Law Commons^™

Breaking The Mold Of Citizenship: The "Natural" Person As Citizen In Nineteenth-Century America (A Fragment), Elizabeth B. Clark

Publications

Mary Wollstronecraft once said, probably with a sigh, "I do earnestly wish to see the distinction of sex confounded in society, unless where love animates the behavior." Two centuries later, many groups in American political life are still caught in the same dilemma: hoping that a just society will take account of an essential characteristic -- race and sex spring to mind -- in ways that will benefit the group, while eschewing the potentially harmful characterizations that lie just on the flip side of the coin.

Executive Compensation In America: Optimal Contracting Or Extraction Of Rents?, Lucian A. Bebchuk, Jesse M. Fried, David I. Walker

Faculty Scholarship

This paper develops an account of the role and significance of rent extraction in executive compensation. Under the optimal contracting view of executive compensation, which has dominated academic research on the subject, pay arrangements are set by a board of directors that aims to maximize shareholder value by designing an optimal principal-agent contract. Under the alternative rent extraction view that we examine, the board does not operate at arm's length; rather, executives have power to influence their own compensation, and they use their power to extract rents. As a result, executives are paid more than is optimal for shareholders and, …

Medical Error Reporting: Professional Tensions Between Confidentiality & Liability, Wendy K. Mariner, Frances H. Miller

Faculty Scholarship

Improving patient safety depends on a sophisticated understanding of what can jeopardize it. Reports of adverse patient events and "near misses" constitute valuable information that can foster that understanding. Knowing what has gone wrong in the past facilitates the search for systems improvements, which can prevent recurrence. Unfortunately, providers have been generally unenthusiastic about reporting medical error, whether from a sense of shame, from a fear of liability and institutional sanctions, or from anxiety about reputation and relationships with peers. This Issue Brief lays out the factors that may affect reporting, and explores the limited evidence about whether providers' confidentiality …

Unreasonable Probability Of Error, Jed Handelsman Shugerman

Faculty Scholarship

In Strickland v. Washington, the Supreme Court sought to create a uniform standard to guarantee effective assistance of counsel to criminal defendants, to "ensure a fair trial," and to assure the reliability of "a just result."' Justice O'Connor's majority opinion created a two-pronged test for overturning a trial verdict: deficient performance and resulting prejudice. The Court explicitly established a difficult burden for proving deficient performance,² but set a moderate standard for prejudice as the "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient …

The Wonderful World Of Genetics, George J. Annas

Faculty Scholarship

Review of Future Perfect: Confronting Decisions about Genetics (2001) by Lori B. Andrews

In Hell There Will Be Lawyers Without Clients Or Law, Susan P. Koniak, George M. Cohen

Faculty Scholarship

More than twenty years ago, moral philosopher Richard Wasserstrom framed the debate in legal ethics by asking two questions. Does the lawyer's duty to zealously represent the client, constrained only by the bounds of the law, render the lawyer "at best systematically amoral and at worst more than occasionally immoral in ... her dealings with the rest of mankind[?]" And is the lawyer's relationship with the client likewise morally tainted in that it generally entails domination by the lawyer over the client rather than mutual respect? Wasserstrom answered both questions affirmatively. Though these questions have preoccupied legal ethics scholars ever …

Section 1983'S And Laws Clause Run Amok: Civil Rights Attorney's Fees In Cellular Facilities Siting Disputes, Jack M. Beermann, Clive B. Jacques

Faculty Scholarship

In this article, we argue that enforcing the TCA against state and local zoning authorities raises serious legal concerns, especially if such enforcement is via a § 1983 "and laws" action. In particular, we argue that courts should not award attorney's fees under § 1988 to providers who prevail in claims alleging violation of TCA section 704. First, we argue that this is not an appropriate "and laws" claim because the TCA's cell siting provisions, in the main, do not create rights that are enforceable via § 1983 action. Further, in our view Congress did not intend that providers be …

A "Jewish State ... To Be Known As The State Of Israel": Notes On Israeli Legal Historiography, Pnina Lahav

Faculty Scholarship

Israeli legal history is a discipline much younger than the history of its fifty-three-year-old state. It began developing in the 1980s and gained momentum in the late 1990s. ³ In the entire state with its four major law schools and several law colleges⁴ only five scholars consider legal history to be their main field of expertise. ⁵ And yet, Israeli legal history has proven to be an extremely exciting intellectual discipline, attracting many more scholars than these five. Asher Maoz and Leora Bilsky are only two of a growing number who find legal history an intellectually stimulating enterprise. The …

