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'‘Male Chauvinism’ Is Under Attack From All Sides At Present': Roberts V. United States Jaycees, Sex Discrimination, And The First Amendment, Linda Mcclain May 2019

'‘Male Chauvinism’ Is Under Attack From All Sides At Present': Roberts V. United States Jaycees, Sex Discrimination, And The First Amendment, Linda Mcclain

Faculty Scholarship

Today, many take it for granted that discriminating against women in the marketplace is illegal and morally wrong. Roberts v. United States Jaycees (1984) remains a foundational case on government’s compelling interest in prohibiting sex (or gender) discrimination in public accommodations, even in the face of First Amendment claims of freedom of association and expression. Curiously, Jaycees seems comparatively neglected by legal scholars, if measured by the cases included in the various collections of “law stories” or “rewritten opinions” projects. Looking back at the Jaycees litigation reveals the parties wrestling over the reach of public accommodations law and the ...


The Lawyer As Superhero: How Marvel Comics' Daredevil Depicts The American Court System And Legal Practice, Louis Michael Rosen May 2019

The Lawyer As Superhero: How Marvel Comics' Daredevil Depicts The American Court System And Legal Practice, Louis Michael Rosen

Faculty Scholarship

This article will explore on the portrayal of lawyers and the legal system in Daredevil comic books, particularly issues published in the Twenty-First Century. Because the Daredevil movie and the first two seasons of the Netflix television series have already been examined from various legal perspectives in past articles, this piece will highlight legal storylines from the comics themselves. This exploration is important because writers of future Netflix seasons will surely draw story elements from the comics discussed here and will very likely adapt these exact stories, encouraging the larger television audience to seek out and read the original comics ...


Kob-Tv Interviews Kastenberg On A Juvinelle Tried For Murder And The Death Penalty, Joshua Kastenberg Apr 2019

Kob-Tv Interviews Kastenberg On A Juvinelle Tried For Murder And The Death Penalty, Joshua Kastenberg

Faculty Scholarship

Professor Kastenberg discusses using veteran status to get a job or falsely claiming to be a vet while panhandling is now punishable under the law.


Thinkprogress Interviews Ahranjani On Not Prosecuting Should Roe V. Wade Be Overturned, Maryam Ahranjani Apr 2019

Thinkprogress Interviews Ahranjani On Not Prosecuting Should Roe V. Wade Be Overturned, Maryam Ahranjani

Faculty Scholarship

Professor Ahranjani discusses the role of the Attorney General if Roe v. Wade was overturned.


Of Dress And Redress: Student Dress Restrictions In Constitutional Law And Culture, Deborah Ahrens, Andrew Siegel Apr 2019

Of Dress And Redress: Student Dress Restrictions In Constitutional Law And Culture, Deborah Ahrens, Andrew Siegel

Faculty Scholarship

Over the last twenty years, a substantial and increasing percentage of public school students have been required to wear school uniforms or adhere to strict dress codes. They have done so in a cultural and legal landscape that assumes such restrictions pose few—if any—constitutional problems. As this Article argues, however, this landscape is relatively new; as recently as forty years ago, the legal and cultural assumptions about student dress codes were completely reversed, with the majority of educators and commentators assuming that our constitutional commitments to equality, autonomy, and free expression preclude strict student dress restrictions. This Article ...


Progressive Randomization Of A Deck Of Playing Cards: Experimental Tests And Statistical Analysis Of The Riffle Shuffle, Mark P. Silverman Apr 2019

Progressive Randomization Of A Deck Of Playing Cards: Experimental Tests And Statistical Analysis Of The Riffle Shuffle, Mark P. Silverman

Faculty Scholarship

The question of how many shuffles are required to randomize an initially ordered deck of cards is a problem that has fascinated mathematicians, scientists, and the general public. The two principal theoretical approaches to the problem, which differed in how each defined randomness, has led to statistically different threshold numbers of shuffles. This paper reports a comprehensive experimental analysis of the card randomization problem for the purposes of determining 1) which of the two theoretical approaches made the more accurate prediction, 2) whether different statistical tests yield different threshold numbers of randomizing shuffles, and 3) whether manual or mechanical shuffling ...


