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Privacy and Terms of Use
No full textPrivacy is one of the most important social media concepts. The doctrine surrounding privacy and social media is fraught with uncertainty despite being increasingly governed by terms of use agreements and privacy policies. What information, if any, is private on social media? Courts and lawmakers have struggled to determine whether and to what degree personal information disclosed on social media is private under traditional tort remedies and online agreements. This chapter will examine privacy law in the social media environment, including the inef ectiveness of the privacy torts and the ascent of privacy policies and terms of use agreements
Agency Imprimatur & Health Reform Preemption
Get PDFAt this moment, there exists nearly unanimous agreement that the American health care system requires reform, but also vehement disagreements over what form regulation should take and who should be in charge of regulating—state or federal authorities. Preemption doctrine typically referees disputes between federal and state regulatory efforts, but it also exacerbates them. There exists nearly as unanimous opinion that preemption doctrine in health law is a mess. This Article identifies an inventive structure that may help defuse some preemption problems in health reform.
The Affordable Care Act’s (ACA) individual and employer mandates, health insurance exchanges, and insurance coverage standards established preemptive federal baselines for health insurance regulation. Yet the ACA also quietly permits states to apply for a waiver of all these baseline provisions, if they promise to enact state legislation with equivalent protections. Through this waiver provision—the “section 1332” or “state innovation” wavier—the federal agencies may sanction state variations if the agencies find suitable evidence that the variations will further the goals of the federal baselines.
The ACA’s combination of express preemption and guided waiver raises a novel confluence of “big waiver” theory and preemption doctrine. This Article posits that this confluence offers an “agency imprimatur” model that has great potential for managing health law federalism issues by circumventing conflict. At its best, the agency imprimatur model offers advantages over preemption in expertise, transparency, and communicative federalism. These potential advantages, however, hinge on the presence of meaningful waiver standards that preserve the statutory priorities and require reliance on agencies’ substantive expertise. The section 1332 wavier is not without its pitfalls, but the recently proposed mega waivers would erode all of these potential gains
The Legal Education Model is Out of Touch, Writes New ABA Commission Member
No full textLegal education is too complex, expensive and disconnected, and the American Bar Association has an “effective monopoly” on law school accreditation, according to Gillian Hadfield, a member of the organization’s Commission on the Future of Legal Education
Sentencing Best Practices a Must-Read for the Criminal Bar
No full textFrom the fall of 2014 through early 2016, committees of judges, prosecutors, defense attorneys, probation officers, professors, and police worked together to develop Sentencing Best Practices based on research and data for use by judges and the bar in the Superior, Boston Municipal, District and Juvenile Courts
“A Great Power of Attorney”: Understanding the Fiduciary Constitution
No full textWhat kind of document is the United States Constitution and how does that characterization affect its meaning? Those questions are seemingly foundational for the entire enterprise of constitutional theory, but they are strangely under-examined. Legal scholars Gary Lawson and Guy Seidman propose that the Constitution, for purposes of interpretation, is a kind of fiduciary, or agency, instrument. The founding generation often spoke of the Constitution as a fiduciary document—or as a “great power of attorney,” in the words of founding-era legal giant James Iredell. Viewed against the background of fiduciary legal and political theory, which would have been familiar to the founding generation from both its education and its experience, the Constitution is best read as granting limited powers to the national government, as an agent, to manage some portion of the affairs of “We the People” and its “posterity.” What follows from this particular conception of the Constitution—and is of greater importance—is the question of whether, and how much and in what ways, the discretion of governmental agents in exercising those constitutionally granted powers is also limited by background norms of fiduciary obligation. Those norms, the authors remind us, include duties of loyalty, care, impartiality, and personal exercise. In the context of the Constitution, this has implications for everything from non-delegation to equal protection to so-called substantive due process, as well as for the scope of any implied powers claimed by the national government.
