New Releases by James Fallows

Does the threat of legal reform encourage companies to adopt high-quality contract terms that consumers ignore so that companies can use them in lobbying efforts to avoid reform? That may be an overlooked answer to a puzzle about consumer contracts. Consumers ignore most contract terms at the time of acceptance, so scholars usually expect companies to pick ignored terms of the lowest possible quality that courts will let them get away with. But some companies pick terms that are surprisingly high quality. Courts do not require these terms that consumers ignore, so firms that pick them incur costs for seemingly little gain.This Article identifies a novel function of these terms: their audience is not courts or consumers, but policymakers deciding whether to reform status quo legal rules from which companies profit. Drawing on behavioral law and economics, and illustrating with a case study of lobbying surrounding the Consumer Financial Protection Bureau''s bank account overdraft rule, this Article shows how companies use the high-quality terms they adopt in anticipation of regulation to “frame” the status quo rule. High-quality terms help show how the status quo rule might benefit consumers, letting companies appeal to policymakers'' cognitive biases so they are more likely to support the status quo rule. This Article addresses several practical and theoretical implications of anticipatory self-regulation to frame reform. On one hand, even the threat of legal reform might influence the kinds of contract terms businesses adopt. On the other, a small minority of contract terms can take on outsized role in policy debates about legal reform, potentially distorting policymaking. As a theoretical matter, moreover, the Article complements information revelation models of sequential policymaking by showing how actors at one stage can frame information so policymakers at a later stage resort to decision-simplifying heuristics that favor the status quo.

We submitted these comments in response to the Financial Crimes Enforcement Network''s advance notice of proposed rulemaking on the definition of an "effective and reasonably designed" anti-money laundering program applicable broadly to financial institutions. Our comments highlight industry-specific obligations of brokers and dealers in securities to have reasonably designed anti-money-laundering programs.We argue that in undertaking future rulemaking, FinCEN should account for industry-specific statutory requirements, and how these bear on regulators'' experiences implementing AML program obligations analogous to those the advance notice of proposed rulemaking contemplates. Regulators'' experience enforcing compliance with FINRA''s informal guidance under the Securities Exchange Act of 1934, for instance, raises questions about whether FinCEN''s proposals to elaborate on AML obligations through periodic guidance would impose obligations enforceable at all. In particular, FinCEN should carefully consider whether essential enforcement regimes will require additional rulemaking because simply issuing official guidance may not create fully enforceable obligations in all regulatory frameworks. For self-regulatory organizations overseen by the SEC, guidance alone may not suffice to create an enforceable obligation. In instances where the SEC reviews SRO enforcement actions, it considers whether conduct violated the SRO''s “rules,” meaning rules approved by the SEC. As explained in greater detail below, official guidance may not meet this standard, creating doubt, enforcement challenges, and likely inhibiting FinCEN''s compliance objectives.

NATIONAL BESTSELLER • "James and Deborah Fallows have always moved to where history is being made.... They have an excellent sense of where world-shaping events are taking place at any moment" —The New York Times • The basis for the HBO documentary streaming on HBO Max For five years, James and Deborah Fallows have travelled across America in a single-engine prop airplane. Visiting dozens of towns, the America they saw is acutely conscious of its problems—from economic dislocation to the opioid scourge—but it is also crafting solutions, with a practical-minded determination at dramatic odds with the bitter paralysis of national politics. At times of dysfunction on a national level, reform possibilities have often arisen from the local level. The Fallowses describe America in the middle of one of these creative waves. Their view of the country is as complex and contradictory as America itself, but it also reflects the energy, the generosity and compassion, the dreams, and the determination of many who are in the midst of making things better. Our Towns is the story of their journey—and an account of a country busy remaking itself.

