Law Commons^™

From Ship To Shore: Reforming The National Contingency Plan To Improve Protections For Oil Spill Cleanup Workers, Rebecca Bratspies, Alyson Flournoy, Thomas Mcgarity, Sidney A. Shapiro, Rena I. Steinzor, Matthew Shudtz

Faculty Scholarship

Eleven workers died on April 20, 2010, when the Deepwater Horizon oil drilling platform exploded beneath them. Since then, tens of thousands of workers have toiled under difficult conditions to stop the leak and clean up the mess. For these workers, the spill is more than an environmental and economic disaster; it poses straightforward and serious risks to their health and safety. Oil is toxic, as are the dispersants used liberally by BP to contain it. BP’s foul up is not the first significant oil spill in the nation’s history, nor even the first in the Gulf. The oil companies …

Courage And Political Resistance, David B. Lyons

Faculty Scholarship

We celebrate courageous acts, but the conventional selection of acts to honor may sanction the slaughter of innocent persons. Most of those who are cited by governments for bravery are military personnel (I shall refer to them, generically, as “soldiers”). We can understand why governments routinely honor soldiers for bravery. Courage is required in warfare. To act as they are told that duty requires, soldiers must overcome reasonable fear of the gruesome dangers that they face. And we can expect governments to claim that their soldiers did not die in vain, but served nobly in a just cause.

Panel I: Professor Brodley’S General Contributions To Antitrust Scholarship : Introduction, Keith N. Hylton

Faculty Scholarship

When I began teaching Antitrust, I was the junior colleague of a more senior antitrust scholar, teaching the course on opposite semesters to the relatively few students who were forced by scheduling conflicts to take the course with me as their teacher. After my senior colleague departed for another school – and after the departure of some other senior Law and Economics colleagues – I was for a brief period the senior antitrust scholar at the institution, and this was in only my fifth year of teaching law. Boston University soon approached me and my wife with the offer of …

Transfer Pricing In Business Restructurings – Reasoning From Implausible Assumptions Issue Note 2 – (Oecd, Discussion Draft), Richard Thompson Ainsworth, Andrew Shact

Faculty Scholarship

The OECD’s Center for Tax Policy and Administration roundtable on business restructurings in January 2005 led to a Joint Working Group project later that year on permanent establishments and business restructurings. One of the results was the Discussion Draft on Transfer Pricing Aspects of Business Restructurings that was available for public comment between September 19, 2008 and February 19, 2009.

This paper concerns Issue Note No. 2 in the Discussion Draft – Arm’s Length Compensation for the Restructuring Itself.

Issue Note No. 2 is deeply flawed. It relies on an unproved correlation between structure and performance (profit/loss potential). The Discussion …

Tribute, Lawrence M. Solan

Faculty Scholarship

No abstract provided.

Gideon'S Ghost: Providing The Sixth Amendment Right To Counsel In Times Of Budgetary Crisis, Heather P. Baxter

Faculty Scholarship

This Article discusses how the budget crisis, caused by the recent economic downturn, has created a constitutional crisis with regard to the Sixth Amendment Right to Counsel. The landmark case of Gideon v. Wainwright required states, under the Sixth Amendment, to provide free counsel to indigent criminal defendants. However, as a result of the current financial crisis, many of those who represent the indigent have found their funding cut dramatically. Consequently, Gideon survives, if at all, only as a ghostly shadow prowling the halls of criminal justice throughout the country.

This Article analyzes specific budget cuts from various states and …

Killing The Microphone: When Broadcast Freedom Should Yield To Genocide Prevention, Carol Pauli

Faculty Scholarship

When powerful radio broadcasts exhort listeners to kill their neighbors, may outside nations or international organizations legally interrupt the signals to prevent genocide? International law has no legal framework for assessing and responding to such broadcasts. This Article attempts to create one. The Article draws on empirical research in the field of communication to identify conditions in which media messages become so powerful that they can mobilize audience members. Using this research, it constructs a framework for determining when speech constitutes incitement to genocide such that it loses any protection under international law and perhaps even triggers an affirmative duty …

Cy Pres Relief And The Pathologies Of The Modern Class Action: A Normative And Empirical Analysis, Samantha Zyontz, Martin H. Redish, Peter Julian

