Digital Commons Network^™

Reforming Property Law To Address Devastating Land Loss, Thomas W. Mitchell

Faculty Scholarship

Tenancy-in-common ownership represents the most widespread form of common ownership of real property in the United States. Such ownership under the default rules also represents the most unstable ownership of real property in this country. Thousands of tenancy-in-common property owners, including members of many poor and minority families, have lost their commonly-owned property due to court-ordered, forced partition sales as well as much of their real estate wealth associated with such ownership as a result of such sales. Though some scholars and the media have highlighted how thousands of African-Americans have lost an untold amount of property and substantial real …

Negotiating Bribery: Toward Increased Transparency, Consistency, And Fairness In Pretrial Bargaining Under The Foreign Corrupt Practices Act, Peter Reilly

Faculty Scholarship

This article will explore the factors that contribute to less-than-optimal transparency, consistency, and fairness in pre-trial bargaining under the Foreign Corrupt Practices Act. The article will conclude with recommendations to strengthen the current system and make it more fair.

The article is divided into four Parts: Part I will discuss the extent of the bribery problem worldwide; the history of the FCPA; and the reasons behind the recent dramatic increase in FCPA enforcement.

Part II will discuss the elements that make up FCPA ‘jurisprudence’ given that so few cases are litigated in court; the history of using DPAs and NPAs …

Professed Values, Constructive Interpretation, And Political History: Comments On Sotirios Barber, The Fallacies Of States' Rights, David B. Lyons

Faculty Scholarship

Our barely functioning Congress seems to embody the issues that this conference on constitutional dysfunction is meant to address. At this moment, however, congressional disarray may result less from institutional design than from our lasting heritage of white supremacy. Republican control of the House owes much to the party's Southern Strategy, which has exploited widespread dissatisfaction with the Democrats' official renunciation of racial stratification. That challenge to the American Way is exacerbated by the idea, outrageous to some, of a black President. That context has some bearing on this Symposium's topic of federalism. For, as Professor Larry Yackle reminds us, …

Deconstructing The Relationship Between Privacy And Security [Viewpoint], Gregory Conti, Lisa A. Shay, Woodrow Hartzog

Faculty Scholarship

From a government or law-enforcement perspective, one common model of privacy and security postulates that security and privacy are opposite ends of a single continuum. While this model has appealing properties, it is overly simplistic. The relationship between privacy and security is not a binary operation in which one can be traded for the other until a balance is found. One fallacy common in privacy and security discourse is that trade-offs are effective or even necessary. Consider the remarks of New York Police Department Commissioner Ray Kelly shortly after the Boston Marathon bombing, “I'm a major proponent of cameras. I …

Can Religion Without God Lead To Religious Liberty Without Conflict?, Linda C. Mcclain

Faculty Scholarship

This Article engages with Ronald Dworkin’s final book, Religion Without God, which proposes to shrink the size and importance of the fierce “culture wars” in the United States between believers and nonbelievers – theists and atheists – by separating out the “science” and “value” components of religion to show these groups that they share a “fundamental religious impulse.” Religion Without God also calls for framing religious freedom as part of a general right to ethical independence rather than a “troublesome” special right for religious people. This article compares the argumentative strategy of Religion Without God with prior Dworkin works, such …

Stereotype Threat And Law Librarianship, Ronald E. Wheeler

Faculty Scholarship

Mr. Wheeler looks at the concept of stereotype threat and discusses ways to confront and combat it in a diverse society. He proposes some simple solutions within the American Association of Law Libraries (AALL) and the law librarianship profession to help diminish the effects of this psychological barrier.

Criminalizing Revenge Porn, Danielle K. Citron, Mary Anne Franks

Faculty Scholarship

Violations of sexual privacy, notably the non-consensual publication of sexually graphic images in violation of someone's trust, deserve criminal punishment. They deny subjects' ability to decide if and when they are sexually exposed to the public and undermine trust needed for intimate relationships. Then too they produce grave emotional and dignitary harms, exact steep financial costs, and increase the risks of physical assault. A narrowly and carefully crafted criminal statute can comport with the First Amendment. The criminalization of revenge porn is necessary to protect against devastating privacy invasions that chill self-expression and ruin lives.

