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The Framer\u27s Coup: The Making of the United States Constitution
No full texthttps://scholarship.law.bu.edu/clark_speakers/1088/thumbnail.jp
The Long History of Insanity: Forgiveness and Defenses in New England to 1840
No full texthttps://scholarship.law.bu.edu/clark_speakers/1091/thumbnail.jp
A Poor Mother\u27s Right to Privacy: A Review
Get PDFCollecting personal data is a feature of daily life. Businesses, advertisers, agencies, and law enforcement amass massive reservoirs of our personal data. This state of affairs—what I am calling the “collection imperative”—is justified in the name of efficiency, convenience, and security. The unbridled collection of personal data, meanwhile, leads to abuses. Public and private entities have disproportionate power over individuals and groups whose information they have amassed. Nowhere is that power disparity more evident than for the state’s surveillance of the indigent. Poor mothers, in particular, have vanishingly little privacy. Whether or not poor mothers receive subsidized prenatal care, the existential state of poor mothers is persistent and indiscriminate state surveillance.
Professor Khiara Bridges’s book, The Poverty of Privacy Rights, advances the project of securing privacy for the most vulnerable among us. It shows how the moral construction of poverty animates the state’s surveillance of poor mothers, rather than legitimate concerns about prenatal care. It argues that poor mothers have a constitutional right not to be known if the state’s data collection efforts demean and humiliate them for no good reason. The Poverty of Privacy Rights provides an important lens for rethinking the data collection imperative more generally. It supplies a theory not only on which a constitutional right to information privacy can be built but also on which positive law and norms can develop. Concepts of reciprocity may provide another analytical tool to understand a potential right to be as unknown to government as it is to us
We Don’t Need a National Data Center of the Poor
No full textThe many, many ways the food-stamp database proposed by House Republicans could go wrong
Beyond Intermediary Liability: The Future of Information Platforms - Workshop Report
Get PDFOn February 13, 2018, WIII hosted the workshop, “Beyond Intermediary Liability: The Future of Information Platforms.” Leading experts from industry, civil society, and academia convened at Yale Law School for a series of non-public, guided discussions. The roundtable of experts considered pressing questions related to intermediary liability and the rights, roles, and responsibilities of information platforms in society. Based on conversations from the workshop, WIII published a free, publicly available report detailing the most critical issues necessary for understanding the role of information platforms, such as Facebook and Google, in law and society today. The report highlights insights and questions raised by experts during the event, providing an insider’s view of the top issues that influential thinkers on intermediary liability are considering in law, policy, and ethics. (Nothing in the report necessarily reflects the individual opinions of participants or their affiliated institutions.)Key takeaways from this report include the following: Common Misconceptions on Intermediary LiabilityConsumers and policymakers often (incorrectly) assume it is easy to determine what content to take down and how to do so efficiently. In reality, these decisions are very difficult and require many levels of human (not AI) review. There is no legal requirement for information intermediaries to be “neutral,” but policymakers and the public often assume this incorrectly.Intermediaries and Global NormsInformation intermediaries play a vital role in protecting free speech, free expression, and access to knowledge globally. This is especially crucial for minorities and political dissidents living under authoritarian regimes. It is difficult, and at times impossible, for information intermediaries to comply with conflicting laws from different countries. This can be a barrier to innovation, disproportionately affecting smaller companies and startups. Policymakers should consider the impact that proposed regulations in one jurisdiction may have on people in the rest of the world. Regulations in democratic countries that restrict free online speech or that mandate content takedowns may provide support for illiberal regimes to call for greater censorship of online content.Legal and Policy ProposalsInformation intermediaries are no longer the companies they were when intermediary liability laws first developed, and the role of platforms in society is changing. The law must find a way to flexibly address these changes. A hybrid model of governance, with a larger role for lawmakers and an opportunity for judicial review and a right of reply in content takedown decisions, might better address the competing issues raised in speech regulation. Creating a transparency safe harbor would allow companies to provide more information to the public about their reasons for removing content. Policymakers could consider enacting different levels of regulations for different types of information intermediaries (infrastructure vs. content platforms, small companies vs. large companies, and so on)
What is Federalism in Health Care for?