Faculty Scholarship

Since the mid 1970s, federal courts have taken the doctrine of cy pres relief from the venerable law of trusts and adapted it for use in the modern class action proceeding. In its original context, cy pres was utilized as a means of judicially designating a charitable recipient when, for whatever reason, it was no longer possible to fulfill the original goal of the maker of the trust. The purpose of cy pres was to provide “the next best relief” by finding a recipient who would resemble the original donor’s recipient as much as possible. In the context of class …

Intent In Tort Law, Keith N. Hylton

Faculty Scholarship

This paper, prepared for the 2009 Monsanto Lecture in Tort Jurisprudence, explains intent standards in tort law on the basis of the incentive effects of tort liability rules. Intent rules serve a regulatory function by internalizing costs optimally. The intent standard for battery internalizes costs in a manner that discourages socially harmful acts and at the same time avoids discouraging socially beneficial activity. The intent standard for assault is more difficult to satisfy than that for battery because it is designed to provide a subsidy of a sort to the speech that is often intermixed with potentially threatening conduct. In …

The New Financial Assets: Separating Ownership From Control, Tamar Frankel

Faculty Scholarship

This Article is organized in three parts. Part One examines the nature of financial assets and their transition by market transactions from contracts to property. The discussion highlights the gray areas which financial assets occupy in decoupling, falling within both contract and property law.

Part Two describes four types of decoupled financial assets. The first type separates into two financial assets: ownership benefits and ownership risks. The presumed reduction of owners' risks prompted some academics to justify reducing the owners' protection. I suggest that attempts to protect owners from ownership risk have failed. Therefore, the suggestion was ill-conceived. The second …

Roll Over Langdell, Tell Llewellyn The News: A Brief History Of American Legal Education, Stephen R. Alton

Faculty Scholarship

The origin of this essay is a presentation the author made at the Office of the Attorney General of the State of Texas on December 10, 2008. This essay is derived from the author's presentation, which originally was entitled "A Brief and Highly Selective History of American Legal Education and Jurisprudence. " In this essay, the author provides an overview of the history and development of legal education in America, emphasizing the establishment and evolution of the case method of instruction in American law schools and focusing on the influence of American jurisprudence on the development of legal education in …

Copyright, Derivative Works, And The Economics Of Complements, Glynn S. Lunney Jr

Faculty Scholarship

From an economic perspective, copyright is irrational. In defining the scope of a copyright owner's exclusive rights, it treats situations that have similar economic consequences differently, as infringement in one case and not in the other, and situations that have radically different economic consequences similarly. This essay explores such area in which copyright exhibits economic irrationality: Copyright's treatment of complements. Where a lower price on a substitute reduces demand for the original, a lower price on a complement increases it. So defined, copyright addresses whether a copyright owner will control three different types of complements: (i) complementary products, such as …

Agency Culture And Conflict: Federal Implementation Of The Indian Gaming Regulatory Act By The National Indian Gaming Commission, The Bureau Of Indian Affairs, And The Department Of Justice, Kevin Washburn

Faculty Scholarship

Indian gaming provides a lens through which to consider the implications of divided federal executive power. The Indian Gaming Regulatory Act is implemented by at least three federal agencies, each of which has somewhat different interests. Moreover, none of these agencies is monolithic and each must reconcile competing interests within its own domain. In examining the culture of three federal agencies, the author seeks to shed light on divided executive branch governance. The article briefly addresses three different issues: the 'independence' of an independent agency, the NIGC, which lacks litigating authority; the problem with shared subject matter jurisdiction by DOJ …

Response, David B. Lyons

Faculty Scholarship

How can one reply to the presentations and discussion of this conference? I think in the same spirit. The paper that took issue most substantially with some writing of mine was Aaron Garrett’s, Courage, Political Resistance, and Self-Deceit. What I have called political resistance has proved difficult for philosophers to theorize about. Aaron helps us to understand it much better. I am truly grateful for that and I am delighted to have provided the occasion for his paper. The same goes for the other contributions to this conference, which address issues more deeply than I have found it possible to …

Wto Jurisprudence & Its Critiques: The Appellate Body's Anti-Constitutional Resistance, William Magnuson