Competitive Federalism: Five Clarifying Questions, Larry Yackle

Faculty Scholarship

Before I looked into the two fine books we are reviewing here,1 I would have said that arguments from federalism are typically fraudulent, neither more nor less than deliberate attempts to cloud the discussion of real issues. Now that I have read what Sotirios A. Barber and Michael S. Greve have written, I am largely confirmed in my prejudices. But my suspicions about federalism contentions have been shaken a bit – enough to ask some questions of Professor Greve, whose answers might persuade me that there is some good in this federalism business, after all. I doubt it, but I …

Reflections On Presumed Incompetent: The Intersections Of Race And Class For Women In Academia Symposium — The Plenary Panel, Maritza I. Reyes, Angela Mae Kupenda, Angela Onwuachi-Willig, Stephanie M. Wildman, Adrien Katherine Wing

Faculty Scholarship

Reflections on Presumed Incompetent: The Intersections of Race and Class for Women in Academia Symposium -- The Plenary Panel in the Berkeley Journal of Gender, Law & Justice represents the author’s reflections on the recent important book PRESUMED INCOMPETENT edited by Gabriella Gutiérrez y Muhs, Yolanda Flores Niemann, Carmen G. González, and Angela P. Harris. PRESUMED INCOMPETENT has started a national movement of attention to treatment of women of color in academia; google the reviews and check out the book’s Facebook presence. In this recreation of the symposium plenary, the panelists discuss issues surrounding race and gender in academia, particularly …

Paternalism, Public Health, And Behavioral Economics: A Problematic Combination, Wendy K. Mariner

Faculty Scholarship

Some critiques of public health regulations assume that measures directed at industry should be considered paternalistic whenever they limit any consumer choices. Given the presumption against paternalistic measures, this conception of paternalism puts government proposals to regulate industry to the same stringent proof as clearly paternalist proposals to directly regulate individuals for their own benefit. The result is to discourage regulating industry in ways that protect the public from harm and instead to encourage regulating individuals for their own good -- quite the opposite of what one would expect from a rejection of paternalism. Arguments favoring "soft paternalism" to justify …

Impossible Choices: Balancing Safety And Security In Domestic Violence Representation, Camille Carey, Robert A. Solomon

Faculty Scholarship

Domestic violence victims often face the impossible choice between physical safety and financial security. State intervention can offer some protection to victims, but enlisting the criminal justice system through reporting domestic violence or restraining order violations can have drastic financial consequences. Involving the state is likely to lead to sanctions for the abuser which would ultimately deprive the victim of child support, alimony, and other financial support, which may be the totality of the victim’s financial resources. To avoid this result, many victims refuse to enforce court orders intended to maximize their safety. This article examines the context in which …

The Margin Of Appreciation In International Investment Law, Julian Arato

Faculty Scholarship

No abstract provided.

Introduction: Challenging Authority: A Symposium Honoring Derrick Bell, Jasmine Gonzales Rose

Faculty Scholarship

This is the Introduction to the University of Pittsburgh Law Review’s Challenging Authority: A Symposium Honoring Derrick Bell (L.L.B. 1957). This special symposium issue of the 75th volume of the Law Review celebrates and seeks to continue Bell’s critical inquiry into and fight against racial injustice. It features leading and emerging voices that examine and build upon some of Bell’s most eminent concepts, such as the permanence of racism and Interest Convergence Theory; explore Bell’s impact as a professor and activist; and look ahead to the next wave of critical race study.

Introduction To The Symposium On Ronald Dworkin's Religion Without God, James E. Fleming

Faculty Scholarship

Boston University School of Law and the Boston University Law Review are proud to publish this Symposium on Dworkin’s final book, Religion Without God (Harvard University Press, 2013), as a sequel to our 2009 Symposium on his Justice for Hedgehogs. The Symposium includes an introduction and eulogy by James E. Fleming and contributions by a number of the most distinguished scholars of law and religion in the United States and the United Kingdom: Jeremy Waldron, Stephen L. Carter, Paul Horwitz, Andrew Koppelman, Cécile Laborde, Linda C. McClain, Micah Schwartzman, and Steven D. Smith.

