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Full-Text Articles in Law

Liberal Feminist Jurisprudence: Foundational, Enduring, Adaptive, Linda C. Mcclain, Brittany K. Hacker Jan 2022

Liberal Feminist Jurisprudence: Foundational, Enduring, Adaptive, Linda C. Mcclain, Brittany K. Hacker

Faculty Scholarship

Liberal feminism remains a significant strand of feminist jurisprudence in the U.S. Rooted in 19th and 20th century liberal and feminist political theory and women’s rights advocacy, it emphasizes autonomy, dignity, and equality. Liberal feminism’s focus remains to challenge unjust gender-based restrictions based on assumptions about men’s and women’s proper spheres and roles. Second wave liberal legal feminism, evident in Ruth Bader Ginsburg’s constitutional litigation, challenged pervasive sex-based discrimination in law and social institutions and shifted the Supreme Court’s interpretation of the Equal Protection Clause to a more skeptical review of gender-based classifications ...


Gendered Complications Of Covid-19: Towards A Feminist Recovery Plan, Linda C. Mcclain, Naomi Cahn Oct 2021

Gendered Complications Of Covid-19: Towards A Feminist Recovery Plan, Linda C. Mcclain, Naomi Cahn

Faculty Scholarship

COVID-19 exposed the limitations in the current economic system on public and private support for gender equity and the intersecting impact of gender, race, and class in that lack of support. Women of color, particularly those who are Black, Latina, or Native American, were at the intersection of the inequities in the pandemic economy. The catalogue of COVID-19’s impact covers all aspects of women’s lives: work, family, education, health, reproduction, mental and physical well-being, and leisure. This Article argues that COVID-19 has complex implications for gender equality and gender equity as state and local governments, the federal government ...


Shifting Standards Of Judicial Review During The Coronavirus Pandemic In The United States, Wendy K. Mariner Sep 2021

Shifting Standards Of Judicial Review During The Coronavirus Pandemic In The United States, Wendy K. Mariner

Faculty Scholarship

Emergencies are exceptions to the rule. Laws that respond to emergencies can create exceptions to rules that protect human rights. In long lasting emergencies, these exceptions can become the rule, diluting human rights and eroding the rule of law. In the United States, the COVID-19 pandemic prompted states to change rules governing commercial and personal activities to prevent the spread of the coronavirus. Many governors’ executive orders were challenged as violations of the constitutionally protected rights of those affected. Judges are deciding whether emergencies can justify more restrictions than would be permitted in normal circumstances and whether some rights deserve ...


Swords Into Plowshares: A Pilgrimage For The Css Alabama, William Park Jun 2021

Swords Into Plowshares: A Pilgrimage For The Css Alabama, William Park

Faculty Scholarship

During the American Civil War, Britain sold ships to the Southern Confederacy in breach of neutrality obligations, triggering a dispute with the United States carrying threats of armed conflict. Some American politicians saw the dispute as an opportunity to annex Canada, then a weak assemblage of British colonies. Ultimately, arbitration in Geneva averted war, opening an era of long Anglo-American cooperation. The historical consequence of this landmark 1872 arbitration remains difficult to overstate. In addition to its diplomatic importance, the case introduced significant procedural precedents for international arbitration, including dissenting options, reasoned awards, party-appointed arbitrators, collegial deliberations, and arbitrators’ declarations ...


The Role Of Data For Ai Startup Growth, James Bessen, Stephen Michael Impink, Lydia Reichensperger, Robert Seamans Jun 2021

The Role Of Data For Ai Startup Growth, James Bessen, Stephen Michael Impink, Lydia Reichensperger, Robert Seamans

Faculty Scholarship

Artificial intelligence (“AI”)-enabled products are expected to drive economic growth. Training data are important for firms developing AI-enabled products; without training data, firms cannot develop or refine their algorithms. This is particularly the case for AI startups developing new algorithms and products. However, there is no consensus in the literature on which aspects of training data are most important. Using unique survey data of AI startups, we find that startups with access to proprietary training data are more likely to acquire venture capital funding.


Medical Cannabis And The Age Of Majority, Katharine Silbaugh May 2021

Medical Cannabis And The Age Of Majority, Katharine Silbaugh

Faculty Scholarship

This Essay considers whether commercial cannabis retailers are adequately constrained in the sale of cannabis to 18- to 21-year-olds. It examines the intersection of the medical cannabis market, recreational cannabis market, and underlying status law regulating late adolescents aged 18 to 21. Because the age of majority licenses full medical decision-making, an 18-year-old can access medical cannabis but not recreational cannabis or alcohol. This Essay proceeds on the assumption that medical cannabis is a construct that has eased the process of achieving a legalized commercial cannabis market. The ambiguity around medical claims is comfortable in the libertarian soil of cannabis ...