Faculty Scholarship

In a time of financial crisis and rising demand for economic protectionism, the World Trade Organization, promoting free trade and economic growth, has never been more important. Enforcement of the WTO’s provisions has grown increasingly contentious and high-stakes, and the Appellate Body empowered to rule on violations of the treaty has received harsh criticism. Three elements of WTO jurisprudence, in particular, stand out. First, the court’s excessive use of narrow textualist argument tends to lead to short-sighted decisions that give little guidance to member states. Second, the court’s decisions have increasingly interfered with sensitive democratic processes in sovereign countries. Third, …

Book Review: Responsible Business: Self-Governance And Law In Transnational Economic Transactions Edited By Olaf Dilling, Martin Herberg And Gerd Winter, Laura M. Spitz

Faculty Scholarship

No abstract provided.

The Statute Of Frauds And Oral Promises Of Job Security The Tenuous Distinction Between Performance And Excusable Nonperformance, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

The Twist Of Long Terms: Judicial Elections, Role Fidelity, And American Tort Law, Jed Handelsman Shugerman

Faculty Scholarship

The received wisdom is that American judges rejected strict liability through the nineteenth and early twentieth centuries. To the contrary, a majority of state courts adopted Rylands v. Fletcher and strict liability for hazardous or unnatural activities after a series of flooding tragedies in the late nineteenth century. Federal judges and appointed state judges generally ignored or rejected Rylands, while elected state judges overwhelmingly adopted Rylands or a similar strict liability rule.

In moving from fault to strict liability, these judges were essentially responding to increased public fears of industrial or man-made hazards. Elected courts were more populist: they were …

Voip Mtic - The Italian Job (Operazione 'Phuncards-Broker'), Richard Thompson Ainsworth

Faculty Scholarship

On February 8, 2010 a speculative paper on the likelihood that fraudsters proficient in missing trader intra-community (MTIC) fraud might move into voice over internet protocol (VoIP) was submitted to the Boston University School of Law Working Paper Series.

Prior to that paper there was very little (if any) public discussion of VoIP MTIC. There were no assessments, no arrests, and not a hint of litigation. Fifteen days later, and before final publication the financial press exploded with coverage of a massive VoIP MTIC fraud (the Operazione “phuncards-broker” investigation). The Wall Street Journal reported: An [Italian] judge…ordered the arrest of …

Holding The World Bank Accountable For The Leakage Of Funds From Africa’S Health Sector, Fatma E. Marouf

Faculty Scholarship

This article explores the accountability of international financial institutions (IFIs), such as the World Bank, for human rights violations related to the massive leakage of funds from sub-Saharan Africa’s health sector. The article begins by summarizing the quantitative results of Public Expenditure Tracking Surveys performed in six African countries, all showing disturbingly high levels of leakage in the health sector. It then addresses the inadequacy of good governance and anticorruption programs in remedying this problem. After explaining how the World Bank’s Inspection Panel may serve as an accountability mechanism for addressing the leakage of funds, discussing violations of specific Bank …

Fulfilling Government 2.0'S Promise With Robust Privacy Protections, Danielle K. Citron

Faculty Scholarship

The public can now “friend” the White House and scores of agencies on social networks, virtual worlds, and video-sharing sites. The Obama Administration sees this trend as crucial to enhancing governmental transparency, public participation, and collaboration. As the President has underscored, government needs to tap into the public’s expertise because it doesn’t have all of the answers.

To be sure, Government 2.0 might improve civic engagement. But it also might produce privacy vulnerabilities because agencies often gain access to individuals’ social network profiles, photographs, videos, and contact lists when interacting with individuals online. Little would prevent agencies from using and …

United States Response To Questionnaire Concerning The Terms Of Protection In The Field Of Copyright And Related Rights, June M. Besek, Jane C. Ginsburg, N. Orly Leventer, Joshua L. Simmons

Faculty Scholarship

No abstract provided.

Wide Right: Why The Ncaa's Policy On The American Indian Mascot Issue Misses The Mark, André Douglas Pond Cummings

Faculty Scholarship

Of the many civil rights and social justice issues that continue to cloud United States race relations, one persists in dividing parties: the use of American Indian mascots and imagery by collegiate and professional athletic teams. Scholars and academics weigh in annually on this divisive issue, while certain university administration officials vigorously defend continued use of Native American mascots and monikers at their institutions. Across the United States, various university officials and alumni debate the continued use of mascots such as the “Fighting Sioux,” the “Running Utes” and “Chief Illiniwek.”