The Enduring Significance Of Race In Mixed-Income Developments, Amy T. Khare, Mark L. Joseph

Faculty Scholarship

While public housing reforms seek to address poverty among what is a predominantly African-American population, there has been little explicit attention given to the significance of race in the formation of new mixed-income communities. Indeed, the policy framing of these efforts has focused on economic integration and has been essentially silent about racial integration. In this article, we examine whether and how race remains relevant to the everyday life and experiences of residents in mixed-income developments. Drawing on a multiyear research study of three mixed-income developments in Chicago, we examine the nature of interracial and intraracial social dynamics within these …

Press Definition And The Religion Analogy, Ronnell Andersen Jones

Faculty Scholarship

n a Harvard Law Review Forum response to Professor Sonja West's symposium article, "Press Exceptionalism," Professor RonNell Andersen Jones critiques Professor West's effort to define "the press" for purposes of Press Clause exceptions and addresses the weaknesses of Professor West's analogy to Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC in drawing these definitional lines. The response highlights distinctions between Press Clause and Religion Clause jurisprudence and urges a more functional approach to press definition.

Co-Orbiting Planes Of Sub-Halos Are Similarly Unlikely Around Paired And Isolated Hosts, Marcel S. Pawlowski, Stacy S. Mcgaugh

Faculty Scholarship

Sub-halos in dark-matter-based cosmological simulations tend to be distributed approximately isotropically around their host. The existence of highly flattened, co-orbiting planes of satellite galaxies has therefore been identified as a possible problem for these cosmological models, but so far studies have not considered the hosts' environments. That satellite planes are now known around both major galaxies in the Local Group raises the question whether they are more likely to be found around paired hosts. In a first attempt to investigate this possibility, we focus on the flattening and orbital coherence of the 11 brightest satellite galaxies of the vast polar …

The Death Of Contracts, Franklin G. Snyder, Ann M. Mirabito

Faculty Scholarship

Our thesis here is that contract law as a distinct, coherent, and important body of law—the law generated through the appellate decisions of American courts and taught in American law schools for nearly a century and a half—is dying. The last few decades have seen a steady erosion of its importance, and it functions today less as a tool that enables a rich vein of private ordering than as a series of arbitrary traps that lie in wait for the unwary. Because sophisticated commercial parties are always free to opt out of contract regimes they do not find helpful, much …

Very Low Birth Weight And Perinatal Periods Of Risk: Disparities In St. Louis, Pamela Xaverius, Joanne Salas, Deborah Kiel, Candice Woolfolk

Faculty Scholarship

Very low birth weight (VLBW) is a significant issue in St. Louis, Missouri. Our study evaluated risk factors associated with VLBW in this predominantly urban community. Methods. From 2000 to 2009, birth and fetal death certificates were evaluated (𝑛 = 160, 189), and mortality rates were calculated for perinatal periods of risk.The Kitagawa method was used to explore fetoinfant mortality rates (FIMR) in terms of birth weight distribution and birthweight specific mortality. Multivariable logistic regression was used to assess the magnitude of association of selected risk factors with VLBW. Results. VLBW contributes to 50% of the excess FIMR in St. …

Fiduciary Discretion, D. Gordon Smith, Jordan C. Lee

Faculty Scholarship

Discretion is an important feature of all contractual relationships. In this Article, we rely on incomplete contract theory to motivate our study of discretion, with particular attention to fiduciary relationships. We make two contributions to the substantial literature on fiduciary law. First, we describe the role of fiduciary law as “boundary enforcement,” and we urge courts to honor the appropriate exercise of discretion by fiduciaries, even when the beneficiary or the judge might perceive a preferable action after the fact. Second, we answer the question, how should a court define the boundaries of fiduciary discretion? We observe that courts often …

Sales Suppression As A Service (Ssaas) & The Apple Store Solution, Richard Thompson Ainsworth

Faculty Scholarship

The problem of sales suppression fraud is estimated to cost state and local governments $20 billion annually ($2 billion in New York restaurants alone). Modern sales suppression (skimming) is carried out with technology (Zappers and Phantom-ware). Nine undercover sting operations in and around Manhattan and the Bronx by investigators working for New York’s Department of Taxation and Finance (NY-DT&F) have identified the SSaaS variant of modern skimming.

