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Articles 1 - 30 of 111
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Obergefell, Masterpiece Cakeshop, Fulton, And Public-Private Partnerships: Unleashing V. Harnessing 'Armies Of Compassion' 2.0?, Linda C. Mcclain
Obergefell, Masterpiece Cakeshop, Fulton, And Public-Private Partnerships: Unleashing V. Harnessing 'Armies Of Compassion' 2.0?, Linda C. Mcclain
Faculty Scholarship
Fulton v. City of Philadelphia presented a by-now familiar constitutional claim: recognizing civil marriage equality—the right of persons to marry regardless of gender—inevitably and sharply conflicts with the religious liberty of persons and religious institutions who sincerely believe that marriage is the union of one man and one woman. While the Supreme Court’s 9-0 unanimous judgment in favor of Catholic Social Services (CSS) surprised Court-watchers, Chief Justice Roberts’s opinion did not signal consensus on the Court over how best to resolve the evident conflicts raised by the contract between CSS and the City of Philadelphia. This article argues that it …
Comment On Proposed Regulation: Prudence And Loyalty In Selecting Plan Investments And Exercising Shareholder Rights, David H. Webber
Comment On Proposed Regulation: Prudence And Loyalty In Selecting Plan Investments And Exercising Shareholder Rights, David H. Webber
Shorter Faculty Works
In my view, while it is a significant improvement over its predecessor, the proposed rule’s persistent relegation of job creation/preservation to the status of mere “collateral benefit” is a mistake and undermines ERISA’s duty of loyalty. In reality, job creation and preservation are inextricably linked to fund financial health. Relegating that fact to a mere collateral benefit means trustees fail to consider the effect on a pension of investing in projects that eliminate the jobs of the fund’s own participants, or ignore the benefit of creating new jobs and thereby new pension contributors. This runs counter to President Biden’s executive …
Classrooms Into Courtrooms, Naomi M. Mann
Classrooms Into Courtrooms, Naomi M. Mann
Faculty Scholarship
The federal Department of Education’s (DOE) 2020 Title IX Rule fundamentally transformed the relationship between postsecondary schools (schools) and students. While courts have long warned against turning classrooms into courtrooms, the 2020 Rule nonetheless imposed a mandatory quasi-criminal courtroom procedure for Title IX sexual harassment investigatory proceedings in schools. This transformation is a reflection of the larger trend of importing criminal law norms and due process protections into Title IX school proceedings. It is especially regressive at a time where calls for long-overdue criminal justice reform are reaching a boiling point across the nation. Its effects are especially troubling because …
Are Vaccine Lotteries Worth The Money?, Christopher Robertson, K. Aleks Schaefer, Daniel Scheitrum
Are Vaccine Lotteries Worth The Money?, Christopher Robertson, K. Aleks Schaefer, Daniel Scheitrum
Faculty Scholarship
This research evaluates the effects of the twelve statewide vaccine lottery schemes that were announced as of June 7, 2021 on state vaccination rates. We construct a dataset that matches information on the timing and location of these lotteries with daily, county-level data from the U.S. Centers for Disease Control (CDC) on the cumulative number of people who have received at least one dose of an emergency-authorized Covid-19 vaccine. We find that 10 of the 12 statewide lotteries studied (i.e., all but Arkansas and California) generated a positive, statistically significant, and economically meaningful impact on vaccine uptake after thirty days. …
Chapter 8: Information Technology And The New Capitalism, James Bessen
Chapter 8: Information Technology And The New Capitalism, James Bessen
Faculty Scholarship
Harnessing Digitalization for Sustainable Economic Development: Insights for Asia describes digitalization’s role in raising the productive capacities of economies. It examines how digital transformation can enhance trade, financial inclusion, and firm competitiveness, as well as how greater digital infrastructure investment, internet connectivity, and financial and digital education in the region can maximize digitalization’s economic benefits. It also explains the importance of striking the right balance between the regulation and supervision of financial technology to enable innovation and safeguarding financial stability and consumer protection.
