: women are not an exception. We are half the population. Our experiences within and outside of the law are just as important as mens experiences.Q: For such a wide-reaching topic like this, Im sure there are many avenues you couldve taken when writing this book. How did the direction and structure of the book really take shape?A: After considering many possible alternatives, I decided that organizing the book into four parts would present my argument most crisply. The first two partsErasure and Distortionhighlight ways in which Americas dominant stories forget about women, whether by ignoring womens struggles for equality or by wildly exaggerating American progress. The third partConsequencesexamines how forgetting about women helps perpetuate womens inequality. The final partHopeexplores how Americans can learn from the past to change the future.Each part of the book alternates between a chapter on the courts and a chapter focused outside the courts. Although judges commonly present themselves as operating above the fray of politics and popular opinion, Americas dominant stories about women ricochet back and forth between judges, politicians, journalists, and other powerful Americans.Q: One of the things you argue for in the book is the need for more conflict over womens status, rather than less: this importance of conflict and agency rather than waiting around for spontaneous enlightenment on the part of men. What do you feel is the most productive form of this conflict, and at what level do you believe it is most effective?A: I wish there was one strategy that would work every time. In reality, the long history of womens struggles for equality makes clear that progress has always been difficult and always required multiple strategies, often sustained across generations. We are currently in an anti-feminist moment in American history. But this is not the first time that opponents of womens rights have blocked womens advances or reversed earlier victories. The key is to persist nonetheless.Q: That isnt the only book youve written. In 2019, you released Intimate Lies and the Law, which analyzes deception in intimate relationships and the hidden body of law that governs it. In this book, you suggest that one way the law could change to better protect those deceived is to afford them the same rights as people deceived in situations outside of intimacy: how difficult would it be to reform the law in such a way that this is possible? What are some of the current barriers to making this a reality?A: Intimate Lies and the Law argues that the legal system should treat deception in dating, sex, marriage, and family life more like deception outside of intimacy. Today, courts routinely tell deceived intimates that they cannot pursue suits for fraud or misrepresentation, even if they can establish all the ordinary elements of those claims. Under my approach, courts would begin with a rebuttable presumption that intimacy is not a bar to seeking ordinary legal remedies.Convincing courts to alter entrenched patterns is always difficult, but my book explains why I find the arguments defending the status quo unconvincing. For example, courts sometimes contend that providing redress for intimate deception would encourage deceived intimates to feel aggrieved when otherwise they would accept their lot. I have read hundreds of memoirs and interviews in addition to every case I could find. I can assure you that deceived intimates already know they are injured and already feel aggrieved. Moreover, to the extent that having the law take these injuries more seriously helps some people conclude that they deserve better than to be duped, I consider that an advance rather than a cause for concern.Q: In other talks youve given about this book, youve mentioned that at this point, nothing really surprises you anymore when it comes to deception but at the same time, you say that the point of your book isnt for us to believe deception is everywhere, all the time. How do you suggest that people balance the desire to believe people are completely trustworthy, while still protecting themselves from deception?A: No form of intimate deception surprises me anymore, and some deceit I have even come to expect. On any given Saturday night, there are probably more male bar patrons falsely claiming to be Navy SEALs than have ever served in the SEALs in all of American history. An internet search to confirm someones background can sometimes save you a lot of heartache. That said, I would never recommend going through life assuming the worst. How can you form intimate bonds if your first thought when someone declares their love is to suspect a scam? One reason I want the law to provide more remedies for intimate deception is that it is unrealistic, unfair, and often counterproductive to expect people to protect themselves.Q: Are there any papers of yours on SSRN that you are particularly interested in or encourage people to check out?A: I would like to highlight one of my articles, Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change. When the Supreme Court in Rostker v. Goldberg (1981) upheld the constitutionality of male-only military registration, the Courts reasoning relied on the militarys longstanding policy of excluding women from combat. My 2008 article argued that Rostkers foundations were increasingly shaky as the military was opening more combat positions to women. That has become even more true since January 2016, when the military ended all sex-based combat exclusions. Congress convened a commission to study the issue, and I testified in 2019 to explain why excluding women from military registration is unconstitutional. But male-only military registration persists.Equal responsibilities and equal rights are inextricably intertwined. The absence of one makes the other less likely.Q: How do you see SSRN as fitting into the broader legal research and scholarship landscape?A: I am grateful that SSRN provides an opportunity to distribute papers and receive feedback before work is officially published. In addition, I appreciate SSRNs reach. SSRN is free and open to the public, and it crosses disciplinary boundaries. One of the reasons I began writing books is because I am eager to connect with audiences outside of the law. SSRN also helps me reach that wider audience.You can see more work by Jill Hasday on her SSRN Author page here

SSRNMeet the Author: Bernard E. HarcourtBernard E. Harcourt, Isidor and Seville Sulzbacher Professor of Law at Columbia University,is a distinguished critical theorist, legal advocate, and prolific writer and editor. In his books, articles, and teaching, he focuses on punishment practices and political economy, critical theory and praxis, and political protest. Harcourt is the founding director of theColumbia Center for Contemporary Critical Thought, which brings contemporary critical theory and practice to bear on current social problems and seeks to address them throughpractical engagements, including litigation and public policy transformation. His most recent book,Cooperation: A Political, Economic, and Social TheoryNorman J. Redlich Capital Defense Distinguished Service Award, a lifetime achievement awardfor his work on behalf of individuals on death row. Harcourt spoke with SSRN about how critical theory helps to reexamine the way we look at the world and how aspects of his career and advocacy have been influenced by this perspective.Q: Youve worn many hats throughout your career author, editor, professor, advocate, scholar, etc., and whether through writing books and articles, serving as Executive Director of the Columbia Center for Contemporary Critical Thought, or in real practice through litigation, much of this work revolves around critical theory. For those new to the idea, how would you explain the goals of critical theory? And in what ways has your career path taken on aspects of both critique as well as practical application?A: Critical theory has the appearance of being a nebulous, complicated, unfathomable space for a lot of people. But its very simple, because at the heart of critical theory is the idea of trying to critically examine reality in such a way that our usual, commonplace understanding of the world is reexamined. Critical theory helps us penetrate through the superficial ways in which we think about the world to try and look deeper and see what forces are really at play.Just to give you an idea, in the field of criminal law, we tend to think of punishment as being the product of someone committing a crime, which is why we talk about crime and punishment. We think that punishment should be limited to people who have committed crime, and that crime should have punitive consequences. When we take that commonsense approach, we usually talk about the purposes of punishment: deterring other people, rehabilitating people, or revenge and retributions. These are all commonplace understandings and dominant ways of thinking about the world. But it turns out that when you start to push at reality, what you find is that lot of that language deterrence and rehabilitation covers the real functions of what were doing when we punish, such as creating social order, or creating a racial order in this country.When you look, for instance, at the racialized dimensions of mass incarceration in this country, you start to see that the punishment is not really about crime, but its about something else. Its doing other work. Its advancing a particular way of organizing society along racial lines. That is a critical theory insight. It penetrates reality and tries to show that what you believed and what seems so obvious and commonplace might be an illusion hiding deeper forces.With the distance of history, its easy. You look back 100 or 200 years, and you can see right through the surface reality. You can see, for instance, that when we had convict leasing in the postbellum period the decades immediately following emancipation we now understand that those forms of convict leasing were trying to reestablish a form of slavery through the criminal law. That becomes obvious. Or you look back at the Inquisition and you start to understand that it wasnt really about the crime that somebody had committed: it was about imposing a religious order. I think we see it all clearly in the past, but in the present, theres a fog that settles in, and we get fooled by the simplicity of the idea that we punish people because theyve committed crimes. Critical theory helps you reexamine and thus expose the forces in society that are actually the engines of history.Q: In your paper The Future of Critical Theory: From the Academy to the Public Sphere, posted in March of 2023 on SSRN, you discuss the state of critical theory and how it can be developed to be most effective in modern times. One of the subjects you discuss is how social media has played a large role in social movements. Discuss how you think technology and social media have influenced for better or worse the larger efforts to enact change.A: Theres no doubt that social media, digital technologies and now artificial intelligence represent the greatest contemporary shock to our social and political system. There are many ways in which these forms of technology are shaping and transforming our present. Theres both a negative dimension to that and a positive dimension.The negative dimension is that these forms of technology have allowed the state not just the United States, but Russia, China, etc. to mine information and knowledge about each and every one of us and about social movements. We have become an expository society in the sense that we expose ourselves willingly on all these platforms, like TikTok, Instagram, and BlueSky. As a result, we voluntarily give away all of our data and our personal information: our geolocations, our purchases, our preferences, everything. The danger here is that we no longer need government surveillance, undercover operations, or illicit wire taps to get all this information, because everybodys putting it out there to the public. The result is that anyone who wants to monitor or repress or crack down on social movements has all the information in open source to do that and can really follow, track, and watch movements as they emerge.On the other hand, these technologies have been used a lot in social movements as ways to mobilize people. Ultimately, the question is, how will things net out? I think at this point were at too early a stage to be able to determine how it all nets out. But I do fear that the transparencies created by these technologies can be instrumentalized against social movements.Q: Throughout your career, youve spent decades representing individuals on death row in Alabama. How has the significance and importance of this work informed your approach towards advocacy and systemic reform as a whole?A: I wear several hats, and one of them is being a death penalty attorney with cases predominantly in the state of Alabama, representing folks on death row, although also co-counseling Guantanamo [Bay] and other cases. That has been my most consistent and deep form of practical engagement. It has been the terrain that has, in a way, educated me and in which I have trained the most to understand how to go about trying to create social change.I would say that what my years of death penalty practice have taught me is the importance of having both a defense and an offense. Those cases are always structured as defensive actions, in the sense that Im representing someone who is being prosecuted by the State, and so most of the time, Im in what is conventionally a defensive posture. What it has taught me is that the art is to try to transform that defensive posture into an offensive strategy so that Im not simply trying to fend off attacks, but