Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Series

Faculty Publications

Discipline
Institution
Keyword
Publication Year
File Type

Articles 1 - 30 of 6675

Full-Text Articles in Law

A Modest Proposal On Supreme Court Unanimity To Constitutionally Invalidate Laws, Dwight G. Duncan Oct 2019

A Modest Proposal On Supreme Court Unanimity To Constitutionally Invalidate Laws, Dwight G. Duncan

Faculty Publications

There is a problem in our constitutional history: the problem of split Supreme Court decisions invalidating democratically enacted laws. From Dred Scott[1] to Lochner[2] to Roe v. Wade[3] to Citizens United,[4] and even the recent Second Amendment decisions of Heller[5] and McDonald,[6] these patently fallible decisions on controversial political and social issues have divided the nation, politicized the Court, poisoned the Supreme Court nomination process and thwarted the political branches and democratic governance. Requiring Supreme Court unanimity to overturn legislation on constitutional grounds would therefore be morally and politically desirable. Why that is so ...


Counterfeit Campaign Speech, Rebecca Green Aug 2019

Counterfeit Campaign Speech, Rebecca Green

Faculty Publications

We are entering an era in which computers can manufacture highly-sophisticated images, audio, and video of people doing and saying things they have, in fact, not done or said. In the context of political campaigns, the danger of “counterfeit campaign speech” is existential. Do current laws adequately regulate faked candidate speech? Can counter speech effectively neutralize it? Because it takes place in the vaulted realm of core political speech, would the First Amendment stymie any attempt to outlaw it? Many smart people who have looked at the general problem of deceit in campaigns have concluded that the state has no ...


Justice On The Line: Prosecutorial Screening Before Arrest, Adam M. Gershowitz Aug 2019

Justice On The Line: Prosecutorial Screening Before Arrest, Adam M. Gershowitz

Faculty Publications

Police make more than eleven million arrests every year. Yet prosecutors dismiss about 25% of criminal charges with no conviction being entered. Needless arrests are therefore clogging the criminal justice system and harming criminal defendants. For instance, Freddie Gray was fatally injured in police custody after being arrested for possession of a switchblade knife. Prosecutors later announced, however, that they did not believe the knife was actually illegal. If prosecutors had to approve warrantless arrests before police could take suspects into custody, Freddie Gray would still be alive. Yet prosecutors’ offices almost never dictate who the police should or should ...


Workplace Sexual Harassment: Assessing The Effectiveness Of Human Rights Law In Canada, Bethany Hastie Aug 2019

Workplace Sexual Harassment: Assessing The Effectiveness Of Human Rights Law In Canada, Bethany Hastie

Faculty Publications

This report analyzes substantive decisions on the merits concerning workplace sexual harassment at each of the BC and Ontario Human Rights Tribunals from 2000-2018, with a view to identifying how the law of sexual harassment is understood, interpreted and applied by the Tribunals’ adjudicators. In particular, this report examines whether, and to what extent, gender-based stereotypes and myths known to occur in criminal justice proceedings arise in the human rights context.

This report examines substantive decisions on the merits for claims of workplace sexual harassment from 2000-2018 in BC and Ontario. The limitation to substantive decisions allows for a greater ...


The Superiority Of The Digital Service Tax Over Significant Digital Presence Proposals, Wei Cui Jul 2019

The Superiority Of The Digital Service Tax Over Significant Digital Presence Proposals, Wei Cui

Faculty Publications

Responding to calls for reallocating taxing rights over multinationals’ profits to reflect the place of user value creation, the OECD recently announced a Program of Work to implement international tax reform. I use the European Commission’s 2018 proposal to introduce the “significant digital presence” concept into income tax treaties as an example of the type of approach the OECD favors, and argue that it is inferior to recently proposed digital services taxes (DSTs). DSTs directly address the question of where profits should be allocated and taxed, while SDP proposals subordinate this vital question to superfluous treaty conventions. Global tax ...