In this paper, I argue the exhaustive debate about the political safeguards of federalism is too narrow. The enduring nature of the debate, and the lack of resolution of competing claims, rests on an uncompromising definition of "federalism questions." Some federalism questions concern the scope of the commerce clause, state sovereign immunity, and anticommandeering. I propose a broader functional definition of federalism cases, in which the courts decisions in a variety of areas - land policy, criminal procedure, statutory preemption, etc. - impose different kinds of costs on states. These include autonomy costs, administrative costs, and reputational costs. Decisions as diverse as Melendez-Diaz v Massachusetts, Lucas v South Carolina Coastal Council, McDonald v City of Chicago, and a case currently before the court, Turner v Rogers, all operate on the margins of federalism doctrine. In these and similar cases, the court distributes and allocates authority piecemeal. Once we start thinking of federalism cases in these functional rather than formal terms, it becomes hard to sustain a serious critique of judicial review. There is no serious call among judges or commentators to trim the sails of judicial review in these federalism cases, and there is no reason to think the court will stop hearing constitutional criminal procedure cases. Judicial review of such questions is thus inevitable. Besides, states have become important institutional litigants in the Supreme Court - providing information about the consequences of doctrinal innovation and seeking to persuade the court to adopt the states'' preferred constitutional interpretations. States'' amicus advocacy thus provides a way for states to be active advocates rather than passive recipients of changes to federal power. This paper shows how judicial review of marginal federalism questions serves to foster the participation of states as advocates for their own institutional interests in the federal system. Just as we consider amicus advocacy by (private) organized interests as a powerful democratic or public-choice tool, we can consider states'' amicus advocacy as, itself, a political safeguard of federalism.

Individuals comply with rules for different reasons. Some do so out of fear of punishment, others out of respect for social order, while still others out of a perception that a norm has intrinsic moral force. States, acting through human agents, likewise differ in the reasons they comply with international norms. State compliance with such norms may be motivated by a desire to avoid sanctions, obedience to authority, utilitarian compliance, socialization, reputational concerns, or norm internalization. Traditional accounts of international law compliance have focused on one or another of these motivations to the exclusion of others, thus failing to present the whole picture. We challenge these traditional accounts and instead present a “moral reasoning” theory that seeks a wider understanding of the reasons states comply. We focus less on traditional debates in international law largely because our theory better accounts for how people make and carry out international-law compliance decisions in real life. Moral reasoning is how people give reasons or arguments in the context of moral judgment. In turn, moral judgment is the cognitive process that people use to choose between inconsistent interests, values claims, and norms - where the inconsistency means the person is pulled toward opposite behaviors. These decisions are “moral” because they involve the ordering of self- and other-regarding interests. Our law-and-psychology focus tries to show how human agents who “do” international law conceive of their relationship with specific norms, with each other, and with the structure of international society. Scholars have largely bracketed reasoning by agents acting on the state''s behalf - surprisingly, even in the constructivist project. We attempt to fill that gap with a law-and-psychology approach that follows an emerging scholarly agenda in understanding the psychological bases of motivation to obey norms and the law. As we show in Part II, existing scholarly explanations for state compliance with international law emphasize one motivating logic over all others - for example, instrumental over normative thinking. But a realistic model of how political actors respond to international norms would situate the compliance motive within multiple motivational logics. Our argument proceeds like this. In Part II, we describe existing compliance theories and explain how these theories fail to tell the whole story. In Part III, we explain Kohlberg''s theories and argue that, as applied in international law, they fill this gap. Assuming that successful political actors have progressed through the stages of Kohlberg''s theory, they will have a plethora of rhetorical options to choose from. In justifying compliance or noncompliance, actors'' choice of a given rhetorical strategy - for example, “ethical” over instrumental language, or vice versa - will depend on moral atmosphere: the audience''s predominant reasoning stage (an empirical question) and the actor''s relationship with the audience. Finally, in Part IV, we consider this thickly descriptive theory in the context of case studies about contemporary moral dilemmas in international law.