organizing a strategic and positive path forward towards some possible outcome.In the process, Ive learned the importance of remaining forward-looking, positive, concretely utopian, [and] trying to have particular ambitions that you hold in front of you, so it keeps you in a positive fighting mode.Q: Youve written several books over the years, the most recent being Cooperation: A Political, Economic, and Social Theory, which came out in 2023. What are some of the big takeaways you want people to take from this book and your theory in general?A: The book is grounded on a critical theoretic insight that the world may appear to us right now, for instance in the United States, as being universally competitive, capitalist, zero sum. But underneath that surface appearance, there is an extraordinary amount of existing forms of cooperation, and we often dont realize it.So, for instance, Land OLakes is a producer cooperative. Many of the big insurance companies State Farm, Nationwide, and others are mutuals, which means that theyre actually run by management for the policy holders, rather than for outside investors. There are huge credit unions, like Navy Federal Credit Union, which are banks that are basically run by and for the depositors, rather than outside investors. So, there are very large cooperatives.When you start looking around, it turns out that theres a lot more cooperation, mutual aid, and other forms of mutualism, whereby people are trying to work together to cooperate for outcomes that benefit all the stakeholders, and not just the capital investors. What I do in the book is try to unearth this reality and then try to understand it and theorize it along three dimensions: a political dimension, an economic dimension and a social dimension.Along the political dimension, there have been a lot of arguments and books written over the last two or three centuries about forms of cooperation, but the rationales are somewhat outdated. They fit well in the 19th century, but they dont work as well in the 21st century. I try to argue for a political theory of cooperation based on the work of thinkers like Thomas Piketty and Katharina Pistor, who really have demonstrated that large scale economic shifts are a question of human-made decision making. I argue for the importance of us deciding how to structure economic exchange from a political theory perspective.I argue from an economic perspective that cooperation is opposed both to forms of capitalism and to what we would traditionally think of as existing forms of socialism or communism, because it is bottom-up. By contrast, those other systems, paradoxically, are actually top-down. From an economic theory perspective, I argue that what capitalism shares with forms of socialism is a top-down approach, in the sense that a system like the American economic regime only functions because of the guarantees of solvency and the bailouts by the federal government.Then, the social theory is to rethink how we organize society. I argue that we have in place a punishment paradigm whereby we predominantly leave people to their own devices until they find themselves caught up in the criminal legal system. Instead, we should organize society in such a way as to support people through cooperative mechanisms ex ante, to create a society of cooperation. The argument there is that we need to pass from the punishment paradigm to a cooperation paradigm, at the social level.One of the things I emphasize in the book is that, in contrast to other forms of social organizing, what is so attractive about cooperation is that it can be done by the individual and at the individual level. It doesnt require the passage of a majority vote in federal elections: people can simply get together and create a food cooperative in their neighborhood, or they can get together and create a worker cooperative. It doesnt require the majority electoral coalition or the long-term social transformation that would be necessary to create other concrete utopias. It can be done here and now. You could organize your whole life in a cooperative way just by taking deliberate steps.Q: Do you have any papers, projects, or research youre working on right now that youre particularly excited about?A: Yes, I actually have three book manuscripts that are written and that Im in the throes of trying to publish. I do have one about my 30 years of representing a man on death row in Alabama, Doyle Lee Hamm, who ultimately went to execution but survived the execution because they werent able to place a catheter to conduct a lethal injection. It was a long, multi-year effort.Thats one area, but the other one Im working on right now has to do with what I call a model or a method of social inquiry, which I refer to as immersive philosophical practice. Its based on some model thinkers who I admire, including Simone Weil, Angela Davis, Michel Foucault, and Frankfurt School thinkers, many of whom had an exigency or demand that they not just theorize in the abstract, but test their ideas in practice: that the formation of their ideas had to emerge from their practical experience.Simone Weil in particular was someone who, for instance, was writing about questions of social relations in the factory and demanded of herself that she actually go work in a factory, in order to understand the experience of the worker. She also was writing about politics at the time, and she demanded of herself that she join the Republican forces during the Civil War in Spain against Franco. She was an exemplar of someone who couldnt simply write about politics and freedom without implicating herself in it. I find that a particularly inspiring model.You see, that need to think at the same time as you act, to infuse your theory with practice, to not be simply doing armchair academic work, but to ensure and constantly test and clash your ideas with your practice, I call that an immersive philosophical practice. Its a model of thinking and being and writing that I find particularly admirable, and that Im spending my time writing about. And hopefully practicing.Q: Law is one of our most prominent disciplines on SSRN. How do you see SSRN contributing to the legal research and scholarship landscape?A: I think SSRN has been essential to the legal field in disseminating and creating debate over ideas as they originate. SSRN has a strong legal dimension, but it is open for the other social sciences, and humanistic social sciences as well. Its a forum for interdisciplinary work, and that has helped push the legal field in more of an interdisciplinary direction. I think its had a remarkable impact on shaping early ideas and allowing debate to take place that might not have taken place without it. Its a public square, in a way. People can put out their early ideas and get the kind of feedback thats necessary to shape them into even better work.SSRN works so much better with the timing of intellectual production than other forms of publication. An author can put a piece on SSRN at exactly the right moment in their intellectual trajectory, which is when you have come up with your idea, youve written it up, and youre at the height of your interest in the idea. You can then get it out and get feedback. The temporality of publishing in peer reviewed journals and academic presses is completely different and extremely counterproductive, because youre only able to get feedback months, sometimes years after youve produced the idea and [are] excited about it. SSRN, in contrast to all those other forms of publishing, maximizes the excitement that one has with the work one is doing.The other great thing is that youre able to retain your own voice and not be stifled, moderated or watered down by the peer review process. One of the things about peer reviewing is that it often forces you to dilute your argument and present it in a less crisp and provocative way. When you have complete control over your writing, as you do with SSRN, you can present it in the way that you most strongly believe is right. That makes a huge difference.One of the articles I had on SSRN was called The Illusion of Influence: On Foucault, Nietzsche, and a Fundamental Misunderstanding, and I still think to this day its right, even though I had to water it down for publication. The idea of the illusion of influence is that it doesnt make sense to think that an author has an influence on another author. Because in fact, whats happening is that the second author is projecting their ideas onto the first author. I wrote that paper, then it was submitted, and [in] the peer review process, they want me to take that argument out and stick with the five different ways that Foucault read Nietzsche. The peer review process had stripped the peak of its most interesting point and to this day, Im much more interested in the SSRN piece that I published than the peer review journal piece!What SSRN allows you to do is to speak in your own voice in a way that a lot of other publishing doesnt allow you to do.You can see more work by Bernard E. Harcourt on his SSRN Author page here

SSRNMeet the Author: Leah LitmanLeah Litman is a professor of law at the University of Michigan Law School. She teaches and writes on constitutional law, federal courts, and federal post-conviction review. Her research examines unidentified and implicit values that are used to structure the legal system, the federal courts, and the legal profession. In 2023, the American Law Institute named Litman a recipient of its Early Career Scholars Medal, and in the same year, the American Constitution Society recognized Litman with the Ruth Bader Ginsburg Scholar Award. Litmans recent work has appeared or will appear in many journals, and her writing for popular audiences has appeared in The New York Times, The Washington Post, Los Angeles Times, and Slate. In addition, she is one of the co-hosts and co-creators of Strict Scrutiny, a Crooked Media podcast about the US Supreme Court, which received the 2023 Podcast Academy award (Ambie) for Best Politics or Opinion podcast and a 2023 Anthem Award for its coverage of the Supreme Court overruling Roe v. Wade. She is also a co-creator, together with Emily Prifogle, of Women Also Know Law, a tool to promote the work of women and nonbinary academics. She spoke with SSRN about the intricacies of the Supreme Court and how understanding it is relevant today, both in and beyond academia.Q: Your body of work has such variety. On top of your experience as a professor and researcher, youre one of the co-creators of Women Also Know Law, and you also co-host the podcast Strict Scrutiny. How is it that youve gotten involved in some of these wider-reaching projects, that extend beyond classrooms and research papers?A: I think its a combination of reasons. First is just a little bit of happenstance. I happened to be at Michigan Law School when Emily Prifogle joined the law school as a faculty fellow, and she had been involved in a related project called Women Also Know History. There was not yet a Women Also Know Law group. Women Also Know is a series of organizations related to different disciplines, which seek to highlight the work of women and non-binary academics. So, we just decided to start the legal version. Similarly, with the podcast, I looked around [and] it seemed like there was not a podcast hosted by several women law professors who wanted to offer a kind of irreverent but also analytical take on the Supreme Court. So again, we just decided to do it and launch it. Five and a half years later, here we are. I think one of the best parts about being an academic is the autonomy you have over what the job looks like and what you do. All of these different things that Im involved in use very different parts of my brain and different skill sets, and its fun to be able to get to do all of them.Q: In the Strict Scrutiny podcast, you and your co-hosts Kate Shaw and Melissa Murray do a great job of talking about the Supreme Court and its legal culture at a broader, more approachable level, while still getting into the nitty gritty of how current events and big legal ideas impact our everyday lives. Why do you think its important to communicate with people beyond traditional academic settings about whats happening in the Supreme Court?A: First, just as a general academic matter, I think part of what academia is about is producing research in the quest for truth. That, of course, has value beyond just an academic audience. I love to see when academics can translate their work to the broader public or when they can work with other people to do so. Not all academic ideas need to have practical implications or practical output, but for those that do, its not going to actually materialize unless youre able to talk to people outside of academia.As to the Supreme Court in particular, the Supreme Court is one of the less transparent institutions within the federal government. Its governed by a set of rules that arent all written down, that arent all public, and yet its extremely consequential and important for our everyday lives, as well as the functioning of our government. We wanted to be able to rectify that by talking about the Supreme Court and bringing it to a broader audience, so people who were interested could learn more about this super important but still fairly opaque institution.Q: Are there any aspects of the Supreme Court and its culture that you wish people understood better?A: It would be hard to identify just one. I can name a few. One is that I think its a mistake to try to understand Supreme Court opinions in isolation. You have to look at them together with previous opinions, related opinions, whats happening in other areas of law, as well as the political context for the decision, in order to really understand what is