Digital Commons Network^™

The Politics Of Medicaid, Nicole Huberfeld

Faculty Scholarship

Medicaid is the word on everyone's lips, not only because of the budgetary crisis many states are suffering, but also because the Supreme Court will decide two major cases regarding Medicaid this term, each of which has the potential to significantly alter the course of this long-standing safety net as well as the constitutional principles undergirding the program. Medicaid is a federal program that was intended to mainstream the very poor into the healthcare system by providing states with matching federal funds for particular expenditures on and provision of medical care. Without Medicaid, tens of millions of Americans would be …

Taking Stock Ten Years In: Coin, Casualties, And Costs In The Long War — An Introduction, Robert D. Sloane

Faculty Scholarship

On October 7, 2001, almost exactly a decade prior to the date of the conference from which the following symposium contributions derive, former President George W. Bush ordered airstrikes on Kabul and Kandahar,' inaugurating hostilities in what has become the longest war in U.S. history. By early December 2001, the Taliban had lost effective control over any significant part of Afghanistan's territory and with it any plausible claim to represent Afghanistan's government under traditional principles of international law.2 President Bush formally declared victory on June 15, 2004, during a speech in which he praised Afghanistan's interim leader and now President …

When Agencies Go Nuclear: A Game Theoretic Approach To The Biggest Sticks In An Agency's Arsenal, Brigham Daniels

Faculty Scholarship

A regulatory agency’s arsenal often contains multiple weapons. Occasionally, however, an agency has the power to completely obliterate its regulatory targets or to make major waves in society by using a “regulatory nuke.” A regulatory nuke is a tool with two primary characteristics. First, it packs power sufficient to profoundly impact individual regulatory targets or significantly affect important aspects of society or the economy. Second, from the perspective of the regulatory agency, it is politically unavailable in all but the most extreme situations. They are found in many corners of the federal bureaucracy. This Article illustrates that even when individual …

Direct-To-Consumer Genetic Testing: Learning From The Past And Looking Toward The Future, Stephanie Bair

Faculty Scholarship

A decade after the complete sequencing of the human genome, we have seen a proliferation of genetic testing services marketed directly to the consumer and purporting to use genetic information to generate individualized health information. These tests have been subject to only minimal regulation, despite the fact that scientists and policymakers have serious concerns about both the clinical effectiveness of the tests and the safety of releasing certain types of health information to the public without the supervision of a health care professional. Proponents of minimal regulation argue that the tests allow for patient autonomy and privacy of genetic information, …

Direct And Indirect U.S. Government Debt, Steven L. Schwarcz

Faculty Scholarship

No abstract provided.

Sonia Sotomayor And The Construction Of Merit, Guy-Uriel Charles, Daniel L. Chen, Mitu Gulati

Faculty Scholarship

The appointment of Sonia Sotomayor to the Supreme Court in 2009 was criticized as sacrificing merit on the altar of identity politics. According to critics, Sotomayor was simply “not that smart”. For some conservative critics, her selection illustrated the costs of affirmative action policies, in that this particular choice was going to produce a lower quality Supreme Court. For liberal critics, many were concerned that the President, by selecting Sotomayor, was squandering an opportunity to appoint an intellectual counterweight to conservative justices like Antonin Scalia, Samuel Alito and John Roberts. Using a set of basic measures of judicial merit, such …

Antitrust Law In Global Markets, Anu Bradford

Faculty Scholarship

Multilateral corporations’ activities span across global markets. Yet antitrust laws regulating those activities remain national. Europeans can ban American companies from merging, tell American companies how to design their products, or determine what kind of discounts American companies are permitted to offer to their customers. Chinese can impose conditions on off-shore mergers. And Brazilians can insist on reviewing a transaction with minimal connections to the Brazilian market.