In the autumn of 2002, Atlantic Monthly national correspondent James Fallows wrote an article predicting many of the problems America would face if it invaded Iraq. After events confirmed many of his predictions, Fallows went on to write some of the most acclaimed, award-winning journalism on the planning and execution of the war, much of which has been assigned as required reading within the U.S. military. In Blind Into Baghdad, Fallows takes us from the planning of the war through the struggles of reconstruction. With unparalleled access and incisive analysis, he shows us how many of the difficulties were anticipated by experts whom the administration ignored. Fallows examines how the war in Iraq undercut the larger ”war on terror” and why Iraq still had no army two years after the invasion. In a sobering conclusion, he interviews soldiers, spies, and diplomats to imagine how a war in Iran might play out. This is an important and essential book to understand where and how the war went wrong, and what it means for America.

“Americans need not be hostile toward China''s rise, but they should be wary about its eventual effects. The United States is the only nation with the scale and power to try to set the terms of its interaction with China rather than just succumb. So starting now, Americans need to consider the economic, environmental, political, and social goals they care about defending as Chinese influence grows.” —from “China Makes, the World Takes” Since December 2006, The Atlantic Magazine''s James Fallows has been writing some of the most discerning accounts of the economic and political transformation occurring in China. The ten essays collected here cover a wide-range of topics: from visionary tycoons and TV-battling entrepreneurs, to environmental pollution and how China subsidizes our economy. Fallows expertly and lucidly explains the economic, political, social, and cultural forces at work turning China into a world superpower at breakneck speed. This eye-opening and cautionary account is essential reading for all concerned not only with China''s but America''s future role in the world.

The troubles of the airline system have become acute in the post-terrorist era. As the average cost of a flight has come down in the last twenty years, the airlines have survived by keeping planes full and funneling traffic through a centralized hub-and-spoke routing system. Virtually all of the technological innovation in airplanes in the last thirty years has been devoted to moving passengers more efficiently between major hubs. But what was left out of this equation was the convenience and flexibility of the average traveler. Now, because of heightened security, hours of waiting are tacked onto each trip. As James Fallows vividly explains, a technological revolution is under way that will relieve this problem. Free Flight features the stories of three groups who are inventing and building the future of all air travel: NASA, Cirrus Design in Duluth, Minnesota, and Eclipse Aviation in Albuquerque, New Mexico. These ventures should make it possible for more people to travel the way corporate executives have for years: in small jet planes, from the airport that''s closest to their home or office directly to the airport closest to where they really want to go. This will be possible because of a product now missing from the vast array of flying devices: small, radically inexpensive jet planes, as different from airliners as personal computers are from mainframes. And, as Fallows explains in a new preface, a system that avoids the congestion of the overloaded hub system will offer advantages in speed, convenience, and especially security in the new environment of air travel.

Fallows, a correspondent for Atlantic Monthly, explores future trends in commercial aviation technology that may make airline travel easier and quicker than the current hub system. He focuses on three separate groups of innovators who are developing a NASA small plane research program, a small airplane with a parachute for the entire plane, and an inexpensive jet plane for air taxi services. c. Book News Inc.

Why do Americans mistrust the news media? It may be because show like "The McLaughlin Group" reduce participating journalists to so many shouting heads. Or because, increasingly, the profession treats issues as complex as health-care reform and foreign policy as exercises in political gamesmanship. These are just a few of the arguments that have made Breaking the News so controversial and so widely acclaimed. Drawing on his own experience as a National Book Award-winning journalist--and on the gaffes of colleagues from George Will to Cokie Roberts--Fallows shows why the media have not only lost our respect but alienated us from our public life. "Important and lucid...It moves smartly beyond the usual attacks on sensationalism and bias to the more profound problems in modern American journalism...dead-on."--Newsweek

In a timely, even prophetic, portrait of Asia''s rise and the magnitude of its challenge to the West, Fallows demolishes the myth that Japan is a capitalist country built on the Western model. He demonstrates instead how Japan''s economic system treats business as an instrument of national interest while casting aside the traditional Western values of individual enterprise and human rights.