Digital Commons Network^™

Apoplectic About Hyperlexis, William Araiza

Faculty Scholarship

No abstract provided.

Reading Charles Black Writing: "The Lawfulness Of The Segregation Decisions" Revisited, Kendall Thomas

Faculty Scholarship

The year 2010 marked the fiftieth anniversary of the publication of Charles L. Black, Jr.'s "The Lawfulness of the Segregation Decisions." Professor Black's magisterial essay on the Supreme Court's 1954-1955 decisions in Brown v. Board of Education and its companion cases is, by any account, a foundational text in the scholarly literature on race and law in the United States. Black's short but searing defense of Brown introduced ideas and arguments about race, about law, and about the law of race that transformed the field. I can think of no better way to celebrate this inaugural issue of the Columbia …

American Vertigo: Dual Use, Prison Physicians, Research, And Guantanamo, George J. Annas

Faculty Scholarship

Physicians can be used by governments for nonmedical purposes, and physician acceptance of their nonmedical use is usually denoted as "dual loyalty, " although it is more analytically helpful to frame it "dual use. " Dual use of physicians has been on display at Guantanamo where physicians have consistently been used to break hunger strikes as part of the military security mission in ways that directly violate medical ethics. Guantanamo itself has also been seen worldwide as a uniquely horrible prison, which can tell us little about other American prisons. The contrary seems to be true: Guantanamo, and the use …

When Men Are Harmed: Feminism, Queer Theory, And Torture At Abu Ghraib, Aziza Ahmed

Faculty Scholarship

In this Article I explore the assertions of "anti-imperialist" feminist scholars who critique "imperial feminism" for its support of the war on terror (WOT). I bring into this analysis the proposition by queer theorists that feminist reliance on male/ female subordination has the potential to not only obscure harm in times of war but also to perpetuate it. As a case study, I focus on the Abu Ghraib prison photos that depict, in part, female soldiers torturing male Iraqi prisoners. In conducting this analysis, I reveal the analytical limitations of dominance and cultural feminists, particularly with regard to male harm …

Engaging The Legal Academy In Disaster Response, Davida Finger, Laila Hlass, Anne Sikes Hornsby, Susan S. Kuo, Rachel A. Van Cleave

Faculty Scholarship

This article discusses three models of law school engagement that have been used to respond to natural disasters. The three models discussed are a disaster law clinic, a course on disaster law, and a student-led initiative featuring non-credit, pro bono placements. Each model offers a conceptual approach for integrating community-based, justice-oriented initiatives into academic and clinical teaching. Taken as templates for a more permanent model of engagement in the area of post-disaster law and social justice, these models demonstrate that the legal academy can meet its service obligation to the community while training lawyers to better appreciate the central tenets …

Have Truth And Reconciliation Commissions Helped Remediate Human Rights Violations Against Women? An Analysis Of The Past And Formula For The Future, Peggy Maisel

Faculty Scholarship

Truth and Reconciliation Commissions (TRCs) have investigated human rights violations and abuses in a wide range of countries and communities over the last thirty-five years. Created by people who believe finding truth through an examination of the past is necessary to build social and political trust, the goal of these processes has been to make findings and recommendations in order to strengthen or aid the transition to democracy, reduce conflict and create a basis for long term reconciliation, facilitate some form of transitional or restorative justice, and begin the process of change needed to avoid similar human rights violations in …

Criminal Law In The Shadow Of Violence, Alice Ristroph

Faculty Scholarship

No abstract provided.