The End Game Of Deregulation: Myopic Risk Management And The Next Catastrophe, Thomas O. Mcgarity, Rena I. Steinzor

Faculty Scholarship

On December 22, 2008, the contents of an enormous impoundment containing coal-ash slurry from the Tennessee Valley Authority’s (TVA) Kingston Fossil Fuel Plant poured into the Emory River. The proximate cause of the spill was the bursting of a poorly reinforced dike holding back a pit of sludge that towered 80 feet above the river and 40 feet above an adjacent road. The volume and force of the spill were so large that 1.1 billion gallons of the inky mess flowed across the river, inundating 300 acres of land in a layer four to five feet deep, uprooting trees, destroying …

In-House Counsel Beware!, Katrice Bridges Copeland

Faculty Scholarship

This Article argues that the prosecution of Lauren Stevens for covering up the alleged crimes of GSK was misguided both as a matter of law and a matter of policy. In particular, this Article contends that the government should not prosecute attorneys for obstruction of justice or other cover-up crimes for actions taken in good faith during a government investigation into a client's conduct. Part I provides background on the Lauren Stevens case and the convergence of the four prosecution trends that led the government to indict her. Part II argues that Lauren Stevens did not obstruct the government's investigation …

"The Birth Of Death": Stillborn Birth Certificates And The Problem For Law, Carol Sanger

Faculty Scholarship

Stillbirth is a confounding event, a reproductive moment that at once combines birth and death. This Essay discusses the complications of this simultaneity as a social experience and as a matter of law. While traditionally, stillbirth didn't count for much on either score, this is no longer the case. Familiarity with fetal life through obstetric ultrasound has transformed stillborn children into participating members of their families long before birth, and this in turn has led to a novel demand on law.

Dissatisfied with the issuance of a stillborn death certificate, bereaved parents of stillborn babies have successfully lobbied state legislatures …

On Avoiding Avoidance, Agenda Control, And Related Matters, Henry Paul Monaghan

Faculty Scholarship

Legal scholars have long posited that, heuristically at least, two basic adjudicatory models – the dispute resolution model and the law declaration model – compete for the Court's affection along a wide spectrum of issues. The former focuses upon judicial resolution of actual disputes between litigants. Historically, that model has been underpinned by a premise, reflected in a wide range of doctrines, that significant barriers rightly exist to judicial review of the constitutionality of governmental conduct. By contrast, the law declaration model focuses on the Court itself not the litigants. Emphasizing the judicial authority to say what the law is, …

The Politics Of Incivility, Bernard Harcourt

Faculty Scholarship

The Flemish painter, Pieter Bruegel, portrayed in his artwork men relieving themselves, cripples begging, and peasants toiling – as well as butchery and the gallows. In his masterful work, The Civilizing Process, Norbert Elias showed how the "late medieval upper class" had not yet demanded, as later generations would, that "everything vulgar should be suppressed from life and therefore from pictures."

For centuries now, defining incivility has been intimately connected with social rank, class status, political hierarchy, and relations of power. The ability to identify and sanction incivility has been associated with positions of political privilege – and simultaneously …

The Political Economy Of Dodd-Frank: Why Financial Reform Tends To Be Frustrated And Systemic Risk Perpetuated, John C. Coffee Jr.

Faculty Scholarship

A good crisis should never go to waste. In the world of financial regulation, experience has shown – since at least the time of the South Sea Bubble three hundred years ago – that only after a catastrophic market collapse can legislators and regulators overcome the resistance of the financial community and adopt comprehensive "re-form" legislation. U.S. financial history both confirms and conforms to this generalization. The Securities Act of 1933 and the Securities Exchange Act of 1934 were the product of the 1929 stock-market crash and the Great Depression, with their enactment following the inauguration of President Franklin Roosevelt …

Stock Unloading And Banker Incentives, Robert J. Jackson Jr.

Faculty Scholarship

Congress has directed federal regulators to oversee banker pay. For the first time, these regulators are now scrutinizing the incentives of risk-takers beyond the bank's top executives. Like most public company managers, these bankers are increasingly paid in stock rather than cash. The ostensible reason is that stock-based pay aligns manager and shareholder interests. But portfolio theory predicts that managers will diversify away, or "unload," stock-based pay unless they are restricted from doing so. One way to deter unloading may be to require managers to disclose it, as investors and colleagues will assume that managers are unloading because they are …

Patient Racial Preferences And The Medical Culture Of Accommodation, Kimani Paul-Emile