Get PDFThe Affordable Care Act offers a window on modern American federalism—and modern American nationalism—in action. The ACA’s federalism is defined not by separation between state and federal, but rather by a national structure that invites state-led implementation. As it turns out, that structure was only a starting point for a remarkably dynamic and adaptive implementation process that has generated new state-federal arrangements. States move back and forth between different structural models vis-à-vis the federal government; internal state politics produce different state choices; states copy, compete, and cooperate with each other; and negotiation with federal counterparts is a near-constant. These characteristics have endured through the change in presidential administration.
This Article presents the results of a five-year study that tracked the details of the ACA’s federalism-related implementation from 2012-2017. Among the questions that motivated the project: Does the ACA actually effectuate “federalism” and what are federalism\u27s key attributes when entwined with national statutory implementation? A federal law on the scale of the ACA presented a rare opportunity to investigate implementation from a statute’s very beginning and to provide the concrete detail often wanting in federalism scholarship.
The findings deconstruct assumptions about federalism made by theorists of all stripes, from formalist to modern. Federalism’s commonly invoked attributes—including autonomy, variation, cooperation, and experimentation—have not been dependent on any particular architecture of either state-federal separation or entanglement, even though theorists typically call on “federalism” to produce them. Instead, these attributes have been generated in ACA implementation across virtually every kind of governance model—that is, regardless of whether states expand Medicaid or not; get waivers; or operate their own insurance exchanges or let the federal government do it for them. This makes it extraordinarily challenging to measure which structural arrangements are most “federalist,” especially because the various federalism attributes are not always present together.
The Article’s findings also uncover major theoretical difficulties when it comes to health care: Without a clear conception of the American health care system’s goals, how can we know which structural arrangements serve it best, much less whether they are working? If health care federalism is a mechanism to produce particular policy outcomes, we should determine whether locating a particular facet of health care design in the states versus the federal government positively affects, for example, health care cost, access, or quality. If, instead, health care federalism serves structural aims regardless of policy ends— for instance, reserving power to states in the interest of sovereignty or checks and balances—we should examine if it does in fact accomplish those goals and justify why those goals outweigh the moral concerns that animate health policy. The ACA did not cause this conceptual confusion, but it retained and built on a fragmented health care landscape that already was riddled with structural and moral compromises.
This does not mean that federalism is an empty concept, or that it does not exist in the ACA. Federalism scholars tend to argue for particular structural arrangements based on prior goals and values. The ACA’s architecture challenges whether any of these goals and values are unique to federalism or any particular expression of it. At the same time, the ACA’s implementation is clearly a story about state leverage, intrastate democracy, and state policy autonomy within, not apart from, a national statutory scheme. Its implementation illustrates how federalism is a proxy for many ideas and challenges us to ask what we are really fighting over, or seeking, when we invoke the concept in health care and beyond
All Your Works Are Belong to Us: New Frontiers for the Derivative Work Right in Video Games
Get PDFIn copyright law, the author of an original work has the exclusive right to prepare further works derivative of that original. Video game developers’ works are protected by the Copyright Act. As video games take advantage of more advanced technology, however, players are doing more creative, interesting, and original things when they play games. Certain things players do create independent economic value and are the kinds of acts of original authorship our copyright system is designed to encourage. However, since the author of the video game is entitled to the full panoply of rights under the laws of the American copyright regime, they own the exclusive right to prepare works “derivative” of that game.
This Article has both descriptive and normative goals. Its descriptive goals are to outline the current legal trends in the video game space and to demonstrate the huge economic stakes at play. Its normative goals are to offer a number of different ways of explaining how derivative works of video games are created and to suggest several modes of understanding how cases where ownership of these works is disputed should be decided. These modes include philosophical thought experiments, critical analysis of what exactly a game is, analysis of what kind of game underlies the second order work in question, and application of the liability/property rule framework from law and economics literature
Sources of Compiled Legislative Histories: A Bibliography of Government Documents, Periodical Articles, and Books, 1st Congress-114th Congress, 4th ed.
