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Articles 1 - 30 of 45
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The Constitution Outside The Courts, James E. Fleming
The Constitution Outside The Courts, James E. Fleming
Faculty Scholarship
In this Book Review, Professor Fleming examines Professor Tushnet's arguments against judicial supremacy and in support of making constitutional interpretation less court-centered to pursue a populist constitutional law. The review concedes that Professor Tushnet's arguments that the “thick Constitution”--in particular, its commitments to federalism, states' rights, and separation of powers--is self-enforcing through the political processes are compelling. But it contends that he fails to make the case that the “thin Constitution”--for example, its fundamental guarantees of equality, freedom of expression, and liberty-- should be treated as similarly self-enforcing. Furthermore, Professor Fleming charges that Professor Tushnet does not adequately elaborate how …
The Skills Of The Unskilled In The American Industrial Revolution, James Bessen
The Skills Of The Unskilled In The American Industrial Revolution, James Bessen
Faculty Scholarship
Were ordinary factory workers unskilled and was technology "de-skilling" during the Industrial Revolution? I measure foregone output to estimate the human capital investments in mule spinners and power loom tenders in ante-bellum Lowell. These investments rivaled those of craft apprentices, suggesting a different view of industrial technology. Accounting for skill, multi-factor productivity growth was negligible, contrary to previous findings. From 1834-55, firms made increasing investments in skill, allowing workers to tend more machines and generating rapid growth of per-capita output. This growing investment was motivated partly by changing factor prices and more by a changing labor supply. Calculations show that …
The Floodgates Of Strict Liability: Bursting Reservoirs And The Adoption Of Fletcher V. Rylands In The Guided Age, Jed Handelsman Shugerman
The Floodgates Of Strict Liability: Bursting Reservoirs And The Adoption Of Fletcher V. Rylands In The Guided Age, Jed Handelsman Shugerman
Faculty Scholarship
Part I presents an overview of Rylands v. Fletcher and then discusses the phases of the American response: the initial acceptance; the Northeastern rejections in the 1870s, which have been the basis for the erroneous scholarly conclusions; and the overlooked tide of acceptances across the country, beginning in the late 1880s and increasing in the 1890s. Part II places this wave of acceptance in its historical context of changing social forces, although these brief sketches are not the primary emphasis of this Note. First, during a period of rapid urbanization, a small number of courts sought to protect residential areas …
What Recourse?—Liability For Managed Care Decisions And The Employee Retirement Income Security Act, Wendy K. Mariner
What Recourse?—Liability For Managed Care Decisions And The Employee Retirement Income Security Act, Wendy K. Mariner
Faculty Scholarship
Should managed-care organizations be accountable to patients injured by the company's negligence or wrongdoing? The general rule is that all organizations, including managed-care organizations, are legally liable for causing personal injury as a result of their own negligence or the negligence of their employees or agents.1-4 However, as most observers of the U.S. health care system know by now, there is an exception to this basic legal rule of accountability. The Employee Retirement Income Security Act of 1974 (ERISA) has been interpreted to grant health benefit plans provided by employers or unions (and the managed-care organizations that sell or …
Foreword: Legal And Constitutional Implications Of The Calls To Revive Civil Society, Linda C. Mcclain, James E. Fleming
Foreword: Legal And Constitutional Implications Of The Calls To Revive Civil Society, Linda C. Mcclain, James E. Fleming
Faculty Scholarship
This symposium addresses legal and constitutional implications of the calls to revive or renew civil society (a realm between the individual and the state, including the family and religious, civic, and other voluntary associations). The erosion or disappearance of civil society is a common diagnosis of what underlies civic and moral decline in America, and its renewal features prominently as a cure for such decline. To date, there has been a great deal of discussion of civil society and proposals for its revival or renewal, but not enough discussion of legal and constitutional implications of such proposals. This symposium seeks …
Banks And Inner Cities: Market And Regulatory Obstacles To Development Lending, Keith N. Hylton
Banks And Inner Cities: Market And Regulatory Obstacles To Development Lending, Keith N. Hylton
Faculty Scholarship
Why are poor inner cities underserved by financial institutions, and why is it so difficult to find a solution to this problem? Explanations of the lending shortfall problem range between theories based on discrimination to the view that the lending market is working flawlessly. Drawing largely on the economic development literature, I elaborate an alternative explanation here. The asymmetric information theory I offer yields the prediction that urban minority communities will be underserved by financial institutions even in the absence of discriminatory intent.