Part I of the book seeks to build an understanding of digitalization’s effects on macroeconomic performance, including …
Health Reform Reconstruction, Lindsay F. Wiley, Elizabeth Mccuskey, Matthew B. Lawrence, Erin C. Fuse Brown
Health Reform Reconstruction, Lindsay F. Wiley, Elizabeth Mccuskey, Matthew B. Lawrence, Erin C. Fuse Brown
Faculty Scholarship
This Article connects the failed, inequitable U.S. coronavirus pandemic response to conceptual and structural constraints that have held back U.S health reform for decades and calls for reconstruction. For more than a half-century, a cramped "iron triangle" ethos has constrained health reform conceptually. Reforms aimed to balance individual interests in cost, quality, and access to health care, while marginalizing equity, solidarity, and public health. In the iron triangle era, reforms unquestioningly accommodated four legally and logistically entrenched fixtures - individualism, fiscal fragmentation, privatization, and federalism - that distort and diffuse any reach toward social justice. The profound racial disparities and …
Title 42, Asylum, And Politicising Public Health, Michael Ulrich, Sondra S. Crosby
Title 42, Asylum, And Politicising Public Health, Michael Ulrich, Sondra S. Crosby
Faculty Scholarship
President Biden has continued the controversial immigration policy of the Trump era known as Title 42, which has caused harm and suffering to scores of asylum seekers under the guise of public health.1 The Centers for Disease Control and Prevention (CDC) ordered the policy in March 2020 with the stated purpose of limiting the spread of the coronavirus into the U.S.; though, CDC and public health officials have admitted this policy has no scientific basis and there is no evidence it has protected the public.2,3 Instead, the impetus behind the policy appears to be a desire to keep out or …
Trafficking And The Shallow State, Julie A. Dahlstrom
Trafficking And The Shallow State, Julie A. Dahlstrom
Faculty Scholarship
More than two decades ago, the Trafficking Victims Protection Act (TVPA) established new, robust protections for immigrant victims of trafficking. In particular, Congress created the T visa, a special form of immigration status, to protect immigrant victims from deportation. Despite lofty ambitions, the annual cap of 5,000 T visas has never been reached, with fewer than 1,200 approved each year. In recent years, denial rates also have climbed. For example, in fiscal year 2020, U.S. Citizenship and Immigration Services denied 42.79% of the T visa applications that the agency adjudicated, compared with just 28.12% in fiscal year 2015. These developments …
Gendered Complications Of Covid-19: Towards A Feminist Recovery Plan, Linda C. Mcclain, Naomi Cahn
Gendered Complications Of Covid-19: Towards A Feminist Recovery Plan, Linda C. Mcclain, Naomi Cahn
Faculty Scholarship
COVID-19 exposed the limitations in the current economic system on public and private support for gender equity and the intersecting impact of gender, race, and class in that lack of support. Women of color, particularly those who are Black, Latina, or Native American, were at the intersection of the inequities in the pandemic economy. The catalogue of COVID-19’s impact covers all aspects of women’s lives: work, family, education, health, reproduction, mental and physical well-being, and leisure. This Article argues that COVID-19 has complex implications for gender equality and gender equity as state and local governments, the federal government, and private …
What Is "United" About The United States?, Gary S. Lawson
What Is "United" About The United States?, Gary S. Lawson
Faculty Scholarship
Jack Balkin’s The Cycles of Constitutional Time aims, among other things, to preserve and promote what Jack regards as “democracy and republicanism,” understood as “a joint enterprise by citizens and their representatives to pursue and promote the public good.” My question is whether and how this normative project is possible in a world full of perceptions of social, political, and moral phenomena akin to the white dress/blue dress internet controversy of 2015. Even if Madison had the better of Montesquieu in 1788 (and that is questionable), the United States has grown dramatically since the founding era, in a patchwork, and …
Silver Shingle Awards Gala, Boston University School Of Law
Silver Shingle Awards Gala, Boston University School Of Law
Alumni Events
Each year, we take a moment out of our busy schedules to celebrate the achievements of our alumni, faculty, and staff. This fall, we are thrilled to gather once again as a community to continue this tradition.
The Place Of The Presidency In Historical Time, Robert L. Tsai
The Place Of The Presidency In Historical Time, Robert L. Tsai
Faculty Scholarship
This Essay arises from a symposium based on Jack Balkin’s book, The Cycles of Constitutional Time, which argues that America’s constitutional development is marked by patterns of decline and renewal. I contend that the presidency today has become endowed with outsized expectations borne of popular frustrations with a centuries-old document that is desperately in need of updating. As a result, Presidents enjoy imbalanced and dangerous power to initiate legal reform or stymie it. Going forward, three dynamics are worth watching. First, noisy signals coming from performative transformation can obscure the true source and scope of legal changes initiated by a …
Epilogue: Symposium Pnina Lahav: Between Two Worlds, Pnina Lahav
Epilogue: Symposium Pnina Lahav: Between Two Worlds, Pnina Lahav
Faculty Scholarship
The epilogue by Pnina Lahav is a reflection on her life and a reaction to the articles in the symposium.