"Rights Revolutions And Counter-Revolutions" Book Note, Jed Handelsman Shugerman

Faculty Scholarship

The rise of rights talk is a subject that has gripped academia in recent years. Many historians of modem America are now searching for the origins of the rights revolution and the feverish use of rights arguments on the left and on the right. Two recent works of legal history tackle one part of this question with trailblazing interpretations, focusing on left-wing rights discourse and the successes of the civil rights movement. Both books offer compelling and well-written narratives of post-war legal issues, and they present innovative arguments that this revolution began in response to global crises.¹ Richard Primus's …

Rendering Unto Caesar Or Electioneering For Caesar--Loss Of Church Tax Exemption For Participation In Electoral Politics, Alan L. Feld

Faculty Scholarship

The restriction on church participation in political campaigns contained in the Internal Revenue Code operates uneasily. It appears to serve the useful purpose of separating the spheres of religion and electoral politics. But the separation often is only apparent, as churches in practice signal support for a particular candidate in a variety of rays that historically have not cost them their exemptions. Although the limited enforcement by the Internal Revenue Service has reflected the sensitive nature of the First Amendment values present, the federal government should provide more formal elaboration by statute or regulation. Focus on the use of funds …

Privatization And Political Accountability, Jack M. Beermann

Faculty Scholarship

This article is an attempt to draw some general connections between privatization and political accountability. Political accountability is to be understood as the amenability of a government policy or activity to monitoring through the political process. Although the main focus of the article is to examine different types of privatization, specifically exploring the ramifications for political accountability of each type, I also engage in some speculation as to whether there are there situations in which privatization might raise constitutional concerns related to the degree to which the particular privatization reduces political accountability for the actions or decisions of the newly …

Legal Issues In Hiv/Aids Prevention And Treatment In The Russian Federation – Summary And Conclusions Of The Boston University Hiv/Aids Project, Wendy K. Mariner

Faculty Scholarship

The Russia Federation faces an urgent need to control the spread of HIV. Although infection has been concentrated primarily among high risk groups so far, the risk that it will spread rapidly throughout the general population is growing daily. Controlling the HIV epidemic requires leadership and strategies that are somewhat different from traditional infectious disease control models because there is no vaccine yet available to prevent disease and people spread infection by engaging in activities that are hidden from public view and not susceptible to simple prohibitions.

Boston University conducted several studies as part of USAID’s HIV/AIDS Strategy to assist …

Congress And The Legislative Web Of Trust, Alan L. Feld

Faculty Scholarship

Trust in the legislative arena does not flow from altruism. It rests on two related foundations: personal interactions and rational incentives. Legislators must engage with each other over at least a two-year term and usually far longer. Their encounters reflect the dynamic of continuing players rather than one-time participants. Thus, failure to carry out commitments chills the possibility of future advantageous agreements with the aggrieved party. Moreover, the process of shared experience and personal interaction can create friendships that make the foundation for trust personal as well as professional. Further, each House of Congress has many of the characteristics of …

Trust Relationships: Introduction, Tamar Frankel

Faculty Scholarship

Law and trust interact. Law addresses trust among individuals and within institutions and societies. As Professor Miller demonstrates, law addresses physicians' trustworthiness, imposing constraints on many aspects of physicians' activities, including research and patients' care.' Professor Seligman highlights the impact of law on trust when legal status, which prevailed in the past, moved to the current contract freedom. Legal status provided established clear predictable roles, which inspired confidence. Contract allowed people to play multiple roles of their choice. The variety of roles reduced predictability and transformed historic confidence into relationships fraught with uncertainty, which he called trust.

