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A Grotian Tradition Of Theory And Practice: Grotius, Law, And Moral Skepticism In The Thought Of Hedley Bull, Benedict Kingsbury Jan 1997

A Grotian Tradition Of Theory And Practice: Grotius, Law, And Moral Skepticism In The Thought Of Hedley Bull, Benedict Kingsbury

Faculty Scholarship

No abstract provided.

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Dynamical Stability And Environmental Influences In Low Surface Brightness Disk Galaxies, Stacy S. Mcgaugh Jan 1997

Dynamical Stability And Environmental Influences In Low Surface Brightness Disk Galaxies, Stacy S. Mcgaugh

Faculty Scholarship

Using analytic stability criteria we demonstrate that, because of their low surface mass density and large dark matter content, low surface brightness (LSB) disks are quite stable against the growth of global nonaxisymmetric modes such as bars. However, depending on their (poorly constrained) stellar velocity dispersions, they may be only marginally stable against local instabilities. We simulate a collision between an LSB and a high surface brightness (HSB) galaxy and find that, while the HSB galaxy forms a strong bar, the response of the LSB disk is milder, manifesting weaker rings and spiral features. The lack of sufficient disk self-gravity …

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Double Talk And Twisted Thought: Reflections On Incoherence, Elizabeth Fajans Jan 1997

Double Talk And Twisted Thought: Reflections On Incoherence, Elizabeth Fajans

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No abstract provided.

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Institutionalization: Savior Or Saboteur Of Mediation?,, Sharon Press Jan 1997

Institutionalization: Savior Or Saboteur Of Mediation?,, Sharon Press

Faculty Scholarship

This article is a reflection on the history and spread of the field of alternative dispute resolution (ADR). The author focuses on the increased institutionalization of ADR – particularly in relation to mediation within the court system, with examples drawn from Florida’s experience.

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Learning Our Limits: The Decline Of Textualism In Statutory Cases, Lawrence Solan Jan 1997

Learning Our Limits: The Decline Of Textualism In Statutory Cases, Lawrence Solan

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No abstract provided.

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Law And Order In Cyberspace, Nick Allard, David A. Kass Jan 1997

Law And Order In Cyberspace, Nick Allard, David A. Kass

Faculty Scholarship

No abstract provided.

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Reconceptualizing Chevron And Discretion: A Comment On Levin And Rubin, Gary S. Lawson Jan 1997

Reconceptualizing Chevron And Discretion: A Comment On Levin And Rubin, Gary S. Lawson

Faculty Scholarship

Professors Ronald Levin and Edward Rubin want to change the way we think about important administrative law concepts. Ronald Levin's paper, The Anatomy of Chevron: Step Two Reconsidered,1 argues that Chevron's2 currently ill-defined second step ought to be reconceptualized as an application of arbitrary or capricious review. Edward Rubin's paper, Discretion and Its Discontents,3 is part of his ongoing project to reconceptualize the way we think-and, more importantly, the way we talk-about the modern administrative state. Professor Rubin suggests that the oft-used word "discretion" does not usefully describe the bureaucratic operation of the modern managerial state and that it profitably …

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Internet Entrepreneurs, New Traffic Patterns, And Policy Issues, Michael S. Baram, Marv Goldschmitt, Richard J. Testa, Thomas C. Siekman, Peter Marx, Steven Bauer Jan 1997

Internet Entrepreneurs, New Traffic Patterns, And Policy Issues, Michael S. Baram, Marv Goldschmitt, Richard J. Testa, Thomas C. Siekman, Peter Marx, Steven Bauer

Faculty Scholarship

Welcome to the first session of the Internet Law Symposium co-sponsored by the Center for Law and Technologyat Boston University School of Law and the law firm of Testa, Hurwitz & Thibeault.This session will focus on a variety of Internet law and public policy issues and their implications for business.

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Copyright Preemption After The Procd Case: A Market-Based Approach, Maureen A. O'Rourke Jan 1997

Copyright Preemption After The Procd Case: A Market-Based Approach, Maureen A. O'Rourke

Faculty Scholarship

As information becomes increasingly available in digital form, a little noted yet significant legal change is occurring in the way in which information providers use the law to establish the terms under which they market their products. Electronic information providers, in contrast to their hard-copy counterparts, have continually turned to the private law of contract both to supplement and modify the public law of copyright.' While this trend began when most users were relatively large commercial, academic, or governmental enterprises, it accelerated as software providers began to market pre-packaged software to consumers, using the infamous "shrinkwrap" as a device to …

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Protecting Software And Information On The Internet, Ronald Cass, Steve Bauer, Pamela Samuelson, Maureen A. O'Rourke, Omar Khudari, George S. Takach Jan 1997