Effects Of Political Versus Expert Messaging On Vaccination Intentions Of Trump Voters, Christopher Robertson, Keith Bentele, Beth Meyerson, Alexander Wood, Jacqueline Salwa May 2021

Effects Of Political Versus Expert Messaging On Vaccination Intentions Of Trump Voters, Christopher Robertson, Keith Bentele, Beth Meyerson, Alexander Wood, Jacqueline Salwa

Faculty Scholarship

To increase COVID-19 vaccine uptake in resistant populations, such as Republicans, focus groups suggest that it is best to de-politicize the issue by sharing five facts from a public health expert. Yet polls suggest that Trump voters trust former President Donald Trump for medical advice more than they trust experts. We conducted an online, randomized, national experiment among 387 non-vaccinated Trump voters, using two brief audiovisual artifacts from Spring 2021, either facts delivered by an expert versus political claims delivered by President Trump. Relative to the control group, Trump voters who viewed the video of Trump endorsing the vaccine were ...


Marijuana Legalization And The Role Of The Massachusetts Legislature, Sean J. Kealy May 2021

Marijuana Legalization And The Role Of The Massachusetts Legislature, Sean J. Kealy

Faculty Scholarship

The public is often frustrated when Congress or their state legislature is not responsive to their policy priorities. This was especially true during the effort to legalize marijuana in Massachusetts. The legislature consistently refused to take up the issue despite public support. Legalization advocates ultimately bypassed the legislature by turning to the ballot-initiative process on three occasions: first to decriminalize possession of small amounts of marijuana, then to legalize medical marijuana, and most recently to legalize recreational marijuana. After the electorate legalized recreational marijuana, the legislature further frustrated advocates, first by delaying implementation of key parts of the law and ...


Secular Invocations And The Promise Of Religious Pluralism, Jay Wexler Apr 2021

Secular Invocations And The Promise Of Religious Pluralism, Jay Wexler

Faculty Scholarship

The Supreme Court has considered the constitutionality of “legislative prayer” twice, once in the 1983 case of Marsh v. Chambers and once in the 2014 case of Town of Greece v. Galloway. Although both of those cases upheld challenged invocation practices on the basis that such practices predated the adoption of the First Amendment, they also placed additional limits on the nature of such prayer programs, including that they be non-discriminatory, as Justice Kennedy explained in Town of Greece. In response to Justice Kennedy’s non-discrimination mandate, hundreds of secular individuals in the wake of Town of Greece asked to ...


Loving It To Pieces: Eu Law In Us Legal Academia, Revisited, Daniela Caruso Apr 2021

Loving It To Pieces: Eu Law In Us Legal Academia, Revisited, Daniela Caruso

Faculty Scholarship

The Editors of the Special Issue have kindly invited me to update earlier reflections on the state of EU law in US legal academic. For a variety of reasons, it is important to me not to mislead the reader with the false promise of some kind of summa. What follows is my own perception of a complicated landscape, which I shall sketch lightly here in the hop of prompting other scholars of EU Law to report on their own US experience.


Retelling Copyright: The Contributions Of The Restatement Of Copyright Law, Jessica Silbey, Jeanne Fromer Apr 2021

Retelling Copyright: The Contributions Of The Restatement Of Copyright Law, Jessica Silbey, Jeanne Fromer

Faculty Scholarship

This Article was written for a special issue on the American Law Institute’s (ALI) Restatement of Copyright Law.

Since the American Law Institute (ALI) launched in the early twentieth century, its mission has been “the clarification and simplification of the law and its better adaptation to social needs ... [and] to secure the better administration of justice.” A principal way it has pursued that mission has been through its Restatements of Law project. By their nature, Restatements of Law reflect tensions between what it means to “restate” and reform the law. As the ALI has grown and the legal profession ...


The Electoral Count Mess: The Electoral Count Act Of 1887 Is Unconstitutional, And Other Fun Facts (Plus A Few Random Academic Speculations) About Counting Electoral Votes, Jack Beermann, Gary Lawson Mar 2021

The Electoral Count Mess: The Electoral Count Act Of 1887 Is Unconstitutional, And Other Fun Facts (Plus A Few Random Academic Speculations) About Counting Electoral Votes, Jack Beermann, Gary Lawson

Faculty Scholarship

In this essay, and in light of the controversy that arose in the wake of the 2020 presidential election, we explain the constitutional process for counting electoral votes. In short, every four years, the Twelfth Amendment requires the President of the Senate (usually the Vice President of the United States) to open certificates provided by state presidential electors and count the votes contained therein. The Constitution allows no role for Congress in this process, and thus, the provisions of the Electoral Count Act purporting to grant Congress the power, by concurrent resolution, to reject a state’s electoral votes, is ...