Trusting And Non-Trusting On The Internet Symposium: Trust Relationships, Tamar Frankel

Faculty Scholarship

The Puzzle: The Internet is a wonderful innovation, allowing people around the world to communicate, trade, and obtain services. Convenient and rich in choices and opportunities, the Internet is tremendously attractive to buyers. Naturally, businesses are flocking to the Internet. The warning has been sounded that those who do not stake a claim in this incredible new communication medium will be left behind to perish. Yet, with all the enthusiasm, many buyers hesitate to take a serious plunge. Businesses are told repeatedly that they must obtain their customers' trust, yet find it more difficult to gain this trust in cyberspace …

The Natural Rights-Based Justification For Judicial Review, James E. Fleming

Faculty Scholarship

On this panel, we are to consider questions such as "What form should constitutional interpretation by courts take in light of our aspirations to a good society?" For example, should courts engage in "moral readings" of the Constitution by elaborating abstract moral principles of liberty and equality or by making moral arguments about fostering human goods or virtues? In his paper, Justifying the Natural Law Theory of Constitutional Interpretation, Professor Michael Moore defends a sophisticated and powerful version of a moral realist or natural law answer to these questions.2 He confesses that, despite numerous criticisms, his views on the desirability …

Fidelity To Natural Law And Natural Rights In Constitutional Interpretation, James E. Fleming

Faculty Scholarship

It is an honor and a pleasure to comment on Professor Robert P. George's elegant and provocative paper.' For one thing, he is a leading proponent of reviving the natural law tradition in political, legal, and constitutional theory.2 For another, he was a reader of my Ph.D. dissertation in constitutional theory at Princeton University over a decade ago. I am happy to have the chance to reciprocate by reading a work of his and providing a critique of it. Fortunately, I learned at Princeton that vigorous criticism and disagreement are fully compatible with friendship and respect.

Trusting Doctors: Tricky Business When It Comes To Clinical Trials, Frances H. Miller

Faculty Scholarship

This article examines the troublesome ethical dilemmas arising out of physician conflicts of interest in the context of research on human beings. It focuses on the inevitable conflict between the objectives of clinical investigators and those of their human subjects to illuminate subtle divergences of interest in doctor-patient relationships that patients often do not recognize - or want to believe. Once perceived, however, these potentially corroding conflicts can stun research subjects and their families, and leave them feeling deeply betrayed by their clinicians. The article concludes that a researcher's substantial financial conflicts constitute material information which, absent compelling circumstances, the …

Controlling Precedent: Congressional Regulation Of Judicial Decision-Making, Gary S. Lawson

Faculty Scholarship

Modern federal courts scholars have been fascinated by the question of Congress' power to control the jurisdiction of the federal courts.' This fascination is not difficult to explain: the question is theoretically profound and raises fundamental issues about the roles of Congress and the federal courts in the constitutional order.2 As a practical matter, however, the question has proven to be of limited significance. Despite a recent spate of legislation restricting access to courts by prisoners and immigrants,3 people talk about wholesale jurisdiction-stripping far more than they actually do it.

The Role Of Law In Russian Health Reform: Report To The United States Agency For International Development, Wendy K. Mariner, Frank G. Feeley

Faculty Scholarship

True reform necessarily entails new law. In the newly independent Russian Federation, law has played a formative role in efforts to reform the health care system. Both historically and structurally, the health care system in Russia is more dependent on legal authorization than that in most Western industrialized countries. Reforms that providers might institute independently elsewhere are not likely to happen in Russia without specific laws authorizing them. Policy makers often formulate the substance of policy in the context of developing legislation, instead of drafting legislation to codify settled policy decisions. Thus, identifying and developing suitable laws has become an …

The Art And Science Of Critical Scholarship: Postmodernism And International Style In The Legal Architecture Of Europe, Anna Di Robilant, Ugo Mattei

Faculty Scholarship

This Article is a critique of several contemporary modes of thought in European legal scholarship. It intends to shed light on some interesting phenomena within legal ideology. Removing a legal ideology from its original context and applying it to a new situation can transform its meaning. For example, a progressive movement born in the United States becomes conservative when transplanted into the European institutional context The study of the Americanization of European law has offered many examples of such fascinating ideological twists.

Employee Benefits Law: Foreword, Maria O'Brien

Faculty Scholarship

Over the past twenty or so years, the range of employee benefits offered by employers - both large and small - has expanded dramatically. The old (and relatively short) list of "fringes" typically included health insurance, a pension plan, paid holidays and group life insurance. There was, of course, some variation in this list, especially across industries. But, by and large, employers did not concern themselves in a formal way with "modern" benefits such as elder care, child care, legal assistance, flex time, and parental leaves. As a recent study by the Society for Human Resource Management' suggests, employers have …

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 …

Slouching Toward Managed Care Liability: Reflections On Doctrinal Boundaries, Paradigm Shifts, And Incremental Reform, Wendy K. Mariner