Replicability In Empirical Legal Research, Jason Chin, Kathryn Zeiler
Replicability In Empirical Legal Research, Jason Chin, Kathryn Zeiler
Faculty Scholarship
As part of a broader methodological reform movement, scientists are increasingly interested in improving the replicability of their research. Replicability allows others to perform replications to explore potential errors and statistical issues that might call the original results into question. Little attention, however, has been paid to the state of replicability in the field of empirical legal research (ELR). Quality is especially important in this field because empirical legal researchers produce work that is regularly relied upon by courts and other legal bodies. In this review article, we summarize the current state of ELR relative to the broader movement towards …
Long Overdue: Fifth Amendment Protection For Corporate Officers, Tracey Maclin
Long Overdue: Fifth Amendment Protection For Corporate Officers, Tracey Maclin
Faculty Scholarship
The Supreme Court has extended to corporations many of the same constitutional rights that were originally intended to protect people.One notable exception, however, is the Fifth Amendment’s prohibition on compulsory self-incrimination.
“Corporations may not take the Fifth.” There is a long line of cases dating back to the start of the twentieth century stating—but never directly holding— that corporations are not protected by the Self-Incrimination Clause.
But the fact that a corporation cannot invoke the Fifth Amendment does not explain why a person who works for a corporation cannot. As a matter of text, the Fifth Amendment draws no distinction …
Palestinian Nationality And “Jewish” Nationality: From The Lausanne Treaty To Today, Susan M. Akram
Palestinian Nationality And “Jewish” Nationality: From The Lausanne Treaty To Today, Susan M. Akram
Faculty Scholarship
This chapter assesses the legal foundations of Zionist and Palestinian national claims over the land of Palestine since the British Mandate. It explores the legal basis and implications of the claim of Jewish nationality in Palestine and compares it with the claim of Palestinian nationality. The question of national rights, and who can claim them, is central to rethinking the statehood and residency rights of those living today in the area of historic Palestine. The law of nationality is at the core of the protections of peoples’ right to self-determination, and understanding the principles underlying nationality law is essential to …
The Jury Trial Reinvented, Christopher Robertson, Michael Shammas
The Jury Trial Reinvented, Christopher Robertson, Michael Shammas
Faculty Scholarship
The Framers of the Sixth and Seventh Amendments to the United States Constitution recognized that jury trials were essential for maintaining democratic legitimacy and avoiding epistemic crises. As an institution, the jury trial is purpose-built to engage citizens in the process of deliberative, participatory democracy with ground rules. The jury trial provides a carefully constructed setting aimed at sorting truth from falsehood.
Despite its value, the jury trial has been under assault for decades. Concededly, jury trials can sometimes be inefficient, unreliable, unpredictable, and impractical. The COVID–19 pandemic rendered most physical jury trials unworkable but spurred some courts to begin …
Public Health And The Power To Exclude: Immigrant Expulsions At The Border, Sarah R. Sherman-Stokes
Public Health And The Power To Exclude: Immigrant Expulsions At The Border, Sarah R. Sherman-Stokes
Faculty Scholarship
We are presently in the midst of a crisis at the U.S.-Mexico border, as Courts, and indeed the Biden Administration, are struggling to manage thousands of immigrants waiting to seek asylum in the midst of a global pandemic. Beginning in March of 2020, against the advice of public health experts, the U.S. Government closed the southern U.S.-Mexico border, disproportionately impacting would-be asylum seekers from Central America, who are now immediately expelled from the United States should they reach the border under a process known as “Title 42.” Not only do these expulsions lack a legitimate public health rationale, but they …
Do Lenders Still Monitor? Leveraged Lending And The Search For Covenants, Frederick Tung
Do Lenders Still Monitor? Leveraged Lending And The Search For Covenants, Frederick Tung
Faculty Scholarship
It was once conventional wisdom that lenders routinely influenced corporate managers’ decision making. Covenants constrained borrower risk taking and compelled specific affirmative obligations to protect lenders. Recent policy discussion, however, laments loan markets’ turn to various forms of high-risk lending. So-called leveraged loans — relatively risky, below-investment-grade loans — more than doubled in outstanding dollar terms, growing from about $550 billion in 2010 to $1.2 trillion by 2019. These risky loans have taken up a larger and larger share of the loan markets over time. More leveraged loans are also “covenant-lite,” issued without traditional financial maintenance covenants. And regulators worry …
Medicaid Waivers, Administrative Authority, And The Shadow Of Malingering, Nicole Huberfeld
Medicaid Waivers, Administrative Authority, And The Shadow Of Malingering, Nicole Huberfeld
Faculty Scholarship
From 2018 through 2020, HHS approved state Medicaid demonstration waivers to impose new eligibility conditions such as work requirements, connecting current “personal responsibility” rhetoric and historical suspicion of malingering. The Biden administration reversed course but advocated to the Supreme Court for expansive administrative discretion. This approach supports health equity now but could enable reemergence of restrictive health policies down the road.