No full textThis new 4th edition is updated with nearly 1,200 new laws and 1,800 new bibliographic entries and includes two types of compiled legislative histories. The first part of this book includes works issued by commercial sources and legislative histories by topic. The second part, the main portion of this work, includes works compiled for major laws. The third and final part contains an Author-Title Index (to Part I) and a Public Law Index (to Part II). Beginning with the 113th Congress, this new edition also includes a summary of each source at the conclusion of every entry to provide further insight into sources and the ways in which they may be useful for further research.https://scholarship.law.bu.edu/books/1143/thumbnail.jp
The Future of ERISA’s Church Plan Exemption After Advocate Health: Abolition or Robust State Law Contract Remedies
No full textThe Catholic Health Association (“the CHA”) of the U.S. is a professional umbrella organization for member hospitals which, collectively, employ hundreds of thousands of employees in myriad capacities.1 Indeed, the CHA operates nearly 700 hospitals and 1614 continuing care facilities which, in 2015, collectively, accounted for more than 20 million emergency room visits, 105 million outpatient visits and 527,000 births.2 A typical year sees about 5 million admissions to Catholic hospitals; one in six patients in the U.S. is cared for in a CHA member facility.3
Catholics are not alone in their operation of health care and nursing home facilities. Numerous other religious groups, including Southern Baptists4 and Jews5 own and operate large networks that employ thousands of individuals as nurses, custodians, technicians, security personnel, physicians, drivers and food service workers. In addition, many religiously affiliated organizations operate schools and agencies which provide services in both rural and urban communities and employ thousands of workers.6
Recently, the U.S. Supreme Court ruled in Advocate Health Care Network v. Stapleton7 that church affiliated nonprofits which operate hospitals and related health care facilities like the CHA and which offer defined benefit plans8are entitled to take advantage of ERISA’s church exemption.9 Although it is clear that the original exemption was to be narrowly construed and applied only to plans which covered clergy members and employees of a church as opposed to church affiliated entities,10 the Court ruled that subsequent amendments to ERISA in effect expanded the original exemption. Justice Kagan, writing for a unanimous Court held that first, under the best reading of ERISA, a plan maintained by a “principal purpose organization” qualifies as a church plan, whether or not it was established by a church; and, second, that the plain meaning of amendment resulted in the elimination of the requirement that a plan be established by a church in order to qualify for the exemption
Emoluments, Zones of Interests, and Political Questions: A Cautionary Tale
Get PDFThe “political question” doctrine is hotly contested in 2018, and perhaps on the verge of its biggest reversal since the Baker v. Carr revolution. Later this year, we will learn if the Supreme Court in Whitford v. Gill will regard extreme partisan gerrymandering as a violation of the First and Fourteenth Amendments, rather than as a nonjusticiable political question.1 It turns out that another high-profile case in the lower courts illuminates the use and misuse of the political question doctrine. The Emoluments cases, and in particular, the Southern District of New York’s dismissal of CREW v. Trump, 2 offers a cautionary tale about how the political question doctrine is too often an unconsciously tempting escape for judges facing challenging legal questions.
The Southern District of New York dismissed the first Emoluments case, CREW v. Trump. He avoided reaching the merits of the emoluments claims by finding that the plaintiffs do not have standing to bring the suit.3 While we disagree with the court on his application of competitor standing, it is a complicated and close question. The problem is that this decision contains many serious errors, so that it seems that these close questions did not receive adequate attention. Two of the court’s “prudential standing” holdings, on the “zone of interests” test and on the political question doctrine, are like the proverbial thirteenth and fourteenth strokes of the clock. To paraphrase the fictional case of Rex v. Haddock (and perhaps Mark Twain, and George Orwell’s 1984), those strokes are not only incorrect of themselves, but cast doubt on the preceding twelve.
First, we note that we are two of five coauthors of a legal historians’ amicus brief supporting the plaintiffs.4 Our brief does not discuss standing directly, but it does relate to the zone of interests of the Emoluments clauses. One reason we helped write this brief is that we thought that some of the plaintiffs had a strong claim for standing (particularly ROC United, the association of restaurants who are disadvantaged competitively by Trump’s use of office to draw foreign and domestic state business).
In this Essay, we will briefly describe the Emoluments cases filed against Trump. Then we will turn to the Southern District’s “zone of interests” argument, which reveals glaring problems. These errors cast a shadow on the “political question” analysis, which also contains basic errors. There are certainly times when it is appropriate for courts to invoke the political question doctrine. However, this episode is a reminder for judges to slow down and reflect on whether there may be an intuitively appealing resolution, lest claiming political question is just dodging a tough constitutional issue