Law Commons^™

Swords Into Plowshares: A Pilgrimage For The Css Alabama, William W. 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 Intersectional Race And Gender Effects Of The Pandemic In Legal Academia, Angela Onwuachi-Willig

Faculty Scholarship

Just as the COVID-19 pandemic helped to expose the inequities that already existed between students at every level of education based on race and socioeconomic class status, it has exposed existing inequities among faculty based on gender and the intersection of gender and race. The legal academy has been no exception to this reality. The widespread loss of childcare and the closing of both public and private primary and secondary schools have disproportionately harmed women law faculty, who are more likely than their male peers to work a “second shift” in terms of childcare and household responsibilities. Similarly, women law …

Patient Access In Fourteen High-Income Countries To New Antibacterials Approved By The Fda, Ema, Pmda, Or Health Canada, 2010-2020, Kevin Outterson, Ebiowei S F Orubu, Muhammad H. Zaman, John Rex, Christine Ardal

Faculty Scholarship

In 2010, the Infectious Diseases Society of America called for 10 new antibiotics by 2020 [1]. This goal was achieved in terms of the number of drug approvals, but actual patient access requires commercial launches in many countries, which itself requires sustainable commercial markets. Prior work has described limited access to new antibacterials in low- and middle-income countries (LMICs), in part due to the inability of many to afford these drugs [2]. This study examines patient access for new antibacterials in the G7 and 7 other high-income countries in Europe, to better understand other barriers to …

Standard Racism: Trying To Use “Crisis Standards Of Care” In The Covid-19 Pandemic, George J. Annas, Sondra S. Crosby

Faculty Scholarship

Lowering the standard of care in a pandemic is a recipe for inferior care and discrimination. Wealthy white patients will continue to get “standard of care” medicine, while the poor and racial minorities (especially black and brown people) will get what is openly described as substandard care rationalized by the assertion that substandard care is all that we can deliver to them in a crisis. (IOM Citation2009) Paul Farmer’s experience in responding to the Ebola outbreak in West Africa is a shocking, if extreme, example of how dangerous to patients this practice is. White patients were treated with the …

American Edibles: How Cannabis Regulatory Policy Rehashes Prohibitionist Fears And What To Do About It, Jay D. 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 new …

From Productivity To Firm Growth, James Bessen, Erich Denk

Faculty Scholarship

It is widely held that more productive firms grow faster, thus reallocating resources and raising aggregate productivity. Yet little empirical research identifies the features of the mechanisms affecting this process. This paper develops and tests a general model encompassing several mechanisms used to overcome informational frictions to growth. We find that firm size, productivity dispersion, and large firm investments in intangibles are all significantly related to changes in firm growth in response to productivity. These factors can account for much of the decline in the response to productivity since 2000 (Decker et al. 2020). Also, industry concentration is directly related …

A Prelude To A Critical Race Perspective On Civil Procedure, Portia Pedro

Faculty Scholarship

In this Essay, I examine the lack of scholarly attention given to the role of civil procedure in racial subordination. I posit that a dearth of critical thought interrogating the connections between procedure and the subjugation of marginalized peoples might be due to the limited experiences of procedural scholars; a misconception that procedural rules are a technical, objective, neutral area; and avoidance of discussion of race or other aspects of identity unless there is a case, material, or scholarly topic that meets an unreasonably high standard. I emphasize the importance of a critical race analysis of civil procedure.

Federal Rules Of Platform Procedure, Rory Van Loo

Faculty Scholarship

Tech platforms serve as private courthouses for disputes about speech, lodging, commerce, elections, and reputation. After receiving allegations of defamatory content in top search results, Google must decide between protecting one person's public image and another's profits or speech. Amazon adjudicates disputes between consumers and third-party merchants about defective or counterfeit items. For many small businesses, layoffs and bankruptcy hang in the balance. This Article begins to uncover the processes that these platforms use to resolve disputes and proposes reforms. Other important businesses that intermediate, such as credit card companies ruling on a disputed charge between a merchant and consumer, …

(Re)Framing Race In Civil Rights Lawyering, Angela Onwuachi-Willig, Anthony V. Alfieri

Faculty Scholarship

A review of Henry Louis Gates, Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow (Penguin Press, 2019). The Review proceeds in four parts. Part I parses Gates’s analysis of the rise of white supremacist ideology and the accompanying concept of the “Old Negro” during the Redemption era and the countervailing emergence of the concept of a “New Negro” culminating in the Harlem Renaissance. Part II examines the lawyering process as a rhetorical site for constructing racialized narratives and racially subordinating visions of client, group, and community identity through acts of representing, prosecuting, and defending people of …