Civic Education In Circumstances Of Constitutional Rot And Strong Polarization Rot, Linda C. Mcclain, James E. Fleming
Civic Education In Circumstances Of Constitutional Rot And Strong Polarization Rot, Linda C. Mcclain, James E. Fleming
Faculty Scholarship
This Essay argues that civic education is crucial to remedying what Jack Balkin, in The Cycles of Constitutional Time, diagnoses as “constitutional rot” in the United States. A twenty-first century civic education must meet challenges of polarization and growing diversity and inequality and equip people for forms of democratic participation necessary to the health of constitutional democracy. Some commentators have called the insurrection on January 6, 2021, a “Sputnik moment for teaching civics”—seeing a link between the whitesupremacist/conspiracy-theory mob’s actions and the failure to instill civic virtue in “We the People.” To be capable of spurring national reconciliation and renewal, …
Keep Passing The Baton: Reflections On The Legacy Of Ruth Bader Ginsburg, Angela Onwuachi-Willig
Keep Passing The Baton: Reflections On The Legacy Of Ruth Bader Ginsburg, Angela Onwuachi-Willig
Faculty Scholarship
For those who care about justice, particularly for marginalized communities, September 18, 2020 brought immense heartbreak.2 On that day, which happened to be Rosh Hashanah, Justice Ginsburg, who had previously written about how her religious background shaped her career as a lawyer, 3 passed away.
When Justice Ginsburg passed, many highlighted that a person who dies on Rosh Hashanah, the start of the Jewish New Year, is a "Tzadik," which is a title given to people of great righteousness. 4 For example, Nina Totenberg, a reporter for National Public Radio, explained, "A Jewish teaching says those who died just …
"Hey, Hey! Ho, Ho! These Mass Arrests Have Got To Go!": The Expressive Fourth Amendment Argument, Karen Pita Loor
"Hey, Hey! Ho, Ho! These Mass Arrests Have Got To Go!": The Expressive Fourth Amendment Argument, Karen Pita Loor
Faculty Scholarship
The racial justice protests ignited by the murder of George Floyd in May 2020 constitute the largest protest movement in the United States. Estimates suggest that between fifteen and twenty-six million people protested across the country during the summer of 2020 alone. Not only were the number of protestors staggering, but so were the number of arrests. Within one week of when the video of George Floyd’s murder went viral, police arrested ten thousand people demanding justice on American streets, with police often arresting activists en masse. This Essay explores mass arrests and how they square with Fourth Amendment …
Antibiotic Resistance In The Patient With Cancer: Escalating Challenges And Paths Forward, Amila Nanayakkara, Helen Boucher, Vance Fowler, Amanda Jezek, Kevin Outterson, David Greenberg
Antibiotic Resistance In The Patient With Cancer: Escalating Challenges And Paths Forward, Amila Nanayakkara, Helen Boucher, Vance Fowler, Amanda Jezek, Kevin Outterson, David Greenberg
Faculty Scholarship
Infection is the second leading cause of death in patients with cancer. Loss of efficacy in antibiotics due to antibiotic resistance in bacteria is an urgent threat against the continuing success of cancer therapy. In this review, the authors focus on recent updates on the impact of antibiotic resistance in the cancer setting, particularly on the ESKAPE pathogens (Enterococcus faecium, Staphylococcus aureus, Klebsiella pneumoniae, Acinetobacter baumannii, Pseudomonas aeruginosa, and Enterobacter spp.). This review highlights the health and financial impact of antibiotic resistance in patients with cancer. Furthermore, the authors recommend measures to control …
Trademark, Labor Law, And Antitrust, Oh My!, Jessica Silbey
Trademark, Labor Law, And Antitrust, Oh My!, Jessica Silbey
Faculty Scholarship
I am allergic to antitrust law, but after reading Hiba Hafiz’s recent article, I understand that my aversion is problematic. This paper combines an analysis of trademark law, labor law, and antitrust law to explain how employers exploit trademark law protections and defenses to control labor markets and underpay and under-protect workers. For most IP lawyers and professors, this article will open our minds to some collateral effects of trademark law’s consumer protection rationale on other areas of law with important consequences for economic and social policies.