Faculty Scholarship

Following the seemingly endless debate over managed care liability, I cannot suppress thoughts of Yeats’s poem, “The Second Coming.” It is not the wellknown phrase, “Things fall apart; the centre cannot hold,” that comes to mind; although that could describe the feeling of a health-care system unraveling. The poem’s depiction of lost innocence — “The best lack all conviction, while the worst/Are full of passionate intensity” — does not allude to the legislature, the industry, the public, or the medical or legal profession. What resonates is the poem’s evocation of humanity’s cyclical history of expectation and disappointment, with ideas as …

Is International Bankruptcy Possible?, Frederick Tung

Faculty Scholarship

Although international business firms proliferate, there is no international bankruptcy system. Instead, bankruptcy law remains a matter for individual states. The failure of a multinational firm therefore raises difficult questions of conflict and cooperation among national bankruptcy laws. In the discourse over the appropriate design for an international bankruptcy system, universalism has long held sway as the dominant idea, embraced nearly universally by bankruptcy scholars. Universalism offers a simple and elegant blueprint for international bankruptcy. Under universalism, the bankruptcy regime of the debtor firm's home country would govern worldwide, enjoying global reach to treat all of the debtor's assets and …

Rape, Murder, And Formalism: What Happens If We Define Mistake Of Law?, Gerald F. Leonard

Faculty Scholarship

The criminal law maxim "ignorance of the law is no excuse" represents a broad doctrine of strict liability in an area of law that usually insists on a culpable state of mind as a prerequisite for liability. For that reason, many scholars have attacked the harsh mistake-of-law rules as incompatible with basic principles of culpability. Other scholars have come to the defense of the maxim, and courts have adhered to it quite strongly even as the list of exceptions to the maxim has slowly grown. Oddly enough, however, this debate has proceeded without a definition of mistake of law. Distinguishing …

When Did The Constitution Become Law, Gary S. Lawson

Faculty Scholarship

Conventional wisdom and Supreme Court doctrine hold that the federal Constitution became legally effective on March 4, 1789, when the first session of Congress began. This conclusion is wrong, or at least seriously incomplete. Evidence from the Constitution, its adoption, and contemporaneous understandings reflected in treaties, statutes, and state constitutions demonstrates that the Constitution did not have a single effective date. Instead, different parts of the Constitution took effect in stages, beginning on June 21, 1788, when New Hampshire became the ninth state to ratify the document, and continuing at least until April 30, 1789, when President Washington was sworn …

Tying Law And Policy: A Decision Theoretic Approach, Keith N. Hylton, Michael Salinger

Faculty Scholarship

This paper offers a decision theoretic framework for analyzing tying law, and presents a critical assessment of post-Chicago tying theory. The decision theoretic framework takes into account the likelihood of judicial error in the application of rules and the costs of such error. We use the decision theoretic framework to assess the proper legal rules regarding tying and technological integration. Three general themes run throughout much of our analysis. First, the per se rule against tying simply has no economic foundation. Second, while the post-Chicago literature established the theoretical possibility of anticompetitive tying, one must know the frequency of anticompetitive …

The Merger Between Public Health And Health Law – The Us Situation, Wendy K. Mariner

Faculty Scholarship

Law is an essential tool for protecting the public’s health. It is often the law that turns public health science into public health action. Sanitation, clean air and water, universal vaccination, injury prevention, tobacco control, drug policy, and a vast array of other interventions are achieved through a complex web of local, provincial and national statutes, regulations and judicial cases. The Institute of Medicine in the United States defines public health as “what we, as a society, do collectively to ensure the conditions in which people can be healthy.” And society acts collectively most often through law.

Thus, the merging …

The Managing Lawmaker In Cyberspace: A New Power Model, Tamar Frankel

Faculty Scholarship

This paper is about the power of The Internet Corporation for Names and Numbers (ICANN). It examines how this power was created, augmented, strengthened, and reigned in. ICANN poses a puzzle. It is essentially an unregulated and undemocratic monopoly. Yet, ICANN's exercise of power has been fairly contained. Since ICANN is a monopoly, what prevents it from taking a far more high-handed and extensive ruling posture?

Even though at first blush my analogy is counterintuitive, I analogize ICANN to a managing lawmakers of market infrastructures, such as the New York Stock Exchange, while recognizing their differences. Unlike theExchange, ICANN has …