Excluding Women, Catherine Dauvergne, Hannah Lindy Jul 2019

Excluding Women, Catherine Dauvergne, Hannah Lindy

Faculty Publications

This article reviews 16 years of Canadian case law applying the Refugee Convention’s exclusion provisions to women. Despite a quarter of a century of strong scholarly and policy-making work asserting the need for attention to gender in refugee law, this dataset shows that, in questions of exclusion, gendered analysis is almost entirely absent. By contrast, in seeking explanations for the factual basis of exclusion in these cases, gender is almost always an explanatory factor. This stark observation leads us to conclude that significant additional work – both scholarly and policy-focused – is required. The article also considers whether a more robust ...


The Sickness Unto Death Of The First Amendment, Marc O. Degirolami Jul 2019

The Sickness Unto Death Of The First Amendment, Marc O. Degirolami

Faculty Publications

The sickness unto death, in Søren Kierkegaard’s work of the same name, is the anxiety and despair an individual experiences in recognizing that the self is separated from what is collective, extrinsic, or transcendent. Something like this condition now afflicts the First Amendment. The sickness unto death of the First Amendment is that the spectacular success of free speech and religious freedom as American constitutional rights on premises of liberal, individual autonomy has been the very cause of mounting and powerful collective anxiety. The impressive growth of these rights has rendered them fragile, if not actually unsustainable, in their ...


Masterpiece Cakeshop And The Future Of Religious Freedom, Mark L. Movsesian Jul 2019

Masterpiece Cakeshop And The Future Of Religious Freedom, Mark L. Movsesian

Faculty Publications

Last term, the Supreme Court decided Masterpiece Cakeshop, one of several recent cases in which religious believers have sought to avoid the application of public accommodations laws that ban discrimination on the basis of sexual orientation. The Court’s decision was a narrow one that turned on unique facts and did relatively little to resolve the conflict between anti-discrimination laws and religious freedom. Yet Masterpiece Cakeshop is significant, because it reflects broad cultural and political trends that drive that conflict and shape its resolution: a deepening religious polarization between the Nones and the Traditionally Religious; an expanding conception of equality ...


Forensic Science Evidence And The Limits Of Cross-Examination, Gary Edmond, Emma Cunliffe, Kristy Martire, Mehera San Roque Jul 2019

Forensic Science Evidence And The Limits Of Cross-Examination, Gary Edmond, Emma Cunliffe, Kristy Martire, Mehera San Roque

Faculty Publications

The ability to confront witnesses through cross-examination is conventionally understood as the most powerful means of testing evidence, and one of the most important features of the adversarial trial. Popularly feted, cross-examination was immortalised in John Henry Wigmore’s (1863–1943) famous dictum that it is ‘the greatest legal engine ever invented for the discovery of truth’. Through a detailed review of the cross-examination of a forensic scientist, in the first scientifically-informed challenge to latent fingerprint evidence in Australia, this article offers a more modest assessment of its value. Drawing upon mainstream scientific research and advice, and contrasting scientific knowledge ...


Fictional Pleas, Thea B. Johnson Jul 2019

Fictional Pleas, Thea B. Johnson

Faculty Publications

A fictional plea is one in which the defendant pleads guilty to a crime he has not committed with the knowledge of the defense attorney, prosecutor and judge. With fictional pleas, the plea of conviction is totally detached from the original factual allegations against the defendant. As criminal justice actors become increasingly troubled by the impact of collateral consequences on defendants, the fictional plea serves as an appealing response to this concern. It allows the parties to achieve parallel aims: the prosecutor holds the defendant accountable in the criminal system, while the defendant avoids devastating non-criminal consequences. In this context ...


Vouchers And Affordable Housing: The Limits Of Choice In The Political Economy Of Place, Rigel C. Oliveri Jul 2019

Vouchers And Affordable Housing: The Limits Of Choice In The Political Economy Of Place, Rigel C. Oliveri

Faculty Publications

America's housing segregation problem, and the direct role of government and private actors in creating it, is well documented. What to do about it is less clear. And even when consensus develops about particular strategies, they can be difficult to implement because of significant headwinds that impede change. These headwinds-including market forces, government policies, and private prejudices-continue to stymie progress, and even well-intentioned reform efforts can fail at best and lead to negative consequences at worst. This piece seeks not to provide answers, but rather to describe one such set of reforms and headwinds and to propose some modest ...


