Digital Commons Network^™

Arriving At Reasonable Alternative Design: The Reporters' Travelogue, Aaron Twerski, J. A. Henderson

Faculty Scholarship

No abstract provided.

Preserving A Place For The Past In Our Future: A Survey Of Historic Preservation In West Virginia, Megan M. Carpenter

Faculty Scholarship

Historic designation is an important step toward protecting a historic district, in part because it allows property owners to obtain tax credits in the rehabilitation of their properties. Not only does it certify the importance of an historic area, but it also creates economic opportunities for property and business owners in that area through both tax credits and tourism opportunities. Because historic designation and the tax credits that go along with it can be lost if more than sixty-five percent of all downtown structures in an historic district lose their historic character, designation depends upon the cooperation of property owners. …

The Reasonable Alternative Design Test: Back To Negligence?, David I. Levine, Carel J. Stolker

Faculty Scholarship

No abstract provided.

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

Faculty Scholarship

No abstract provided.

Ethics, Professionalism, And Meaningful Work, William H. Simon

Faculty Scholarship

Much of the anxiety and dissatisfaction associated with legal ethics arises from the categorical quality of the bar's dominant norms. These norms take the form of relatively inflexible rules insensitive to all but a few of the circumstances of the cases they govern. Hence they often require the lawyer to take actions that contribute to injustice or to refrain from actions that would avert injustice.

For example, many lawyers believe that a criminal defender is obliged to impeach a truthful complaining witness even though the only immediate purpose of this tactic is to encourage the trier to draw a mistaken …

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 …

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 …

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. …

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 …

Brave New World?: The Impact(S) Of The Internet On Modern Securities Regulation, John C. Coffee Jr.

Faculty Scholarship

It is now a trite commonplace that the advent of the Internet will in time revolutionize securities regulation. Merely the facts that the Internet has somewhere between thirty and sixty million users worldwide today (with an estimated ten to thirty million in the United States) and that some 800,000 U.S. investors already have online brokerage accounts establish that there is a potential global market that can be accessed at very low cost. But the magnitude of the market says little about what will be the character and effect of this approaching revolution.

Technological change is not a new phenomenon for …

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 …

The Bylaw Battlefield: Can Institutions Change The Outcome Of Corporate Control Contests?, John C. Coffee Jr.

Faculty Scholarship

What, if anything, can institutional investors do to influence the course and outcome of corporate control contests? The traditional answer was relatively little. To be sure, institutions could tender their shares in a tender offer or vote in a proxy contest to oust the incumbent board, but such a role was essentially reactive and contingent. It required that an offer actually be made before institutions could respond on an after-the-fact basis. Similarly, institutions have occasionally conducted precatory proxy campaigns calling upon the board to redeem its poison pill, but management was free to ignore these requests (and has done so).

The Improbability Of Religion Clause Theory, Frederick Mark Gedicks

Faculty Scholarship

No abstract provided.

The Role Of Arbitration In Resolving Transnational Disputes: A Survey Of Trends In The People’S Republic Of China, Catherine A. Rogers, Frederick Brown

Faculty Scholarship

The purpose of this Essay is to provide investors and practitioners with a realistic overview of the strengths and limitations of international arbitration in China. Part I of this Essay provides some general comments about the economic, social, and cultural reasons why arbitration is a popular choice among both international investors and Chinese nationals. Part I concludes that arbitration can only provide a partial solution to the ills of China’s legal system. Part II examines how the observations in Part I manifest themselves in recent developments affecting arbitration in China. Part III examines the range of efforts by foreign investors …

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.