going on and how a decision might play out on the ground. We try to offer a more contextual understanding of what the court is doing.The second thing I would say as far as what people should know about the Supreme Court is the Supreme Court basically has near plenary authority to decide what cases and issues it takes up. So, I think that fact really skews our assessment about what the court is doing at any given time, just because they have such broad authority to select their docket and decide what issues they are focusing on, kind of similar to elected officials.Q: Your new book, Lawless, is set to come out in 2025. Could you give an overview of what this book is about and why you chose to write it now?A: The full title, which will give you a sense about what its about, is Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories and Bad Vibes. Im publishing this with a trade press, rather than an academic press, because it is geared toward the general reader, rather than just the academic reader. What the general gist of the book is, is it goes through five broad areas of law and shows how what the Supreme Court is doing now originated from political movements that began at least several decades ago. Those political movements harnessed certain social attitudes and feelings, and we can understand and actually see the remnants of those feelings and movements within the substantive content of the law and that helps us understand where the Supreme Court might go next. Thats the general arc. All of these areas of law reflect, I think the nicest word is ambivalence toward different groups that are not, by and large, part of the modern GOP coalition. So, doctrines that kind of stick it to the people who are less well off, doctrines that stick it to younger voters, doctrines that stick it to racial minorities, and it looks at those together with the political makeup of the modern Republican coalition and the policies of the modern Republican party, and shows how the doctrines, in some ways, work in tandem with that.Q: What encouraged you to start writing the book in the first place?A: Partially, what happened with the podcast. I mean, the Supreme Court is just so important right now. I have a sense that people really want to understand it. Obviously, we try to do a lot of that in the podcast, but the podcast is just hour-long episodes, you listen to them, its an audio format rather than read, and we cant necessarily go as in depth as wed like or give all of the long history into every single topic it is we are covering.I wanted to bring that understanding and context [of] what is happening now to a broader audience, and also help people understand some of the mechanics of the Supreme Court and how it got to be so. The book talks about how the court selects cases or why the Supreme Court has the authority to select cases or why the Supreme Court has the authority to basically decide what issues are in a given case. It discusses various powers that the court has that people might not be aware of and also how those powers developed over time and what they are the product of.Q: What research or other projects are you working on right now that youre particularly interested in or excited about?A: I have a piece that is coming out in the new year in the Texas Law Review called The New Substantive Due Process. The basic gist of that piece is it shows how the Supreme Court is refashioning the institutions of the administrative state based on doctrine and body of law that really resembles what is known as substantive due process, the idea that the Constitution protects certain liberties that are not defined or spelled out explicitly in the constitutional text. And while the Republican appointees on the Supreme Court have been hostile to the traditional individual rights line of substantive due process, theyve essentially transmuted it and replicated it as a weapon to wield against the administrative state, even though they dont call it substantive due process. Thats the one thing Im working on.I have [about] three other projects that are in various stages of early research and writing that span a bunch of different topics. One is about federal post-conviction review and remedies. Another is about statutory interpretation and the other is about originalism and attacks on education. Again, one of the best parts about being an academic is I just get to focus on what I find interesting and what I think is important at the given moment.Q: Do you choose what your focus is based on whats happening currently in the world, or do you look ahead at issues you think will be important in the next couple of years?A: Its a little bit of both. The new substantive due process piece kind of spans both. It illustrates the kind of early seeds of this new substantive due process, but then spends a fair amount of time talking about what might happen over the next, lets say, decade, if not more, in light of where the Supreme Court appears to be headed. The originalism education project is, I think, more forward-looking than some of the other ones. Its really a mix of different approaches.Q: Your most downloaded paper on SSRN is The New Major Questions Doctrine, which you co-authored and was posted to SSRN in July of 2022 and published in the Virginia Law Review in September 2023. This paper explores the changes made to the Major Questions Doctrine. How would you explain to someone unfamiliar with this doctrine firstly, what it does, and then what changes have been made to this in recent years, specifically with how the focus is on what a major issue is and whether a decision has economic or political significance impacts decision making?A: The Major Questions Doctrine is a rule about how courts interpret statutes, federal laws. In general, we think about this court as a textualist court that tries to interpret federal statutes based on the best meaning of the words in the statute. The Major Questions Doctrine essentially operates as an exception to that rule. They say, when we are talking about statutes that give administrative agencies power, were not going to adopt the best interpretation of the statute. Instead, were going to place a thumb on the scale against agency regulations that are major in order for the agency to have the power to adopt major regulations. Those need to be spelled out explicitly in the constitutional text, rather than in broad, general language. Thats kind of how the doctrine works.As far as the changes in it and what has happened, the Supreme Court used the phrase Major Questions Doctrine for the first time in West Virginia v. EPA, a 2022 decision. There were seeds of some related ideas in earlier cases, but those cases had basically said, Look, were going to consider the significance of a regulation together with a host of different factors, like the text of the statute, its statutory history, its structure, and if you add all of that together and here, majorness meant the cost and the sweeping changes that a regulation would make then that was a reason to think actually the statute doesnt give the agency that power. But over time, its become something quite different, where instead of considering the majorness alongside the text and statutory context and trying to discern its meaning, majorness operates as a threshold consideration, where if the regulation is major, youre no longer looking for the best interpretation of the text. Thats how the doctrine has changed.In the paper, we argue that the court has paid increasing focus, not just to the economic significance of a regulation that is, how much it might cost to private parties but also to whether there is political controversy surrounding a regulation. That is, whether some people, in particular the Republican Party, is agitated against the regulation.Q: Have you seen any of the things you wrote about in the paper come to fruition since you wrote it?A: After we posted the paper, almost a full year later, the Supreme Court issued its major student debt relief case. There, the court invoked the Major Questions Doctrine to conclude that President Bidens loan forgiveness program for many borrowers of federal loans was illegal and it invoked the Major Questions Doctrine. We think the decision reflected our understanding of the doctrine, in that it focused on the political significance of the regulation which wasnt necessarily going to cost private parties that much money, [since] it was just forgiving federal loans and it focused on political significance. The court quoted an op ed basically saying that student debt relief had engendered emotionally charged opinions and debate. The editors were kind enough to allow us to basically insert two references to the decision into the piece. But we think, yes, how the Supreme Court later applied the doctrine was consistent with what we were saying the court was doing.Q: Youve mentioned before, in the podcast, that you enjoy and put a special focus on habeas corpus. What is it about this topic that continues to interest you?A: Habeas corpus refers to the body of law that allows people who are being detained to challenge the lawfulness of their conviction. Habeas law is governed by a Byzantine body of statutory rules, including the Antiterrorism and Effective Death Penalty Act, as well as a complicated body of judicial common law. So, its highly technical. There are a bunch of rules and its unclear how, if at all, the provisions fit together. For someone who likes to puzzle through doctrinal intricacies and is very into the analytic elements of law, I think thats partially what drove me to it: the fact that there were all of these different bodies of law that were highly technical, that didnt necessarily seem to relate together but were hugely consequential. They were just requiring a lot of work by courts, by people who are detained, so trying to understand what was happening amidst the mess, is part of what drew me to it.Q: Is there anything else you want to add about your recent work or about things that youre especially interested in that youd want people to know more about?A: In general, my work is trying to identify the implicit that is, not explicitly stated values that are underlying a lot of the doctrines and legal changes we are seeing. I think thats important, because in order to assess what courts, Congress, [and] political actors are doing, we need to understand whats motivating them and whats the driving force behind the doctrine. Thats a general theme.Q: Law is one of the most prominent disciplines on SSRN. How do you think SSRN contributes to the legal research and scholarship landscape?A: Its hugely important because its a way of transmitting our work to other academics and to a broader audience in a way that is so much more timely than the longer window of journal publication. You were saying earlier about the New Major Questions Doctrine piece that we posted it in July 2022. It wasnt published until September 2023, and we really wanted to get that piece out basically as soon as the Supreme Court had refashioned and formalized New Major Questions Doctrine so people, including lower courts and litigants, would understand what was happening and be able to evaluate it. The way to do that was to post a paper on SSRN.You can see more work by Leah Litman on her SSRN Author page here.

SSRNMeet the Author: Cass SunsteinCass R. Sunstein is currently the Robert Walmsley University Professor at Harvard. He is the founder and director of the Program on Behavioral Economics and Public Policy at Harvard Law School. In 2018, he received the Holberg Prize from the government of Norway, sometimes described as the equivalent of the Nobel Prize for law and the humanities. In 2020, the World Health Organization appointed him as Chair of its technical advisory group on Behavioural Insights and Sciences for Health. From 2009 to 2012, he was Administrator of the White House Office of Information and Regulatory Affairs, and after that, he served on the Presidents Review Board on Intelligence and Communications Technologies and on the Pentagons Defense Innovation Board. Mr. Sunstein has testified before congressional committees on many subjects, and he has advised officials at the United Nations, the European Commission, the World Bank, and many nations on issues of law and public policy. He serves as an adviser to the Behavioural Insights Team in the United Kingdom. He is author of hundreds of articles and dozens of books, including Nudge: Improving Decisions about Health, Wealth, and Happiness (with Richard H. Thaler, 2008), Too Much Information (2020), Decisions About Decisions (2022), How to Become Famous (2023), and Free Speech on Campus (2024). He spoke with SSRN about free speech on college campuses, Barbies, and how behavioral science informs law.Q: Youve accomplished so much in your career: writing dozens of books and hundreds of articles, working for the White House and the World Health Organization, your work in academia, and I know Im only skimming the surface there. Through all of this, youre consistently producing work thats timely and relevant. How would you say your career and research interests have evolved along with the changing times?A: I started out as a very law-focused law professor. My principal fields are administrative law which is about the legal rules governing administrative agencies and constitutional law. I shifted toward a corresponding interest in behavioral economics and psychology and economics generally. That was partly because some legal issues depend on an understanding of human behavior that may or may not be accurate. Working in the government under President Obama from 2009 to 2012 got me even more intensely focused on regulatory policy cost benefit analysis, environmental law, climate change issues, public