Law Commons^™

The Return Of The King: The Unsavory Origins Of Administrative Law, Gary S. Lawson

Faculty Scholarship

Philip Hamburger’s Is Administrative Law Unlawful? is a truly brilliant and important book. In a prodigious feat of scholarship, Professor Hamburger uncovers the British and civil law antecedents of modern American administrative law, showing that contemporary administrative law “is really just the most recent manifestation of a recurring problem.” That problem is the problem of power: its temptations, its dangers, and its tendency to corrupt. Administrative law, far from being a distinctive product of modernity, is thus the “contemporary expression of the old tendency toward absolute power – toward consolidated power outside and above the law.” It represents precisely the …

Trade And History: The Case Of Eu-Algeria Relations, Daniela Caruso, Joanna Geneve

Faculty Scholarship

The recent centennial of Albert Camus’s birth has had little resonance in EU legal scholarship. Yet Camus’s work is a natural entry point into the EU’s trade relations with the global south, and Algeria’s case is a particularly salient one, given the oft-ignored fact that for five years the Algerian nation was a part of the European Economic Community. The onset of a free trade regime between the EU and the former colonies or territories of its member states is often touted as the culminating point in a line of constant progress, from dependency to autonomy and from asymmetry to …

The New Habeas Corpus In Death Penalty Cases, Larry Yackle

Faculty Scholarship

This article offers the first systematic examination of Chapter 154, United States Code, which establishes new statutory arrangements for cases in which state prisoners under sentence of death file federal habeas corpus petitions challenging their convictions or sentences. Chapter 154 was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996. Yet its provisions were made applicable only in capital cases arising from states that established qualifying schemes for providing indigent death row prisoners with counsel in state postconviction proceedings. No state’s system for supplying lawyers in state court won approval and, in consequence, Chapter 154’s rules …

Fidelity, Change, And The Good Constitution, James E. Fleming

Faculty Scholarship

In thinking about fidelity and change in constitutional interpretation, many have framed the basic choice as being between originalism and living constitutionalism. Consider, for example, Jack M. Balkin’s Living Originalism, Robert W. Bennett and Lawrence B. Solum’s Constitutional Originalism: A Debate, and John O. McGinnis and Michael B. Rappaport’s Originalism and the Good Constitution. I shall argue for the superiority of what Ronald Dworkin called “moral readings of the Constitution” and what what Sotirios A. Barber and I have called a “philosophic approach” to constitutional interpretation. By “moral reading” and “philosophic approach,” I refer to conceptions of the Constitution as …

Deconstructing The Relationship Between Privacy And Security [Viewpoint], Gregory Conti, Lisa A. Shay, Woodrow Hartzog

Faculty Scholarship

From a government or law-enforcement perspective, one common model of privacy and security postulates that security and privacy are opposite ends of a single continuum. While this model has appealing properties, it is overly simplistic. The relationship between privacy and security is not a binary operation in which one can be traded for the other until a balance is found. One fallacy common in privacy and security discourse is that trade-offs are effective or even necessary. Consider the remarks of New York Police Department Commissioner Ray Kelly shortly after the Boston Marathon bombing, “I'm a major proponent of cameras. I …

Introduction: Challenging Authority: A Symposium Honoring Derrick Bell, Jasmine Gonzales Rose

Faculty Scholarship

This is the Introduction to the University of Pittsburgh Law Review’s Challenging Authority: A Symposium Honoring Derrick Bell (L.L.B. 1957). This special symposium issue of the 75th volume of the Law Review celebrates and seeks to continue Bell’s critical inquiry into and fight against racial injustice. It features leading and emerging voices that examine and build upon some of Bell’s most eminent concepts, such as the permanence of racism and Interest Convergence Theory; explore Bell’s impact as a professor and activist; and look ahead to the next wave of critical race study.

Lost At Sea, Daniela Caruso

Faculty Scholarship

A reflection on the existential loss experienced by many young persons in the aftermath of the Euro-zone crisis (often referred to as ‘the lost generation’) must also acknowledge, for the record and for reasons of relative salience, those who have recently drowned in the waters of southern Europe in their quest for a better future. This essay proposes to reconsider, for a moment, the relation between the obstacles that third country nationals (TNCs) encounter at our external frontiers and the increasing permeability of internal EU borders. Normally, one thinks of the two as structurally opposed: within its boundaries, the EU …

Reflections On Presumed Incompetent: The Intersections Of Race And Class For Women In Academia Symposium — The Plenary Panel, Maritza Reyes, Angela Onwuachi-Willig, Stephanie Wildman, Adrien Wing

