Digital Commons Network^™

Freedom Of Assembly And The Right To Passage In Modern English Legal History , Rachel Vorspan

Faculty Scholarship

This Article suggests, on the broadest level, that the history of the "right to passage" in the past two centuries is explicable only in terms of the complex interaction between formal legal doctrine on the one hand and social and political pressures on the other. Specific challenges to public order significantly shaped the evolution of legal rules, but these rules, once established, constrained official action and compelled the authorities at critical junctures to develop countervailing strategies. This exploration confirms that neither an externalist nor internalist approach to legal history by itself adequately explains historical change and, moreover, that the relative …

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

Faculty Scholarship

No abstract provided.

Inside The Restatement, Aaron Twerski

Faculty Scholarship

No abstract provided.

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 …

Attorney-Client Privilege, Ethical Rules, And The Impaired Criminal Defendant, The , James A. Cohen

Faculty Scholarship

Attorneys who represent possibly incompetent defendants charged with criminal conduct face difficult ethical issues, implicating professional duties of loyalty, zealous representation, and confidentiality-as an ethical question and as a matter of the law of evidence. The principles of agency underlying the attorney-client relationship are also implicated when the defendant's capacity is in doubt. In the ordinary criminal case, the client has at least implicitly authorized his lawyer's conduct. But if the defendant is impaired, the client may not have the mental capacity to authorize the attorney's actions. Defense counsel representing the possibly incompetent criminal defendant will often be the only …

Shareholder Enforced Market Discipline: How Much Is Too Much?, Eric J. Gouvin

Faculty Scholarship

This Article considers the federal banking regulation regime implemented in response to the widespread bank failures of the 1980s and early 1990s. The first section of the Article examines the moral hazard problem created by the presence of the deposit insurance scheme and the market discipline debate that has attempted to correct the moral hazard problem. The Author argues that the law has evolved to make bank holding companies the primary enforcers of market discipline. The Article’s second section examines the specific regulatory changes that have been designed to create an incentive for bank holding companies to impose discipline on …

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 …

Territoriality, Risk Perception, And Counterproductive Legal Structures: The Case Of Waste Facility Siting, Michael B. Gerrard

Faculty Scholarship

The siting of hazardous and nuclear waste facilities has proven to be a task of enormous difficulty in our federal system. In this Article, the Author argues that one of the major causal factors for this difficulty is that the legal regime surrounding waste facility siting decisions is not structured in a manner sensitive to the human factors involved. The siting of a hazardous waste facility is likely to generate a negative community response where the imposition of externally made decisions and externally generated wastes fails to take into account the innate human trait of territoriality. Territoriality is a powerful …

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 …

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 …

Tobacco Litigation As Cancer Prevention: Dealing With The Devil, George J. Annas

Faculty Scholarship

Tobacco companies have come to personify the devil, and strategies to exorcise tobacco smoking from the United States proliferate. Tobacco's demonic status is even reflected in popular fiction. John Grisham's latest bestseller, The Runaway Jury, for example, is a broadside attack on tobacco companies. He opens the book by noting that tobacco companies “had been thoroughly isolated and vilified by consumer groups, doctors, even politicians.” This was bad, but it was getting even worse: “Now the lawyers were after them.”

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 …

Symbolic Statutes And Real Laws: The Pathologies Of The Anti-Terrorism And Effective Death Penalty Act And The Prison Litigation Reform Act, Larry Yackle

Faculty Scholarship

Criminals are not popular. No politician in recent memory has lost an election for being too tough on crime. In 1996, the Republican Congress and the Democratic President collaborated on two major statutes affecting the legal protections available to criminals The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) modifies the habeas corpus statute in a number of ways, affecting the disposition of federal post-conviction challenges to all criminal convictions, not just those resulting in death sentences? The Prison Litigation Reform Act (PLRA) addresses lawsuits filed by prisoners challenging the conditions of their confinement. The PLRA covers both suits …

Some Preliminary Thoughts On The Deregulation Of Insurance To Advantage The Working Poor, Maria O'Brien

Faculty Scholarship

The regulatory framework in which employee benefits products are marketed and consumed by individuals and groups seeking to reduce exposure to covered events creates a set of background rules. These rules influence the way in which insurance products are developed and impact the number of people who will enjoy the protection these insurance products afford. This means that every proposal to regulate an employment related insurance product likely will affect both the quality and quantity of insurance available to consumers. For example, over the past decade, as the public and professionally-interested parties have grappled with the insurance implications of the …

Common Law Elements Of The Section 1983 Action, Jack M. Beermann

Faculty Scholarship

This Article explores the role of the common law in Supreme Court interpretation and application of § 1983, which grants a cause of action for violations of constitutional rights committed "under color of any [state] statute, ordinance, regulation, custom or usage."' I argue that the common law has served primarily to narrow the reach of § 1983, and that this is inappropriate in light of the broad statutory language and the absence of good evidence that the enacting Congress intended a narrower application than the statutory language indicates.