The Prosecutors And Politics Project Study Of Campaign Contributions In Prosecutorial Elections, Carissa B. Hessick, Prosecutors And Politics Project Jun 2019

The Prosecutors And Politics Project Study Of Campaign Contributions In Prosecutorial Elections, Carissa B. Hessick, Prosecutors And Politics Project

Faculty Publications

The Prosecutors and Politics Project has compiled a database that identifies who contributed to prosecutor elections and the amount of their donations. Campaign contribution information is often publicly available, but the format of that information varies from state to state, the information is often scattered across multiple sources and the information is sometimes incomplete. The Project has compiled this fragmented data into a single nationwide database that will allow sustained study about who contributes to prosecutor campaigns and the amount of contributions.

This report summarizes and analyzes some of the data from the database. The report will be updated as ...


The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove Jun 2019

The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove

Faculty Publications

No abstract provided.


Outside The Echo Chamber: A Response To The “Consensus Statement On Abusive Head Trauma In Infants And Young Children, Randy Papetti, Paige Kaneb, Lindsay Herf May 2019

Outside The Echo Chamber: A Response To The “Consensus Statement On Abusive Head Trauma In Infants And Young Children, Randy Papetti, Paige Kaneb, Lindsay Herf

Faculty Publications

No abstract provided.


The Power Of Prosecutors, Jeffrey Bellin May 2019

The Power Of Prosecutors, Jeffrey Bellin

Faculty Publications

One of the predominant themes in the criminal justice literature is that prosecutors dominate the justice system. Over seventy-five years ago, Attorney General Robert Jackson famously proclaimed that the “prosecutor has more control over life, liberty, and reputation than any other person in America.” In one of the most cited law review articles of all time, Bill Stuntz added that prosecutors—not legislators, judges, or police—“are the criminal justice system’s real lawmakers.” And an unchallenged modern consensus holds that prosecutors “rule the criminal justice system.”

This Article applies a critical lens to longstanding claims of prosecutorial preeminence. It ...


Qualified Immunity And Constitutional Structure, Katherine Mims Crocker May 2019

Qualified Immunity And Constitutional Structure, Katherine Mims Crocker

Faculty Publications

A range of scholars has subjected qualified immunity to a wave of criticism— and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution.

First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a ...


An Organizational Account Of State Standing, Katherine Mims Crocker May 2019

An Organizational Account Of State Standing, Katherine Mims Crocker

Faculty Publications

Again and again in regard to recent high-profile disputes, the legal community has tied itself in knots over questions about when state plaintiffs should have standing to sue in federal court, especially in cases where they seek to sue federal-government defendants. Lawsuits challenging everything from the Bush administration’s environmental policies to the Obama administration’s immigration actions to the Trump administration’s travel bans have become mired in tricky and technical questions about whether state plaintiffs belonged in federal court.

Should state standing cause so much controversy and confusion? This Essay argues that state plaintiffs are far more like ...


Access Before Evidence And The Price Of The Fda's New Drug Authorities, Erika Lietzan May 2019

Access Before Evidence And The Price Of The Fda's New Drug Authorities, Erika Lietzan

Faculty Publications

Sometimes drug innovation seems to happen in reverse. Patients enjoy a treatment for years even though the treatment has not been approved by the FDA or proven safe and effective to the FDA's standards. (Sometimes this happens because the FDA has declined to take enforcement action.) The agency encourages companies to perform the work necessary to satisfy the United States "gold standard" for new drug approval, however, by promising exclusivity in the marketplace. When a company does this work, at considerable expense, the results are predictable. The new drug is expensive, and patients and payers (and sometimes policymakers) are ...