Preserving Habeas Corpus For Asylum Seekers Just When They Need It Most, Jennifer Moore Mar 2019

Preserving Habeas Corpus For Asylum Seekers Just When They Need It Most, Jennifer Moore

Faculty Scholarship

The blog post reviews are very recent Ninth Circuit case, Thuraissigiam, which holds that “asylum seekers facing deportation have the right to challenge the summary denial of their asylum claims in federal court". The ruling in Thuraissigiam applies to individuals who have failed to establish a “credible fear of persecution” in expedited removal proceedings conducted at the border.


Limited Inalienability Rules, Ariel Porat, Stephen Sugarman Mar 2019

Limited Inalienability Rules, Ariel Porat, Stephen Sugarman

Faculty Scholarship

No abstract provided.


Common Ownership And Executive Incentives: The Implausibility Of Compensation As An Anticompetitive Mechanism, David Walker Mar 2019

Common Ownership And Executive Incentives: The Implausibility Of Compensation As An Anticompetitive Mechanism, David Walker

Faculty Scholarship

Mutual funds, pension funds and other institutional investors are a growing presence in U.S. equity markets, and these investors frequently hold large stakes in shares of competing companies. Because these common owners might prefer to maximize the values of their portfolios of companies, rather than the value of individual companies in isolation, this new reality has lead to a concern that companies in concentrated industries with high degrees of common ownership might compete less vigorously with each other than they otherwise would. But what mechanism would link common ownership with reduced competition? Some commentators argue that one of the ...


The Supreme Court Bar At The Bar Of Patents, Paul Gugliuzza Mar 2019

The Supreme Court Bar At The Bar Of Patents, Paul Gugliuzza

Faculty Scholarship

Over the past two decades, a few dozen lawyers have come to dominate practice before the U.S. Supreme Court. By many accounts, these elite lawyers—whose clients are often among the largest corporations in the world—have spurred the Court to hear more cases that businesses care about and to decide those cases in favor of their clients. The Supreme Court’s recent case law on antitrust, arbitration, punitive damages, class actions, and more provides copious examples.

Though it is often overlooked in discussions of the emergent Supreme Court bar, patent law is another area in which the Court ...


Withdrawing From Nafta, Alison Peck Mar 2019

Withdrawing From Nafta, Alison Peck

Faculty Scholarship

Since the 2016 campaign, Donald Trump has threatened to withdraw from NAFTA. Can he? The question is complex. For one thing, NAFTA is not a treaty negotiated under the Treaty Clause of the Constitution, but rather a congressional–executive agreement, a creature of dubious con- stitutionality and ill-defined withdrawal and termination parameters. This Article reviews the scope of those restrictions and concludes that unilateral presidential withdrawal from NAFTA, although not without support, is ultimately unlawful. On one hand, unilateral presidential withdrawal would be valid as a matter of international law, and the NAFTA Implementation Act appears to be designed to ...


Congressional Administration Of Foreign Affairs, Rebecca Ingber Mar 2019

Congressional Administration Of Foreign Affairs, Rebecca Ingber

Faculty Scholarship

Longstanding debates over the allocation of foreign affairs power between Congress and the President have reached a stalemate. Wherever the formal line between Congress and the President’s powers is drawn, it is well established that as a functional matter, even in times of great discord between the two branches, the President wields immense power when he acts in the name of foreign policy or national security.

And yet, while scholarship focuses on the accretion of power in the presidency, presidential primacy is not the end of the story. The fact that the President usually “wins” in foreign affairs does ...


Liberal Pacification And The Phenomenology Of Violence, Ilan Baron, Jonathan Havercroft, Isaac Kamola, Jonneke Koomen, Justin Murphy, Alex Prichard Mar 2019

Liberal Pacification And The Phenomenology Of Violence, Ilan Baron, Jonathan Havercroft, Isaac Kamola, Jonneke Koomen, Justin Murphy, Alex Prichard

Faculty Scholarship

While international relations scholars make many claims about violence, they rarely define the concept. This article develops a typology of three distinct kinds of violence: direct, indirect, and pacification. Direct violence occurs when a person or agent inflicts harm on another. Indirect violence manifests through the structures of society. We propose a third understanding of violence: pacification. Using a phenomenological methodology, and drawing on anarchist and postcolonial thought, we show that the violence of pacification is diffuse, inconspicuous, intersubjective, and structured into the fabric of society. This understanding of violence matters for the study of international relations in general and ...