Faculty Scholarship

One of medicine’s open secrets is that patients routinely refuse or demand medical treatment based on the assigned physician’s racial identity, and hospitals typically yield to patients’ racial preferences. This widely practiced, if rarely acknowledged, phenomenon — about which there is new empirical evidence — poses a fundamental dilemma for law, medicine, and ethics. It also raises difficult questions about how we should think about race, health, and individual autonomy in this context. Informed consent rules and common law battery dictate that a competent patient has an almost-unqualified right to refuse medical care, including treatment provided by an unwanted physician. …

Envisioning Enforcement Of Freedom Of Association Standards In Corporate Codes: A Journey For Sinbad Or Sisyphus?, James J. Brudney

Faculty Scholarship

Since the 1970’s, multinational corporations (MNCs) in large numbers have adopted codes of conduct declaring their commitment to workers’ rights. These codes, however, do not require adherence to specific labor regulations or standards in a global setting. The MNC record on voluntary compliance has been discouraging, especially in labor-intensive industries like apparel, shoes, and toys, where a global supply chain of contractors effectively controls labor conditions. The persistent gap between aspiration and achievement regarding corporate codes has led to disagreement over their meaning and value. MNCs hope to be judged on the basis of the self-regulatory systems they have established. …

Tensions In Rhetoric And Reality At The Intersection Of Work And Immigration, Jennifer Gordon

Faculty Scholarship

No abstract provided.

A Legacy Of Teaching, Robin A. Lenhardt

Faculty Scholarship

In this essay, Professor R.A. Lenhardt describes the lasting educational legacy of Professor Derrick Bell. Using a Bell article entitled “Humanity in Legal Education” as its starting point, the essay explores Bell’s emphasis on social justice and “conscience” in legal instruction. In particular, it discusses the impact that Bell’s unique approach to teaching law had on students enrolled at Harvard Law School in the 1990s, where Professor Bell taught before a much publicized protest leave.

Between Semiotic Democracy And Disobedience: Two Views Of Branding, Culture And Intellectualproperty, Sonia K. Katyal

Faculty Scholarship

Even though most scholars and judges treat intellectual property law as a predominantly content-neutral phenomenon, trademark law contains a statutory provision, section 2(a), that provides for the cancellation of marks that are “disparaging,” “immoral,” or “scandalous.” This provision has raised intrinsically powerful constitutional concerns, which invariably affect two central metaphors that are at war within trademark law: the marketplace of goods, which premises itself on the fixedness of intellectual properties, and the marketplace of ideas, which is premised on the very fluidity of language itself. Since the architecture of trademark law focuses only on how marks communicate information about a …

Open Access To Legal Scholarship: Dropping The Barriers To Discourse And Dialogue, Richard A. Danner

Faculty Scholarship

This article focuses on the importance of free and open access to legal scholarship and commentary on the law. It argues that full understanding of authoritative legal texts requires access to informed commentary as well as to the texts of the law themselves, and that free and open access to legal commentary will facilitate cross-border dialogue and foster international discourse in law. The paper discusses the obligations of scholars and publishers of legal commentary to make their work as widely accessible as possible. Examples of institutional and disciplinary repositories for legal scholarship are presented, as are the possible impacts of …

Aiming At The Wrong Target: The "Audience Targeting" Test For Personal Jurisdiction In Internet Defamation Cases, Sarah H. Ludington

Faculty Scholarship

In Young v. New Haven Advocate, 315 F.3d 256 (4th Cir. 2002), the Fourth Circuit crafted a jurisdictional test for Internet defamation that requires the plaintiff to show that the defendant specifically targeted an audience in the forum state for the state to exercise jurisdiction. This test relies on the presumption that the Internet — which is accessible everywhere — is targeted nowhere; it strongly protects foreign libel defendants who have published on the Internet from being sued outside of their home states. Other courts, including the North Carolina Court of Appeals, have since adopted or applied the test. The …

Making Sense Of Intellectual Property Law, Christopher Buccafusco

Faculty Scholarship

Intellectual property (IP) scholars have long struggled to explain the boundaries of and differences between copyright and patent law. This Article proposes a novel explanation: copyright and patent can be fruitfully understood as establishing a dichotomy between the different human senses. Copyright has bracketed works addressed to the senses of sight and hearing, and it treats products appealing to touch, taste, and smell as functional and, thus, uncopyrightable. To the extent the latter receive IP protection, it is through the utility patent regime. The Article begins by establishing this descriptive proposition, and it shows how some of the most contested …

Keeping Up With New Legal Titles, Alex Xiaomeng Zhang

Faculty Scholarship

No abstract provided.