In a broader context, the mistreatment and abuse of American …

Procuring ‘Justice’?: Citizens United, Caperton, And Partisan Judicial Elections, André Douglas Pond Cummings

Faculty Scholarship

In recent years, two inextricably connected issues have received a great deal of attention in both United States political discourse and in the legal academic literature. One issue of intense legal debate and frustration has been that of judicial recusal, including an examination of the appropriate standards that should necessarily apply to judges that seem conflicted or biased in their role as neutral arbiter. A second issue that has spawned heated commentary and great dispute over the past decade is that of campaign finance law, including examination of the role that powerful and wealthy benefactors play in American electioneering. Both …

The Taxation Of Cause-Related Marketing, Terri Lynn Helge

Faculty Scholarship

With the economy in turmoil, charitable organizations are looking to nontraditional sources of financing to supplement contributions and fee-based revenues. One potentially lucrative source of revenue stems from cause-related marketing. Cause-related marketing is the public association of a for-profit company with a charitable organization to promote the company’s product or service in order to raise money for the charitable organization. Introduced almost twenty-five years ago, cause-related marketing has now become a $1 billion a year industry. Cause-related marketing has evolved beyond mere use of a charitable organization’s name to an apparent union for the purpose of promoting products that carry …

The Associated Dangers Of "Brilliant Disguises," Color-Blind Constitutionalism, And Postracial Rhetoric, André Douglas Pond Cummings

Faculty Scholarship

Affirmative action, since its inception in 1961, has been under siege. The backlash against affirmative action began in earnest almost immediately following its origination through President John F. Kennedy’s and President Lyndon B. Johnson’s Executive Orders. Organized hostility in opposition to affirmative action crystallized early with “color-blind” theories posited and adopted, “reverse discrimination” alleged and embraced, and constitutional narrowing through adoption of white-privileged justifications. Enmity against affirmative action continues unabated today as exemplified by recent academic writings and studies purporting to prove that affirmative action positively injures African Americans and recent state-wide campaigns seeking to eradicate affirmative action through state …

Racial Coding And The Financial Market Crisis, André Douglas Pond Cummings

Faculty Scholarship

The financial market crisis of 2008 continues to plague the United States and countries around the world. The underlying causes of the 2008 collapse are numerous, intricate and complex. Academic scholars, investigative reporters and leading economists are now deconstructing the multiplicity of failures that enabled the breathtaking meltdown that nearly collapsed the global economy. As this thoughtful deconstruction emerges, a disturbing trend has forcefully surfaced, wherein dozens of writers, scholars and thinkers, motivated by politics, limelight and self indulgence, attempt to fix a singular or foundational cause as “the” reason for the market crisis of 2008. In a current political …

Conceptualizing Disability Discrimination, Michael C. Harper

Faculty Scholarship

In a series of law review articles written over the past decade, Professor Bagenstos has established himself as the preeminent academic voice on disability discrimination law. Indeed, the transferable utility of the conceptual insights developed and applied in these articles, in my view, warrants a claim for Bagenstos as the most important scholar of the decade in the general field of employment discrimination law. Anyone with a serious intellectual interest in discrimination law who has not read Bagenstos’s articles should take the occasion of the publication of this pithy and trenchant little volume to familiarize themselves with Bagenstos’s analysis of …

Cooperative Institutions In Cultural Commons, Gregg P. Macey

Faculty Scholarship

No abstract provided.

The Taxation Of Emissions Permits Distributed For Free As Part Of A Carbon Cap-And-Trade Program, Gary M. Lucas Jr

Faculty Scholarship

Climate change legislation is one of the Obama administration's top priorities. The administration has proposed regulating carbon emissions using a cap-and-trade program. If adopted, the program will place a cap on the aggregate carbon emissions of certain firms. Under the program, the government will create emissions permits in an amount corresponding to the cap and will require certain firms to surrender a permit for each ton of carbon emitted. After the government initially distributes permits, firms will be able to buy and sell them on a secondary market.

Both the administration and many economists prefer that the government initially distribute …