Is Supervised Release Tolled Retrospective To The Start Of An Unrelated Detention If The Defendant Is Credited With Time Served Upon Sentencing For The New Offense?, Nora V. Demleitner Feb 2019

Is Supervised Release Tolled Retrospective To The Start Of An Unrelated Detention If The Defendant Is Credited With Time Served Upon Sentencing For The New Offense?, Nora V. Demleitner

Faculty Scholarship

The district court sentenced Jason Mont for violating his supervised release conditions after a state conviction and sentence that credited him for time in pretrial detention served while he was on supervised release. Mont challenges the court’s exercise of jurisdiction, arguing that 18 U.S.C. § 3624(e) does not permit the court to reach backward to find that supervised release was tolled once he received credit for his pretrial detention at sentencing. Petitioner and respondent disagree about the interpretation of the language and structure of Section 3624(e). While the government relies heavily on the purpose of supervised ...


Rome Was A City Built On Common Goods: A Research Memorandum, Roger A. Lohmann Feb 2019

Rome Was A City Built On Common Goods: A Research Memorandum, Roger A. Lohmann

Faculty Scholarship

This unpublished research note is an expanded draft of comments on associations and patronage in ancient Rome published in Chapter 3 of The Commons: New Perspectives on Nonprofit Organizations, Voluntary Action and Philanthropy (Lohmann, 1992). It is intended to alert social scientists and students interested in the third sector to the importance of membership associations and groups in Rome well before the modern era.


The Games They Will Play: Tax Games, Roadblocks, And Glitches Under The 2017 Tax Legislation, David Kamin, David Gamage, Ari Glogower, Rebecca Kysar, Darien Shanske, Reuven Avi-Yonah, Lily Batchelder, J Clifton Fleming, Daniel Hemel, Mitchell Kane, David Miller, Daniel Shaviro, Manoj Viswanathan Feb 2019

The Games They Will Play: Tax Games, Roadblocks, And Glitches Under The 2017 Tax Legislation, David Kamin, David Gamage, Ari Glogower, Rebecca Kysar, Darien Shanske, Reuven Avi-Yonah, Lily Batchelder, J Clifton Fleming, Daniel Hemel, Mitchell Kane, David Miller, Daniel Shaviro, Manoj Viswanathan

Faculty Scholarship

No abstract provided.


Automatic Reaction - What Happens To Workers At Firms That Automate?, James Bessen, Martin Goos, Anna Salomons, Wiljan Van Den Berge Feb 2019

Automatic Reaction - What Happens To Workers At Firms That Automate?, James Bessen, Martin Goos, Anna Salomons, Wiljan Van Den Berge

Faculty Scholarship

We provide the first estimate of the impacts of automation on individual workers by combining Dutch micro-data with a direct measure of automation expenditures covering firms in all private non-financial industries over 2000-2016. Using an event study differences-indifferences design, we find that automation at the firm increases the probability of workers separating from their employers and decreases days worked, leading to a 5-year cumulative wage income loss of about 8% of one year’s earnings for incumbent workers. We find little change in wage rates. Further, lost wage earnings are only partially offset by various benefits systems and are disproportionately ...


The Procedure Of Patent Eligibility, Paul Gugliuzza Feb 2019

The Procedure Of Patent Eligibility, Paul Gugliuzza

Faculty Scholarship

A decade ago, the patent-eligible subject matter requirement was defunct. Several recent Supreme Court decisions, however, have made eligibility the most important issue in many patent cases. To date, debates over the resurgent doctrine have focused mainly on its substance. Critics contend that the Supreme Court’s case law makes patents too easy to invalidate and discourages innovation. Supporters emphasize that the Court’s decisions help eradicate the overly broad patents often asserted by so-called patent trolls.

Yet one important consequence of eligibility’s revival has been procedural. Because district courts often view eligibility to present a pure question of ...


