Digital Commons Network^™

Introduction, David J. Seipp

Faculty Scholarship

Have we come to bury Lochner, or to praise it? Lochner v. New York,' decided 100 years ago, gave its name to an era in which judges struck down popular statutes that regulated hours, wages, and conditions of work, on grounds that such labor regulations violated a constitutional liberty of contract. After 1937, Lochnerism and Lochnerizing were more or less uniformly condemned by judges and law professors alike. Recently, some scholars have tried to resurrect the Lochner approach, presumably as a way to render much of the twentieth-century regulatory state unconstitutional.

The Jacksonian Makings Of The Taney Court, Mark A. Graber

Faculty Scholarship

Many twentieth century commentators regard the willingness of Taney Court majorities to declare laws unconstitutional as proof that the justices on that tribunal adjured Jacksonian partisanship upon taking the bench. Old Republicans during the 1820s fulminated against judicial review of state legislation and sought to repeal Section 25 of the Judiciary Act of 1787, but they were apparently frustrated by a Taney Court which continued imposing contract clause and dormant commerce clause limits on state power. This paper demonstrates that Jacksonians in office supported judicial power. Jacksonian animus was more directed at McCulloch v. Maryland than either Marbury v. Madison …

The Market Participant Doctrine And The Clear Statement Rule, David S. Bogen

Faculty Scholarship

This paper argues that the market participant exception to the dormant commerce clause reflects the same concerns that led to the clear statement doctrine for application of general legislation to the operations of state governments. The genius of the Constitution was to make federal law directly applicable to individuals instead of through state governments – this made enforcement easier and avoided confrontation between the state and nation. Confrontation in which the federal authorities order the state to act in a particular way should be a result of consideration of the need to do so. But the dormant commerce clause by …

Law And Letters: A Detailed Examination Of David Hoffman's Life And Career, Bill Sleeman

Faculty Scholarship

David Hoffman (1784-1854) has been cast as America's first legal ethicist and as the founder of one of the nation’s first original methods of legal instruction. While these interpretations of his life are certainly true, Hoffman’s life and career encompassed so much more than that. With few exceptions researchers have focused on Hoffman’s legal career and have left historians to wonder about his other pursuits. This article will review, in individual sections, the many facets of Hoffman's life and career in an effort to provide a more complete picture than has previously existed.

Prosecuting Members Of The U.S. Military For Wartime Environmental Crimes, Eric Talbot Jensen, James J. Teixeira Jr.

Faculty Scholarship

War is inherently damaging to the environment. Though these deleterious actions are often attributed to "states" during times of armed conflict, they are normally the result of military operations conducted by members of the military who are carrying out orders from military superiors. While many have proposed systemic changes that affect how states can or should be held responsible, few have commented on the process of holding individual military personnel or commanders responsible for battlefield acts of environmental damage. This paper argues that there are sufficient laws and regulations in place to hold individuals and commanders in the United States …

The Threat Of Smallpox: Eradicated But Not Erased: A Review Of The Fiscal, Logistical And Legal Obstacles Impacting The Phase I Vaccination Program, Holly L. Myers, Elin Gursky, Georges C. Benjamin, Christopher Gozdor, Michael Greenberger

Faculty Scholarship

Fears that terrorists may have the capabilities and intent to disseminate a variety of biologic agents has once again brought smallpox into the American consciousness. On December 13, 2002, recognizing that the global discontinuation of routine smallpox vaccination over two decades ago had left most Americans unprotected and vulnerable to the ravaging effects of the virus, the President announced a precautionary measure to begin vaccinating teams of emergency responders. The program commenced January 24, 2003. In the ensuing months, public health departments scrambled to meet the goal of vaccinating approximately 500,000 first responders, a protected phalanx that could quickly and …

Global Changes In Regulating Corporate Auditors: A Comparative Assessment, Richard Thompson Ainsworth

Faculty Scholarship

Auditor independence was a global concern of financial regulators in the 1990's. Some observers saw this in a positive light, a natural development. Adjusting auditor independence rules was a manifestation of global convergence in corporate governance structures. New rules, especially rules leaning toward a harmonized system were welcome.

There was a more sobering view. This view held that global regulators were less concerned with convergence than they were with a sense of impending disaster. Things had gone too far. Significant, maybe even radical change was needed. The independence of corporate auditors had eroded; trust had been fundamentally compromised in the …

Using Tort Law To Secure Patient Dignity, Robin Fretwell Wilson

Faculty Scholarship

The practice of using anesthetized patients to teach pelvic exams on female patients in university hospitals has been well documented for years. A 1992 study showed that 37 percent of U.S. and Canadian medical schools allowed students to use anesthetized women without their consent to learn how to perform pelvic exams. Anecdotal accounts in the U.S. confirm that men are not immune from such indignities. Although patients have been unable, thus, far to enforce their own interests and protect their dignity, the tort system may yet succeed in securing the right of patients to decide who touches their bodies and …