safety, occupational safety, pandemics. Those issues have been at the center of my research interests since I left government in 2012.Ive also been interested in Bob Dylan and Star Wars and Taylor Swift, and some of my books have dealt a bit with those topics. Culture, broadly, is something Ive always been interested in arent we all? but Ive been more academically interested in the last 10 years.Q: You mentioned your focus in behavioral economics, for which youve written and co-authored books on the subject, including Decisions About Decisions and the New York Times bestseller Nudge. How would you say your knowledge about behavioral economics informs your legal understanding and gives you a different perspective than people without that background?A: Suppose you have a problem, which is road safety, and you want to create legal requirements that reduce the risk that people will get in crashes. What do you do? You might say, well, we should punish unsafe drivers, or we should require people to buckle their seat belts. And those might be good ideas, but if you know behavioral science, youll know something about nudges that might help, such as informing people of certain things, or maybe putting a camera in their car so they can see in back. Thats information coming in. Maybe you have certain forms of signage that can help people be safer. Or maybe you have bumper strips so if people are in a place where going too fast is more likely to cause an accident, the architecture will slow them down. People will be responsive to that.Behavioral science gives another set of tools and a set of understandings, in addition to those available in law. Ill give you an example: the government has done a bunch of things to reduce time taxes that it imposes on people. Theres a customer service innovation in Washington to make it simpler for people to sign up for things. You make some things automatic for them. If theyre eligible, theyre just in, and they dont have to fill out long forms. That reduction of time taxes is heavily informed by behavioral science.Q: In your paper Barbies, Ties, and High Heels: Goods That People Buy But Wish Didnt Exist, you explore how people consume products or engage in activities, not necessarily because they want to, but because not doing so can offer unwanted signals. What are some of the main takeaways you want people to gain from your research on this concept?A: This paper is near and dear to my heart, and its very much part of my current research focus, which is on the problem of manipulation. Some mundane examples: suppose theres a party Saturday night, and you really dont want to go to the party. You want to stay home with your partner, or you want to have an evening off. But if you [dont] go to the party, youll send the signal to the host or friends that are going to be there that you dont like parties or that you dont like them. You dont want to send that signal. So given the existence of the party, youre going to go.As another example, say a bunch of people are on a social media site tonight after 10pm, and you think, Oh my gosh, I wish I could go to sleep or do something work related, or watch a show I want to watch, but all my friends are on. Ive got to stay on. Those things are goods or activities that people purchase either with money or with time that they wish didnt exist.For men, ties are Barbies. Not talking about Barbies, literal Barbies, but things that are causing losses to be self-conscious about the risk that people are buying with money or time: something that they wish did not exist. I assert that many men wear ties, but if ties were abolished from the face of the earth, a lot of men would be really happy. So, a tie is a Barbie. For many women, high heels, I understand, are Barbies, where the abolition of high heels would be a great thing.For social media users, we actually have data on this. Instagram and Tiktok are, to some extent, Barbies. Young people are going to use TikTok and Instagram, but if theyre asked whether they wish TikTok or Instagram away, a lot of them would say, absolutely, yes. I wish they didnt exist. But theyre going to stay there. Im thinking there are a lot of things like this, a lot of products. Maybe the latest iPhone is a Barbie. We have data suggesting that people want fewer product launches of iPhones, but theyre going to get the newest iPhone. The reason is they dont want to be with technology thats behind the times, but if they could have the iPhone 11, they might be plenty happy with it.Q: In this paper, you suggest that the way to change how these goods are consumed is through collective action, but with how pervasive this is in our culture, what do you think would need to change in society for that kind of progress to be feasible?A: Sometimes small groups can recognize either as a group or with leadership that theyre dealing with a Barbie. When I was in the government, there were a lot of meetings that were, by tradition, either hour or half-hour meetings, and I created a rule that all the half-hour meetings would be 15-minute meetings, and all the hour meetings would be half-hour meetings. My observation is that this was reflective of what most people wanted all along. Once you change a half-hour meeting to a 15-minute meeting, people really get focused early, and they get a gift of 15 minutes extra.In my family, my sister said a number of years ago that Christmas presents would be exchanged just for children, and adults would not exchange Christmas presents. For my sister and me and various family members, that was so great because we spent a long time finding presents that the adults really didnt like, and it was basically a net negative. So, small groups can do something. Now for larger things, its harder. I applaud Instagram for developing a nudge where it tells teenagers, after 10pm, Are you sure you want to stay on Instagram? Maybe you want to get off? And whether this is the ideal solution or a first step, we dont know yet, but Instagram, I think, has an implicit understanding that late night Instagram use on the part of teenagers is a Barbie. If you can encourage people to get off, you might be able to solve the problem. Im thinking were a real tip of the iceberg here for private institutions and for governments to [ask], when are we dealing with a Barbie that is actually causing serious harm for people? Thats going to be increasingly important, with the power of technology to grab us as it grows over time.Q: Youve written a lot about free speech on college campuses, recently releasing Campus Free Speech: A Pocket Guide, as well as an op ed for the New York Times called Only the First Amendment Can Protect Students, Campuses and Speech. In these, you dive into what the First Amendment protects and what it doesnt. How does educating people about the functions of the First Amendment and free speech help inform difficult conversations and decisions being made amidst controversies, especially on college campuses?A: This morning, I had a mild car problem. I didnt know how to solve it, so I went to the car place. The car people knew how to solve my car problem, and I am grateful to them. To think in the abstract about how to deal with, lets say, racist speech, unpatriotic speech, antisemitic speech, or threatening speech on campus is extremely difficult. We saw in the spring, that if youre asked, What do I do? I have students or faculty who are doing this, that is a recipe for disagreement, and maybe like me trying to fix a car its not something that I do.Our culture has built up over the course of hundreds of years, a set of principles for handling free speech controversies. Its not perfect but its extremely impressive and careful. We know that if a person on campus or on the street comes up to another person and says, If I see you again, youre toast, thats not protected by the First Amendment. Thats a true threat, as its called. We know that if three people get together and say, Lets conspire to fix prices, or lets conspire to engage in some act of violence, were well on our way to having conspiracy, and thats not protected by the First Amendment. If I say, if you buy my book, youll never get cancer, thats not a very effective form of fraud because I dont think anyone would believe it, but it is a form of fraud, and its not protected by the First Amendment. Thats just the start of categories of agreed upon permission slips for regulators, but there arent a lot of permission slips. So, if someone says, I think America is a horrible country, racist from the start, or I think that Hitler was great, or I think that communism is beautiful, and we should go there as fast as we can, those are all protected. That wont answer every question that educational institutions have to grapple with, but it will answer the vast majority of them, and itll answer them pretty well. Thats my exercise in automobile repair and the subject of my little book on the First Amendment on campus.Q: What are some things that you think people overlook or maybe dont understand about the First Amendment and free speech in particular?A: I think one view is that incitement isnt protected by the First Amendment. Ive heard that a lot. There was a great judge named Learned Hand who made that argument, but it didnt prevail. If I say, Hey people, lets all litter, its going to be great, thats incitement, and its protected by the First Amendment. If I engage in speech thats intended and likely to incite imminent lawless action, that is not protected. Notice that requires an intention and likelihood to produce imminent lawless action, and theres plenty of incitement where the likelihood of producing lawless action is really low. If I go down the street saying, steal my book, please. Its going to be really fun, I think, as a first approximation, no one would steal my book, so I havent incited anything. I think the difference between incitement and violation of the clear and present danger test, as its called, is not well understood.Q: What papers, projects or research are you working on now or in the near future that youre particularly excited about?A: Theres a lot. [Im] doing a paper right now on the relationship between embarrassment and judgments about prevalence. The claim is: if you are really embarrassed about something, you probably wont talk about that very much. And if everyone else is like you and not talking about it, you will underestimate the prevalence of the thing. [This] will include embarrassment and shame, and there will be a kind of cycle of silence.I testified before Congress a number of years ago about Dont Ask, Dont Tell, the military policy which said you can stay in the military if youre gay, but only if you dont say so. I said this is not a good policy, that any form of discrimination should be stopped. One member of Congress came up to me afterwards and he said, You know, when I grew up, there werent any homosexuals. There just werent any. And then he paused, and he said, Oh, there was one guy, he might have been he lived on a hill. I just thought that was so interesting, because it wasnt the case that when he grew up in the 1940s there were no gay people. He wasnt lying: he just didnt know any. People who have mental health challenges, physical health challenges, who have issues that are extremely widespread, they often dont know that theyre widespread. Thats because the very thing that makes them ashamed or embarrassed becomes the source of that silence. We now have data [that] just came in thats supportive of the hypothesis that embarrassment and underestimating prevalence are not just correlated, but causal.Q: You are one of the most downloaded and highly cited authors on SSRN. How do you think SSRN fits into the broader research and scholarship landscape?A: I would say to anyone on the planet whos willing to listen that I love SSRN. If you have a paper that is potentially a source of discussion among people and youre not ready to publish it in a peer reviewed journal, SSRN is a green light that says, give it a try. That is so liberating for writers. Its also the case that sometimes there will be a paper that youll never put in an academic journal or a peer reviewed journal, but that either for the author or for the world, its a good thing that exists. I read so many [on] SSRN, and some percentage of them, theyre never published in academic journals. But they add something important. For both readers and writers, its a massive gift. I think the number of people who believe that is very, very high, and the number of people who say it out loud is not very high; lets not be embarrassed.You can see more work by Cass R. Sunstein on his SSRN Author page here.Photo credit: Rose Lincoln