Protecting Software And Information On The Internet, Ronald Cass, Steve Bauer, Pamela Samuelson, Maureen A. O'Rourke, Omar Khudari, George S. Takach

Faculty Scholarship

Welcome. My name is Ron Cass. I am Dean of the Law School here at Boston University. This is part of an ongoing series of symposia on the Internet and Internet law. The program has been put together by Michael Baram, of our Center for Law and Technology, and Steve Bauer, of the law firm Testa, Hurwitz & Thibeault, which has contributed generously to the series and made it possible to line up a number of speakers. I am going to turn over the program now, but I wanted to take this opportunity to thank both Mr. Baram and Mr. …

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Risk In The Balance, Jay D. Wexler Jan 1997

Risk In The Balance, Jay D. Wexler

Faculty Scholarship

In both academic and legislative circles, risk assessment reform is currently a hot topic. In the last decade, scholars have increasingly criticized the risk assessment procedures which administrative agencies employ to protect the public from environmental and health risks. Critics have pointed to several flaws in the current system, calling it inconsistent, undemocratic, overly decentralized, excessively rigid and unjustifiably conservative. To deal with these problems, scholars have proposed a variety of solutions. Peter Huber has urged agencies to assess risk less conservatively in order to save society from "second best" technology. Cass Sunstein and Richard Pildes have proposed injecting public …

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Patients' Rights In Managed Care - Exit, Voice, And Choice, George J. Annas Jan 1997

Patients' Rights In Managed Care - Exit, Voice, And Choice, George J. Annas

Faculty Scholarship

The ability of consumers to complain effectively about services and products is a key ingredient of the market. In Exit, Voice, and Loyalty, economist Albert O. Hirschman argues that the ability to take one's business elsewhere may not be enough to empower consumers in markets where all providers act similarly. Instead of simply going elsewhere, consumers need to have an effective way to voice their complaints, in order to give providers an incentive to be more responsive to consumers' interests. Marc Rodwin has suggested that the Hirschman analysis may be particularly relevant to members of managed-care organizations and ``individuals with …

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Reefer Madness: The Federal Response To California's Medical-Marijuana Law, George J. Annas Jan 1997

Reefer Madness: The Federal Response To California's Medical-Marijuana Law, George J. Annas

Faculty Scholarship

Marijuana is unique among illegal drugs in its political symbolism, its safety, and its wide use. More than 65 million Americans have tried marijuana, the use of which is not associated with increased mortality. Since the federal government first tried to tax it out of existence in 1937, at least partly in response to the 1936 film Reefer Madness, marijuana has remained at the center of controversy. Now physicians are becoming more actively involved. Most recently, the federal drug policy against any use of marijuana has been challenged by California's attempt to legalize its use by certain patients on the …

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Reconceptualizing Chevron And Discretion: A Comment On Levin And Rubin, Gary S. Lawson Jan 1997

Reconceptualizing Chevron And Discretion: A Comment On Levin And Rubin, Gary S. Lawson

Faculty Scholarship

Professors Ronald Levin and Edward Rubin want to change the way we think about important administrative law concepts. Ronald Levin's paper, The Anatomy of Chevron: Step Two Reconsidered,1 argues that Chevron's currently ill-defined second step ought to be reconceptualized as an application of arbitrary or capricious review. Edward Rubin's paper, Discretion and Its Discontents,3 is part of his ongoing project to reconceptualize the way we think-and, more importantly, the way we talk-about the modern administrative state. Professor Rubin suggests that the oft-used word "discretion" does not usefully describe the bureaucratic operation of the modern managerial state and that it profitably …

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Rethinking Remedies At The Intersection Of Intellectual Property And Contract: Toward A Unified Body Of Law, Maureen A. O'Rourke Jan 1997

Rethinking Remedies At The Intersection Of Intellectual Property And Contract: Toward A Unified Body Of Law, Maureen A. O'Rourke

Faculty Scholarship

As society continues to move "on-line"' and technology advances in fields such as biotechnology, a paradigm shift is occurring. Investors are focusing less on asset valuations based on the physical goods owned by a particular firm and more on the value of intangibles-the information and know-how possessed by the firm and embodied in its intellectual property rights. Firms and even entire industries have grown up with the primarily paper assets of patents and copyrights.