Can They Do That To Me?! Does The 8th Amendment Protection Children’S Best Interests?, Maryam Ahranjani

Faculty Scholarship

Children are our nation’s most valuable resource and also arguably our most vulnerable population. Recent decisions by the Supreme Court, including Roper v. Simmons (2005), Graham v. Florida (2010), and J.D.B. v. North Carolina (2011) indicate its willingness to consider the special characteristics of children in determining their rights; but, by and large, the Court’s analysis does not hinge on the best interests of the child. Can They Do That to Me?! Does the Eighth Amendment Protect Children’s Best Interests? explores case law in the public school and juvenile justice system arenas and concludes that a child-centered approach to punishment …

Transgender Student-­Athletes And Sex-­Segregated Sport: Developing Policies Of Inclusion For Intercollegiate And Interscholastic Athletics, Erin E. Buzuvis

Faculty Scholarship

This Article discusses the discrimination of transgender students who may be excluded, discouraged, or simply made to feel uncomfortable participating in athletic programs for their natal sex, by the sex-segregated world of athletics. The Author believes that until sports' governing bodies develop and enforce policies of inclusion, transgender students will continue to be denied access to and the benefits of athletic participation. The Author examines the values that should go into the formation of such policies, including legal, medical and educational concerns. Part I of the Article puts transgender students' athletic participation in context by examining educational athletic's deep and …

The Feminist Case For The Ncaa's Recognition Of Competitive Cheer As An Emerging Sport For Women, Erin E. Buzuvis

Faculty Scholarship

This Article examines whether a university can count opportunities in competitive cheer to demonstrate compliance with Title IX. A federal court in Connecticut recently considered this question for the first time. Although it held that the sport as it currently exists is not sufficiently similar to other varsity sports to qualify for Title IX compliance, the decision has mobilized two separate governing bodies to propose more organized and competitive versions of competitive cheer as possible NCAA emerging sports. This Article argues that these proposals would satisfy regulators and the courts. It then discusses how competitive cheer has potential to improve …

Caster Semenya And The Myth Of A Level Playing Field, Erin E. Buzuvis

Faculty Scholarship

In August of 2009, policies and procedures to verify the sex of female athletes were called into question when South African runner Caster Semenya
won the 800 meter event of the World Championships in Berlin. Responding to rumors of gender fraud, and fueled by Semenya’s speed, musculature, and deep voice, the International Association of Athletics Federations (IAAF) requested that Semenya submit to sex verification to confirm her eligibility for the women’s division.

This Article discusses the International Olympic Committee's (IOC) policy on sex testing, the myth of sex-verification testing, and the myth of the level playing field. It concludes with …

Joining Or Changing The Conversation - Catholic Social Thought And Intellectual Property, Frank Pasquale

Faculty Scholarship

No abstract provided.

Is The Public Utility Holding Company Act A Model For Breaking Up The Banks That Are Too-Big-To-Fail, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

The 2x2 Matrix Of Tort Reform's Distributions, Anita Bernstein

Faculty Scholarship

No abstract provided.

Confidentiality Explained: The Dialogue Approach To Discussing Confidentiality With Clients, Elisia M. Klinka, Russell G. Pearce

Faculty Scholarship

Many lawyers lie to their clients by saying, “Everything you tell me is confidential” despite the existence of some rules that require lawyers to disclose client confidences and others that permit lawyers to disclose confidences to protect themselves or collect fees. In an effort to encourage clients to speak honestly, a number of commentators urge lawyers to provide either a general or specific notice of the exceptions to confidentiality. This Article offers a different approach. It seeks to promote an honest and open dialogue between lawyer and client that will create a relationship of mutual trust and will make it …

Democratic Participation And The Freedom Of Speech: A Response To Post And Weinstein Responses, Vincent A. Blasi

Faculty Scholarship

I think it is useful to search for a theory that has as one of its justifications its superior fit with either the case law or the fundamental commitments and shared understandings of the political community, preferably with both. So even if someone were to convince me that she has in hand a normatively superior theory of free speech, whether grounded in the commitment to democracy or otherwise, I would still be interested in what Professors Post and Weinstein are trying to do.

Elena Kagan And The Miracle At Harvard, Kevin Washburn

Faculty Scholarship

During the past ten years, Harvard Law School has been transformed. Current students embrace the institution enthusiastically, appreciating not only the Harvard degree, but the process of earning it. Elena Kagan deserves much of the credit. Kagan led Harvard Law School through this transformation, which is identified here as the "Miracle at Harvard."