Faculty Scholarship

Reflections on Presumed Incompetent: The Intersections of Race and Class for Women in Academia Symposium -- The Plenary Panel in the Berkeley Journal of Gender, Law & Justice represents the author’s reflections on the recent important book PRESUMED INCOMPETENT edited by Gabriella Gutiérrez y Muhs, Yolanda Flores Niemann, Carmen G. González, and Angela P. Harris. PRESUMED INCOMPETENT has started a national movement of attention to treatment of women of color in academia; google the reviews and check out the book’s Facebook presence. In this recreation of the symposium plenary, the panelists discuss issues surrounding race and gender in academia, particularly …

Nuisance, Keith N. Hylton

Faculty Scholarship

This entry sets out the law and the economic theory of nuisance. Nuisance law serves a regulatory function: it induces actors to choose the socially preferred level of an activity by imposing liability when the externalized costs of the activity are substantially greater than the externalized benefits or not reciprocal to other background external costs. Proximate cause doctrine plays a role in supplementing nuisance law.

Professed Values, Constructive Interpretation, And Political History: Comments On Sotirios Barber, The Fallacies Of States' Rights, David B. Lyons

Faculty Scholarship

Our barely functioning Congress seems to embody the issues that this conference on constitutional dysfunction is meant to address. At this moment, however, congressional disarray may result less from institutional design than from our lasting heritage of white supremacy. Republican control of the House owes much to the party's Southern Strategy, which has exploited widespread dissatisfaction with the Democrats' official renunciation of racial stratification. That challenge to the American Way is exacerbated by the idea, outrageous to some, of a black President. That context has some bearing on this Symposium's topic of federalism. For, as Professor Larry Yackle reminds us, …

Criminalizing Revenge Porn, Danielle K. Citron, Mary Anne Franks

Faculty Scholarship

Violations of sexual privacy, notably the non-consensual publication of sexually graphic images in violation of someone's trust, deserve criminal punishment. They deny subjects' ability to decide if and when they are sexually exposed to the public and undermine trust needed for intimate relationships. Then too they produce grave emotional and dignitary harms, exact steep financial costs, and increase the risks of physical assault. A narrowly and carefully crafted criminal statute can comport with the First Amendment. The criminalization of revenge porn is necessary to protect against devastating privacy invasions that chill self-expression and ruin lives.

Stereotype Threat And Law Librarianship, Ronald E. Wheeler

Faculty Scholarship

Mr. Wheeler looks at the concept of stereotype threat and discusses ways to confront and combat it in a diverse society. He proposes some simple solutions within the American Association of Law Libraries (AALL) and the law librarianship profession to help diminish the effects of this psychological barrier.

Introduction, Symposium On Ronald Dworkin's Religion Without God, James E. Fleming

Faculty Scholarship

Boston University School of Law and the Boston University Law Review are proud to publish this Symposium on Dworkin’s final book, Religion Without God (Harvard University Press, 2013), as a sequel to our 2009 Symposium on his Justice for Hedgehogs. The Symposium includes an introduction and eulogy by James E. Fleming and contributions by a number of the most distinguished scholars of law and religion in the United States and the United Kingdom: Jeremy Waldron, Stephen L. Carter, Paul Horwitz, Andrew Koppelman, Cécile Laborde, Linda C. McClain, Micah Schwartzman, and Steven D. Smith.

Can Religion Without God Lead To Religious Liberty Without Conflict?, Linda C. Mcclain

Faculty Scholarship

This Article engages with Ronald Dworkin’s final book, Religion Without God, which proposes to shrink the size and importance of the fierce “culture wars” in the United States between believers and nonbelievers – theists and atheists – by separating out the “science” and “value” components of religion to show these groups that they share a “fundamental religious impulse.” Religion Without God also calls for framing religious freedom as part of a general right to ethical independence rather than a “troublesome” special right for religious people. This article compares the argumentative strategy of Religion Without God with prior Dworkin works, such …

Paternalism, Public Health, And Behavioral Economics: A Problematic Combination, Wendy K. Mariner

Faculty Scholarship

Some critiques of public health regulations assume that measures directed at industry should be considered paternalistic whenever they limit any consumer choices. Given the presumption against paternalistic measures, this conception of paternalism puts government proposals to regulate industry to the same stringent proof as clearly paternalist proposals to directly regulate individuals for their own benefit. The result is to discourage regulating industry in ways that protect the public from harm and instead to encourage regulating individuals for their own good -- quite the opposite of what one would expect from a rejection of paternalism. Arguments favoring "soft paternalism" to justify …

