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Deterrence doesn\u27t work when you\u27re fleeing for your life
No full textA gaunt woman came to my office, having fled homophobic violence in Central America and now seeking asylum in the United States. Traumatized and without work authorization, she often went days without a full meal. The goodwill of her neighbors and church friends could go only so far. She had been tortured by the government in her home country for her gender identity and now, in search of safety in the United States, she struggled to get by
Copyright’s Memory Hole
Get PDFThere is growing interest in using copyright to protect the privacy and reputation of people depicted in copyrighted works. This pressure is driven by heightened concerns about privacy and reputation on the Internet, plus copyright’s plaintiff-favorable attributes compared to traditional privacy and reputation torts./= / \u3e/= / \u3eThe Constitution authorizes copyright law because its exclusive rights benefit society by increasing our knowledge. Counterproductively, to advance privacy and reputation interests, copyright law is being misdeployed to suppress socially valuable works. This results in “memory holes” in society’s knowledge, analogous to those discussed in George Orwell’s dystopian novel 1984./= / \u3e/= / \u3eBy referencing Constitutional considerations, the Article identifies some limited circumstances where copyright’s goals are benefited by considering privacy and reputational interests. In other circumstances, treating copyright law as a general-purpose privacy and reputation tort harms us all
The Missing Regulatory State: Monitoring Businesses in an Age of Surveillance
Get PDFAn irony of the information age is that the companies responsible for the most extensive surveillance of individuals in history—large platforms such as Amazon, Facebook, and Google—have themselves remained unusually shielded from being monitored by government regulators. But the legal literature on state information acquisition is dominated by the privacy problems of excess collection from individuals, not businesses. There has been little sustained attention to the problem of insufficient information collection from businesses. This Article articulates the administrative state’s normative framework for monitoring businesses and shows how that framework is increasingly in tension with privacy concerns. One emerging complication is the perception that the state, through agencies such as the National Security Agency, deploys large technology companies to surveil individuals. As a result, any routine regulatory monitoring of platforms—even for the purpose of prosecuting those platforms—would implicate an overbearing state peering into our personal lives. Moreover, opponents of regulation have weaponized privacy arguments to shield other businesses from monitoring, such as banks. A sharper understanding of the institutional, legal, and informational differences between regulatory monitoring and personal surveillance is needed. Juxtaposing these two state tools reveals that the tension between regulation and privacy is largely illusory. Regulators today—most notably the Federal Trade Commission—have untapped power to monitor emerging risks in big technology and other sectors. They should not hesitate to use that power to pursue a more informed and collaborative path to achieving their missions
Remembering Betsy by her Two Professors and Editors
Get PDFOn November 23, 2019, immediately following the conclusion of the annual meeting of the American Society for Legal History, Boston University School of Law held a ceremony marking the opening of an archive devoted to the scholarship of Elizabeth Clark. Betsy Clark, who taught at BU before her untimely death in 1997, was an important presence in the world of legal history in the 1980s and early 1990s. And the archive includes a number of short “responses” to her scholarship. Her colleagues David Seipp and Pnina Lahav were responsible for making the archive a reality
Big Waiver Under Statutory Sabotage
Get PDFThe Affordable Care Act\u27s State Innovation waiver allows federal agencies to suspend the most controversial parts of the statute for states to pursue alternative paths, while keeping the federal funding provided by the statute. This big waiver provision has the potential to enable states to pursue transformative health reforms, while preserving the affordability and universal coverage aims of the federal statute. Big waivers like this one carry theoretical promise, which largely depends on the strength of the federal statute\u27s baseline infrastructure. This Essay considers early implementation of the State Innovation waiver as a test for big waiver theory - and for cooperative federalism in health reform.