Medical Discipline In The Twenty-First Century: Are Purchasers The Answer?, Frances H. Miller

Faculty Scholarship

Millenia prompt reflection about change, both past and future. Tons of newsprint have already been devoted to documenting the astonishing developments in medicine during the past century, and to speculating about what breakthroughs to expect in the next one.¹ Health economists generally accept that these changes, particularly advances in technology, have been the dominant factor propelling U.S. health care costs into the stratosphere over the past hundred years.' Analysts by the score have also examined the myriad ways in which this nation's health care delivery system has been (and must continue to be) transformed to cope with these expensive …

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 …

The Bell Tolls For A Constitutional Right To Physician-Assisted Suicide, George J. Annas

Faculty Scholarship

For Whom the Bell Tolls, Ernest Hemingway's novel about the Spanish Civil War, ends with its American hero, Robert Jordan, mortally wounded and trying to decide whether to commit suicide with a machine gun or risk capture by trying to retain consciousness long enough to cover the retreat of his comrades. Confronting his impending death, Jordan thinks, “Dying is only bad when it takes a long time and hurts so much that it humiliates you.” Hemingway, one of the most American of American writers, committed suicide with a shotgun. Most suicides in the United States are committed with guns, but …

Commodification And Women's Household Labor, Katharine B. Silbaugh

Faculty Scholarship

A woman washes a kitchen floor. She puts the mop away and drives to the comer market. She consults a shopping list, and purchases groceries from it, carefully choosing the least expensive options. A four-year-old child is tugging at her leg while she does this, and she tries to entertain him, talking to him about the mopped floor, the grocery items. When she returns from the store, she prepares lunch from what she has brought home with her. She and the child both eat lunch. After lunch, she and the child collect laundry and she runs a load. She takes …

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 …

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 …

On The Economics Of Copyright, Restitution And "Fair Use": Systemic Versus Case-By-Case Responses To Market Failure, Wendy J. Gordon

Faculty Scholarship

The 'public goods' characteristics possess by intangible works of authorship and invention present the basic market failure problem usually relied on to justify intellectual property rights. What is ordinarily less emphasized is that such market failure is no more than half of the prerequisite for an economically desirable copyright or patent system: another requisite condition is that there be less costly market imperfections after intellectual property is instituted than there would have been in the absence of the intellectual property regime. Intellectual property rights are best justified in the presence of "asymmetric market conditions", that is where (1) in the …

The Polygamous Heart?, Katharine B. Silbaugh

Faculty Scholarship

Workers, particularly women, are increasingly vocal about the poverty of family time that their jobs allow them. But what if a company responded by offering family-friendly policies that would reduce work hours, like job-sharing and parttime work, and no one signed up for them? What if instead workers signed up for “familyfriendly” services like long-hour on-site daycare that made it easier to stay at work longer? Sociologist Arlie Hochschild seeks to explain this puzzle in The Time Bind: When Work Becomes Home s Home Becomes Work. She portrays the modern workplace as carefully engineered to be friendly, relaxed, supportive, appreciative …

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.

Cyberspace Sovereignty? – The Internet And The International System, Tim Wu

Faculty Scholarship

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of the Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.

By linking with the Internet, we don't mean absolute freedom of information. I think there is a general understanding about this. If you go through customs, you have to show your passport. It's the same with management of information. There is no contradiction at all between the development of telecommunications …

As A Matter Of Factions: The Budgetary Implications Of Shifting Factional Control In Japan’S Ldp, Mathew D. Mccubbins, Michael F. Thies

Faculty Scholarship

For 38 years, the Liberal Democratic Party (LDP) maintained single-party control over the Japanese government. This lack of partisan turnover in government has frustrated attempts to explain Japanese government policy changes using political variables. In this paper, we look for intraparty changes that may have led to changes in Japanese budgetary policy. Using a simple model of agenda-setting, we hypothesize that changes in which intraparty factions “control” the LDP affect the party’s decisions over spending priorities systematically. This runs contrary to the received wisdom in the voluminous literature on LDP factions, which asserts that factions, whatever their raison d’être, do …

From The Bottom Up, Kent Greenawalt

Faculty Scholarship

This Article is about carrying out informal instructions given by people in authority. Although many scholars have written about how legal interpretation resembles interpretation in fields such as literature and religion, few have compared informal instructions and legal rules. My most basic assumption in this Article is that focus on informal situations can illumine the standards people use in performing instructions and the kinds of meaning they attribute to instructions. As my title implies, if we reflect on what amounts to faithful or desirable performance of informal directives and the more conceptual question of what these prescriptive standards "mean," we …

Nature Of Rules And The Meaning Of Meaning, Kent Greenawalt

Faculty Scholarship

This essay addresses two problems in legal theory. What is the nature of rules, especially legal rules? What is the meaning of a legal rule?

My main concern is the relation between these two questions. I inquire whether a sensible view of how rules work commits one to any particular approach to meaning. For this inquiry, I focus on Frederick Schauer's illuminating treatment of rules in Playing by the Rules, which he says is linked to a particular view of meaning. I assert that the linkage is much less tight than he supposes, and that competing theories about meaning are …

Presidential Rulemaking, Peter L. Strauss

Faculty Scholarship

One of the prominent issues during the 1992 presidential campaign was abortion, in particular the federal government's role in financing counseling activities that might promote it. In the Bush Administration, the Department of Health and Human Services had adopted a controversial regulation to withhold federal funds from any family planning or other medical service that included counseling about abortion in its activities; the Clinton campaign promised to rescind that regulation if Clinton were elected President. Shortly after his election, in a prominent White House ceremony, President Clinton announced that he had directed the rescission of the prior rule and the …

The Managed Care Dilemma: Can Theories Of Tort Liability Adapt To The Realities Of Cost Containment?, Barbara A. Noah

Faculty Scholarship

Over the years, the United States health care system has undergone a transformation from a market comprised mainly of self employed physicians· in solo or small group practices to one in which far fewer physicians engage in this type of independent practice. More than three quarters of the physicians in this country now practice medicine within some form of managed care organization ("MCO") or see some managed care patients. The public increasingly perceives the care provided through MCOs as inferior to traditional feefor-service care. Responding to constituent pressures, legislatures in more than twenty states recently have considered bills regulating managed …