SSRNTalking Financial Resilience and Retirement Readiness with the TIAA InstituteThe TIAA Institute builds and shares knowledge about a wide range of issues related to financial well-being and organizational effectiveness. As a think tank within TIAA, they have a keen focus on retirement planning and outcomes with good reason. 39% of households in America are at risk of being unable to maintain their standard of living during retirement. Contributing to the challenge, more than half of Americans lack a basic understanding of how long people will live in retirement. Workers without longevity knowledge are less likely to plan and save for retirement.For several years, the TIAA Institute has partnered with the Pension Research Council (PRC) at The Wharton School of the University of Pennsylvania on a Behavioral Finance initiative designed to sponsor research that provides thought leadership and insights on Americans financial security. The TIAA Institute hosted a Symposium April 2024 with the PRC, highlighting recent research from this initiative. During question-and-answer sessions at the Symposium, Dave Richardson, head of research at the TIAA Institute, shared the Institutes findings on boosting financial resilience and retirement readiness.Q: Dave, we know that many Americans are struggling financially. What are factors that can lead to improved financial well-being that were discussed at the Institutes symposium?A: Financial well-being is often assessed using objective measures such as income, discount rates and financial literacy. It is not usually calculated using individual perceptions and behaviors (e.g. financial satisfaction or stress and budgeting). Jennifer Coats and Vickie Bajtelsmits paper New Insights into Improving Financial Well-being expanded beyond objective measures and identified attitudes and behaviors that lead to better financial well-being (FWB), especially the quality of patience as measured by the discount rate, and risk tolerance. Someone who prefers to receive money now versus later may make poorer financial decisions, have lower quantitative outcomes, and a reduction of a holistic sense of well-being. While those with higher risk-tolerance are associated with more investment actions, higher quantitative outcomes, and improvement in a composite well-being in the face of the unavoidable uncertainty regarding ones financial future.In addition, financial literacy and the Big Five personality types (openness, conscientiousness, extroversion, agreeableness, neuroticism) advance FWB, particularly a positive sense of conscientiousness and a lack of neuroticism. They also found that financial literacy is necessary but not sufficient to enhance FWB. If individuals lack the confidence and/or patience to make sound financial decisions, the influence of financial literacy on FWB is limited. Best FWB outcomes accrue to those with both financial literacy and confidence in their ability to make financial decisions and achieve financial goals.Many policy initiatives take a holistic approach to improving FWB. While generally helpful, a more effective strategy would be to focus on specific areas identified in the study. Given the broad negative influence of high individual discount rates on FWB, financial literacy programs should aim to increase understanding of the time value of money. In addition, financial advisors can help individuals focus on developing positive behaviors that best align with their personalities, as opposed to attempting to change deep-seated traits.Q: What was discussed about how debt factors into financial well-being?A: Two papers regarding debt were shared that focused on student loans. Other Institute research found that Americans hold an average of two loans 47% with mortgages, and 20% with student loans. Managing student loans and debt in general is critical for financial well-being to and through retirement.The study at Georgia State University asks if modest financial incentives might boost the take up of financial aid counseling offered on campus, the effects of such counseling, and the degree to which counseling helps hard-to-reach populations. James Cox, Daniel Kreisman and Stephen Shores report Do Additional Dollars Buy Engagement? included an experiment that randomized the provision of financial incentives for students who were at risk of dropping out for financial reasons, and found a small uptick in the number of students who attended counseling, but from low base rates. They also found that monetary incentives are particularly effective at inducing students of color to attend counseling, however, students who attended counseling because of the incentives did not reenroll at higher rates the following semester than those who attended without a financial incentive, regardless of how much was paid to induce them to attend.Nearly 50 million Americans owe over $1.75 trillion in student loan debt, while simultaneously needing to save for retirement. Another report, Estimating the effect of employer matching contributions offsetting student loan debt by Vanya Horneff, Raimond Maurer, and Olivia Mitchell investigated how workers can manage both debt repayment and retirement savings, given employer-sponsored matching retirement contributions for qualifying student loan payments, as intended by the SECURE 2.0 Act of 2022. They developed a model that predicts the SECURE 2.0 employer student loan payment matches will:Cause levels of outstanding student debt after age 30 to fall far more slowly than before, because workers will make significant less use of one-time payoffs (which would mean foregoing the employer match).Reduce workers retirement savings contributions by almost 50% but account balances will differ very little because of the higher employer matching contributions for loan repayments.Lower nonretirement asset balances only slightly.Enhance pre-retirement consumption by up to 3%, as a result of lower retirement contributions.To achieve SECURE 2.0s potential, employers will need to voluntarily provide the loan repayment match, and plan service providers will need to allow that to happen in practice.Q: The average Americans lifespan has increased rapidly in recent decades. Dave, what were the implications regarding the future of advice explored during the fireside chat between Joseph Coughlin and Surya Kolluri?A: For years, MIT AgeLabs Joseph Coughlin has been researching the changes in the perceptions of the role of the financial advisor as well as the transforming technology, demographic, and consumer landscapes. Coughlin and Kolluri talked about how longer lives mean that retirement planning cannot focus on a single life stage. Clients are demanding advisors more than just manage money, that they integrate non-traditional topics such as quality of life implications. They envision future advisors more like lifelong confidants, and their offices more like a family-oriented space of relationship-building. Advisors can become team builders and leaders, connecting clients with the specialists they need for holistic life planning (geriatric managers, certified home modification specialists, senior housing consultants, etc). In addition, they suggest product developers accommodate for these longer-life needs by creating technology, services, and conversations that address life now, not just retirement tomorrow.Q: Decisions about when to retire and how to draw down wealth are complicatedand can have long-lasting ramifications. What was shared during the research forum?A: In Retirement, Social Security deferral, and life annuity demand, Sita Slavov shows that for lower-income individuals who have high discount rates relative to the real interest rate, claiming Social Security early and not annuitizing other assets can be optimal, since Social Security usually adequately replaces their pre-retirement income. The act of spending down private retirement saving early and relying entirely on Social Security during retirement is effectively purchasing an annuity from Social Security, rather than in the retail market. When interest rates are low, most people should not claim early while also annuitizing other assets.Slavov found many are not using this parallel strategy any longer, and identifies some reasons, including the shift towards defined contribution pensions. She suggests that a more generous actuarial adjustment for delaying Social Security lowers the price of the annuity one can purchase by delaying benefits. Increasing monetary benefits as individuals increasingly delay Social Security as well as changing language around claiming ages can have an impact on when individuals choose to retire and how they draw down their wealth.Q: Does planning for economic shocks reduce the likelihood of financial fragility? What is the role of financial literacy?A: The timing of retirement is a major determinant of lifetime income and, likewise, a crucial factor affecting financial security. Yet people face uncertainty about the timing of their retirement. In their report How do life events affect retirement timing? Aspen Gorry and Jonathan Leganza work to understand how people navigate this uncertainty and how life events influence when they choose to retire. They found that nearly 1/3 of workers retire five years earlier or five years later than expected.Gorry and Leganza study how retirement expectations evolve as workers age. Older workers tend to expect to work longer than younger workers. They discovered that demographic, economic and health characteristics influence these expectations. Particularly, health shocks, such as cancer, lung disease and arthritis lead to earlier retirements more than economic or family shocks, which has implications for retirement planning. For example, individuals with good health, high income, and high wealth tend to expect to work longer as they age, whereas those with health shocks such as a cancer diagnosis tend to work less as they age. They also found that on average, the birth of a grandchild or a divorce do not affect retirement expectations.The findings clearly highlight the prevalence of retirement timing uncertainty. Yet retirement timing is a key input in the design of retirement target-date funds. Plan administrators can help by offering more flexibility for workers to adjust how their savings are invested after life events that change their retirement expectations.To assist households to better withstand economic shocks and address income needs in times of crisis, Robert Clark and Olivia Mitchell investigated the relationship between financial resilience and financial literacy in the report Financial fragility, financial resilience, and pension distributions. They found that individuals who are older and have elevated levels of education, financial literacy, and income are more likely to be financially resilient and prefer income annuities rather than lump sum distributions. They developed a financial resilience index and found that the index is relatively stable over time, even in the face of the COVID-19 pandemic, and a good predictor of future economic behavior and outcomes. This may be due to the expansion of unemployment benefits and government stimulus checks distributed during the pandemic.They found that policies and programs that enhance financial resilience are likely to help older households withstand unexpected shocks, while boosting financial literacy can help people of all ages withstand shocks. Programs and policies that boost financial resilience and literacy could significantly increase retirement well-being. To view more papers from the TIAA Institute on SSRN, visit the TIAA Institute Research Paper Series. To subscribe to the TIAA Institute Research Paper Series eJournal, click here

SSRNThe Emerging Field of Climate Finance with Peter TufanoRecently, SSRN announced the new Climate Finance eJournal, sponsored by the MSCI Sustainability Institute. This area includes content on the application of financial economics to climate change mitigation, adaptation, and resiliency. Subscribe to the Climate Finance eJournal for free here. Harvard Professor Peter Tufano, one of the eJournals editors, spoke with SSRN about climate finance as an emerging field and how his research fits into this growing body of work.Peter Tufano is a Baker Foundation Professor at Harvard Business School (HBS) and Senior Advisor to the Harvard Salata Institute for Climate and Sustainability. From 2011 to 2021, he served as the Peter Moores Dean at Sad Business School at the University of Oxford, where he championed a systems change element to business education. From 1989 to 2011, he was a Professor at HBS, where he oversaw the schools tenure and promotion processes, campus planning, and university relations and was the founding co-chair of the Harvard i-lab. His current work focuses on climate finance, climate alliances, and the financial impact of climate on households. His longer body of research and course development also spans financial innovation, financial engineering, and household finance. He and his co-Editor, Laura Starks, created the collaborative doctoral reading group, The Financial Economics of Climate and Sustainability.Q: Climate finance is an emerging field that has been growing more prominent in recent years. For those unfamiliar with the subject, could you explain what climate finance is?A: Climate finance is a subset of what you might call whole system finance, which is directing large flows of funding to address some of the biggest problems that need to be solved in the world. These problems are very large, very global, have very long time horizons, and sit on the boundary between private and public. Finally, they are consequentialand in the case of climateexistential.One way to solve these problems is to simply say thats the province of government. But often we need the expertise and capital of the private sector. Redirecting not only huge flows of money but also transforming systems, like energy systems, will require the combination of public and private finances and a host of techniques and tools and leadershipacross sectors.The other thing that makes climate finance interesting is its time frame. Most of the time in finance, we dont evaluate projects that have multi-generational outcomes. With any traditional discount rate, something that takes place 60 or 70 years in the future would have a value today of about zero. The normal approaches to valuation pretend as if the long-horizon future doesnt matter. Clearly it does, so that requires us to think a little bit differently.Succinctly, climate finance studies the tools and techniques that will direct large resources and risk-bearing to solve climate and planetary problems.Q: What kind of research is done within this field? What are some of the main goals of research and study within climate finance?A: The climate finance research community is still