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 …

Getting To Death: Are Executions Constitutional?, Deborah W. Denno

Faculty Scholarship

This Article addresses the question of when a method of executing a capital defendant amounts to cruel and unusual punishment under the Eighth Amendment. This Article contends that execution methods cases, while reaching the right result, fail to provide a sufficiently comprehensive Eighth Amendment standard for determining the constitutionality of any execution method. The Article proposes a test that better comports with the Court's Eighth Amendment case law and more appropriately considers scientific determinations of excessive pain. To apply this test, the Article studies each state's legislative changes in execution methods during the Twentieth Century as well as accounts of …

Asteroids And Comets: U.S. And International Law And The Lowest-Probability, Highest Consequence Risk, Michael B. Gerrard, Anna W. Barber

Faculty Scholarship

Asteroids and comets pose unique policy problems. They are the ultimate example of a low probability, high consequence event: no one in recorded human history is confirmed to have ever died from an asteroid or a comet, but the odds are that at some time in the next several centuries (and conceivably next year) an asteroid or a comet will cause mass localized destruction and that at some time in the coming half million years (and conceivably next year), an asteroid or a comet will kill several billion people. The sudden extinction of the dinosaurs, and most other species 65 …

Congressional Reviews Of Agency Regulations, Daniel Cohen, Peter L. Strauss

Faculty Scholarship

On March 29, 1996, President Clinton signed Public Law 104-121, the Contract with America Advancement Act of 1996. Title II, the Small Business Regulatory Enforcement Fairness Act of 1996 ("Act"), among other things, added a new chapter 8 to Title 5 of the United States Code. Chapter 8 requires congressional review of agency regulations. Beginning March 29, 1996, all federal agencies, including independent agencies, are required to submit each final and interim final rule for review by Congress and to the General Accounting Office (GAO) before the final or interim final rule can take effect (hereinafter final and interim final …

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 …

Firm Capabilities And Managerial Decision-Making: A Theory Of Innovation Biases, Janet E. L. Bercovitz, John M. De Figueiredo, David J. Teece

Faculty Scholarship

No abstract provided.

A Virtuous Warrior In A Savage World, Charles J. Dunlap Jr.

Faculty Scholarship

Divining the nature of future war is always problematic. President Eisenhower warned that "Every war is going to astonish you in the way it has occurred, and in the way it is carried out." The United States must, of course, be prepared to meet a wide range of contingencies. Paramount among them would be a threat posed by a "peer competitor," that is, a state capable of battling the United States with comparable forces employing largely orthodox tactics. Although it is almost certain that one will arise in the future, no nation exists today that can challenge America symmetrically as …

Coercion, Deception, And Other Demand-Increasing Practices In Antitrust Law, Mark R. Patterson

Faculty Scholarship

No abstract provided.

Construction Work: The Canons Of Indian Law (Case Note), Max J. Minzner

Faculty Scholarship

Congressional pronouncements in the area of Indian law have often been both sweeping and contradictory. To clear away some of the resulting confusion, the Supreme Court has adopted canons for construing these acts: Most importantly, ambiguous statutes and treaties are interpreted in favor of the tribes. In Alaska v. Native Village of Venetie, the Ninth Circuit applied this canon in interpreting the Alaska Native Claims Settlement Act (ANCSA), determining that Alaska's native villages qualify as "Indian country." This Case Note will show that the court's reliance on the canon of construction was misplaced. The most consistent interpretation of recent Supreme …

Out Of Focus, John C. Dernbach

Faculty Scholarship

No abstract provided.

Property Law: 1996 Survey Of Florida Law, Ronald B. Brown, Joseph M. Grohma

Faculty Scholarship

No abstract provided.

Lmo's: Treasure Chest Or Pandora's Box, Michael S. Baram

Faculty Scholarship

Biotechnology is beginning to trans- A form agriculture across the globe. After thousands of years of traditional plant and animal breeding, and centuries of mechanization and chemical application, genetic research has opened a Pandora's box of living modified organisms (LMOs) designed to improve the productivity and efficiency of commercial agriculture. A multitude of transgenic crops and animals is now being introduced into commerce by biotechnology companies, and b nations are puzzling out how to appropriate the benefits and manage the risks.

American biotechnology companies and agencies are the leading proponents of using LMOs. They claim that two decades of costly …

Innovations In Collective Bargaining: Nummi - Driven To Excellence, Marley S. Weiss

Faculty Scholarship

No abstract provided.

Regulatory Reinvention And Project Xl: Does The Emperor Have Any Clothes?, Rena I. Steinzor

Faculty Scholarship

No abstract provided.