I claim that the existing framework of banking regulation is in part responsible for the difficulty in …
Some Questions For Civil Society-Revivalists, Linda C. Mcclain, James E. Fleming
Some Questions For Civil Society-Revivalists, Linda C. Mcclain, James E. Fleming
Faculty Scholarship
The Article raises some questions for proponents of reviving civil society as a cure for many of our nation's political, civic, and moral ills (whom McClain and Fleming designate as "civil society-revivalists"). How does civil society serve as "seedbeds of virtue" and foster self-government? Have liberal conceptions of the person corroded civil society and undermined self-government? Does the revivalists' focus on the family focus on the right problems? Have gains in equality and liberty caused the decline of civil society? Should we revive civil society or "a civil society"? Would a revitalized civil society support democratic self-government or supplant it? …
The Parsimony Of Libertarianism, James E. Fleming
The Parsimony Of Libertarianism, James E. Fleming
Faculty Scholarship
I want to begin by congratulating Randy Barnett on writing The Structure of Liberty,' one of the most radical and provocative works of political and legal theory that I have ever read. I consider myself to be a liberal who prizes liberty. Barnett claims to provide an account of the structure of liberty along with "[t]he liberal conception of justice" and the rule of law.2 His is a radical libertarian account centrally concerned with protecting the fundamental natural rights of property, first possession, freedom of contract, and self-defense. In Barnett's world, the fabled libertarian night-watchman state has been downsized and …
The Canon And The Constitution Outside The Courts, Sotirios Barber, James E. Fleming
The Canon And The Constitution Outside The Courts, Sotirios Barber, James E. Fleming
Faculty Scholarship
What would it mean for "the canon of constitutional law" if we were to take seriously "the Constitution outside the courts"? What would happen to the canon if we were to distinguish (as Cass Sunstein and Larry Sager do) between the partial, judicially enforceable Constitution and the Constitution that imposes higher obligations upon legislatures, executives, and citizens generally to Fursue constitutional ends or to secure constitutional rights? How would the canon be affected by "taking the Constitution away from the courts," as Mark Tushnet proposes,2 or by adopting what Sandy Levinson has called a "Protestant" rather than a court-centered "Catholic" …
In Memoriam: Celebration Of The Life Of Michael Ward Melton, Frances H. Miller
In Memoriam: Celebration Of The Life Of Michael Ward Melton, Frances H. Miller
Faculty Scholarship
Mike and I became instant friends when we met almost twenty years ago. We happened to live in the same town, but it wasn't that. Truth is, we rarely saw one another there before he became ill. He patronized the fancy up-market for his food shopping--probably because they had better stuff for his beloved dogs and cat--while I went to the more plebian Star Market. Occasionally, we bumped into one another at the town dump, where we traded a few snide observations about the quality of one another's trash. But such intimacy was never the source of our friendship.
