Digital Commons Network^™

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 …

Justice Through Pragmatism And Process: A Tribute To Judge Denny Chin, Frank H. Wu

Faculty Scholarship

No abstract provided.

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, …

Medical Malpractice Mediation: Benefits Gained, Opportunities Lost, Carol B. Liebman

Faculty Scholarship

In the past decade, the United States healthcare system has begun to use mediation to facilitate communication between patients and physicians after an adverse medical event, to ease tensions among members of care-giving teams, to resolve medical malpractice claims, and to help family members and medical professionals make awesome and wrenching decisions at the end of life. Implementation of the Patient Protection and Affordable Care Act of 2010 will produce new controversies and increase the need for mediation. Patients, families, physicians, nurses, other healthcare professionals, and administrators will require help managing the disagreements that arise as they adapt to the …

Subsidizing The Press, David M. Schizer

Faculty Scholarship

Through beat reporting and investigative journalism, reporters monitor the foundational institutions of our society. This reporting has value even to those who never buy a newspaper or read a website. For example, subscribers and nonsubscribers alike benefit when government officials respond to a critical news story by eliminating an abusive practice. Yet unfortunately, the professional press is experiencing a severe economic crisis. Layoffs are pervasive, and news organizations across the nation are on the brink of insolvency. As a result, a number of commentators have proposed government subsidies for the press. Yet if the press becomes financially dependent on the …

Regulatory Dualism As A Development Strategy: Corporate Reform In Brazil, The United States, And The European Union, Ronald J. Gilson, Henry Hansmaan, Mariana Pargendler

Faculty Scholarship

Countries pursuing economic development confront afundamental obstacle. Reforms that increase the size of the overall pie are blocked by powerful interests that are threatened by the growth-inducing changes. This problem is conspicuous in efforts to create effective capital markets to support economic development. Controlling owners and managers of established firms successfully oppose corporate governance reforms that would improve investor protection and promote capital market growth. In this Article, we examine the promise of regulatory dualism as a strategy to defuse the tension between future growth and the current distribution of wealth and power. Regulatory dualism seeks to mitigate political opposition …

Corporations, Corruption, And Complexity: Campaign Finance After Citizens United, Richard Briffault

Faculty Scholarship

Few campaign finance cases have drawn more public attention than the Supreme Court's decision in Citizens United v. FEC. The Court's invalidation of a sixty-year-old federal law – and comparable laws in two dozen states – banning corporations from engaging in independent spending in support of or opposition to candidates strongly affirms the right of corporations to engage in electoral advocacy. Critics – and most, albeit not all, of both the popular and academic commentary on the decision has been critical – have condemned the idea that corporations enjoy the same rights to spend on elections as natural persons. …

Localities As Equality Innovators, Robin A. Lenhardt

Faculty Scholarship

This Article thus argues that instead of regarding cities and localities that, like Seattle and Louisville, try to develop serious solutions to existing racial disparities as "bad cities" no different from those whose notorious policies spurred the civil rights movement of the 1950s and 1960s, we should be regarding them as potential "equality innovators.” Their on-the-ground experience with the realities of race and its operation in the twenty-first century arguably places them in a better position than courts to develop innovative approaches to the structural racial inequities with which so many municipalities must grapple. Existing doctrine limits dramatically the ability …

The Myths And Realities Of Correctional Severity: Evidence From The National Corrections Reporting Program On Sentencing Practices, John F. Pfaff

Faculty Scholarship

No abstract provided.

China's Turn Against Law, Carl F. Minzner

Faculty Scholarship

Chinese authorities are reconsidering legal reforms they enacted in the 1980s and 1990s. These reforms had emphasized law, litigation, and courts as institutions for resolving civil grievances between citizens and administrative grievances against the state. But social stability concerns have led top leaders to question these earlier reforms. Central Party leaders now fault legal reforms for insufficiently responding to (or even generating) surging numbers of petitions and protests.

Chinese authorities have now drastically altered course. Substantively, they are de-emphasizing the role of formal law and court adjudication. They are attempting to revive pre-1978 Maoist-style court mediation practices. Procedurally, Chinese authorities …

A Once And Future Gulf Of Mexico Ecosystem: Restoration Recommendations Of An Expert Working Group, Charles H. Peterson, Felicia C. Coleman, Jeremy B.C. Jackson, R. Eugene Turner, Gilbert T. Rowe, Richard T. Barber, Karen A. Bjorndal, Robert S. Carney, Robert K. Cowen, Jonathan M. Hoekstra, James T. Hollibaugh, Shirley B. Laska, Richard A. Luettich Jr., Craig W. Osenberg, Stephen E. Roady, Stanley Senner, John M. Teal, Ping Wang