The fragmentation of the Affordable Care Act through litigation, legislation, and executive challenge has complicated both the State Innovation waiver\u27s intended implementation, and the theoretical promises of big waiver. Most recently, the administering agency\u27s new guidance stretches the ACA\u27s already-sizeable waiver beyond its statutory guardrails, even changing its aspirational title from State Innovation to State Relief and Empowerment. The embrace of the ACA\u27s big waiver by an administration hostile to the enduring statute suggest that the threats of big waiver swallowing its housing statute are real, and that the waiver may be wielded not as an instrument of innovation, but one of further fragmentation
Draft of Fair Use in Oracle: Proximate Cause at the Copyright/Patent Divide - 2019
Get PDFThis Paper was presented at the conference, A Celebration of the Work of Wendy Gordon, at Boston University school of law on June 14, 2019. In presented an earlier draft under the title, Transformative Use, Proximate Cause, and Copyright, at the University of Texas at Austin on March 23, 2017. Under the title, Inegrating Judge Legal\u27s Theory of Fair Use into on Economic View of Copyright Law: From proximate Cause to Transormative Use, the paper was also presented at the March, 2016, Conference on IP and Private Law, held at Harvard Law School. I am grateful to participants for helpful comments
Contemporary Family Law, 5th ed.
No full textThis popular family law casebook engages students with the significant changes to the American family and the corresponding evolution of family law doctrine and policy. In the fifth edition, all 17 chapters are fully updated to reflect the latest family law developments, including ones that have occurred since Obergefell v. Hodges (2015).The book emphasizes that contemporary families take a variety of forms, including marital and nonmarital adult relationships, and that constitutional considerations play an increasingly important role in family law. The fifth edition preserves and builds on the approach of the earlier editions: presenting core substantive family law doctrine while also exploring ongoing and emerging policy debates and discussing the importance of cross-disciplinary collaborations with experts in fields such as psychology and accounting. A limited number of new cases replace older ones in most chapters, and the introductions to and notes and questions following each lead case, statute, or article have been thoroughly updated. In addition, problems for discussion in each chapter—including new and updated problems for this edition—enable students to apply doctrine in real-life settings that lawyers face.Contemporary Family Law also introduces the myriad issues central to family law practice and to a lawyer’s ethical and professional responsibilities. The book includes material on shifting paradigms in family law practice and the roles of family lawyers, and devotes separate chapters to professional ethics, alternative dispute resolution, and private ordering. The book addresses jurisdictional issues in one integrated chapter.In addition to providing a grounding in the historical and contemporary regulation of marriage, the book includes material throughout on the legal treatment of nonmarital couples and their children. The book also explores the diverse pathways to legal parentage and their impact on parent-child and co-parent relationships. Moreover, because child custody arrangements lead to some of the most acrimonious family disputes, this casebook devotes two chapters to custody: the first treats the initial custody decision, and the second explores continuing litigation concerning visitation, custody, and key childrearing decisions after the initial disposition, including disputes involving third parties such as cohabitants and grandparents. Both custody chapters include disputes involving nonmarital children.The fifth edition includes new and expanded material throughout, such as: Issues arising after Obergefell v. Hodges (2015), the Supreme Court’s decision on the fundamental right of same-sex couples to marry and to have every state recognize their marriage, and the decision’s ramifications throughout family law, including rules for entering marriage, parentage, domestic partnerships, civil unions, and other legal statuses. Changes in marriage regulation, including state bigamy and legal challenges to them and “child marriage, including legislative efforts to raise the minimum age of marriage, with examples of new legislation. Developments involving nonmarital couples, including Blumenthal v. Brewer’s affirmation of Illinois’s policy against allowing economic remedies for nonmarital couples. Changes in parentage law, including surrogacy legislation, the latest revision of the Uniform Parentage Act (2017), and the new Uniform Nonparent Custody and Visitation Act adopted in 2018. Extensive coverage of debt and family finances, new material drawn from numerous studies on the current economic climate (replacing the excerpt from Elizabeth Warren on bankruptcy), as well as new material on how the 2017 changes to federal tax law affect families; Discussion of Whole Woman’s Health v. Hellerstedt (S. Ct. 2016) and later developments in the courts and in state legislatures regulating access to abortion; New lead cases on moral fitness in custody adjudication and domestic violence in custody decisions