Orientalism Revisited In Asylum And Refugee Claims, Susan M. Akram
Orientalism Revisited In Asylum And Refugee Claims, Susan M. Akram
Faculty Scholarship
This article examines the stereotyping of Islam both by advocates and academics in refugee rights advocacy. The article looks at a particular aspect of this stereotyping, which can be seen as ‘neo-Orientalism’ occurring in the asylum and refugee context, particularly affecting women, and the damage that it does to refugee rights both in and outside the Arab and Muslim world. The article points out the dangers of neo-orientalism in framing refugee law issues, and asks for a more thoughtful and analytical approach by Western refugee advocates and academics on the panoply of Muslim attitudes and Islamic thought affecting applicants for …
The Incident At Cavalese And Strategic Compensation, Robert D. Sloane
The Incident At Cavalese And Strategic Compensation, Robert D. Sloane
Faculty Scholarship
In 1953, the United States ratified the NATO Status of Forces Agreement. The drafters foresaw that the presence and training of foreign military forces within and between their territories would probably, if not inevitably, cause injury to civilians, giving rise to claims that, if not settled quickly and satisfactorily, could spark incidents disruptive to their cooperation in mutual defense. To this end, the SOFA established a jurisdictional regime designed to minimize the political friction these incidents threatened to generate, by providing prompt and manifestly fair settlement procedures. This result was vital to NATO's operations, for, in democratic host states, popular …
A Proposal For A New Massachusetts Notoriety For Profit Law: The Grandson Of Sam, Sean J. Kealy
A Proposal For A New Massachusetts Notoriety For Profit Law: The Grandson Of Sam, Sean J. Kealy
Faculty Scholarship
In recent years, two women stood convicted of highly publicized major crimes in Massachusetts. Katherine Ann Power ("Power") was a fugitive who committed felony-murder in 1970. She led a life on the run as a fugitive until 1993 when she revealed her true identity and surrendered to authorities to face the consequences of her crimes. Louise Woodward ("Woodward"), an au pair originally from England, gained notoriety on both sides of the Atlantic Ocean when she was convicted of killing the baby entrusted to her care. Both women captured the attention of the national media for months and reportedly had opportunities …
The Chicago Conspiracy Trial: Character And Judicial Discretion, Pnina Lahav
The Chicago Conspiracy Trial: Character And Judicial Discretion, Pnina Lahav
Faculty Scholarship
On October 29, 1969, sometime after two o'clock in the afternoon, following yet another heated exchange with defendant Bobby Seale in a courtroom full of spectators, reporters, and armed guards, Judge Julius Jennings Hoffman turned to a marshal and ordered: "Take that defendant into the room in there and deal with him as he should be dealt with in this circumstance."' Judge Hoffman described the aftermath:
In an attempt to maintain order in the courtroom, the Court thereupon ordered the defendant Seale removed from the courtroom at which time he was forcibly restrained by binding and gagging. The defendant Seale …
The Moral Opacity Of Utilitarianism, David B. Lyons
The Moral Opacity Of Utilitarianism, David B. Lyons
Faculty Scholarship
Utilitarians sometimes suggest that their moral theory has an advantage over competing theories in basing moral judgements on the consequences of conduct. As its dictates are determined by empirically determinable facts, it offers a procedure for settling moral controversies on objective grounds. One need not appeal, for example, to the dubious authority of ‘moral intuitions’.
Claims like these are subject to familiar objections at various levels. I shall mention a representative sample and then focus on more serious difficulties stemming from aspects of utilitarianism that I believe have not been fully enough explored.
Fine-Tuning Tasini: Privileges Of Electronic Distribution And Reproduction, Wendy J. Gordon
Fine-Tuning Tasini: Privileges Of Electronic Distribution And Reproduction, Wendy J. Gordon
Faculty Scholarship
The United States Court of Appeals for the Second Circuit is arguably the soundest copyright court in the nation. In Tasini v. New York Times, it handled a challenge brought by a group of freelance writers against publishers and database proprietors. The controversy, now pending in the United States Supreme Court, has wide importance because it will determine what entitlements attach to a publisher who purchases a privilege to include a freelancer's story in the publisher's magazine or newspaper. Essentially, the issue is whether a publisher, who has not purchased the story's copyright and has not obtained an explicit …
Shaping Competition On The Internet: Who Owns Product And Pricing Information, Maureen A. O'Rourke
Shaping Competition On The Internet: Who Owns Product And Pricing Information, Maureen A. O'Rourke
Faculty Scholarship
Historically, markets have almost always fallen short of satisfying the conditions for and providing consumers with the benefits of perfect competition. Certain characteristics of electronic markets, however, enhance the possibility that e-commercel will be conducted in an environment that comes closer to attaining the perfectly competitive ideal than that of most conventional markets.