The Jury Trial Reinvented, Christopher Robertson, Michael Shammas Mar 2021

The Jury Trial Reinvented, Christopher Robertson, Michael Shammas

Faculty Scholarship

The Framers of the Sixth and Seventh Amendments to the United States Constitution recognized that jury trials were essential institutions for maintaining democratic legitimacy and avoiding epistemic crises. As an institution, the jury trial is purpose-built to engage citizens in the process of deliberative, participatory democracy with ground rules. The jury trial provides a carefully constructed setting aimed at sorting truth from falsehood.

Despite its value, the jury trial has been under assault for decades. Concededly, jury trials can sometimes be inefficient, unreliable, unpredictable, and impractical. The Covid-19 pandemic rendered most physical jury trials unworkable, but spurred some courts to ...


The Future Of Materialist Constitutionalism, Robert L. Tsai Mar 2021

The Future Of Materialist Constitutionalism, Robert L. Tsai

Faculty Scholarship

This is a review essay of Camila Vergara, Systemic Corruption (Princeton 2020). In this lively and important book, Vergara argues that corruption should be given a structural definition, one that connects corruption with inequality and is plebeian rather than elitist. After surveying the work of thinkers from Machiavelli to Arendt, she proposes a set of solutions grounded in the civic republican tradition.

I press several points in my essay. First, Vergara's linkage of corruption with inequality is promising, but introduces tension between a general problem (domination of the many by the few) and a more specific problem (the domination ...


American Edibles: How Cannabis Regulatory Policy Rehashes Prohibitionist Fears And What To Do About It, Jay Wexler, Connor Burns Mar 2021

American Edibles: How Cannabis Regulatory Policy Rehashes Prohibitionist Fears And What To Do About It, Jay Wexler, Connor Burns

Faculty Scholarship

Why can’t we buy a cannabis muffin with our morning coffee? For much of the past century, the answer was simple: cannabis was illegal. Now, however, with more and more states legalizing cannabis for adult use, the answer is far less clear. Even in those states that have legalized cannabis, the simple action of buying and eating edibles at the same location has somehow remained a pipe dream despite consumer demand. Digging a little deeper, we can see how contemporary alarmism, by rehashing the same prohibitionist rhetoric demonizing cannabis for over eighty years, has once again arisen with a ...


Tribute To Bob Burdick, Naomi Mann Mar 2021

Tribute To Bob Burdick, Naomi Mann

Faculty Scholarship

In losing Bob, we have truly lost a legal giant. He was a visionary in poverty law. He led significant litigation that improved the lives of countless individuals in the Commonwealth. It is because of him, a team of legal aid attorneys, and his students that individuals who are considered mentally incapacitated are entitled to Rogers hearings before being administered medication. It is also under his leadership that student attorneys throughout the Commonwealth can get attorney’s fees for their legal services organizations. Through his guidance and teaching, generations of law students have learned how to infuse their work (wherever ...


Some Special Words For Robert Burdick, Mary Connaughton Mar 2021

Some Special Words For Robert Burdick, Mary Connaughton

Faculty Scholarship

Many words can be used to describe Bob Burdick, my supervisor, colleague, and friend at the Boston University Civil Litigation Program since the fall of 1993. BU has recognized him as a “Quiet Legal Giant”; as his colleagues, we have commented on his compassion, low-key humility, creativity and innovation, strength as a mentor, and expertise in negotiation. We share common images and experiences as well: the open door to his office and the light already burning at 6:30 on dark mornings as we arrived early to go to court. His insight and understanding after a disturbing experience with an ...


A Tribute To Robert (“Bob”) G. Burdick: A Man Of Vision And Light, Constance Browne Mar 2021

A Tribute To Robert (“Bob”) G. Burdick: A Man Of Vision And Light, Constance Browne

Faculty Scholarship

One of Bob’s former students said it best: “Bob was the lawyer I wanted to be. He was the person I wanted to be.”1 Bob was also the mentor, teacher, and innovator I aspired to be. For many marginalized clients, Bob brought the change they needed; the change justice required. He embodied hope—he saw the light and strove to enable others to share in its glow.