Governing The Globalization Of Public Health, Allyn L. Taylor

Faculty Scholarship

There is growing awareness that contemporary globalization has led to the proliferation of cross border determinants of health status and is undermining the capacity of nation states to protect health through domestic action alone. Consequently, globalization is creating a heightened need for new global health governance structures to promote coordinated intergovernmental action. This article seeks to contribute to the emerging discussion on global health governance by examining how globalization and the rising need for new global health governance structures is a driving force behind the expansion of conventional international health law. The article considers whether the present international institutional framework …

Brief Of Keith N. Hylton As Amicus Curiae In Support Of Petitioners In Greg Johnson, Et Al. V. Ford Motor Company, Keith N. Hylton

Faculty Scholarship

This Court last addressed the legal framework for setting the amount of punitive damages in Adams v. Murakami (1991) 54 Cal.3d 105. In Adams, this Court declined to reach the argument advanced by the Association for California Tort Reform advocating “the profitability of the defendant’s misconduct” as the appropriate financial measure in fixing punitive damages. Id. at 116 n.7. For this argument to be advanced by such a pro-defendant trade association is hardly an anomaly. It appears typical, evidently based on the sensible assumption that in the setting of punitive damages, a focus on a defendant’s illicit profits will frequently …

Resolución De Conflictos Ambientales: Lecciones Aprendidas De La Historia De La Contaminación De Las Fundiciones De Minerales, Robert V. Percival

Faculty Scholarship

No abstract provided.

For God, For Country, For Universalism: Sovereignty As Solidarity In Our Age Of Terror, Maxwell O. Chibundu

Faculty Scholarship

No abstract provided.

Between Dialogue And Decree: International Review Of National Courts, Robert B. Ahdieh

Faculty Scholarship

Recent years have seen dramatic growth in the number of international tribunals at work across the globe, from the Appellate Body of the World Trade Organization and the International Tribunal for the Law of the Sea, to the Claims Resolution Tribunal for Dormant Claims in Switzerland and the International Criminal Court. With this development has come both increased opportunity for interaction between national and international courts and increased occasion for conflict. Such friction was evident in the recent decision in Loewen Group, Inc. v. United States, in which an arbitral panel constituted under the North American Free Trade Agreement found …

Sharing Sovereignty: Non-State Associations And The Limits Of State Power, Franklin G. Snyder

Faculty Scholarship

The subject of mediating associations and voluntary associations have received much attention in recent years. Both conservative and liberal scholars have invoked the idea that certain institutions that fall somewhere on the spectrum between the State and the Individual play a significant role in society and that they therefore ought to be protected and even cultivated. But much of this work proceeds from a flawed premise, and leads to an instrumental view of these non-State associations that requires that these institutions be justified based on their social utility. This view means that the utility of any given institution usually seems …

Introduction, Hanoch Dagan, Keith N. Hylton, Anthony J. Sebok

Faculty Scholarship

On April 9th and 10th, 2004, Boston University School of Law sponsored a symposium titled The Jurisprudence of Slavery Reparations. As the principal conference organizers, we are pleased and a bit awestruck to see the symposium contributions published in this issue of the Boston University Law Review. The papers published here - in the first symposium of its kind in a major law review - should serve as an immensely valuable reference on the jurisprudence of reparations

Corrective Justice, Equal Opportunity, And The Legacy Of Slavery And Jim Crow, David B. Lyons

Faculty Scholarship

Chattel slavery was a brutally cruel, repressive, and exploitative system of racial subjugation. When it was abolished, the former slaveholders owed the freedmen compensation for the terrible wrongs of enslavement. Ex-slaves sought reparations, especially in the form of land, but few received any sort of recompense. The wrongs they suffered were never repaired.

No one alive today can be held accountable for the wrongs of chattel slavery, and those who might now be called upon to pay reparations were not even born until many decades after slavery ended. For some scholars, the lack of accountable parties makes current reparations claims …

Collective Security With A Human Face: An International Legal Framework For Coordinated Action To Alleviate Violence And Poverty, Jennifer Moore

Faculty Scholarship

Part I of this article will explore some of the diverse theoretical and cultural roots of the human security concept set forth in the U.N. Charter, as well as the limited historical impact of the human security concept in global affairs since the United Nation's birth. Part II confronts the negative impact of the "War against Terrorism" on the war against poverty by linking recent developments in Iraq and the Great Lakes Region of Africa. Finally, Part III analyzes the international law arguments supporting a legal obligation to promote human security in the U.N. Charter, various human fights instruments, and …

Local Optical Properties, Electron Densities, And London Dispersion Energies Of Atomically Structured Grain Boundaries, Roger H. French

Faculty Scholarship

Quantitative analysis of spatially resolved valence electron energy-loss spectra shows strong physical property contrasts for Σ5 and near Σ13 grain boundaries in Fe-doped SrTiO3, resulting in London dispersion interaction energies of 14 to 50mJ/m2 between the adjacent grains. The determination of local physical properties of grain boundary cores and the appreciable contribution of long-range London dispersion to interface energies provides new information on formation and control of interfaces in materials.