Forward To Amicus Brief On The Status Of Palestinian Refugees Under International Refugee Law, Guy Goodwin-Gill, Susan M. Akram
Forward To Amicus Brief On The Status Of Palestinian Refugees Under International Refugee Law, Guy Goodwin-Gill, Susan M. Akram
Faculty Scholarship
Palestinian refugees have a status that is unique under international refugee law. Unlike any other group or category of refugees in the world, Palestinians are singled out for exceptional treatment in the major international legal instruments which govern the rights and obligations of states towards refugees: the 1951 Geneva Convention Relating to the Status of Refugees and its 1967 Protocol; the Statute of the United Nations High Commissioner for Refugees; and, specifically with regard to the Palestinians, the Regulations governing the mandate of the United Nations Relief and Works Agency for Palestinian Refugees in the Near East. Almost all states …
Copyright, Wendy J. Gordon, Robert G. Bone
Copyright, Wendy J. Gordon, Robert G. Bone
Faculty Scholarship
Copyright is the branch of Intellectual Property Law that governs works of expression such as books, paintings and songs, and the expressive aspects of computer programs. Intellectual products such as these have a partially public goods character: they are largely inexhaustible and nonexcludable. Intellectual Property Law responds to inexcludability by giving producers legal rights to exclude nonpayers from certain usages of their intellectual products. The goal is to provide incentives for new production at fairly low transaction costs. However, the copyright owner will charge a price above marginal cost and this, coupled with the inexhaustibility of most copyrighted products, creates …
Copyright And Parody: Touring The Certainties Of Property And Restitution, Wendy J. Gordon
Copyright And Parody: Touring The Certainties Of Property And Restitution, Wendy J. Gordon
Faculty Scholarship
One of the supposed certainties of the common law is that persons need not pay for benefits they receive except when they have agreed in advance to make payment. The rule takes many forms. One of the most familiar is the doctrine that absent a contractual obligation, a person benefited by a volunteer ordinarily need not pay for what he has received. This rule supposedly both encourages economic efficiency and respects autonomy.
Rules For Research On Human Genetic Variation: Lessons From Iceland, George J. Annas
Rules For Research On Human Genetic Variation: Lessons From Iceland, George J. Annas
Faculty Scholarship
Research on genetic variation aims to understand how genes function and requires the comparison of DNA samples from groups of individuals to identify variations that might have importance for health or disease. This work is easier if the samples are linked to accurate medical records and genealogic information. Iceland has medical records for all its citizens going back to World War I and detailed genealogic information going back even further. Because Iceland's small population (270,000) has long been isolated and homogeneous, it is thought by many to be an ideal place to search for disease-related genes. Journalists have cavalierly labeled …
The Future Claims Representative In Mass Tort Bankruptcy: A Preliminary Inquiry, Frederick Tung
The Future Claims Representative In Mass Tort Bankruptcy: A Preliminary Inquiry, Frederick Tung
Faculty Scholarship
Mass torts have becomemoved center stage in the courts, the academy, and the popular press. The plight of mass tort victims—asbestos victims, Dalkon shield users, breast implant recipients, among others—has become standard fare in the media., and cCourts and commentators have struggled for several decades attempting to craft just and workable solutionsresolutions of mass tort liabilities. The challenge is to save the business, restructuring its debts, while providing fair treatment to future claimants and achieving a final resolution of their rights against the business.
Symposium: Advances In Biomaterials And Devices, And Their Financing, Michael S. Baram, Ronald A. Cass, Steven Bauer, Joyce Wong, Martin Yarmush, Joshua Tolkoff, Rufus King
Symposium: Advances In Biomaterials And Devices, And Their Financing, Michael S. Baram, Ronald A. Cass, Steven Bauer, Joyce Wong, Martin Yarmush, Joshua Tolkoff, Rufus King
Faculty Scholarship
My name is Professor Michael Baram and I direct the Center for Law and Technology here at the law school. Today's meeting is the third annual Technology Law Symposium to be held here, sponsored by the high technology law firm of Testa, Hurwitz & Thibeault, LLP and the Center for Law and Technology.
Our meeting today is focused on an exciting area of research and product development. This area involves the use of conventional as well as new genetically engineered biomaterials in new medical device configurations for implantation and with the purpose of restoring bodily functions, regenerating tissue, bone, cartilage, …
On Equality, Bias Crimes, And Just Deserts, Kenneth Simons
On Equality, Bias Crimes, And Just Deserts, Kenneth Simons
Faculty Scholarship
In a recent article, Professors Alon Harel and Gideon Parchomovsky propose to widen the focus of criminal law beyond the culpability of the offender and the wrongdoing he commits. Criminal law, they believe, should also encompass the state's special egalitarian duty to protect the interests of the most vulnerable victims of crime. They offer this suggestion for two reasons - to give a convincing justification of bias crime legislation, which they claim a retributivist approach cannot do; and, more broadly, to remedy retributivism's supposedly inadequate attention to the interests of crime victims.