Limitations Of Sensory Systems (Loss) Assessment, Clarissa E. Steffen Ed.D. Jan 2019

Limitations Of Sensory Systems (Loss) Assessment, Clarissa E. Steffen Ed.D.

Faculty Scholarship

This checklist is designed to assess the degree of loss in families with children who experience sensory system impairments and in specific issues with limitations to insight and awareness of self and others. There are 100 items in the checklist and the lower the score the higher degree of loss experienced. This is a pilot paper for this assessment of losses experienced within families who have children with sensory limitations, and it is designed to gather input on the following factors.

Construct, Trait, Skills or Competency

Primary Factor

  • Integrative Reason

Insight, awareness, clarity of thought

  • Eco-System Development

Individuation, environmental ...


The Principles Of Organizational Inaction, Roger A. Lohmann Jan 2019

The Principles Of Organizational Inaction, Roger A. Lohmann

Faculty Scholarship

Organization inaction and the absence of change are seriously understudied topics. This article (a spoof) reports on a research problem that identifies and studies four principles of organizational inaction: The time, subject matter, group size and controversy theorems together and separately explain a great deal of committee and organizational inaction. The article also introduces innovative techniques of invariant statistics and mystery sampling. The article is an extensive rewrite of a 'research report' that originally appeared in a peer-reviewed administrative humor journal, The Bureaucrat, in 1979.


The Twilight’S Last Gleaming: Dialogues And Debts In Bob Dylan’S "Chimes Of Freedom", Graley Herren Jan 2019

The Twilight’S Last Gleaming: Dialogues And Debts In Bob Dylan’S "Chimes Of Freedom", Graley Herren

Faculty Scholarship

Bob Dylan’s song “Chimes of Freedom” marks a creative turning point in the evolution of his art. Dylan displays his debts to influential artists from Woody Guthrie to Allen Ginsberg, and he engages dialectically with iconic American artworks including “The New Colossus” and “The Star-Spangled Banner.” Dylan also works through his grief over the Kennedy assassination and wrestles with his increasingly complicated relationship with the American political Left. “Chimes of Freedom” is at once the high-water mark of Dylan’s achievement as a protest singer and his resignation letter as spokesperson for a political movement he had outgrown by ...


Bibliography For Henry Van De Velde: Designing Modernism, Katherine M. Kuenzli Jan 2019

Bibliography For Henry Van De Velde: Designing Modernism, Katherine M. Kuenzli

Faculty Scholarship

Bibliography for Henry van de Velde: Designing Modernism (Yale University Press, 2019)


Professional Judgment In An Era Of Artificial Intelligence And Machine Learning, Frank A. Pasquale Jan 2019

Professional Judgment In An Era Of Artificial Intelligence And Machine Learning, Frank A. Pasquale

Faculty Scholarship

Though artificial intelligence (AI) in healthcare and education now accomplishes diverse tasks, there are two features that tend to unite the information processing behind efforts to substitute it for professionals in these fields: reductionism and functionalism. True believers in substitutive automation tend to model work in human services by reducing the professional role to a set of behaviors initiated by some stimulus, which are intended to accomplish some predetermined goal, or maximize some measure of well-being. However, true professional judgment hinges on a way of knowing the world that is at odds with the epistemology of substitutive automation. Instead of ...


Teaching Communication Skills In Transactional Simulations, Eric J. Gouvin, Katherine M. Koops, James E. Moliterno, Carol E. Morgan, Carol D. Newman Jan 2019

Teaching Communication Skills In Transactional Simulations, Eric J. Gouvin, Katherine M. Koops, James E. Moliterno, Carol E. Morgan, Carol D. Newman

Faculty Scholarship

This Article describes the role of communication exercises in transactional law and skills education, and provides several examples of such exercises. After a discussion of fundamental differences between communication in the context of litigation and transactional law, the Article discusses exercises designed to improve written communication skills, including the use of e-mail, in the context of transactional law. It follows with a similar discussion of exercises focusing on oral communication skills, including listening, interviewing, counseling, negotiation, and presentations. The Article concludes with examples of exercises combining oral and written communication skills in the context of simulated transactions.