Competitive Federalism: Five Clarifying Questions, Larry Yackle

Faculty Scholarship

Before I looked into the two fine books we are reviewing here,1 I would have said that arguments from federalism are typically fraudulent, neither more nor less than deliberate attempts to cloud the discussion of real issues. Now that I have read what Sotirios A. Barber and Michael S. Greve have written, I am largely confirmed in my prejudices. But my suspicions about federalism contentions have been shaken a bit – enough to ask some questions of Professor Greve, whose answers might persuade me that there is some good in this federalism business, after all. I doubt it, but I …

Abuse Of Rights: The Continental Drug And The Common Law, Anna Di Robilant

Faculty Scholarship

This article explores a crucial, though often neglected, episode in the history of modern private law: the nineteenth and early twentieth century debate over the concept of “abuse of rights”. In broad terms, the formula evokes the idea of an abusive, because malicious or unreasonable, exercise of an otherwise lawful right. The doctrine was applied in a variety of subfields of private law: property, contract, and labour law. It was conceived as a response to the urgent legal questions posed by the rise of modern industrial society: the limits of workers’ right to strike, the limits of industrial enterprises’ property …

Sales Suppression As A Service (Ssaas) & The Apple Store Solution, Richard Thompson Ainsworth

Faculty Scholarship

The problem of sales suppression fraud is estimated to cost state and local governments $20 billion annually ($2 billion in New York restaurants alone). Modern sales suppression (skimming) is carried out with technology (Zappers and Phantom-ware). Nine undercover sting operations in and around Manhattan and the Bronx by investigators working for New York’s Department of Taxation and Finance (NY-DT&F) have identified the SSaaS variant of modern skimming.

A striking example of SSaaS may be unfolding in the $1 million sales suppression case against Congressman Michael Grimm (R-NY). It is alleged that Grimm skimmed sales from his Healthalicious restaurant in Manhattan, …

Crowdsourcing Public Health Experiments: A Response To Jonathan Darrow's Crowdsourcing Clinical Trials, Ameet Sarpatwari, Christopher Robertson, David Yokum, Keith Joiner

Faculty Scholarship

We are pleased to have this opportunity to respond to Jonathan Darrow's article, Crowdsourcing Clinical Trials (CCT).' We seek to highlight its important contributions and to commence debate over some of its arguments. In particular, we qualify the ethical arguments that characterize early clinical use of drugs as if they were research, and suggest instead that, in either domain, the ethical (and legal) analysis should remain focused on whether all material information is provided so patients may make informed decisions. We also highlight the limits of what can be gleaned from the observational data collection efforts envisioned by CCT.

Ultimately, …

Intermediary Trademark Liability: A Comparative Lens, Stacey Dogan

Shorter Faculty Works

Although we live in a global, interconnected world, legal scholarship – even scholarship about the Internet – often focuses on domestic law with little more than a nod to developments in other jurisdictions. That’s not necessarily a bad thing; after all, theoretically robust or historically thorough works can rarely achieve their goals while surveying the landscape across multiple countries with disparate traditions and laws. But as a student of U.S. law, I appreciate articles that explain how other legal systems are addressing issues that perplex or divide our scholars and courts. Given the tumult over intermediary liability in recent years, …

Looking For Mr. (Or Ms.) Rights, Jack M. Beermann

Shorter Faculty Works

I am on the prowl. It’s 1 a.m. and I’ve been looking for Mr. (or Ms.) Rights all night. I’ve been hanging out in every Article of the Constitution of the United States and I have been deep into the pages of the United States Reports and the Federal Reporter. Oh, I have found plenty of negative rights, like the right to be free from cruel and unusual punishment and the right not to be twice placed in jeopardy for the same criminal act. But I need something more positive in my life. I want those things that make a …

Internalizing The Costs Of Employment Law Violations, Michael C. Harper

Faculty Scholarship

David Weil’s new book on the fragmenting of internal labor markets in many American industries, The Fissured Workplace, should be read by all who wish to understand how the challenges to enforcing laws designed to protect American workers have become greater as the institutional structures and processes through which American businesses produce and deliver goods and services have continued to evolve. This book should be read not primarily because President Obama last year nominated Weil, a Boston University School of Management Professor, to head the Wage and Hour Division of the Department of Labor or because the book includes several …