"We Know It When We See It": Intermediary Trademark Liability And The Internet, Stacey Dogan

Faculty Scholarship

The recent history of intermediary liability decisions in copyright and trademark law reflects a notable resistance to rules that might constrain judicial discretion to ferret out bad guys. Indeed, a dichotomy appears to be emerging between two types of defendants: those who want infringement to happen and those who do not. In both copyright and trademark cases, courts are developing two distinct sets of rules to deal with two different classes of intermediaries. Good-faith intermediaries — those with a core business model unrelated to infringement — have an obligation to address infringement upon notice, but need not go out of …

Pay For Banker Performance: Structuring Executive Compensation For Risk Regulation, Frederick Tung

Faculty Scholarship

Excessive risk taking by firm managers did not originate with the Financial Crisis of 2007-08. Though bankers had special incentives to take big risks in the period before the Crisis, the incentive effects of equity-based compensation have been understood for some time. Among other things, equity compensation tends to induce greater risk taking by aligning managers’ risk preferences with those of equity holders. Longstanding government guaranties of bank liabilities additionally served to intensify bankers’ risk taking incentives.

I propose to ameliorate this gambler’s incentive with a new approach to compensation at the largest banks, one that explicitly accounts for the …

Network Accountability For The Domestic Intelligence Apparatus, Danielle K. Citron, Frank Pasquale

Faculty Scholarship

A new domestic intelligence network has made vast amounts of data available to federal and state agencies and law enforcement officials. The network is anchored by “fusion centers,” novel sites of intergovernmental collaboration that generate and share intelligence and information. Several fusion centers have generated controversy for engaging in extraordinary measures that place citizens on watch lists, invade citizens’ privacy, and chill free expression. In addition to eroding civil liberties, fusion center overreach has resulted in wasted resources without concomitant gains in security.

While many scholars have assumed that this network represents a trade-off between security and civil liberties, our …

Upper-Level Courses: Three Examplars, Mark Fagan, Tamar Frankel, Eric J. Gouvin, Kathy Z. Heller

Faculty Scholarship

I'm Mark Fagan, and I co-teach a course on securitization with Tamar Frankel at Boston University School of Law. We have come together to teach several interdisciplinary courses that combine law, business and public policy. Our course on securitization is a wonderful exemplar because it touches so many aspects of law as well as business and public policy.

We spent quite a bit of time wrestling with how to teach it. Do you teach it in a process fashion? Do you teach it by legal topic? Do you take examples and examine them? After much debate and discussion, we actually …

The Human Right To Health And Hiv/Aids: South Africa And South-South Cooperation To Reframe Global Intellectual Property Principles And Promote Access To Essential Medicines, Erika George

Faculty Scholarship

The HIV/AIDS pandemic has had a devastating and disproportionate impact in countries of the Global South. The experience of an individual infected with HIV in Africa is very different than that of an individual infected with HIV in America. Life expectancy varies sharply. The ability or inability to access medicines essential for treatment accounts for much of the variance. This article examines how the rhetoric of human rights used in the context of South Africa's AIDS crisis resonated across the Global South, resulted in a powerful social movement for access to medicines, and contributed to important changes in international intellectual …

Tweeting To Topple Tyranny, Social Media And Corporate Social Responsibility: A Reply To Anupam Chander, Erika George

Faculty Scholarship

This Essay offers critical reflections on the role of social media in social change and outlines how the obligation of corporations in the information communications technology sector to avoid complicity in rights violations may evolve over time. Part I explores the Internet's potential to further democratic discourse and inclusion or foster discrimination and exclusion. It also queries whether the Internet industry has an obligation to protect against hate propaganda. Part II examines whether other industry sectors can also be said to have special obligations based on the human rights consequences of their conduct. Part III explains the nature of the …