Privatizing Criminal Procedure, John D. King Jan 2019

Privatizing Criminal Procedure, John D. King

Faculty Scholarship

As the staggering costs of the criminal justice system continue to rise, states have begun to look for nontraditional ways to pay for criminal prosecutions and to shift these costs onto criminal defendants. Many states now impose a surcharge on defendants who exercise their constitutional rights to counsel, confrontation, and trial by jury. As these “user fees” proliferate, they have the potential to fundamentally change the nature of criminal prosecutions and the way we think of constitutional rights. The shift from government funding of criminal litigation to user funding constitutes a privatization of criminal procedure. This intrusion of market ideology ...


Delivery, Facilitas, And Copia : Job Market Preparation And The Revival Of The Fifth Canon., Joseph Turner Jan 2019

Delivery, Facilitas, And Copia : Job Market Preparation And The Revival Of The Fifth Canon., Joseph Turner

Faculty Scholarship

This essay argues that English Studies departments should implement training programs in oral delivery strategies for graduate students seeking tenure track employment. A sample a 13-week training program, modeled on elements of classical rhetorical pedagogy, can help students develop and refine stills in oral delivery necessary for academic job interviews.


Beyond The “Practice Ready” Buzz: Sifting Through The Disruption Of The Legal Industry To Divine The Skills Needed By New Attorneys, Jason G. Dykstra Jan 2019

Beyond The “Practice Ready” Buzz: Sifting Through The Disruption Of The Legal Industry To Divine The Skills Needed By New Attorneys, Jason G. Dykstra

Faculty Scholarship

A heightened velocity of change enveloped the legal profession over the last two decades. From big law to rural practitioners, the traditional law firm model proved ripe for disruption. This disruption is fueled by several discrete changes in how legal services are provided, including technological advances that allow for the automation of many routine tasks and the disaggregation of legal services; enhanced client sophistication and cost-consciousness; global competition from offshoring routine legal services; the rise of the domestic gig economy, creating a new wave of home-shoring legal services; and competition from non-traditional legal services providers. In the face of declining ...


The Structural Dimensions Of Race: Lock Ups, Systemic Chokeholds, And Binary Disruptions, Cedric Merlin Powell Jan 2019

The Structural Dimensions Of Race: Lock Ups, Systemic Chokeholds, And Binary Disruptions, Cedric Merlin Powell

Faculty Scholarship

Disrupting traditional conceptions of structural inequality, state decision making power, and the presumption of Black criminality, this Essay explores the doctrinal and policy implications of James Forman, Jr.’s Pulitzer Prize winning book, Locking Up Our Own, and Paul Butler’s evocative and transformative book, Chokehold. While both books grapple with how to dismantle the structural components of mass incarceration, state legitimized police violence against Black bodies, and how policy functions to reify oppressive state power, the approaches espoused by Forman and Butler are analytically distinct. Forman locates his analysis in the dynamics of decision-making power when African American officials ...


If International Law Is Not International, What Comes Next? On Anthea Roberts’ Is International Law International?, Rebecca Ingber Jan 2019

If International Law Is Not International, What Comes Next? On Anthea Roberts’ Is International Law International?, Rebecca Ingber

Faculty Scholarship

I am thrilled that the editors of the Boston University Law Review have chosen to review Anthea Roberts’ recent book, Is International Law International?, for their annual symposium. In order to answer the title’s question, Roberts develops a research project to scrutinize a world she knows well: the field of teaching international law, her colleagues, and their students. The result is a rigorous disaggregation of the multifarious ways that international law is taught across the globe, thus demonstrating the lack of universality in the study of international law.


Invoking Common Law Defenses In Immigration Cases, Fatma Marouf Jan 2019

Invoking Common Law Defenses In Immigration Cases, Fatma Marouf

Faculty Scholarship

This Article argues that we should take a deeper look at the applicability of federal common law defenses in immigration cases. In the rare cases where noncitizens attempt to raise common law defenses, such arguments tend to be dismissed offhand by immigration judges simply because removal proceedings are technically civil, not criminal. Yet many common-law defenses may be raised in civil cases. Additionally, immigration proceedings have become increasingly intertwined with the criminal system. After examining how judges already rely on federal common law to fill in gaps in the Immigration and Nationality Act (INA), this Article proposes three categories of ...