Although these egalitarian goals are worthy, the authors' …
The Logic Of Egalitarian Norms, Kenneth Simons
The Logic Of Egalitarian Norms, Kenneth Simons
Faculty Scholarship
"The Logic of Egalitarian Norms" was prompted by a recent article by Christopher J. Peters, "Equality Revisited," 110 Harv. L. Rev. 1210 (1997), arguing that the concept of equality is self-contradictory and sometimes leads to absurd results, such as the multiplication of wrongs or wasteful "leveling down" of social benefits. Peters' view is shared by other recent skeptical commentators who question the value of egalitarian norms or who worry that such norms are often misleading. The article defends egalitarian logic against such skepticism in a wide variety of legal domains.
Accountants' Independence The Recent Dilemma, Tamar Frankel
Accountants' Independence The Recent Dilemma, Tamar Frankel
Faculty Scholarship
A fundamental issue has been raised recently in connection with the status of "independent accountants." The issue involves a new breed of a few very large accounting firms. These firms are engaged in global commerce and finance, and cater to an important segment of multinational corporations.
These mammoth accounting firms raise a familiar question in a new context. On the one hand, the size and diversity of the firms meet the needs of large multinational clients and offer efficiency benefits. On the other hand, these benefits expose the firms to increased possible conflicts of interest and endanger the firms' gatekeeping …
Securitizing Insurance Risks, Tamar Frankel, Joseph W. Laplume
Securitizing Insurance Risks, Tamar Frankel, Joseph W. Laplume
Faculty Scholarship
This Article analyzes and evaluates the legal problems that have arisen in connection with this rapidly developing insurance risk securitization. The first part of the Article deals with legal issues concerning the SPVs that undertake insurance and reinsurance contracts with ceding insurers and the other parties to the transaction. The Article addresses the dilemma in choosing the laws applicable to SPVs, the bonds they issue, and the persons and entities that form part of the securitization transaction. These laws involve state insurance laws, bankruptcy and tax laws, the Investment Company Act of 1940 and the Commodity Exchange Act of 1934, …
New Plants As Natural Experiments In Economic Adjustment: Adjustment Costs, Learning-By-Doing And Lumpy Investment, James Bessen
New Plants As Natural Experiments In Economic Adjustment: Adjustment Costs, Learning-By-Doing And Lumpy Investment, James Bessen
Faculty Scholarship
A large sample of new plants is studied to reveal detailed adjustment behavior for capital, labor and productivity. Once production has begun, capital adjusts almost as quickly as labor. Overall, capital adjustment is lumpy while labor follows a learning-by-doing model rather than a convex adjustment cost model. Plants are quite heterogeneous, however: convex adjustment costs appear important at small plants, but large plants exhibit lumpy investment and substantial investment in learning-by-doing. A positive association between plant productivity growth and wages (and also the change in wages) corroborates the importance of learning-by-doing. Also, learning-by-doing appears to influence the behavior of large …
The Rich Have More Money, George J. Annas
The Rich Have More Money, George J. Annas
Faculty Scholarship
Review of Ethics, Equity and Health for All, by Z. Bankowski, J. H. Bryant, and J. Gallagher, eds. (Geneva: CIOMS, 1997)
When Fathers' Rights Are Mothers' Duties: The Failure Of Equal Protection In Miller V. Albright, Kristin Collins
When Fathers' Rights Are Mothers' Duties: The Failure Of Equal Protection In Miller V. Albright, Kristin Collins
Faculty Scholarship
The history of coverture and the transmission of American citizenship brings an elementary point into focus: The allocation of parental rights is always correlated with the allocation of parental responsibility. This basic legal truism, and its numerous implications for citizenship law, suggests that the principal gender injustice caused by § 1409 is not its truncation of fathers' rights, but its creation and perpetuation of a legal regime in which mothers assume full responsibility for foreign-born nonmarital children. Once we recognize this gendered operation of § 1409, broader failures of equal protection analysis come into relief. First, while the jurisprudential understanding …