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Toward A Theory Of Effective Supranational Adjudication, Laurence R. Helfer, Anne-Marie Slaughter Jan 1997

Toward A Theory Of Effective Supranational Adjudication, Laurence R. Helfer, Anne-Marie Slaughter

Faculty Scholarship

Supranational adjudication in Europe is a remarkable and surprising success. Europe's two supranational courts -- the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR) -- issue dozens of judgments each year with which defending national governments habitually comply in essentially the same manner as they would with domestic court rulings. These experiences stand in striking contrast to those of many international tribunals past and present. Can the European experience of supranational adjudication be transplanted beyond Europe? Professors Helfer and Slaughter argue that the effectiveness of the ECJ and the ECHR is linked to their power …

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Foucault In Cyberspace: Surveillance, Sovereignty, And Hardwired Censors, James Boyle Jan 1997

Foucault In Cyberspace: Surveillance, Sovereignty, And Hardwired Censors, James Boyle

Faculty Scholarship

This is an essay about law in cyberspace. I focus on three interdependent phenomena: a set of political and legal assumptions that I call the jurisprudence of digital libertarianism, a separate but related set of beliefs about the state's supposed inability to regulate the Internet, and a preference for technological solutions to hard legal issues on-line. I make the familiar criticism that digital libertarianism is inadequate because of its blindness towards the effects of private power, and the less familiar claim that digital libertarianism is also surprisingly blind to the state's own power in cyberspace. In fact, I argue that …

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Reviving Jacob And Youngs, Inc. V. Kent: Material Breach Doctrine Reconsidered, Amy B. Cohen Jan 1997

Reviving Jacob And Youngs, Inc. V. Kent: Material Breach Doctrine Reconsidered, Amy B. Cohen

Faculty Scholarship

Determining whether a material breach has occurred under current law involves a weighing of several factors, a determination that often seems either completely without logic or precision, or self-evident and conclusory. Thus, parties are left not knowing what to do and what risks they may be assuming. The problem with the current application of material breach doctrine is in large part a result of an absence of focus. The courts apply the test without articulating any foundation or context on which it is based. The law in this area could be much improved if courts would return to Judge Cardozo's …

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Force Majeure And Hardship Under The Unidroit Principles Of International Commercial Contracts, Joseph Perillo Jan 1997

Force Majeure And Hardship Under The Unidroit Principles Of International Commercial Contracts, Joseph Perillo

Faculty Scholarship

No abstract provided.

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Police Discretion And The Quality Of Life In Public Places: Courts, Communities, And The New Policing, Debra A. Livingston Jan 1997

Police Discretion And The Quality Of Life In Public Places: Courts, Communities, And The New Policing, Debra A. Livingston

Faculty Scholarship

The advent of community and problem-oriented policing – the so-called "quality-of-life" policing philosophies – raises complex questions concerning police discretion in addressing minor street misconduct and judicial response to that discretion. In this Article, Debra Livingston addresses these questions by reassessing the ways in which courts have employed the facial vagueness doctrine to limit police discretion in the performance of "order maintenance" tasks. Livingston contends that aggressive employment of the facial vagueness doctrine is an inadequate mechanism for limiting police discretion and at the same time could impair positive change in the direction of community and problem-oriented policing. As an …

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The Folklore Of Investor Capitalism, John C. Coffee Jr. Jan 1997

The Folklore Of Investor Capitalism, John C. Coffee Jr.

Faculty Scholarship

Ideally, Thurman Arnold should review this book. In his The Folklore of American Capitalism, Arnold dissected the ideology and rationalizations by which the business community of an earlier day defended its legitimacy and perquisites. Michael Useem, a sociologist at the Wharton School, also has an interest in the ideology of the business community: how corporate managers view the new institutional investors, how they justify resistance, and the tensions and inconsistencies between their critiques of money managers and their own behavior. This is an underutilized perspective (which law and economics inherently tends to overlook), and Useem is at his best …

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The First Amendment In The Supreme Court: The Future Lies Ahead, Joel M. Gora Jan 1997

The First Amendment In The Supreme Court: The Future Lies Ahead, Joel M. Gora

Faculty Scholarship

No abstract provided.

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Overcoming Challenges In The Global Classroom: Teaching Legal Research And Writing To International Law Students And Law Graduates, Diane Edelman, Mark Wojcik Jan 1997

Overcoming Challenges In The Global Classroom: Teaching Legal Research And Writing To International Law Students And Law Graduates, Diane Edelman, Mark Wojcik

Faculty Scholarship

No abstract provided.