Extrapolating Lessons From A Master Mentor: What Bob Burdick Taught Me, Susan Akram Mar 2021

Extrapolating Lessons From A Master Mentor: What Bob Burdick Taught Me, Susan Akram

Faculty Scholarship

Bob Burdick began his career in clinical practice as a student in the clinic at Boston University School of Law in 1970, shortly after the civil clinic had been established as the Legal Aid Program in Hyde Park in 1969. Right out of law school, Bob worked at Greater Boston Legal Services (“GBLS”), he then was hired at BU as a clinical instructor and later promoted to director of what became the Civil Litigation Program in 1979. During the forty years Bob led the civil clinic (now renamed the Civil Litigation and Justice Program), he was the creative and innovative ...


Market Myopia's Climate Bubble, Madison Condon Mar 2021

Market Myopia's Climate Bubble, Madison Condon

Faculty Scholarship

A growing number of financial institutions, ranging from BlackRock to the Bank of England, have warned that markets may not be accurately incorporating climate change-related risks into asset prices. This Article seeks to explain how this mispricing can exist at the level of individual assets drawing from scholarship on corporate governance and the mechanisms of market (in)efficiency. Market actors: 1. Lack the fine-grained asset-level data they need in order to assess risk exposure; 2. Continue to rely on outdated means of assessing risk; 3. Have misaligned incentives resulting in climate-specific agency costs; 4. Have myopic biases exacerbated by climate ...


Perpetuating Inequality: What Salary History Bans Reveal About Wages, James Bessen, Chen Meng, Erich Denk Feb 2021

Perpetuating Inequality: What Salary History Bans Reveal About Wages, James Bessen, Chen Meng, Erich Denk

Faculty Scholarship

Pay gaps for women and minorities have persisted after accounting for observable differences. Why? If employers can access applicants’ salary histories while bargaining over wages, they can take advantage of past inequities, perpetuating inequality. Recently, a dozen US states have banned employer access to salary histories. We analyze the effects of these salary history bans (SHBs) on employer wage posting and pay in a difference-in-differences design. Following SHBs, employers posted wages more often and increased pay for job changers, particularly for women (6.4%) and non-whites (7.7%). Bargaining behavior appears to account for much of the persistence of residual ...


Can Sandel Dethrone Meritocracy?, Robert L. Tsai Feb 2021

Can Sandel Dethrone Meritocracy?, Robert L. Tsai

Faculty Scholarship

This is an invited review essay of Michael Sandel, The Tyranny of Merit: What's Become of the Common Good? (FSG 2020), for the inaugural issue of The American Journal of Law and Inequality (R. Kennedy, M. Minow, C. Sunstein, eds.). Sandel makes three principal arguments: (1) meritocracy is deeply flawed because it worsens inequality and fills meritocracy's winners with hubris and losers with shame; (2) universities should introduce a lottery into the admissions process; and (3) this reform, coupled with increased emphasis on the dignity of labor, will repair the politics of resentment that now roil our country ...


Public Health And The Power To Exclude: Immigrant Expulsions At The Border, Sarah Sherman-Stokes Feb 2021

Public Health And The Power To Exclude: Immigrant Expulsions At The Border, Sarah Sherman-Stokes

Faculty Scholarship

We are presently in the midst of a crisis at the U.S.-Mexico border, as Courts, and indeed the Biden Administration, are struggling to manage thousands of immigrants waiting to seek asylum in the midst of a global pandemic. Beginning in March of 2020, against the advice of public health experts, the U.S. Government closed the southern U.S.-Mexico border, disproportionately impacting would-be asylum seekers from Central America, who are now immediately expelled from the United States should they reach the border under a process known as “Title 42.” Not only do these expulsions lack a legitimate ...


Improving The Credibility Of Empirical Legal Research: Practical Suggestions For Researchers, Journals, And Law Schools, Jason Chin, Alexander Dehaven, Tobias Heycke, Alexander Holcombe, David Mellor, Justin Pickett, Crystal Steltenpohl, Simine Vazire, Kathryn Zeiler Jan 2021

Improving The Credibility Of Empirical Legal Research: Practical Suggestions For Researchers, Journals, And Law Schools, Jason Chin, Alexander Dehaven, Tobias Heycke, Alexander Holcombe, David Mellor, Justin Pickett, Crystal Steltenpohl, Simine Vazire, Kathryn Zeiler

Faculty Scholarship

Fields closely related to empirical legal research are enhancing their methods to improve the credibility of their findings. This includes making data, analysis code, and other materials openly available, and preregistering studies. Empirical legal research appears to be lagging behind other fields. This may be due, in part, to a lack of meta-research and guidance on empirical legal studies. The authors seek to fill that gap by evaluating some indicators of credibility in empirical legal research, including a review of guidelines at legal journals. They then provide both general recommendations for researchers, and more specific recommendations aimed at three commonly ...