Faculty Scholarship

The Deepwater Horizon (DWH) well blowout released more petroleum hydrocarbons into the marine environment than any previous U.S. oil spill (4.9 million barrels), fouling marine life, damaging deep sea and shoreline habitats and causing closures of economically valuable fisheries in the Gulf of Mexico. A suite of pollutants — liquid and gaseous petroleum compounds plus chemical dispersants — poured into ecosystems that had already been stressed by overfishing, development and global climate change. Beyond the direct effects that were captured in dramatic photographs of oiled birds in the media, it is likely that there are subtle, delayed, indirect and potentially …

The Dogs That Did Not Bark: The Silence Of The Legal Academy During World War Ii, Sarah H. Ludington

Faculty Scholarship

During World War II, the legal academy was virtually uncritical of the government’s conduct of the war, despite some obvious domestic abuses of civil rights, such as the internment of Japanese-Americans. This silence has largely been ignored in the literature about the history of legal education. This Article argues that there are many strands of causation for this silence. On an obvious level, World War II was a popular war fought against a fascist threat, and left-leaning academics generally supported the war. On a less obvious level, law school enrollment plummeted during the war, and the numbers of full-time law …

Information Asymmetry And Information Failure: Disclosure Problems In Complex Financial Markets, Steven L. Schwarcz

Faculty Scholarship

Disclosure of information has been a key to regulation of the financial markets in the United States. Indeed, some have argued that the ‘exclusive focus [of federal securities regulation] is on full disclosure’ (Hazen, 2005). Yet there is relatively little dispute that although most if not all of the risks giving rise to the collapse of the market for structured securities backed by subprime mortgages were disclosed, the disclosure was ineffective. Disclosure failed because of the complexity of those securities and transactions.

This chapter examines disclosure’s insufficiency in addressing information asymmetry, arguing that complexity can cause information failure. There are …

How Trade Secrecy Law Generates A Natural Semicommons Of Innovative Know-How, Jerome H. Reichman

Faculty Scholarship

No abstract provided.

The Conflicted Assumptions Of Modern Constitutional Law, H. Jefferson Powell

Faculty Scholarship

Contribution to Symposium - The Nature of Judicial Authority: A Reflection on Philip Hamburger's Law and Judicial Duty

The Military-Industrial Complex, Charles J. Dunlap Jr.

Faculty Scholarship

In his 1961 farewell address, President Eisenhower cautioned against a future in which a powerful military-industrial complex manipulated policy to the detriment of American interests. Dunlap argues that, fifty years later, Eisenhower’s fears have not been realized; in fact, the military-industrial enterprise is in decline. Certainly, the U.S. military owes its continued preeminence to both the quality of its combatants and the superiority of its weaponry. Yet as the manpower-centric strategies in Afghanistan and Iraq replaced technology-centric operations; as complicated defense acquisitions laws deterred companies from obtaining contracts; and as the economic downturn and rising national deficit have strained budgets, …

The Mottled Legacy Of 9/11: A Few Reflections On The Evolution Of The International Law Of Armed Conflict, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Guns, Inc.: Citizens United, Mcdonald, And The Future Of Corporate Constitutional Rights, Darrell A. H. Miller

Faculty Scholarship

The Supreme Court began its 2009 Term by addressing the constitutional rights of corporations. It ended the Term by addressing the incorporated rights of the Constitution. In Citizens United v. Federal Election Commission, a five-member majority of the Court held that corporations have a First Amendment right to spend their own money on political advocacy. A corporation generally is no different than a natural person when it comes to the First Amendment - at least as it relates to political speech. In McDonald v. City of Chicago, a plurality of the Court held that the Second Amendment to the United …

Crisis In The Legal Profession: Don’T Mourn, Organize!, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Comparing Regulatory Oversight Bodies Across The Atlantic: The Office Of Information And Regulatory Affairs In The Us And The Impact Assessment Board In The Eu, Jonathan B. Wiener, Alberto Alemanno

Faculty Scholarship

‘Quis custodiet ipsos custodes?’ asked the Roman poet Juvenal – ‘who will watch the watchers, who will guard the guardians?’ As legislative and regulatory processes around the globe progressively put greater emphasis on impact assessment and accountability, we ask: who oversees the regulators? Although regulation can often be necessary and beneficial, it can also impose its own costs. As a result, many governments have embraced, or are considering embracing, regulatory oversight--frequently relying on economic analysis as a tool of evaluation. We are especially interested in the emergence over the last four decades of a new set of institutional actors, the …

The New Old Legal Realism, Mitu Gulati, Tracey E. George, Ann Mcginley

Faculty Scholarship

Do the decisions of appellate courts matter in the real world? The American judicial system, legal education, and academic scholarship are premised on the view that they do. The authors want to reexamine this question by taking the approach advocated by the original Legal Realists. The current project seeks to add to our knowledge of the relevance of case law by focusing on an area that has received little examination: how pronouncements about employment discrimination law by appellate courts translate into understandings and behavior at the ground level. As our lens, we use evidence of how people talk about the …