Website Design As Contract, Woodrow Hartzog

Faculty Scholarship

Few website users actually read or rely upon terms of use or privacy policies. Yet users regularly take advantage of and rely upon website design features like privacy settings. To reconcile the disparity between boilerplate legalese and website design, this article develops a theory of website design as contract. The ability to choose privacy settings, un-tag photos, and delete information is part of the negotiation between websites and users regarding their privacy. Yet courts invariably recognize only the boilerplate terms when analyzing online agreements. In this article, I propose that if significant website features are incorporated into the terms of …

Creditor Claims In Arbitration And In Court, Christopher R. Drahozal, Samantha Zyontz

Faculty Scholarship

This article is based on the Interim Report, Creditor Claims in Arbitration and in Court, issued in November 2009 by the Searle Civil Justice Institute's Consumer Arbitration Task Force. It seeks to compare the outcomes of debt collection arbitrations to the outcomes of debt collection cases in court to help in evaluating arbitration as a means of resolving consumer disputes. The arbitration cases examined are debt collection cases administered by the American Arbitration Association (AAA) as part of its consumer arbitration docket, supplemented by cases brought by a single debt buyer as part of a consumer debt collection program administered …

Deliverable Male, Katharine B. Silbaugh

Faculty Scholarship

Williams pays particular attention to the way men negotiate a masculine self-image that sits uneasily with the reality of family care. How should this tension be managed? Williams favors some form of preserving masculine self-image by reframing the subject to one of worker empowerment rather than family care. This strategy aims at political efficacy and coalition building. Asking men to imitate women’s successes, it might be argued, is interesting but too threatening to be attractive. This Essay nonetheless leans in that direction.

This Essay will first look at the evidence for the decline in men’s status. Williams investigates the evidence …

Common Law And Statute Law In Administrative Law, Jack M. Beermann

Faculty Scholarship

The largely statutory appearance of U.S. administrative law be surprising in light of the existence of the federal A Procedure Act of 1946 (APA).1 The APA, including its a amendments, is a relatively comprehensive guide to much of law in the United States. It contains the procedures agencies to follow in both rulemaking and adjudication and provisions on the availability and scope of judicial review of agency action. As includes open meeting and open file requirements as well as negotiated rulemaking and legislative review of agency rules generally held view that federal courts should not make com should act only …

Untangling The Twists Of Habeas Corpus, Larry Yackle

Faculty Scholarship

Take it from me. The one job you don't want is sorting out federal habeas corpus. By all accounts, existing arrangements are an unrelieved disaster. Yet now come Nancy King and Joseph Hoffmann with a valiant effort to set things in order. Their book describes habeas corpus as the writ currently stands, offers explanations of why and how we have come to this pass, and, most important, advances a definite plan of action for habeas in criminal cases-a way to fix what so desperately needs fixing. This is a good book, a valuable book. It is informative, essentially accurate in …

What Happened In Iowa?, David Pozen

Faculty Scholarship

Reply to Nicole Mansker & Neal Devins, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, 111 Colum. L. Rev. Sidebar 27 (2011).

November 2, 2010 is the latest milestone in the evolution of state judicial elections from sleepy, sterile affairs into meaningful political contests. Following an aggressive ouster campaign, voters in Iowa removed three supreme court justices, including the chief justice, who had joined an opinion finding a right to same-sex marriage under the state constitution. Supporters of the campaign rallied around the mantra, “It’s we the people, not we the courts.” Voter turnout surged to unprecedented levels; the national …

Reducing Mass Incarceration: Lessons From The Deinstitutionalization Of Mental Hospitals In The 1960s, Bernard Harcourt

Faculty Scholarship

In a message to Congress in 1963, President John F. Kennedy outlined a federal program designed to reduce by half the number of persons in custody. The institutions at issue were state hospitals and asylums for the mentally ill, and the number of such persons in custody was staggeringly large, in fact comparable to contemporary levels of mass incarceration in prisons and jails. President Kennedy's message to Congress – the first and perhaps only presidential message to Congress that dealt exclusively with the issue of institutionalization in this country – proposed replacing state mental hospitals with community mental health centers, …