evolving, with different clusters of researchers pursuing different topics, depending on their prior work. Lets talk about the academic researchers first. If you approach this new field from a traditional academic finance perspective, then youd likely try to figure out how climate will change the way that we think about asset prices, financial intermediaries, household finance, corporate finance, and public finance.If you come from the policy end of finance, you might begin with bigger picture questions. For example, suppose that we were able to make investments to keep us on a 1.5- or 1.8-degree C. trajectory, demanding a meaningful percentage of global GDP. Where would that money come from? What might get crowded out? How would the math work?So depending on where you come from, you will be drawn to different questions. Therefore, we expect a range of approaches within the new SSRN eJournal, as there are already in this emerging field.Q: You serve on the advisory council for the MSCI Sustainability Institute and as a senior advisor to the Harvard Salata Institute for Climate and Sustainability. What insights do these roles give you into the future of where those research subtopics are headed?A: Let me start with the work at Salata. Most universities rely on a set of cylinders of excellence, as one of my colleagues called itmore commonly called silos. This is because in those distinct domain expertise areas, scholars can know their material exceptionally well. Climate, sadly, doesnt respect any academic boundaries. The first insight from the work at Salata is that our disciplinary boundaries are going to have to be more permeable so that we can be aware of and fully consider the science of climate change, the economics of climate change, and the organizational reality of affecting climate change. Addressing climate change rigorously will require the best of all of our disciplines.MSCI is a remarkable organization, and I cant do justice to describe all that it does, but surely, it is preeminent in collecting data that can be used to drive decisions. In this climate space, the data that were going to need will be highly multi-dimensional. As an example, much of finance and financial analysis is not place-based. But with climate issues, place matters. Were going to have to think about the implications of physical locations for the risks to which we are exposed. Just as MSCI has evolved over time to incorporate more and more decision-relevant data, work in climate will demand that use a wider set of data to do cutting edge and relevant research.Q: In a paper you co-authored called The Evolving Academic Field of Climate Finance, you say that the sheer scale of the greenhouse gas induced climate crisis will force us to rethink and refine our financial theories and practices. What would you say are some of the biggest challenges in terms of rethinking those theories and practices, especially considering that so much of this work is still evolving, uncharted territory?A: Let me offer three ideas we need to rethink. First, in any MBA class we value everything on the basis of private benefits to investors. We dont even try to value the social benefits or harms of projects. The first thing we have to do is to broaden how we evaluate projects, firms and initiatives to make more intelligent decisions. Second, again considering valuation, we use discount rates to bring monies back and forth in time. But these discount rates are inappropriate in considering very long horizon outcomes. At a discount rate of 4%, the value of a dollar at the turn of the next century is $0.05. This implies that the value of a human life is worth one-twentieth of a life todaya very important ethical concept. Finally, while we have been indoctrinated to believe that markets solve all problems, the core principles of economics remind us that this will only be true if there are no externalities, which is clearly not the case when the private cost of emissions remains essentially zero.I think students and academics have to be alerted to a broader set of questions. Where this starts, in my mind, is in education. We need to ultimately transform our educational systems and what we teach. But the only way were going to do that is to have professors who understand this space, which is why a number of us got together to found Financial Economics of Climate and Sustainability (FECS), a doctoral course that we offered across 130 schools last year and this year is welcoming research staffs at government agencies. FECS trains the next generation of doctoral students and researchers, who can be the next generation of professors and policy makers, who can then go and intelligently think through these issues and not only produce great research, but [also] communicate it in a way that makes it meaningful.Q: In the paper I mentioned earlier, you talk about the interdisciplinary nature of climate finance and how the vast impact of climate change really blurs the lines between areas of study that may have been distinctly separate before. How do different fields and perspectives help foster research that contributes to these big goals and big questions about sustainability and climate change?A: This evolution will happen in stages. I think the first stage will be the acknowledgement of the importance of this climate topic within disciplines and locating climate issues within existing fields. Before we get to interdisciplinary or multidisciplinary research, lets first understand how it affects each of our disciplines. I think that if we start by staying in our lanes and understanding the implications of climate in say, asset pricing or household finance, we will begin to be open to other disciplines.To foster the kind of true multi-disciplinarity that addresses whole system problems like climate will require confronting inherent tensions in academia. There are, in academia, various norms and practices, like how we evaluate candidates for tenure and which journals publish which papers. For mostly good reasons, both of these tend to use narrow definitions, largely to demonstrate the depth that we demand of excellent work. As a result, tenure decisions and journals are to a large degree defined by our core disciplines, not by the problems we address. There are some problem-based journals, and [the Climate Finance eJournal] is an example.A second, perhaps even more important consideration is, whats the channel to impact? How is it that this research is going to drive action? We need to think and act differently in order to have greater impact, which might involve expanding our definitions of excellent research, substantially improving research communications, or regularly having a new type of sabbatical where scholars can rotate into government and business to increase the impact and relevance of their work.Q: Youve spoken before about the fact that there are a lot of levers, a lot of different ways, to kickstart climate finance and progress. If these mechanisms for change exist, whats holding us back as researchers, businesses, society from acting on solutions? Wheres the turning point to go from theoretical ideas to taking the kind of action that youre talking about?A: Ive used the term kickstart in a number of different contexts, but the physical image of a lever is helpful. Systems change scholars often organize actions in terms of which have the most and the least leverage. What is the long run impact if we can change specific outcomes, [such as] passing a law? What if we routinely measure impact? What if we encourage different levels of collaboration? And at the far end, with the most leverage, how can we change the way that people think about problems?I think that there are promising examples where we are affecting system changes. We start with changing measurable things, and weve seen this in changes in disclosure policies. The huge pushback in the U.S. against climate disclosure almost surely reflects some groups fears that this disclosure would show the harms that they are causing. Blended finance and climate finance is about the merging of public and private fundingnew forms of collaboration. We need to change and create new feedback loops. We are doing that through materializing demand through advanced market commitments where buyers signal future demand by orders in advance. We are seeing change happening through tax policies both carrots (like the U.S. IRA) or sticks (like the European Carbon Border Mechanism). We are seeing change happening through collaboration, and in particular, alliances. We are seeing this change in the discussion moving from shareholder to stakeholder capitalism.We are starting to see people move from this thinking of the climate issue as a nice thing that tree huggers do to something that is going to affect all of us and therefore we all have a responsibility to do something about. If you look at the levers for systems change, which are practical, structural, and cultural, I can see examples of all of them where we are making progress. But not enough progressand not fast enough, according to the most recent science.Q: So there is a bright future ahead in all those areas?A: I dont know if Id say bright future. I, and others this is not my original idea think theres a major difference between optimism and hope. Optimism is a statistical belief that the future will be better, and hope is more of a belief that with certain actions, theres a chance that the future could be better. I dont know that Im an optimistic person, but I am a hopeful person, and I think we have to be.Q: Are there any research focuses specifically you think will be especially promising in the coming years? What kind of things should we keep an eye out for?A: Theres so much new, interesting work going on right now. I was just chairing a session at a big banking conference with new work on how banks are incorporating climate into their lending decisions. My colleagues are doing more exciting work on how the insurance sector can play a bigger role in reducing emissions and in the financing transition. Theres serious and difficult work to hold various groups accountable, by studying those who make promises and then dont follow up on them; or say one thing and then lobby to do other things. We have to call that out. Im hard pressed to think about what there isnt to do.As were launching this SSRN eJournal, the initial base of papers that were going to have will probably be around 1000. In 10 years, I think that number could easily be 10 to 20 times that. Collectively, I hope that these papers will not only add to our understanding of how finance can change the world, but also help turn these ideas into action.Q: What are some of your current research interests?A: I am very interested in climate alliances. The dominant way of thinking in business is that competition is the natural order and societies will progress by firms competing with one another. Surely, thats true to some extent. But in the climate spacewhere there are huge externalitiesthis model breaks down. I think theres potentially an important role for collaboration: both collaboration between firms and collaboration between firms and governments. We need to understand how collaboration in the climate space can complement private competitive activity and government action. We need to study this both theoretically and empirically, and I am working actively on this question. Im also doing some work in the boundary between household finance and climate, linking my old and new research agendas. Finally, Im very excited about new work by young scholars linking insurance and climate and hope to contribute to this very new field.Q: Is there anything else youd like to add about climate finance or your work?A: When I returned to Harvard to teach after a decade of being a Dean at Oxford, I decided that I wanted to teach a doctoral course in climate finance, in part as a service to the school, but also as a way to get current on the latest literature. As a result of doing that, I reached out to people in the profession about what they were teaching in their doctoral classes. I rapidly learned that no major school had a doctoral course on climate finance.So ten of us got together and said, Why dont we collaboratively put together the syllabus? And why dont we teach it across our schools? In 2025, were going to run version 3.0 of Financial Economics of Climate and Sustainability. We will reach doctoral students and researchers at over 100 schools, and this year, well also be welcoming the research staffs at major financial regulators. We summarize the newest content in this space, and each local school customizes the course to fit their own circumstances. Its an example of how collaboration can be catalytic in the climate space, at least in our small way.If you look at the names of the teaching group, they will be familiar because theyre the Advisory Board for this journal and my co-editor, Laura Starks. Whats fascinating is that they all had hugely successful research careers before they pivoted to study climate. This is instructive because it shows that we can transform our research and teaching, starting one person at a time. Finally, we are all doing this as volunteers, for the benefit of a thousand future finance professors. But if we go beyond that, why not make all of this research available even more widely? When I joined the MSCI Advisory Board, I mentioned this idea to them. Id already edited two SSRN eJournals in the past, so it wasnt hard to link MSCI, SSRN, and this amazing group of scholars that I am privileged to work with to create this new Climate Finance eJournal.To see more work by Peter Tufano, visit his SSRN Author page here.Is there an eJournal you want to sponsor? Contact sales@ssrn.com for more information.