Bigotry, Prophecy, Religion, And The Race Analogy In Marriage And Civil Rights Battles: Responding To Commentaries On Who's The Bigot?, Linda C. Mcclain
Bigotry, Prophecy, Religion, And The Race Analogy In Marriage And Civil Rights Battles: Responding To Commentaries On Who's The Bigot?, Linda C. Mcclain
Faculty Scholarship
One of the most rewarding parts of writing a book is that it opens the door for constructive conversation with thoughtful and perceptive readers like the scholars who generously contributed to this book symposium. Their various essays touch on and offer powerful insights about the core concerns that I had when I wrote Who’s the Bigot? Learning from Conicts over Marriage and Civil Rights Law. They offer thoughtful empirical and normative observations and surface useful questions about important future investigations. Were I able to write a next chapter—or a sequel—all these commentaries would shape its content. As it is, I …
Antimicrobial Resistance: Is Health Technology Assessment Part Of The Solution Or Part Of The Problem?, Abigail Colson, Alec Morton, Christine Årdal, Kalipso Chalkidou, Sally Davies, Louis Garrison, Mark Jit, Ramanan Laxminarayan, Itamar Megiddo, Chantal Morel, Justice Nonvignon, Kevin Outterson, John Rex, Abdur Razzaque Sarker, Mark Sculpher, Beth Woods, Yue Xiao
Antimicrobial Resistance: Is Health Technology Assessment Part Of The Solution Or Part Of The Problem?, Abigail Colson, Alec Morton, Christine Årdal, Kalipso Chalkidou, Sally Davies, Louis Garrison, Mark Jit, Ramanan Laxminarayan, Itamar Megiddo, Chantal Morel, Justice Nonvignon, Kevin Outterson, John Rex, Abdur Razzaque Sarker, Mark Sculpher, Beth Woods, Yue Xiao
Faculty Scholarship
Antimicrobial resistance is a serious challenge to the success and sustainability of our healthcare systems. There has been increasing policy attention given to antimicrobial resistance in the last few years, and increased amounts of funding have been channeled into funding for research and development of antimicrobial agents. Nevertheless, manufacturers doubt whether there will be a market for new antimicrobial technologies sufficient to enable them to recoup their investment. Health technology assessment (HTA) has a critical role in creating confidence that if valuable technologies can be developed they will be reimbursed at a level that captures their true value. We identify …
The Expressive Fourth Amendment, Karen Pita Loor
The Expressive Fourth Amendment, Karen Pita Loor
Faculty Scholarship
After the eight-minute and forty-six second video of George Floyd’s murder went viral, cities across the United States erupted in mass protests with people outraged by the death of yet another Black person at the hands of police. The streets were flooded for months with activists and community members of all races marching, screaming, and demonstrating against police brutality and for racial justice. Police—like warriors against enemy forces—confronted overwhelmingly peaceful protesters with militarized violence and force. Ultimately, racial justice protesters and members of the media brought lawsuits under section 1983 of the Civil Rights Act in the district courts of …
Shifting Standards Of Judicial Review During The Coronavirus Pandemic In The United States, Wendy K. Mariner
Shifting Standards Of Judicial Review During The Coronavirus Pandemic In The United States, Wendy K. Mariner
Faculty Scholarship
Emergencies are exceptions to the rule. Laws that respond to emergencies can create exceptions to rules that protect human rights. In long lasting emergencies, these exceptions can become the rule, diluting human rights and eroding the rule of law. In the United States, the COVID-19 pandemic prompted states to change rules governing commercial and personal activities to prevent the spread of the coronavirus. Many governors’ executive orders were challenged as violations of the constitutionally protected rights of those affected. Judges are deciding whether emergencies can justify more restrictions than would be permitted in normal circumstances and whether some rights deserve …
Effects Of Political Versus Expert Messaging On Vaccination Intentions Of Trump Voters, Christopher Robertson, Keith Bentele, Beth Meyerson, Alexander Wood, Jacqueline Salwa
Effects Of Political Versus Expert Messaging On Vaccination Intentions Of Trump Voters, Christopher Robertson, Keith Bentele, Beth Meyerson, Alexander Wood, Jacqueline Salwa
Faculty Scholarship
To increase COVID-19 vaccine uptake in resistant populations, such as Republicans, focus groups suggest that it is best to de-politicize the issue by sharing five facts from a public health expert. Yet polls suggest that Trump voters trust former President Donald Trump for medical advice more than they trust experts. We conducted an online, randomized, national experiment among 387 non-vaccinated Trump voters, using two brief audiovisual artifacts from Spring 2021, either facts delivered by an expert versus political claims delivered by President Trump. Relative to the control group, Trump voters who viewed the video of Trump endorsing the vaccine were …