Law Commons^™

Excavating Race-Based Disadvantage Among Class-Privileged People Of Color, Khiara Bridges

Faculty Scholarship

The aim of this article is to begin to theorize the fraught space within which class-privileged racial minorities exist — the disadvantage within their privilege. The article posits that the invisibility of the racial subordination of wealthier people of color (that is, their marginalization on account of their race) is fertile soil for the germination of post-racialism — the sense that we, as a nation, have overcome our racial problems. The dramatic visibility of the minority poor’s suffering, combined with the relative invisibility of the suffering of those minorities who are not poor, breeds the belief that class is now …

The Role Of The Courts In Creating Racial Identity In Early New Orleans, Jack M. Beermann

Faculty Scholarship

Reviewing Kenneth R. Aslakson, Making Race in the Courtroom: The Legal Construction of Three Races in Early New Orleans (New York University Press 2014).

The racial history of New Orleans is unique among American cities, as is Louisiana's among the history of American states. In the antebellum period, there were more free people of color in New Orleans than in any other city in the South, and free people of color lived, and often prospered, throughout Louisiana. The presence of so many free people of color in New Orleans, and Louisiana more generally, arose from many factors, including the consequences …

Race And Reform In Twenty-First Century America: Foreword, Angela Onwuachi-Willig, Trina Jones, Guy-Uriel Charles

Faculty Scholarship

In November 2015, approximately two hundred activists, academics, and students from across the United States convened at Duke University School of Law for a conference entitled The Present and Future of Civil Rights Movements: Race and Reform in 21st Century America. Planning for the conference had commenced a year earlier, in the fall of 2014. At that time, the nation was reeling from the deaths of Rekia Boyd, Eric Garner, John Crawford III, and Michael Brown, among others. In addition to the killing of these unarmed Black men and women by law enforcement personnel, many people, particularly within the civil …

Towards Universal Fiduciary Principles, Tamar Frankel

Faculty Scholarship

Fiduciary relationships play an important role in civil law and common law jurisdictions. While both legal systems offer similar outcomes in upholding fiduciary law principles, the way they achieve these ends is fundamentally different. In common law jurisdictions, fiduciary law is rooted in the law of property. By contrast, in civil law jurisdictions, fiduciary principles find their source in contract law. This article seeks to reconcile these differences, by identifying universal principles that apply to both systems. The author describes the sources of fiduciary law in the common law and the civil law, then highlights underlying differences between the two …

Chapter 16: Transnational Legal Process Theories, Maya Steinitz

Faculty Scholarship

THIS chapter is devoted to transnational legal process theories. In 1955, Philip Jessup, in his Storrs Lectures at Yale, famously coined the term “transnational law” as he searched for a concept that would capture the legal regulation of actions or events that transcend national boundaries and that can accommodate both public and private international law. Further, while the traditional concept of “international law” referred to the law regulating relationships between states, the new term encompassed legal relationships of and amongst individuals, corporations, and organizations as well as states.

In other words, as early as the 1950s, and thereafter with increased …

A Diversity Approach To Parenthood In Family Life And Family Law, Linda C. Mcclain

Faculty Scholarship

Extraordinary changes in patterns of family life and family law have dramatically altered the boundaries of parenthood and opened up numerous questions and debates. What is parenthood and why does it matter? How should society define, regulate, and support it? Is parenthood separable from marriage or couplehood when society seeks to foster childrens well-being? What is the better model of parenthood from the perspective of child outcomes? Intense disagreements over the definition and future of marriage often rest upon conflicting convictions about parenthood. What Is Parenthood? asks bold and direct questions about parenthood in contemporary society, and it brings together …

The Litigation Finance Contract, Maya Steinitz

Faculty Scholarship

Litigation funding-for-profit, nonrecourse funding of a litigation by a nonparty-is a new and rapidly developing industry. It has been described as one of the "biggest and most influential trends in civil justice" today by RAND, the New York Times, and others. Despite the importance and growth of the industry, there is a complete absence of information about or discussion of litigation finance contracting, even though all the promises and pitfalls of litigation funding stem from the relationships those contracts establish and organize. Further, the literature and case law pertaining to litigation funding have evolved from an analogy between litigation funding …

Technology Solves Mtic - Vln, Rtvat, D-Vat Certification, Richard Thompson Ainsworth

Faculty Scholarship

Technology solves missing trader intra-community (MTIC) fraud. This should come as no surprise. MTIC is technology-intensive fraud – its solution should also be technology-intensive.

MTIC is getting to be an out-dated term. Now that missing trader fraud has move into services it is no longer confined to intra-community trade, and the older acronym should be adjusted to MTIC/MTEC fraud (with MTEC standing for missing trader extra-community).