Replicability In Empirical Legal Research, Jason Chin, Kathryn Zeiler Jan 2021

Replicability In Empirical Legal Research, Jason Chin, Kathryn Zeiler

Faculty Scholarship

As part of a broader methodological reform movement, scientists are increasingly interested in improving the replicability of their research. Replicability allows others to perform replications to explore potential errors and statistical issues that might call the original results into question. Little attention, however, has been paid to the state of replicability in the field of empirical legal research (ELR). Quality is especially important in this field because empirical legal researchers produce work that is regularly relied upon by courts and other legal bodies. In this review article, we summarize the current state of ELR relative to the broader movement towards ...


The Epistemology Of Second Best, Gary Lawson Jan 2021

The Epistemology Of Second Best, Gary Lawson

Faculty Scholarship

Second best theory “holds that where it is not possible to satisfy all the conditions necessary for a[] . . . system to reach an overall optimum, it is not generally desirable to satisfy as many of those conditions as possible.” Adrian Vermeule, Foreword: System Effects and the Constitution, 123 HARV. L. REV. 4, 17 (2009). In other words, if you are not moving all the way to the ideal state of affairs, it is unclear whether partial moves that seem to go in the direction of the ideal make the world “better” or “worse” – with “better” or “worse” defined by the same ...


Don’T Bring An Army To An Arbitration (England, 1411), David J. Seipp Jan 2021

Don’T Bring An Army To An Arbitration (England, 1411), David J. Seipp

Faculty Scholarship

The name of our friend Derek Roebuck will always be linked to the long history of arbitration and mediation which he has chronicled so thoroughly in a dozen volumes by my count and many articles and chapters. On a spectrum of dispute resolution methods from formal courtroom litigation to savage brute force, arbitration stands at an interesting intermediate point. In tribute to Derek’s memory, I offer this glimpse of a curious episode at the intersection of due process of law, armed violence and principled arbitration. It reminds us that these three alternatives were not always as widely differentiated as ...


The Transient And The Permanent In Arbitration, William Park Jan 2021

The Transient And The Permanent In Arbitration, William Park

Faculty Scholarship

Several years ago, Jan Paulsson observed that Derek Roebuck might substitute for a time machine, providing a way for us to voyage backward with a guide to put everything in context. Indeed, the great Derek Roebuck, to whom we dedicate this set of essays, gave much of his professional life to making sure that by receiving a glimpse of dispute resolution in earlier times, we might have an opportunity better to understand the reality of present-day arbitration.


The Effect Of Generic Market Entry On Antibiotic Prescriptions In The United States, Cecilia Kållberg, Jemma Hudson, Hege Salvesen Blix, Christine Årdal, Eili Klein, Morten Lindbæk, John-Arne Røttingen, Ramanan Laxminarayan, Kevin Outterson Jan 2021

The Effect Of Generic Market Entry On Antibiotic Prescriptions In The United States, Cecilia Kållberg, Jemma Hudson, Hege Salvesen Blix, Christine Årdal, Eili Klein, Morten Lindbæk, John-Arne Røttingen, Ramanan Laxminarayan, Kevin Outterson

Faculty Scholarship

When patented, brand-name antibiotics lose market exclusivity, generics typically enter the market at lower prices, which may increase consumption of the drug. To examine the effect of generic market entry on antibiotic consumption in the United States, we conducted an interrupted time series analysis of the change in the number of prescriptions per month for antibiotics for which at least one generic entered the US market between 2000 and 2012. Data were acquired from the IQVIA Xponent database. Thirteen antibiotics were analyzed. Here, we show that one year after generic entry, the number of prescriptions increased for five antibiotics (5 ...


Patents And Price Fixing By Serial Colluders, Michael Meurer, William Kovacic, Robert Marshall Jan 2021

Patents And Price Fixing By Serial Colluders, Michael Meurer, William Kovacic, Robert Marshall

Faculty Scholarship

Antitrust law has long been mindful of the danger that firms may misuse their patents to facilitate price fixing. Courts and commentators addressing this danger have assumed that patent-facilitated price fixing occurs in a single market. In this Article, we extend conventional analysis to address firms’ patent misuse to facilitate price fixing across multiple products lines. By doing so, we expose gaps in existing agency enforcement and scholarly proposals for reform. Important legal tests that make sense in the single market setting do not carry over to the context we call serial collusion, where certain offenders engage in repeat collusion ...