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Altering The Balance Between State Sovereignty And Competition: The Impact Of Seminole Tribe On The Antitrust State Action Immunity Doctrine, Susan Beth Farmer Jan 1997

Altering The Balance Between State Sovereignty And Competition: The Impact Of Seminole Tribe On The Antitrust State Action Immunity Doctrine, Susan Beth Farmer

Faculty Scholarship

In the post-Seminole Tribe world, the legal analysis in situations where states have chosen regulation over competition, supplanting the free functioning of markets, will diverge depending upon the identity of the defendant. If a state, its agencies, or departments are the named defendants, the broader Eleventh Amendment analysis controls and claims for damages against government entities must be dismissed on the ground of sovereign immunity. If the defendant is a private firm, the narrower State Action Doctrine, which has been crafted to balance true exercise of state sovereignty against the goal of competition, provides immunity for private defendants. As …

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Voicing Differences (Comment), Margaret E. Montoya Jan 1997

Voicing Differences (Comment), Margaret E. Montoya

Faculty Scholarship

Jane Aiken and Kimberly O'Leary undertake the difficult work of developing specific approaches and techniques for taking account of characteristics such as race/ethnicity, gender, dis/ability, and sexual identity in clinical pedagogy. Carolyn Grose uses outsider narratives and popular culture to challenge the "pre-understanding" of students, and to assist them to accept client stories as true and valid. Focusing on the professional value of striving to promote justice, fairness, and morality identified in the MacCrate Report, Professor Aiken exhorts us to promote justice by unmasking privilege, the invisible package of unearned assets--about which I (we? or you?) was "meant" to remain …

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Authors And Users In Copyright, Jane C. Ginsburg Jan 1997

Authors And Users In Copyright, Jane C. Ginsburg

Faculty Scholarship

It has become fashionable, among some thinkers and activists in copyright and related fields, to disparage or to deplore copyright protection. For one drawn to copyright both for its intellectual fascination and its inspiring goals of fostering creativity and protecting authorship, I am distressed to learn that I am among the defenders of a fallen faith, that authors' rights are misguided (if not pernicious) impediments to technological progress, and, worst of all, that copyright blocks freedom of thought and speech in cyberspace. Digital agendas notwithstanding, some of this derogatory discourse is not new; infringers have long found eloquent, if somewhat …

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Of Pandas, People, And The First Amendment: The Constitutionality Of Teaching Intelligent Design In The Public Schools, Jay D. Wexler Jan 1997

Of Pandas, People, And The First Amendment: The Constitutionality Of Teaching Intelligent Design In The Public Schools, Jay D. Wexler

Faculty Scholarship

Despite the Supreme Court's 1987 decision in Edwards v. Aguillard, striking down Arkansas' statute requiring equal time for the teaching of creationism and evolution, the debate over whether some form of creationism should be taught in public schools has recently enjoyed a resurgence. In this note, Jay Wexler applies the Supreme Court's Establishment Clause to a new variant of creationism that posits the existence of an intelligent designer as an alternative to evolution. Wexler argues that teaching intelligent design theory in the public schools violates the Establishment Clause. After explaining that the Supreme Court has always applied the Establishment Clause …

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Legislative Inaction On The Information Superhighway: Bargaining In The Shadow Of Copyright Law, Maureen A. O'Rourke Jan 1997

Legislative Inaction On The Information Superhighway: Bargaining In The Shadow Of Copyright Law, Maureen A. O'Rourke

Faculty Scholarship

As a practical matter, the development of law in the form of enacted legislation often does not keep pace with societal change. At first glance, this fact seems somewhat disturbing since the law, according to some philosophies, should reflect social consensus. However, this is neither remarkable nor cause for concern. The law's processes are deliberative, involving time-consuming public testimony and debate. Thus, the law often plays "catch-up" with social change. This reactive rather than pro-active decision-making is generally desirable as the law is likely to change to reflect well-considered social judgments rather than passing social fancies. This column briefly examines …

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Review Of Why Things Bite Back: Technology And The Revenge Of Unintended Consequences By Edward Tenner, Jay D. Wexler Jan 1997

Review Of Why Things Bite Back: Technology And The Revenge Of Unintended Consequences By Edward Tenner, Jay D. Wexler

Faculty Scholarship

Historian of science Edward Tenner begins his book with a typical example of what he sees as the irony of modern life in a technological society. With the advent of electronic mail and inter-office networking, one would expect that the amount of paper used in offices would markedly decline, but in fact, notes Tenner, paper recycling bins are more full than ever before. People do indeed communicate through e-mail, but since they mistrust the permanence of electronic transmissions, they also back them up with an ever increasing amount of paper communication. In his typically amusing way, Tenner notes that when …

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Transnational Rules Of Civil Procedure Rules And Commentary, Geoffrey C. Hazard, Jr. Jr., Michele Taruffo Jan 1997

Transnational Rules Of Civil Procedure Rules And Commentary, Geoffrey C. Hazard, Jr. Jr., Michele Taruffo

Faculty Scholarship

No abstract provided.

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