MTIC/MTEC fraud is fully digitized (the supply, the movement of the supply, and the funding). The consequences should be clear. MTIC/MTEC must be prevented (before the fact), not pursued (after the fact). In the …

Involuntary Servitude, Public Accommodations Laws, And The Legacy Of Heart Of Atlanta Motel V. United States, Linda C. Mcclain

Faculty Scholarship

In Heart of Atlanta Motel v. United States (1964), the U.S. Supreme Court unanimously affirmed Congress’s power under the Commerce Clause to pass Title II, the public accommodations component of the Civil Rights Act of 1964 (CRA). The Johnson Administration expressed hope that this unanimous decision would aid the “reasonable and responsible acceptance” of the CRA. A less familiar legacy of this case is the role played by the Thirteenth Amendment and its declaration that “neither slavery and involuntary servitude . . . shall exist within the United States.” The owner of the Heart of Atlanta Motel unsuccessfully invoked this …

Cy Pres Relief And The Pathologies Of The Modern Class Action: A Normative And Empirical Analysis, Samantha Zyontz, Martin H. Redish, Peter Julian

Faculty Scholarship

Since the mid 1970s, federal courts have taken the doctrine of cy pres relief from the venerable law of trusts and adapted it for use in the modern class action proceeding. In its original context, cy pres was utilized as a means of judicially designating a charitable recipient when, for whatever reason, it was no longer possible to fulfill the original goal of the maker of the trust. The purpose of cy pres was to provide “the next best relief” by finding a recipient who would resemble the original donor’s recipient as much as possible. In the context of class …

Punitive Damages In The United States, Jack M. Beermann

Faculty Scholarship

his article is an attempt to acquaint the reader with contemporary legal issues surrounding punitive damages in the United States. Pursuant to U.S. federalism, most private law in the United States is state law and can vary significantly from state to state. Contract law, tort (injury) law, property law and criminal law are mainly state law. Many of these areas are governed largely by common law which means that there are no statutes, and courts make the law in the course of resolving individual legal controversies. It is the state common law of injury that allows punitive damages in the …

Introduction Symposium: The Jurisprudence Of Slavery Reparations: Introduction, Keith N. Hylton

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

Privacy And The Post-September 11 Immigration Detainees: The Wrong Way To A Right (And Other Wrongs), Sadiq Reza

Faculty Scholarship

In forthcoming work, I argue that this common-law privacy right should indeed attach to individuals arrested for or suspected of crime.9 I also argue that support for the right exists in a variety of judicial, statutory, and other sources, and that legislation to formally protect the right is warranted and constitutional. The reasoning is simple: being publicly named in connection with criminal allegations is stigmatizing, and the resultant personal harm-social, professional, emotional, other-lasts, and is difficult to justify when it is visited upon someone who is acquitted of the charges or against whom the charges are dismissed. Equally troubling is …

Care As A Public Value: Linking Responsibility, Resources, And Republicanism, Linda C. Mcclain

Faculty Scholarship

I begin this Article with the preceding two statements concerning care for children because they focus on the relationship between resources and responsibility and capture two conflicting approaches to that relationship. The first statement resists a definition of "responsibility" that leaves out the work of social reproduction, that is, of caring for children and preparing them to take their place as responsible, self-governing members of society. Highlighting the lack of resources that poor parents face when tackling the work of social reproduction, the statement also suggests common ground among parents across class lines as to the importance of caring for …

Some Questions For Civil Society-Revivalists, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

The Article raises some questions for proponents of reviving civil society as a cure for many of our nation's political, civic, and moral ills (whom McClain and Fleming designate as "civil society-revivalists"). How does civil society serve as "seedbeds of virtue" and foster self-government? Have liberal conceptions of the person corroded civil society and undermined self-government? Does the revivalists' focus on the family focus on the right problems? Have gains in equality and liberty caused the decline of civil society? Should we revive civil society or "a civil society"? Would a revitalized civil society support democratic self-government or supplant it? …

Foreword: Legal And Constitutional Implications Of The Calls To Revive Civil Society, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

This symposium addresses legal and constitutional implications of the calls to revive or renew civil society (a realm between the individual and the state, including the family and religious, civic, and other voluntary associations). The erosion or disappearance of civil society is a common diagnosis of what underlies civic and moral decline in America, and its renewal features prominently as a cure for such decline. To date, there has been a great deal of discussion of civil society and proposals for its revival or renewal, but not enough discussion of legal and constitutional implications of such proposals. This symposium seeks …

Forword: Legal And Constitutional Implications Of The Calls To Revive Civil Society, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