Transnational Business Governance Interactions, Regulatory Quality And Marginalized Actors: An Introduction, Stepan Wood, Errol Meidinger, Burkard Eberlein, Rebecca Schmidt, Kenneth W. Abbott Apr 2019

Transnational Business Governance Interactions, Regulatory Quality And Marginalized Actors: An Introduction, Stepan Wood, Errol Meidinger, Burkard Eberlein, Rebecca Schmidt, Kenneth W. Abbott

Faculty Publications

In what circumstances can transnational business governance interactions (TBGIs)—the myriad overlaps, intersections, conflicts, collisions and synergies amongst the actors and institutions involved in transnational regulation of business activity—be harnessed to enhance the quality of transnational regulation and advance the interests of marginalized actors? This chapter introduces the concept of transnational business governance interactions (TBGIs), summarizes the TBGI analytical framework and defines regulatory quality and marginalized actors. It proposes to investigate the relationship between TBGIs, regulatory quality and marginalized actors at three levels: regulatory capacities, outputs and outcomes. The chapter presents the plan of the book and summarizes the ...


Residential Mortgage Default And The Constraints Of Junior Liens, R. Wilson Freyermuth, Dale A. Whitman Apr 2019

Residential Mortgage Default And The Constraints Of Junior Liens, R. Wilson Freyermuth, Dale A. Whitman

Faculty Publications

Our purpose in this Article is to show how and why junior liens impose these constraints on the process of resolving residential mortgage loan defaults, and to suggest some changes in the law that can restore a measure of desirable flexibility for borrowers and servicers in negotiating default resolutions. At the same time, these suggestions take into account, as they must, the need for fairness in respecting the legitimate rights of junior lienholders.


The Challenge Of Convicting Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz Apr 2019

The Challenge Of Convicting Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz

Faculty Publications

In recent decades, both the media and legal scholars have documented the widespread problem of prosecutors failing to disclose favorable evidence to the defense – so called Brady violations. Despite all of this documentation however, many ethical prosecutors reject the notion that the criminal justice system has a Brady problem. These prosecutors – ethical lawyers who themselves have not been accused of misconduct – believe that the scope of the Brady problem is exaggerated. Why do ethical prosecutors downplay the evidence that some of their colleagues have committed serious errors?

This essay, in honor of Professor Bennett Gershman, points to what psychologists have ...


Harnessing Tbgis For Regulatory Quality And Marginalized Actors, Stepan Wood, Errol Meidinger, Burkard Eberlein, Rebecca Schmidt, Kenneth W. Abbott Apr 2019

Harnessing Tbgis For Regulatory Quality And Marginalized Actors, Stepan Wood, Errol Meidinger, Burkard Eberlein, Rebecca Schmidt, Kenneth W. Abbott

Faculty Publications

The chapters of this book paint a mixed and not particularly optimistic picture of the prospects for harnessing transnational business governance interactions (TBGIs)—the myriad overlaps, intersections, conflicts, collisions and synergies amongst the actors and institutions involved in transnational regulation of business activity—to improve the quality of transnational regulation and advance marginalized interests. This chapter synthesizes key findings about the impact of TBGIs of regulatory quality and marginalized actors, explores the implications of these findings for identifying and shaping TBGIs that foster regulatory quality or advance marginalized interests, and presents concluding reflections on lessons learned and future research directions.


Mandatory Corporate Social Responsibility? Legislative Innovation And Judicial Application In China, Li-Wen Lin Mar 2019

Mandatory Corporate Social Responsibility? Legislative Innovation And Judicial Application In China, Li-Wen Lin

Faculty Publications

Corporate social responsibility (CSR) is often understood as voluntary corporate behavior beyond legal compliance. The recent emergence of CSR legislation is challenging this typical understanding. A number of countries including China, Indonesia and India have expressly stated in corporate law that companies shall undertake CSR. The CSR law is controversial. Critics of CSR see the law as an unwise effort to challenge profit maximization as the only social responsibility of the corporation. Even CSR advocates welcome the CSR law with great caution. Given the vague statutory language of CSR, the practical application of the law places high demands on the ...