Three Strikes And You're Outside The Constitution: Will The Guantanamo Bay Alien Detainees Be Granted Fundamental Due Process?, Michael Greenberger

Faculty Scholarship

The United States Supreme Court has agreed to take up its first case arising from the War on Terror by hearing the consolidated appeals of two groups of foreign aliens who are or who had been detained at the United States Guantanamo Bay Naval Base, Cuba: Rasul v. Bush (No. 03-334) and Al Odah v. United States (No. 03-343). The cases stem from the United States' capture of several hundred prisoners in Afghanistan and Pakistan and their subsequent imprisonment at Guantanamo Bay. The prison began operation in January 2002, and approximately 90 detainees have been freed up to this time, …

Unfilfilled Promises: Achieving Justice For Crimes Against Humanity In East Timor, Kelly Askin, Stefanie Frease, Sonja Starr

Faculty Scholarship

No abstract provided.

Indefinite Material Witness Detention Without Probable Cause: Thinking Outside The Fourth Amendment, Michael Greenberger

Faculty Scholarship

A constitutional issue recently addressed by the United States Court of Appeals for the Second Circuit in United States v. Awadallah, 349 F.3d 42 (2003), has not received the widespread attention of high-profile litigation concerning the Justice Department's other controversial counter-terrorism policies. It is equally important. The issue arises out of Attorney General Ashcroft's announcement shortly after the terrorist attacks of September 11, 2001 that the aggressive detention of material witnesses [was] vital to preventing, disrupting or delaying new attacks. Since that time, the Department of Justice has used the federal material witness statute (18 U.S.C. Section 3144) to …

Should A Duty To The Corporation Be Imposed On Institutional Shareholders?, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Private Law And Public Stakes In European Integration: The Case Of Property, Daniela Caruso

Faculty Scholarship

In European legal discourse, the old public/private divide is experiencing a revival and a transformation. Member States used to claim autonomy in private law matters. Now private law is subsumed into a functionalist logic and can presumptively be harmonised if so demanded by the goal of market integration. States or local constituencies can only resist harmonisation by highlighting the connection between their private laws and those ‘public’ matters still immune from Europeanisation. Property law can effectively illustrate this phenomenon. The written pledge of non-interference with States’ property systems, restated both in the TEC and in the draft Constitution, cannot be …

Why Do Plaintiffs Sue Private Parties Under Section 1983, Jack M. Beermann

Faculty Scholarship

The subject of this article is why people make federal cases, under section 1983,' out of claims they have against private parties. Section 1983 provides a cause of action against "any person" who, while acting "under color of' state law, subjects or causes the plaintiff to be subjected to a violation of federal constitutional or statutory rights. The requirement that the defendant act under color of law means that the typical section 1983 claim is brought against state and local government officials or entities, not against private individuals or entities. However, there are situations in which a private party (i.e. …

Bridging The Barriers: Public Health Strategies For Expanding Drug Treatment In Communities, Ellen M. Weber

Faculty Scholarship

States around the country have begun to adopt programs to divert drug offenders from jails and prisons to community-based drug treatment services. For this strategy to succeed, local officials will need to expand the availability of outpatient and residential treatment programs and address the barriers to siting treatment services, the most significant of which are community opposition and government zoning policies that facilitate community resistance. Civil rights laws, including the Americans With Disabilities Act (ADA) and the Fair Housing Act (FHA), prohibit zoning discrimination against persons with histories of alcoholism and drug dependence and provide a solid legal foundation for …

Legal Writing And Academic Support: Timing Is Everything, Dionne L. Koller

Faculty Scholarship

The conventional wisdom is that legal writing and academic support go hand-in-hand. Most law schools assume that struggling students can be reliably identified for academic support through their first-year legal writing course, and that first-year legal writing instructors can fairly easily and effectively provide this support. Indeed, this is the prevailing view in current academic support and legal writing scholarship. Professor Koller's article challenges the conventional wisdom and instead points out several issues that should be considered if a law school relies on the first-year legal writing course as a component of, or in lieu of, an academic support program. …

New Rules For Supplier Bid Challenges Take Effect In China, Daniel J. Mitterhoff

Faculty Scholarship

No abstract provided.

A Principled Solution For Negligent Infliction Of Emotional Distress Claims, Robert J. Rhee

Faculty Scholarship

This article examines negligent infliction of emotional distress, one of the most controversial and least uniform fields of tort law. A review of the judicial and scholarly literature has shown that traditional tort analysis fails. In its stead, the common law has not found an alternative theory of liability that balances the competing interests. Rather, the approach has been to create rules of law based on probabilistic templates. Its dual purpose is to preclude individualized analysis and to limit aggregate liability. This article rejects the current doctrines as inherently arbitrary and proposes a complete overhaul of the law. To find …

Regulate, Don't Eliminate, 527s, Donald B. Tobin

Faculty Scholarship

No abstract provided.

Why Were Perry Mason's Clients Always Innocent? The Criminal Lawyer's Moral Dilemma - The Criminal Defendant Who Tells His Lawyer He Is Guilty, Randolph Braccialarghe

Faculty Scholarship

No abstract provided.