This symposium addresses legal and constitutional implications of the calls to revive or renew civil society (a realm between the individual and the state, including the family and religious, civic, and other voluntary associations). Calls to revive or renew civil society are prominent in political and legal discourse. The erosion or disappearance of civil society is a common diagnosis of what underlies civic and moral decline in America, and its renewal features prominently as a cure for such decline. Broadly speaking, there are two strands of civil society advocates, which a leader in the civil society movement recently characterized as …

Religion And The Public Defender, Sadiq Reza

Faculty Scholarship

This Essay will argue that the public defender, or any other attorney appointed by the court to defend adults or juveniles charged with criminal offenses, should not undertake, or fail to undertake, any action to the legal detriment of a client on the basis of a conflict the attorney perceives between religious and professional imperatives, except in the rare case of imminent death or serious bodily harm to another. This argument rests on the following four premises: (1) the public defender occupies a unique position in our legal system, and options that may be available to lawyers who serve private …

Deliberative Democracy, Overlapping Consensus, And Same-Sex Marriage, Linda C. Mcclain

Faculty Scholarship

A pressing concern in political and constitutional theory is how to construct a model of justification in law and politics that offers methods for securing agreement and social cooperation in the face of moral pluralism. A common goal of this work is to elaborate the requirements of deliberative democracy, that is, a model of democratic self-government that "asks citizens and officials to justify public policy by giving reasons that can be accepted by those who are bound by it."' Two fundamental questions are: (1) are there any limits to the grounds to which citizens may appeal or the reasons that …

Toleration, Autonomy, And Governmental Promotion Of Good Lives: Beyond 'Empty' Toleration To Toleration As Respect, Linda C. Mcclain

Faculty Scholarship

This Article considers discontent with liberal toleration as being both too empty, because it fails to secure respect and appreciation among citizens who tolerate each other, and too robust, because it precludes government from engaging in a formative project of helping citizens to live good, self-governing lives. To meet these criticisms, the Article advances a model of toleration as respect, as distinguished from a model of empty toleration, drawing on three rationales for toleration: the anti-compulsion rationale, the jurisdictional rationale, and the diversity rationale. It defends toleration as respect against some common criticisms-emanating from feminist, civic republican, and liberal perfectionist …

'Irresponsible' Reproduction, Linda C. Mcclain

Faculty Scholarship

In recent years, there have been countless calls for reversing the rise in irresponsibility in American society.' Calls for restoring personal responsibility in both private and political life sound from both of the major political parties as well as from various cultural critics, pundits, and academics. 2 Proponents of a return to personal responsibility wage their battle on numerous fronts, advocating a cultural revolution, a moral revival, and a recovery of "virtue" to bring about a reformation of attitudes and behaviors regarded as troublesome. 3 Many voices now urge that law and public policy should encourage, or require, personal responsibility …

Rights And Irresponsibility, Linda C. Mcclain

Faculty Scholarship

There can be little doubt that a marked discontent with rights and "rights talk" is in the air, as are calls for a turn to responsibility and "responsibility talk."' In a broad range of contemporary discourses, rights are juxtaposed against responsibility as if the two were inversely or even perversely related to one another. Indeed, rights are said to license irresponsibility. Academics, politicians, and the popular media claim that Americans increasingly invoke rights talk and shrink from responsibility talk and that as a result America suffers from an explosion of frivolous assertions of rights' and a breakdown of responsible conduct. …

'Atomistic Man' Revisited: Liberalism, Connection, And Feminist Jurisprudence, Linda C. Mcclain

Faculty Scholarship

One of the major strains of feminist jurisprudence has criticized American law, and the liberal jurisprudence and political philosophy on which it is said to be grounded, as male or masculine.' A central theme of the critique has been that the law embodies a masculine perspective in emphasizing autonomy and the individual over interdependency and the community. Liberalism has been viewed as inextricably masculine in its model of separate, atomistic, competing individuals establishing a legal system to pursue their own interests and to protect them from others' interference with their rights to do so. Hence, it is said that liberal, …

The Poverty Of Privacy?, Linda C. Mcclain

Faculty Scholarship

This Article has two aims. First, it defends a continuing role for the right of privacy in arguments -for women's reproductive freedom against charges that privacy is an impoverished concept. Second, it raises cautions about certain feminist critiques of privacy that would ground this freedom in notions of reproductive responsibilities. As this Article was first presented at a conference, "Reproductive Issues in a Post-Roe' World," held in the wake of Webster v. Reproductive Health Services,2 the first question is: Are we now, given the Supreme Court's recent decision in Planned Parenthood v. Casey,' in a "post-Roe world"? Furthermore, what remains …