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 …

Health Equity, Federalism, And Cannabis Policy, Nicole Huberfeld

Faculty Scholarship

Cannabis policy is a story of complexity and dynamism laced with tension and inequity. Policy makers’ views are rapidly changing, reflected by many bills sitting before Congress. This Essay considers three of the major bills that have a more comprehensive approach to cannabis. These bills also take different approaches to the flipped federalism that could occur if the federal government were to suddenly decriminalize cannabis. The Essay next considers the state law landscape and compares it to Medicaid expansion under the Affordable Care Act, drawing a comparison to learn health equity lessons from recent health reform efforts. Federal legislation is …

Medical Cannabis And The Age Of Majority, Katharine B. 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 …

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 D. 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 give …

The Trauma Of Awakening To Racism: Did The Tragic Killing Of George Floyd Result In Cultural Trauma For Whites?, Angela Onwuachi-Willig

Faculty Scholarship

The act of witnessing the killing of George Floyd, a forty-six-year-old, African-American father, brother, partner, and son, at the hands of the police caused many white individuals to experience an epiphany about racism, specifically structural racism, in the United States. Following the horrific killing of George Floyd, many white people began to shift their thinking about the existence and prevalence of racialized police brutality, reconsidering the manner in which they had always viewed the world around them. Indeed, many white individuals began to recognize and acknowledge the varied ways in which whiteness worked to privilege them in our society, even …

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 …

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 academia. 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.

The Boston Medical Center Immigrant Task Force: An Alternative To Teaching Immigration Law To Health Care Providers, Sondra S. Crosby, Lily Sonis, George J. Annas

Faculty Scholarship

As healthcare providers engage in the politics of reforming and humanizing our immigration and asylum “system” it is critical that they are able to refer their patients whose health is directly impacted by our immigration laws and policies to experts who can help them navigate the system and obtain the healthcare they need.

Patents And Price Fixing By Serial Colluders, Michael J. 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 …

Firm Differences: Skill Sorting And Software, James Bessen, Chen Meng, Erich Denk

Faculty Scholarship

Recent research shows that much recent rise in wage inequality comes from growing differences between firms, especially sorting of skilled workers to high-paying firms. This paper explores the role of proprietary software in these changes. Using job ad data, we find that proprietary software is strongly associated with firm wage fixed effects and also with firm skills. Software accounts for half or more of skill sorting across firms. Moreover, both skill sorting and firm wage effects are greater for larger firms. The huge growth in proprietary software helps explain the growth in skill sorting that increases wage inequality.

Beyond The "Made In America Tax Plan": Gilti And International Tax Cooperation's Next Golden Age, Steven Dean

Faculty Scholarship

Tumultuous times can be particularly difficult for the vulnerable. That may be no less true in the international tax context than it is elsewhere, but disruptive change can also open the door to greater participation by, and rewards for, those long treated as outsiders. With international tax cooperation's first golden age receding into history, new priorities have begun to take root. Unprecedented challenges buffet the international tax regime, suggesting that its future may depend less on its capacity to shield businesses from taxation than on its ability to find common ground among very different states.

International tax cooperation has long …

Presidential Removal: The Marbury Problem And The Madison Solutions, Jed Handelsman Shugerman

Faculty Scholarship

Marbury v. Madison is not just a puzzling judicial review precedent. It is also a puzzle about presidential removal. Why was it not taken for granted that Jefferson, Secretary of State Madison, or another executive official could simply fire Marbury? Why did Chief Justice Marshall also conclude in the unanimous decision that Marbury could not be removed?

This symposium essay summarizes recent research (especially by Jane Manners and Lev Menand) to solve this problem: an office appointed to a term of years restricted removal in the Anglo-American tradition, demonstrating that presidential removal was not a default rule. This essay also …

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 opposing …

Tribute To Bob Burdick, Naomi M. 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 they …

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 change …

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

Patent Fake News, Jack M. Beermann

Faculty Scholarship

Complaints about the patent system are legion. Critics complain that it is too easy to get a patent, that it is too easy to challenge an existing patent, that many patent denials are rationally inexplicable, that aggressive enforcement of patents stifles innovation, that patent trolls abuse the system to extort money from innocent users of widespread technology, and that inventors leverage modest modifications of existing patents to extend the patent period beyond intended legislative limits. While Janet Freilich’s forthcoming article, Ignoring Information Quality, may not reveal the root of all patent evil, it illuminates an important problem in the …

The (Joseph) Stories Of Newmyer And Cover: Hero Or Tragedy?, Jed Handelsman Shugerman

Faculty Scholarship

Kent Newmyer's classics Supreme Court Justice Joseph Story: Statesman of the Old Republic and John Marshall and the Heroic Age of the Supreme Court are important stories about the architects and heroes of the rule of law in America. In Newmyer's account, Story played a crucial role preserving the republic and building a legal nation out of rival states, and Newmyer's Story is fundamentally important for students of American history. But in Robert Cover's account in Justice Accused on northern judges' deference to slavery, Story is an anti-hero. Sometimes Story stayed silent. In Prigg v. Pennsylvania, Story overvalued formalistic …

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 wage gaps.