with substantially revised notes; a new lead case on relocation by a custodial parent—here a male nurse—reflecting changes in the law in many jurisdictions; expanded notes on parental decisions involving transgender youth; and a new discussion of disputes over “custody” of animal companions, commonly known as pets. A full chapter containing updated materials about domestic violence and its harmful effects on marital and nonmarital households, and about intrafamily tort actions and family-related tort actions brought against family members by third persons. A full chapter on adoption, including the latest trends and practices in transracial adoption, international adoption by American parents, and adoption by same-sex couples. A fully updated chapter on the child support obligations of marital and non-marital parents.https://scholarship.law.bu.edu/books/1239/thumbnail.jp
The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders\u27 Constitution, 1780s-1830s
No full textThe Partisan Republic is the first book to unite a top down and bottom up account of constitutional change in the Founding era. The book focuses on the decline of the Founding generation\u27s elitist vision of the Constitution and the rise of a more \u27democratic\u27 vision premised on the exclusion of women and non-whites. It incorporates recent scholarship on topics ranging from judicial review to popular constitutionalism to place judicial initiatives like Marbury vs Madison in a broader, socio-legal context. The book recognizes the role of constitutional outsiders as agents in shaping the law, making figures such as the Whiskey Rebels, Judith Sargent Murray, and James Forten part of a cast of characters that has traditionally been limited to white, male elites such as James Madison, Alexander Hamilton, and John Marshall. Finally, it shows how the \u27democratic\u27 political party came to supplant the Supreme Court as the nation\u27s pre-eminent constitutional institution.https://scholarship.law.bu.edu/books/1221/thumbnail.jp
Sports and the Law, 6th ed.
No full textThe sixth edition of this leading casebook explores legal issues in both professional and amateur sports, organized to provide instructors with flexibility to cover selected doctrinal areas or industry sectors. Extended treatment is given to the key subjects of labor, antitrust, intellectual property, and the law of private associations. The casebook also covers the unique office of the league commissioner and its special concerns with the “best interests of sports”; the contract, antitrust, and labor law dimensions of the player-labor market; the role of the player agent in a unionized industry; the economic and legal implications of agreements among league owners and responses to rival leagues; the system of college athletics as governed by the NCAA and subject to Title IX; and the operation of international Olympic sports. Key features include: Recent landmark Supreme Court decisions affecting the entire sports industry, including legalizing sports gambling (Murphy v. NCAA) and affirming trademark free speech (Matal v. Tam) Updated materials on sports league commissioner disciplinary authority and judicial review of sports league arbitration awards Updated materials on the business of sports, with exercises on the business dynamics of sports labor markets and on league decision-making about commercial practices Reorganized chapter on agent representation of the athlete, with new coverage of foundational principles of agency law Key decisions affecting college athletics, involving antitrust challenges to amateurism (In re NCAA Athletic Grant-in-Aid Cap Antitrust Litigation and Deppe v. NCAA) and penalties for rules infractions (UNC Public Infractions Decision) Expanded materials on the function, regulatory apparatus, and activities of the NCAA Reorganized chapter on international and Olympic sports, covering recent cases involving doping and hyperandrogenism Expanded materials on athlete health and safety, including claims related to concussions and prescription drug abuse.https://scholarship.law.bu.edu/books/1187/thumbnail.jp
Reconceptualizing the Harms of Discrimination: How Brown v. Board of Education Helped to Further White Supremacy
Get PDFFor decades, literature has played a vital role in revealing weaknesses in law. The classic novel To Kill a Mockingbird by Harper Lee is no different. The long-revered work of fiction contains several key scenes that illuminate significant gaps in the analysis of one of our most celebrated decisions: Brown v. Board of Education, the case in which the U.S. Supreme Court held that state-mandated racial segregation in public schools violated the Equal Protection Clause of the Constitution. In particular, the novel opens a pathway that enables its readers to visualize the full harms of white supremacy, which include not only the detrimental effects of experiencing discrimination for Blacks but also the dehumanizing effects of perpetrating discrimination, whether voluntarily or involuntarily, for Whites. More specifically, the book constructs a narrative from which society can begin to understand how the Brown Court defined the harms of discrimination too narrowly and, more so, how this limited understanding of the harms of discrimination—here, segregation—has unintentionally resulted in the development of anti-discrimination doctrine that is unable to lead us to true racial equality