Say On Purpose: Lessons From Chinese Corporate Charters, Li-Wen Lin Mar 2019

Say On Purpose: Lessons From Chinese Corporate Charters, Li-Wen Lin

Faculty Publications

No abstract provided.


Mandatory Corporate Social Responsibility? Legislative Innovation And Judicial Application In China, Li-Wen Lin Mar 2019

Mandatory Corporate Social Responsibility? Legislative Innovation And Judicial Application In China, Li-Wen Lin

Faculty Publications

No abstract provided.


Tried And True: Fair Use Tales For The Telling, Sarah E. Mccleskey, Courtney Selby Mar 2019

Tried And True: Fair Use Tales For The Telling, Sarah E. Mccleskey, Courtney Selby

Faculty Publications

On Thursday, March 1, 2018, the Harvard Library Office for Scholarly Communication hosted “Tried and True: Fair Use Tales for the Telling,” a one-day program celebrating Harvard’s Fifth Anniversary of Fair Use Week. Leading fair use scholars and practitioners shared their stories and engaged in lively discussion about the powerful and flexible fair use provision of the Copyright Act and its applications. Topics included treatment of the fair use doctrine in recent jurisprudence, conflicts over the use of visual works in remixes and mash-ups, academic work and social commentary, filmmaking, controlled digital lending practices in libraries, software preservation, and ...


Policing The Admissibility Of Body Camera Evidence, Jeffrey Bellin, Shevarma Pemberton Mar 2019

Policing The Admissibility Of Body Camera Evidence, Jeffrey Bellin, Shevarma Pemberton

Faculty Publications

Body cameras are sweeping the nation and becoming, along with the badge and gun, standard issue for police officers. These cameras are intended to ensure accountability for abusive police officers. But, if history is any guide, the videos they produce will more commonly be used to prosecute civilians than to document abuse. Further, knowing that the footage will be available as evidence, police officers have an incentive to narrate body camera videos with descriptive oral statements that support a later prosecution. Captured on an official record that exclusively documents the police officer’s perspective, these statements—for example, “he just ...


Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern Mar 2019

Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern

Faculty Publications

How should we allocate property rights in unowned tangible and intangible resources? This Article develops a model of original acquisition that draws together common law doctrines of first possession with original acquisition doctrines in patent, copyright, and trademark law. The common denominator is time: in each context, doctrine involves a trade-off between assigning entitlements to resources earlier or later in the process of their development and use. Early awards risk granting exclusivity to parties who may not be capable of putting resources to their best use. Late awards prolong contests for ownership, which may generate waste or discourage acquisition efforts ...


Unequal Enforcement Of The Law: Targeting Aggressors For Mass Atrocity Prosecutions, Nancy Amoury Combs Mar 2019

Unequal Enforcement Of The Law: Targeting Aggressors For Mass Atrocity Prosecutions, Nancy Amoury Combs

Faculty Publications

It is a central tenet of the laws of war that they apply equally to all parties to a conflict. For this reason, a party that illegally launches a war benefits from all the same rights as a party that must defend against the illegal aggression. Countless philosophers have shown that this so-called equal application doctrine is morally indefensible and that defenders should have more rights and fewer responsibilities than aggressors. The equal application doctrine retains the support of legal scholars, however, because they reasonably fear that applying different rules to different warring parties will substantially reduce overall compliance with ...


Gendering Islamophobia To Better Understand Immigration Laws, Catherine Dauvergne Feb 2019

Gendering Islamophobia To Better Understand Immigration Laws, Catherine Dauvergne

Faculty Publications

This paper examines two recent developments in immigration law in Western liberal democracies: security exclusions and forced marriage provisions. It aims to consider how both of these settings are influenced by a pernicious Islamophobia and by gender. And, of course, by the intersection that creates a gendered version of Islamophobia. The overarching aim of the work is to consider whether and how human rights arguments are likely to be effective in immigration law. The work proceeds by developing the ideas of ‘unknowability’ and ‘unintelligibility’ as two ways to describe how Western law responds to Islam, and in so doing, contributes ...