In mapping out what these imperatives might mean—such as limited discretionary power, limited implied powers, a need to engage in fair dealing with all parties, and an obligation to serve at all times the interests of the Constitutions beneficiaries—Lawson and Seidman offer a clearer picture of the original design for a limited government.https://scholarship.law.bu.edu/books/1028/thumbnail.jp
Soft Law and Transnational Standards in Arbitration: The Challenge of Res Judicata
Get PDFIn international proceedings, a transnational “soft law” often finds expression in rules, guidelines and canons of professional associations which serve to supplement the “hard law” of national statutes and court decisions. Memorializing the experience of those who sit as arbitrators or serve as counsel, such standards contain a degree of circularity, in that relevant norms both derive from and apply to cross-border arbitration. Neither the nature nor the limits of “soft law” always present themselves with clarity. Often the litigants’ agreement fails to provide standards on controverted questions whose answers fall beyond common practice. In such instances, the integrity of the process requires a healthy humility from scholars and practitioners professing to summarize arbitral standards
Bureaucracy As the Border: Administrative Law and the Citizen Family
Get PDFThis contribution to the symposium on administrative law and practices of inclusion and exclusion examines the complex role of administrators in the development of family-based citizenship and immigration laws. Official decisions regarding the entry of noncitizens into the United States are often characterized as occurring outside of the normal constitutional and administrative rules that regulate government action. There is some truth to that description. But the historical sources examined in this Article demonstrate that in at least one important respect, citizenship and immigration have long been similar to other fields of law that are primarily implemented by agencies: officials operating at various levels within the administrative hierarchy have played a profound role in the cultivation of the substantive legal principles that those agencies administer. Searching for standards with which to interpret family-based citizenship and immigration statutes, twentieth-century administrators adapted family law principles in the process of developing new rules to govern who counted as a citizen. At times, these administrators operated with a significant degree of autonomy and authority, to a certain extent because of neglect rather than by design. At other times, these administrators shaped the law through legislative and adjudicative processes. These historical sources offer an instructive case study of administrative constitutionalism and of the fluid and dynamic relationship between “internal” an d “external” administrative law. They also illuminate the active role of administrators in developing a conception of family that determined, and in many cases continues to determine, the fates of would-be citizens and immigrants
Interpretation Catalysts in Cyberspace
Get PDFThe cybersphere offers a rich space from which to explore the development of international law in a compressed time frame. This piece examines the soft law process over the last decade of the two Tallinn Manuals – handbooks on the international law of cyber warfare and cyber operations – as a valuable lens through which to witness the effects of “interpretation catalysts” on the evolution of international law. In prior work, I identified the concept of interpretation catalysts – discrete triggers for legal interpretation – and their influence on the path that legal evolution takes, including by compelling a decision-making body to take a position on its interpretation of a legal rule, shaping all aspects of the decision-making process, ultimately influencing the legal position that body takes, and often the resulting law itself. In this piece, I explore the role that the interpretation catalyst triggering the Tallinn process – the cyberattacks on Estonia in 2007 – have played in the development of the international law governing cyberspace going forward
Brief of Amici Curiae Scholars of The Constitutional Rights and Interests Of Children in Support of Respondents in Masterpiece Cakeshop LTD, et al v. Colorado Civil Rights Commission
Get PDFMasterpiece Cakeshop LTD, et al v. Colorado Civil Rights Commission is about much more than a wedding cake. It is about the rightful place of LGBT people and their families in the commercial and public sphere. In fact, children are already bearing the brunt of exclusionary practices in the public marketplace because of their relationship to or association with their LGBT parents. In Michigan, a pediatrician refused to treat an infant based solely on the fact that the child had lesbian mothers. In Kentucky, a judge refused to hear adoption cases of children involving LGBT adoptive-parents-to-be. In Tennessee, a nondenominational private school rejected enrollment for a pre-kindergartener and his 8-month-old sister after discovering that the children had two dads. In this brief, we argue that an expressive or religious exemption to sexual orientation discrimination prohibitions will deny children of LGBT parents equal access to the public sphere, inflict upon them psychological harm, and interfere with the “integrity and closeness” of their families — contrary to the aims of public accommodation and anti-discrimination law, and LGBT equality principles advanced in United States v. Windsor and Obergefell v. Hodges
The Agency Problems of Institutional Investors
Get PDFWe analyze how the rise of institutional investors has transformed the governance landscape. While corporate ownership is now concentrated in the hands of institutional investors that can exercise stewardship of those corporations that would be impossible for dispersed shareholders, the investment managers of these institutional investors have agency problems vis-à-vis their own investors. We develop an analytical framework for examining these agency problems and apply it to study several key types of investment managers./= / \u3e/= / \u3eWe analyze how the investment managers of mutual funds - both index funds and actively managed funds - have incentives to under-spend on stewardship and to side excessively with managers of corporations. We show that these incentives are especially acute for managers of index funds, and that the rise of such funds has system-wide adverse consequences for corporate governance. Activist hedge funds have substantially better incentives than managers of index funds or active mutual funds, but their activities do not provide a complete solution for the agency problems of institutional investors./= / \u3e/= / \u3eOur analysis provides a framework for future work on institutional investors and their agency problems, and generates insights on a wide range of policy questions. We discuss implications for disclosure by institutional investors; regulation of their fees; stewardship codes; the rise of index investing; proxy advisors; hedge funds; wolf pack activism; and the allocation of power between corporate managers and shareholders