SSRNMeet the Author: Sara GerkeSara Gerke is an Associate Professor of Law and Richard W. & Marie L. Corman Scholar at the University of Illinois College of Law. Her research focuses on the ethical and legal challenges of artificial intelligence and big data for health care and health law in the United States and Europe. She also researches comparative law and ethics of other issues at the cutting edge of medical developments, biological products, reproductive medicine, and digital health more generally. Professor Gerke has over 60 publications in health law and bioethics, and her work has appeared in leading law, medical, scientific, and bioethics journals. She is leading several research projects, including CLASSICA (Validating AI in Classifying Cancer in Real-Time Surgery) and OperA (Optimizing Colorectal Cancer Prevention Through Personalized Treatment With Artificial Intelligence), both funded by the European Union. She spoke with SSRN about the legal and ethical challenges of integrating artificial intelligence into the medical field and how much farther we still have to go.Q: Youve led and been part of research projects that work on things like artificial intelligence (AI) in healthcare and the legal and ethical implications of integrating new and cutting-edge technology into medical practice. What has driven your interest and motivation within this field of study?A: I moved to the U.S. about six years ago. Previously, I was the General Manager of the Institute for German, European and International Medical Law, Public Health Law and Bioethics of the Universities of Heidelberg and Mannheim, and I was also doing a lot of grant writing. I already felt like we were getting to the point where we have to submit applications for technology, because thats the new world, where its heading towards. It takes quite some time until you actually can execute a grant. I somehow got to know about this project [in the U.S.], and I was really excited about it. It would have taken probably another two years until I could carry out something similar in Germany. Long term, I always thought to pursue an international career so that I can write more articles in English and really spread my work around the world. I applied for that position, was very lucky to get it, and was responsible for the day-to-day work of the Project on Precision Medicine, Artificial Intelligence, and the Law (PMAIL) at the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. I feel these days everyone is very aware of AI, at the latest when ChatGPT came on the market. But six years ago, we were one of the very small groups who really looked at AI and digital technology at that time in the healthcare field from an ethical but also legal perspective.Q: Your most downloaded paper on SSRN, Ethical and Legal Challenges of Artificial Intelligence-Driven Healthcare, written in 2020, highlights several main concerns regarding AI in healthcare, both in the legal and ethical sense. In the four years since you wrote this, which legal or ethical problems do you think have made the most progress?A: I dont think we made enough progress in those years since I wrote that paper. This paper has been cited so much because we were essentially the first who wrote a paper on this topic. At that point, it didnt have much interest yet. But what we are seeing, comparatively because I do a lot of comparative law between the EU and the U.S. on the regulatory front is a lot has happened since then. The Food and Drug Administration (FDA) has thought a lot about how to regulate AI and machine learning (ML)-based medical devices. Also, we have seen in the EU just recently the AI Act, the worldwide first regulatory framework for AI.In the last probably two years now, people are very aware of questions of liability and liability risk when introducing those tools into the healthcare system and into the hospitals. The FDA has already authorized over 950 AI/ML-based medical devices. And frankly, not all of the AI tools are considered or classified as medical devices. We have a lot of in-house developments and other particular clinical decision tools that fall outside of FDA regulation. Those tools [have] already been implemented in healthcare. In recent years, these questions of whos going to be held liable if something goes wrong? are much more pressing.Q: How did working on this research early on inform what you do now?A: I feel very fortunate that I have been working in this field for such a long time now to build my expertise. I can now adapt to new challenges relatively easily because I have a long experience of going deep into the legal and ethical issues of AI. Im doing a lot of interdisciplinary work. I work with physicians, with engineers, and so I can always get new ideas from those collaborations. Every day you read something [new] about AI: its hard to keep up at that pace. So, some groundwork of knowledge is really helpful to be able to catch up on all the new developments happening every single day.Q: Youve done a lot of work regarding medical AI applications used for self-diagnosing and the importance of labeling these apps properly. Talk a little bit about why its important to educate people about the function and purpose of self-diagnosing AI apps like these.A: Im still doing a lot of work on the questions of labeling, because I think its so important. Labeling is just one small piece of this entire puzzle. I am a believer in labeling AI, in particular in the healthcare field. Imagine two different types of tools. You can first imagine a tool which is being used by a physician in a hospital. The label is directed to the healthcare provider and [those] who need information about the tool to assess whether it makes sense to use that tool safely on their patients.On the other hand, we have a lot of direct-to-consumer AI tools, including apps. Here, they also need to get some type of information. This information might potentially be a little different in detail. A consumer might care about other things like privacy, if this is safe to use, or if data is properly protected while a physician might need to get more granular information about if this dataset [has] been properly tested and breakdowns of race, ethnicity, location, age, gender, etc. That information is really important for physicians to know, and unfortunately, we dont have proper standards in place at this point which require manufacturers to disclose that. The Office of the National Coordinator for Health IT (ONC) has recently put out a rule and requires some type of transparency and some kind of nutrition label. [Its] really nice to see that regulators are now finally doing something in regard to labeling, but its just a tiny amount of tools that are being covered by that rule. Im still waiting and hoping for the FDA to change that. At some point, hopefully all AI tools have some type of label, so that users are getting proper information. Sometimes one gets the criticism, well, no one reads labels, but its better to have that information as an option to read it, if you want to. I think there is a necessity to require that disclosure.Q: Youve pointed out in your work that while many of these apps might be labeled as information only tools rather than actual diagnoses, people sometimes misperceive them as real diagnoses. Do you see this misperception as an example or indicator of some sort of larger issue with how medical AI tools are understood by consumers?A: The issue that we see in some of these apps is that they for example, the electrocardiogram app from Apple are actually information tools and not [meant] to make a diagnosis. But if people are using those tools for [something] like skin cancer screenings, they usually tend to believe whatever the AI tool gives them. [They] might just skip a doctor visit because they are scanning with their app, and [think], oh, it seems I dont have any cancer. Everything looks good, so I dont need to necessarily go to the doctor right now. We see a lot of empirical data on that, that the consumers are perceiving those tools as diagnostic tools. But if one looks at the language, all of those manufacturers are clearly articulating that a direct-to-consumer tool, often available without any prescription, doesnt replace going to the doctor. I think we need to have measures [and] more education around it. The majority of health AI apps or general health apps are not being reviewed by the FDA: they fall outside of the Federal Food, Drug, and Cosmetic Act. So, it is hard for consumers to assess whether this app is reliable or not, because consumers usually just put into the App Store what they are looking [for], and whatever pops up first, they likely are going to download.Q: AI has developed very quickly in the past few years, and it has raised problems that nobody really had to think about before. Because of this, theres a retroactive response to certain problems. How do you think researchers can begin to anticipate where the field is headed, to ensure that AI is used responsibly in healthcare?A: I personally dont have a crystal ball, and I think thats the problem. Because honestly, if you would have asked people maybe three [or] four years ago, I dont think they would have suggested that wed come [this] far so quickly. We have these generative AI tools that have incredible capacities but also raise a lot of new issues which we have not anticipated. Once you get it out of the box, its hard to get it back into the box.Thats a problem now, because retroactively making laws around this is really challenging, and we are not seeing right now in the U.S. that thats going to necessarily change. I think the approach in the U.S. is going to be more like a mosaic style. We have different regulators, and everyone is going to do some stuff in their wheelhouse. Hopefully, there will be enough collaboration and understanding that its going to be a mosaic or puzzle to be completed, rather than overlapping and making it much more complicated for stakeholders to understand and oversee.Q: Are there any papers, projects, or research you are working on right now that youre particularly excited about?A: I always have a lot of projects going on, because AI keeps me busy. I have several research projects Im involved in. Im leading two projects in the ethics and legal field, which are called CLASSICA and OperA, and they are funded by the European Union. Ive also been one of the PIs (principal investigators) of an National Institute of Biomedical Imaging and Bioengineering (NIBIB) and the National Institutes of Health Office of the Director (NIH OD) grant on technology. There are in particular in the two projects funded by the European Union clinical trials being carried out. One is for colon cancer prevention. AI tools are being tested to see if they are going to be helpful in the long run. Similarly, [in] the CLASSICA project, thats a project on AI-assisted surgery. The surgeons are testing an AI tool that can predict whether tissue is benign or malignant in real-time during a surgery.Im not involved in the clinical trials, but for me, its really exciting, because my team is looking at some of the legal and ethical issues, such as, do surgeons have any reluctancy to implement such a tool and use it in the operation room? [and] are there any liability risks that they are worried about?My work keeps me busy in the liability space, but also in regulation and the questions of, how should regulators in the U.S. and Europe regulate more complex tools like generative AI? Thats going to be a real challenge.There are many questions, and in the liability space in particular, the more sophisticated the AI tool becomes, the more interesting and unsettled the question is. How does tort law deal with an AI tool that practices medicine? An AI tool is not considered a legal person at this point. So at some point in the future, you might have an AI tool that is so sophisticated [that] its a standard of care and is implemented in a hospital. It might be that you cant find any human fault in the physician using the AI tool: the physician needs to rely on the output of the AI tool because its so complex. And then theres this question of, if harm occurs, whos going to be held liable if you cant find human fault in the physician? Because it was totally fine of the physician to rely on the AI tool in the first place. These are questions which we need to tackle in the future, once such AI is going to be implemented in the healthcare field.Q: How long do some of these clinical trials take?A: The ones carried out in the projects I am involved in last for several years. These are long-term projects spanning four to five years, and I think they are [some] of the rare occasions where clinical trials are actually being carried out in the AI field. The majority of AI tools, in fact, especially in the U.S., have not undergone any clinical trial studies. How the Federal Food, Drug, and Cosmetic Act works is that there is a pathway, which is called a 510(k) pathway. What you need to show as a manufacturer is that your device is substantially equivalent to another legally marketed device, which usually does not require any clinical evidence. We have seen that the majority of the AI-based medical devices that were authorized by the FDA went through the 510(k), so in most cases, there is no necessity to show any clinical data. And so thats what we are seeing. Clinical trials are rare in the field. But, of course, clinical trials should not hamper innovation. Its hard, because if you have a so-called adaptive AI tool that continuously learns, you could have a clinical trial, but how much of the results of the clinical trial data will still help you in the long run, [given that] the tool is constantly changing and adapting? If we are getting fully adaptive systems its going to be even more difficult to make sure that they stay safe and effective. You will probably need to have an ongoing monitoring system in place to be able to tackle that issue.Q: There are many people that are still wary of the idea of AI being used in medical practice. It feels new, and people can be nervous about things that they havent experienced before. What would you say to people with those concerns?A: In general, AI tools can have a lot of potential. I think one also needs to really see what type of AI tool it is. If a physician is using it in practice, I think its really important to be very frank with the patient about it. What are the benefits? What are the risks? What may be issues which are unknown, so that the patient could have the choice to decide whether they want it to be used in their care, at least for the transition phase of where we are. Because at this point, the use of AI is not yet the standard of care. But, of course, the standard of care evolves. During this transition phase, its going to be essential that physicians communicate properly to patients.Q: What do you think SSRN brings to the world of research and scholarship?A: I think SSRN is great because, first of all, its a known platform. Its for free. Everyone can use it: its open access, so thats great. Also, we can upload forthcoming paper drafts early on, so that this can be spread across disciplines to other scholars before its even been published. I think these are all great advantages for scholars in general and give people access to the work as soon as possible.You can see more work by Sara Gerke on her SSRN Author page here.