A striking example of SSaaS may be unfolding in the $1 million sales suppression case against Congressman Michael Grimm (R-NY). It is alleged that Grimm skimmed sales from his Healthalicious restaurant in Manhattan, …

Gender In Asbestos Law: Cui Bono: Cui Pacat, Anita Bernstein

Faculty Scholarship

No abstract provided.

Smooth And Bumpy Laws, Adam Kolber

Faculty Scholarship

No abstract provided.

The Criminal Court Audience In A Post-Trial World, Jocelyn Simonson

Faculty Scholarship

No abstract provided.

Private Certifiers And Deputies In American Health Care, Frank Pasquale

Faculty Scholarship

No abstract provided.

None Of The Laws But One, Neil S. Siegel

Faculty Scholarship

This Symposium contribution explores differences in how congressional Republicans responded to Medicare and how they responded to the Patient Protection and Affordable Care Act (ACA). Given the narrowness of the constitutional challenges to the ACA that congressional Republicans promoted and the many federal taxes, expenditures, and regulations that they support, this Article rejects the suggestion that today's Republicans in Congress generally possess a narrow view of the constitutional scope of federal power. The Article instead argues that congressional Republicans then and now-and the two parties in Congress today-fracture less over the constitutional expanse of congressional authority and more over the …

Misconstruing Notice In Eeoc Administrative Processing & Conciliation, Angela D. Morrison

Faculty Scholarship

Federal courts have misconstrued notice in the US Equal Employment Opportunity Commission's ("EEOC" or "Commission") administrative processing and conciliation of charges of discrimination. By requiring that the notice given to employers during the Commission's processing of a claim be equivalent to that of notice in civil litigation, courts have conflated the purpose of notice in the former with the latter. Some of this conflation may be a consequence of the Supreme Court's tightening of pleading standards, class certification requirements, and other procedural requirements, which are primarily focused on providing adequate notice to a defendant regarding the scope of the plaintiffs' …

Crowdsourcing Public Health Experiments: A Response To Jonathan Darrow's Crowdsourcing Clinical Trials, Ameet Sarpatwari, Christopher Robertson, David Yokum, Keith Joiner

Faculty Scholarship

We are pleased to have this opportunity to respond to Jonathan Darrow's article, Crowdsourcing Clinical Trials (CCT).' We seek to highlight its important contributions and to commence debate over some of its arguments. In particular, we qualify the ethical arguments that characterize early clinical use of drugs as if they were research, and suggest instead that, in either domain, the ethical (and legal) analysis should remain focused on whether all material information is provided so patients may make informed decisions. We also highlight the limits of what can be gleaned from the observational data collection efforts envisioned by CCT.

Ultimately, …

High Ionic Strength Narrows The Population Of Sites Participating In Protein Ion-Exchange Adsorption: A Single-Molecule Study, Lydia Kisley

Faculty Scholarship

The retention and elution of proteins in ion-exchange chromatography is routinely controlled by adjusting the mobile phase salt concentration. It has repeatedly been observed, as judged from adsorption isotherms, that the apparent heterogeneity of adsorption is lower at more-eluting, higher ionic strength. Here, we present an investigation into the mechanism of this phenomenon using a single-molecule, super-resolution imaging technique called motion-blur Points Accumulation for Imaging in Nanoscale Topography (mbPAINT). We observed that the number of functional adsorption sites was smaller at high ionic strength and that these sites had reduced desorption kinetic heterogeneity, and thus narrower predicted elution profiles, for …

Multiple Glycosaminoglycan-Binding Epitopes Of Monocyte Chemoattractant Protein-3/Ccl7 Enable It To Function As A Non-Oligomerizing Chemokine, Janna G. Kiselar, Sayan Gupta, Mark R. Chance

Faculty Scholarship

The interaction of chemokines with glycosaminoglycans (GAGs) facilitates the formation of localized chemokine gradients that provide directional signals for migrating cells. In this study, we set out to understand the structural basis and impact of the differing oligomerization propensities of the chemokines monocyte chemoattractant protein (MCP)-1/CCL2 and MCP- 3/CCL7 on their ability to bind GAGs. These chemokines provide a unique comparison set because CCL2 oligomerizes and oligomerization is required for its full in vivo activity, whereas CCL7 functions as a monomer. To identify the GAG-binding determinants of CCL7, an unbiased hydroxyl radical footprinting approach was employed, followed by a focused …