The Case For Public Pension Reform: Early Evidence From Kentucky, Maria O'Brien

Faculty Scholarship

Kentucky has managed to effect major changes to some of its pension plans in the face of poor funding ratios that threatened to swamp other budget priorities. At this point it is unclear whether the reforms are deep enough to bring the plans funding levels in line with those of “healthy” states like Wisconsin. It is also unclear whether there is the political will in other jurisdictions to curb costs by moving to defined contribution or hybrid cash balance vehicles. Transparency combined with a fear that pension obligations would soon swamp all other state budget priorities appears to have been …

Ordered Gun Liberty: Rights With Responsibilities And Regulation, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

This Article focuses on the case of the Second Amendment right to bear arms and gun control to examine whether the Constitution has fostered a pathological rights culture of rights without responsibilities and regulation. We offer some preliminary thoughts about “ordered gun liberty” – the individual right to bear arms in relation to responsibilities, virtues, and regulation. This article addresses a conundrum concerning this right: there is no individual right that cries out more for governmental encouragement of responsibility concerning its exercise and for governmental regulation to promote safety and to protect from harm, and yet there is no individual …

Illegitimate Borders: Jus Sanguinis Citizenship And The Legal Construction Of Family, Race, And Nation, Kristin Collins

Faculty Scholarship

The citizenship status of children born to American parents outside the United States is governed by a complex set of statutes. When the parents of such children are not married, these statutes encumber the transmission of citizenship between father and child while readily recognizing the child of an American mother as a citizen. Much of the debate concerning the propriety and constitutionality of those laws has centered on the extent to which they reflect gender-traditional understandings of fathers’ and mothers’ respective parental roles, or instead reflect “real differences” between men and women. Based on extensive archival research, this Article demonstrates …

Constitutional Exaptation, Political Dysfunction, And The Recess Appointments Clause, Jay D. Wexler

Faculty Scholarship

The so-called Recess Appointments Clause of the Constitution provides that: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”1 As of only a few years ago, I considered this clause so minor and quirky that I included it in a book about ten of the Constitution’s “oddest” clauses, right alongside such clearly weird provisions as the Title of Nobility Clause and the Third Amendment.2 Though I recognized that the Recess Appointments Clause was probably the least odd …

Analytical Framework For Examining The Value Of Antibacterial Products, Kevin Outterson, Aylin Sertkaya, John T. Eyraud, Anna Birkenback, Calvin Franz, Nyssa Ackerley, Valerie Overton

Faculty Scholarship

Antibacterial resistance is a growing global problem. According to the most recent statistics from the Centers for Disease Control and Prevention (CDC), at least 2 million people acquire serious infections with bacteria that are resistant to one or more of antibacterial drugs designed to treat those infections in the United States alone. Of these, approximately 23,000 die as a result of drug-resistant infections. Even though estimates vary widely, the economic cost of antibacterial resistance in the United States could be as high as $20 billion and $35 billion a year in excess direct healthcare costs and lost productivity costs, respectively …

Towards Universal Fiduciary Principles, Tamar Frankel

Faculty Scholarship

Fiduciary relationships play an important role in civil law and common law jurisdictions. While both legal systems offer similar outcomes in upholding fiduciary law principles, the way they achieve these ends is fundamentally different. In common law jurisdictions, fiduciary law is rooted in the law of property. By contrast, in civil law jurisdictions, fiduciary principles find their source in contract law. This article seeks to reconcile these differences, by identifying universal principles that apply to both systems. The author describes the sources of fiduciary law in the common law and the civil law, then highlights underlying differences between the two …

Preface, Ken I. Kersch, Linda C. Mcclain

Faculty Scholarship

In an essay in the Texas Law Review not too long ago, Sandy Levinson lamented the degree to which law reviews—most prominently the Michigan Law Review—were sharply cutting down on the space they were devoting to book reviews.1 This was especially unfortunate as law professors were publishing more and more books. The publication of a book, as opposed to a journal article, was for many a deliberate choice involving an effort to address subjects at greater length, in greater depth, and on a broader scale for a wider scholarly (and perhaps educated popular) audience. Thematic review essays on books, whether …

Let's Talk About Race, Ronald E. Wheeler

Faculty Scholarship

Despite other scholars’ suggestions that law librarianship and the American Association of Law Libraries lack diversity, Mr. Wheeler examines numerical and anecdotal data indicating that efforts to promote racial and ethnic diversity within AALL and the profession are beginning to show positive results.