SSRNMeet the Author: Joshua A. TuckerJoshua A. Tucker is Professor of Politics, affiliated Professor of Russian and Slavic Studies, and affiliated Professor of Data Science at New York University. He is the Director of NYUs Jordan Center for Advanced Study of Russia, a Co-Director of NYUs Center for Social Media and Politics, and was a co-author/editor of the award-winning politics and policy blog The Monkey Cage at The Washington Post for over a decade. He serves on the advisory board of the American National Election Study, the Comparative Study of Electoral Systems, and numerous academic journals, and was the co-founder and co-editor of the Journal of Experimental Political Science. His original research was on mass political behavior in post-communist countries, including voting and elections, partisanship, public opinion formation, and protest participation. In the past dozen years his work has increasingly focused on the intersection of the digital information environment, social media and politics. He spoke with SSRN about the relationship between social media and politics, and how different types of data help us understand the connection between online and offline behavior.Q: In the past decade plus, you focused on studying the relationship between social media and politics, as well as ways to use social media data to study politics. How did your career lead into this area of focus?A: For the decade and a half before, I was working on mass political behavior in post-communist countries, and I had done a lot with elections, voting and partisanship, and public opinion formation. In the 2000s, there were a series of big protests that took place after serious instances of electoral fraud in Eastern Europe and the former Soviet Union, and I got interested in those. One thing I heard frequently from scholars working in this area was that there was never going to be one of these protests in Russia. Then one day in 2011, we woke up and there were over a hundred thousand people on the streets of Moscow protesting against electoral fraud. I asked friends of mine in Russia what was going on, and I heard repeatedly about Facebook and how these protests were being planned online. That was the first time that I started to get interested in the idea from a substantive standpoint, that maybe social media was something that we were going to need to think about as political scientists.Concurrently with that, I had this absolutely brilliant graduate student, Pablo Barber, who wrote a paper showing that you could use network data to predict peoples ideological orientation or partisanship. He was proposing [that] you could do this with Twitter data, trying to estimate peoples ideology not from what they were saying in their tweets, but rather based on whom they were following. Now, in 2024, from the vantage point of large language models, youd think, Well, of course, we could just use the content of their tweets to estimate ideology. But at that point in time, the field of text-as-data was much less developed, especially in political science. As a result of Barbers paper, though, I for the first time started to think seriously about the possibility that we could use social media data to actually study politics.The third thing that happened around the same time was that there was a call for proposals from the National Science Foundation (NSF) to support outside the box interdisciplinary work. We put together a team of faculty at NYU and put in a grant proposal. When you write NSF proposals, you always think you have a very low chance of getting them because of how competitive the process is, but we actually got this one! We began to embark on this experiment, not just studying new questions how social media impacted political behavior and using new data, but also an experiment in trying to bring the lab-based approach to research that is so common in the natural sciences into the study of politics. Thats what weve been doing for the last dozen years now.Q: As faculty co-director of NYUs Center for Social Media and Politics (CSMaP), and as a researcher, what data do you focus on collecting and analyzing, specifically during an election year like this one?A: We tend to study the relationship between social media and politics in a couple of different ways. The big challenge here is that social media is huge. Theres a ton of social media data, and especially because it is optimized for search, its easy to find examples of anything. However, moving beyond anecdotal examples to understand whats happening at scale is really challenging. Also challenging in this context is trying to rigorously test causal relations about the impact of social media on political outcomes.These are complicated tasks. Weve ended up using two different sources of data to try to address these tasks. One source of data is the social media data itself and that has all sorts of challenges around it. There are legal challenges around it. There are ethical challenges around it. There is the logistical challenge of collecting this data at scale. The other big bucket of data is survey data: surveying people about their relationships with social media and politics. Then well layer experiments into both of these things.For example, my lab has done a bunch of deactivation experiments, where in order to get causal relationships, you take people who are using a social media platform and get them to enroll in a study. You then randomly assign one set of participants, the treatment group, to stop using the social media platform or to reduce usage, while the other set, the control group, continues to use the platform. Then well use survey data to look at differences and changes over the period of time.Weve also been running a survey for many years where we have a panel of people who were surveying repeatedly, but also over the years have had the opportunity to link their surveys with their social media data, which they consent to provide to us for research purposes as well. A lot of our most important papers were written because we were able to link up survey data, which allowed us to know things about people, know their opinions, know their preferences, [and] also to know their demographic characteristics, with actual social media data. Thats sort of the universe of what we can do. There are the observational studies where youre trying to figure out whats happening on the platforms. There are more traditional social scientific studies, where youre running experiments and using surveys to get at changes in peoples attitudes. Then were trying to marry those two and combine them.Q: How do you use certain data and information to try to understand the interaction of what happens online and offline?A: There are a couple different ways you can do it. The simplest way is starting with surveys, where you ask people about their social media usage. And its very similar to traditional social science research that we would do. The other thing you can do is bring digital trace data into these kinds of surveys saying Okay, well, if we change the type of media that people are seeing online, what does that mean about their attitudes about things that are happening offline?We ran this deactivation study, the idea of another brilliant graduate student in our lab, Nejla Asimovi, where we had people stop using Facebook in Bosnia and Herzegovina. This was at a time of commemoration of genocide that had taken place in the Yugoslav War. We thought, based on the literature, that people who were off of Facebook would have lower levels of ethnic polarization [and] would express lower levels of hostility towards other ethnic groups. We thought this because, around the time of this genocide commemoration, we knew there would be a lot of negative things that people were being exposed to online.We actually found the opposite, which was really surprising to us. The people who stayed on Facebook had lower levels of antagonism towards other ethnic groups in Bosnia. In this study, we asked the people who were in the deactivation study, what did they do with the extra time? Some people said they went on Instagram a substitution of other social media. But tied with Instagram for the most popular thing people said was that they spent more time with friends and family. Thats an offline behavior.What we thought maybe was happening because Bosnia has this terrible history of ethnic cleansing is that the people who were online were still having at least some contact with people from other ethnic groups, whereas maybe the people who were offline at the time of this genocide commemoration were perhaps only talking with other people from their own ethnic group. We thought if this is correct, then this effect having higher levels of ethnic polarization if you are off of Facebook than if you stayed on it should probably be driven by the more ethnically homogenous parts of the country. We reran our analysis, but this time separately for those in the more and less ethnically homogenous parts of the country, and it turns out that this was exactly right. Thats a great example of how the offline and online environments can have these mutually interactive effects. One of the great challenges of working in the information environment is that its hard enough to study in one country whats happening on one platform. Of course, people dont live on one platform: theyre watching TV, listening to podcasts and talk radio, and theyre also talking to their friends. This online-offline tension is an important one, but its also a really fascinating subject for research moving forward.Q: So far, weve been talking about big picture ideas relating to social media and politics, but Id like to zoom in a little bit. What are some specific studies or research projects that youve been conducting recently that youre particularly excited about?A: Theres a lot of them, because we have a very active research center here. One is that we have been interested in peoples ability to identify the veracity of news, and trying to figure out what sorts of interventions make people more or less likely to be able to correctly ascertain the veracity of news articles.We set up this pipeline where we put together five streams of media sources: left leaning mainstream media sources, right leaning mainstream media sources, left leaning low quality news sources, right leaning low quality news sources, and then low-quality news sources that we couldnt tell if they were right leaning or left leaning. Every morning, we would take the most popular article from each of those five news streams, and wed send them out to 90 different people, as well as to professional fact checkers. We would take the mode of our professional fact checkers to be the correct answer (i.e., that the central claim of an article was either true, false or misleading, or it was impossible to tell), and then we could look at the variation in how different people were able to match the professional fact checkers or not, in recognizing if the central claim of the article was true (or false) or not. Then we were able to look at the impact of a whole host of different interventions in peoples ability to correctly identify the veracity of these articles.One of the things you see on all these digital literacy interventions is, if youre not sure about it, go online and look up and try to get more information from a reputable source. One experiment that we ran was to have a treatment group search online for more information about the article and then assess the veracity of it, as opposed to the control group that just read the article and then assessed its veracity. We ended up running five studies to do this, [and in] study after study after study, when you went and searched online, you were more likely to believe that a false news story was true, not more likely to correctly identify a false news story as false.The big takeaway from that is how important it is to rigorously test these digital literacy interventions. I think it is probably a good idea to tell people to search for more information from reputable sources, but its that reputable sources part of it thats super important.What were doing now is trying to extend this research. Were running a brand new study where were going to have people who go to traditional search, but then were going to send another group of people to generative AI, and were going to see if generative AI is better than the traditional search or if its even worse.Q: Your most downloaded paper on SSRN is Social Media, Political Polarization, and Political Disinformation: A Review of the Scientific Literature which has been cited, shared by news sources, and downloaded consistently since its posting on SSRN in 2018. The core topics you visit in this paper remain extremely relevant today. Looking back two presidential elections and a global pandemic later, are there any new problems that you couldnt have predicted? Or are we facing similar problems now, just different variations of the same issue?A: In the conclusion of that paper, we had a couple of recommendations. We said the literature was too focused on Twitter. [Since then], people have started to diversify and look more at different types of platforms. At CSMaP, for example, weve done research on Facebook, and weve done research involving Reddit. We have a whole set of papers involving YouTube, and weve just written our first paper about NextDoor. Since 2017, [researchers] have gotten better about not just studying Twitter because its the easiest thing to study.The other big recommendation was that literature was overwhelmingly studying the United States, and beyond the United States, it was overwhelmingly about other advanced industrialized democracies. I think that probably still characterizes a lot of literature, but theres progress being made in that regard. In our lab at CSMaP, weve been trying to do this: for example, the Facebook deactivation that I talked about in Bosnia, we have now replicated that in Cyprus. We did a WhatsApp deactivation now in Brazil, and now are extending that work in South Africa and in India. There is a good recognition that we need to diversify out beyond the United States.At the time we were working on that SSRN paper, people were coming off of this original euphoria that social media was going to help spread democracy all over the world, from when I originally got interested in it. Then, the pendulum swung way back, and people were terrified about social medias threats to democracy. Jumping forward seven years now, in terms of the kind of threats that were concerned about, theyre still fairly similar. Were worried about whether or not people find themselves in small, isolated communities online, where it makes it easier to radicalize people towards extremist views, whether people find going online a hostile experience, whether or not the experience of social media makes people dislike people from other political parties more, and whether in authoritarian countries, regimes can use it to control the information environment of their own people. The part that people may not have anticipated in 2017 was questions about the effect of the rise of generative AI, artificial intelligence and large language models how that would shift peoples attention, but also how the large language models would interact with social media. Social media lowered the cost of sharing content dramatically. Prior to social media, to spread content far, you needed to be on a television show or have access to a newspaper or write an op-ed. With social media, suddenly anyone could share content. But you still had to produce the content. Generative AI has lowered the cost of producing the content. These are two parallel processes, but they are also ones that I think can interact with each other. Were only at the beginning of understanding how thats going to go.Q: How do you think SSRN fits into the broader research and scholarship landscape?A: Ill let you know what its been for us. There are disciplinary versions [of preprint servers] and political science doesnt quite have one. So SSRN has been one that a lot of political scientists use, and we use often in our lab. Weve definitely learned that it is much more effective than just putting the paper on your website to have it in an archive where people can discover it.A second thing goes back to the article we were just talking about. This review of the literature was never intended to be an academic article. It was a report commissioned by the Hewlett Foundation, and the Hewlett Foundation put it on its website. I thought people in the policy community were going to see it on the Hewlett website, but I also wanted people to see it in the academic community. I thought that maybe wed get a few citations out of it, and [decided] to throw it up on SSRN, on a whim. And now its been downloaded over 40,000 times and continues to be cited all the time. In that sense, it filled this really nice niche: we had something that we didnt write to be an academic publication [and] werent going to send to journals. Its a nice home for papers like this that dont have a natural fit in academic journals but can still be useful to researchers and policy makers.The third use: weve had a couple of papers that we have had trouble getting published, but weve put them up on SSRN and theyve gotten read and cited. I think thats been the other real benefit of SSRN for us: papers that for whatever reason have had a tough time landing in journals have been able to have a life on SSRN as we slog through the publication process.You can see more work by Joshua A. Tucker on his SSRN Author page here.