The Pragmatic Court: Reinterpreting The Supreme People’S Court Of China, Taisu Zhang

Faculty Scholarship

This Article examines the institutional motivations that underlie several major developments in the Supreme People's Court of China's recent policy-making. Since 2007, the SPC has sent off a collection of policy signals that escapes sweeping ideological labeling: it has publically embraced a populist view of legal reform by encouraging the use of mediation in dispute resolution and popular participation in judicial policy-making, while continuing to advocate legal professionalization as a long-term policy objective. It has also eagerly attempted to enhance its own institutional competence by promoting judicial efficiency, simplifying key areas of civil law, and expanding its control over lower …

Regulatory Techniques And Liability Regimes For Asset Managers, Deborah A. Demott

Faculty Scholarship

No abstract provided.

Not Your Parents' Law Library: A Tale Of Two Academic Law Libraries, Julian Aiken, Femi Cadmus, Fred Shapiro

Faculty Scholarship

As academic law libraries continue to face the inevitability of a rapidly changing landscape which includes a new breed of digital users with sophisticated technological needs, it remains to be seen what libraries will look like in years to come. It is certain that libraries as we know them today will have changed, but to what extent? An ability to remain adaptable and to anticipate the evolving needs of users in a dynamic environment will continue to be key for libraries to remain relevant, and even to survive, in the 21st century; vital to this endeavor will also be an …

Stakeholding Through The Permanent Fund Dividend: Fitting Practice To Theory, Christopher L. Griffin Jr.

Faculty Scholarship

Alaska’s Permanent Fund Dividend (PFD) is the United States’ most significant, if not its only attempted, experiment with universal asset policies. This chapter helps clarify where the PFD fits within the larger portfolio of economic rights and obligations guaranteed by the liberal state. Is the program a realization of “real-freedom-for-all” basic income, or might it have foreshadowed Bruce Ackerman and Anne Alstott’s Stakeholder Society decades before their proposal emerged? I argue that neither categorization is entirely correct or entirely mistaken. Core features of the PFD demonstrate Alaska’s implicit belief in stakeholding but currently fall short of the sweeping citizenship agenda …

The Use And Abuse Of Special-Purpose Entities In Public Finance, Steven L. Schwarcz

Faculty Scholarship

States increasingly are raising financing indirectly through special-purpose entities (SPEs), variously referred to as authorities, special authorities, or public authorities. Notwithstanding their long history and increasingly widespread use, relatively little is known or has been written about these entities. This article examines state SPEs and their functions, comparing them to SPEs used in corporate finance. States, even more than corporations, use these entities to reduce financial transparency and avoid public scrutiny, seriously threatening the integrity of public finance. The article analyzes how regulation could be designed in order to control that threat while maintaining the legitimate financing benefits provided by …

Engineering An Orderly Greek Debt Restructuring, Mitu Gulati, Jeromin Zettelmeyer

Faculty Scholarship

For some months now, discussions over how Greece will restructure its debt have been constrained by the requirement that the deal be “voluntary” – implying that Greece would continue debt service to any creditors that choose retain their old bonds rather than tender them in an exchange offer. In light of Greece’s deep solvency problems and lack of agreement with its creditors so far, the notion of a voluntary debt exchange is increasingly looking like a mirage. In this essay, we describe and compare three alternative approaches that would achieve an orderly restructuring but avoid an outright default: (1) “retrofitting” …

Regulating Shadow Banking, Steven L. Schwarcz

Faculty Scholarship

Inaugural Address for Boston University Review of Banking & Financial Law's Inaugural Symposium: “Shadow Banking” February 24, 2012.

Although shadow banking is said to be huge, estimated at over $60 trillion, it is not well defined. This short and accessible paper attempts to define shadow banking by identifying its overall scope and its basic characteristics. Based on the definition derived, the paper also conceptually examines how shadow banking can be regulated to try to maximize its efficiencies while minimizing its risks.