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Inigo Montoya Goes to War
Get PDFIn The Princess Bride, 1 the conniving Sicilian Vizzini is constantly declaring that events that are obviously occurring in plain sight are “inconceivable.”2 The third time (in the span of five pages) that Vizzini proclaims something that is clearly happening to be “inconceivable,” Vizzini’s then-companion, the Spaniard Inigo Montoya, snaps, “You keep using that word! . . . I don’t think it means what you think it does.”3 The voice of Inigo Montoya (well, actually the voice of Mandy Patinkin, who brilliantly deadpanned rather than “snapped”4 a version of the line in the movie adaptation of The Princess Bride5) was running through my head while I was reading the two books that are paired for this symposium at Boston University School of Law: Mariah Zeisberg’s War Powers: The Politics of Constitutional Authority6 and Stephen Griffin’s Long Wars and the Constitution. 7 Each author’s analysis centers on single, repeatedly used words that I do not think mean what the authors think they mean. In the case of Professor Zeisberg, the word is “constitutional”; in the case of Professor Griffin, the word is “war.” Interestingly, Professor Zeisberg pays keen attention to the ambiguities latent in the word “war,” (Zeisberg pp. 5, 8, 12-13, 19, 21) while Professor Griffin neatly avoids most of the problems raised by Professor Zeisberg’s use of the term “constitutional” by treating his conception of a “constitutional order” (Griffin pp. 4, 14) as descriptive rather than prescriptive. If one could somehow merge the two books, perhaps Inigo’s voice would be silenced. But as things stand, both books, while immensely valuable resources, are in need of significant clarification
Silent Tax Changes: The Political Economy of Indexing for Inflation
Get PDFThe federal income tax adjusts many but not all of its dollar components automatically to account for inflation. In this article I analyze the benefits and burdens this process confers on some taxpayers and the political logic behind them. I discuss the choice of the proper index for making the adjustments, as well as the effects of the failure to adjust specific dollar amounts. I conclude that some adjustments have become overly generous, while unadjusted provisions suffer slow repeal, sometimes intentionally. Indexation thus can have the effect of tax legislation by stealth
Can Public Policy Influence Private Innovation?
No full textPrivate innovation appears to have played a major if not dominant role in the growth of output per capita since the Industrial Revolution. Yet economic theory indicates that the level of investment in private innovation will generally be less than is socially optimal unless public policies such as patents encourage additional investment. Therefore, public innovation policy would seem to be critical to economic growth. Surprisingly, a large body of research fails to find unambiguously positive effects of patents on innovation and economic growth, even though patents have been used for hundreds of years. While some industries in some nations clearly benefit from patents, many other industries do not and patents might actually discourage innovation in some industries. Economic theory has provided valuable insights, yet real-world policy apparently needs to reflect a richer set of behavior and a more complex legal environment. New research is developing a more nuanced understanding including research on alternative means of providing rewards to innovators, research on the costs of litigation and disputes arising from the failure of patents to provide clear boundaries, research on cumulative innovation and strategic uses of large blocks of patents, and research on the extension of patent coverage to new technologies and to developing nations. In addition, major new sources of data permit much more extensive empirical research
Medical Evidence and Expertise in Abortion Jurisprudence
Get PDFMedical literature on abortion largely supports pro-choice legal claims. In turn, progressive lawyers often call for “evidence-based approaches” to lawmaking on the assumption that it will produce pro-choice legal and regulatory outcomes. This article argues that the evidence-based approach is no longer a reliable or stable strategy for pro-choice lawyering given transformations in judicial treatment of medical knowledge and a shifting evidentiary base.
Drawing on landmark cases from 1973 to 2012, this article demonstrates how the Supreme Court and lower courts selectively utilize medical expertise and evidence to liberalize or constrain abortion access. With Roe v. Wade, 4 the Supreme Court began its engagement with medical evidence and expertise intending to liberalize abortion. The Court relied on medical knowledge that lent credibility to progressive arguments, while dismissing evidence that supported conservative claims. In doing so, the court treated evidence supporting progressive claims as objective and neutral and discounted claims that supported limiting access to abortion. This has now flipped—the Supreme Court and lower courts often treat medical evidence and expertise that supports conservative claims as objective and neutral. These newly-legitimated conservative ideas about abortion provide the foundation for the vast proliferation of informed consent laws that regulate provider-patient interaction at the most minute level— mandating that women seeking abortion look at sonograms and hear the fetal heartbeat, as well as scripting physician disclosures. 5 This new reality is exemplified in Texas Medical Providers Performing Abortion Services v. Lakey, a Fifth Circuit case regarding the Texas 2011 Women’s Right to Know Act, in which the court heralds conservative expert and evidentiary claims as objective while discounting progressive assertions.
...This paper proceeds as follows. Part II analyzes four crucial Supreme Court decisions, Roe v. Wade, Planned Parenthood v. Casey, 18 Stenberg v. Carhart, and Gonzales v. Carhart, to understand how the role of medical and scientific evidence in each decision changes from deferring to expertise and evidence supporting progressive views on abortion to eventually legitimizing conservative claims. This analysis facilitates an understanding of how the courts co-produce knowledge about abortion, and how some ideas about abortion become naturalized and taken as “fact” over time. Part III considers the impact of Supreme Court decisions on access to abortion services through the circulation of newly legitimized scientific, medical, and public health facts. I focus on Lakey, in which the claim that abortion has negative mental health consequences justified conservative demands for the imposition of heightened informed consent requirements for women seeking abortion against the wishes of progressive advocates.19 Given the transformation in Supreme Court and state court jurisprudence on abortion, Part IV draws on critiques offered by the feminist women’s health movement to reimagine reproductive justice advocacy. I argue that we should find regulatory interventions that seek both to reset the advocacy agenda for progressive lawyering on abortion and to reinvigorate the longstanding (but forgotten) critique of evidence and expertise in health law advocacy
Experiential Teaching in Theory and Practice: An Annotated International Business Transactions Syllabus
Get PDFIn this short piece we provide an interactive, annotated International Business Transactions (IBT) syllabus. The introduction and annotations seek to connect the current discourse on experiential legal education to andragogy — the study of adult learning.
In 2013 we set out to re-develop a 3-credit IBT course. We applied various experiential pedagogical methodologies — developed initially to train Israeli air force pilots and later adapted to medical training and grounded in theoretical and empirical education research — to serve in a traditional IBT course. The goal was not only to develop legal skills such as negotiation, contract drafting, and client counseling but more importantly to impart knowledge including legal doctrine, legal theory, and policy considerations through the use of a series of structured, in-class experiences.
The piece includes embedded documents as part of the interactive reading experience. It is therefore best viewed in Adobe
Administrative Law: Cases and Materials, 7th ed.
No full textThis outstanding author team presents administrative law as a vital force in policymaking, law enactment, and politics.
Look for these key features of the new edition:
• Addition of important new cases on recess appointments, Chevron Step Two, “Seminole Rock” deference, occupational licensing, and FOIA Exemption 2• Substantial enrichment of materials on formal adjudication under the APA• Splitting of the policymaking chapter into two chapters (choice of policymaking instruments and rulemaking) for greater clarity and teaching flexibility• Updating and streamlining of the materials on licensing • Presentation of important classic and secondary cases in squib format• Substantial streamlining, condensing, and reorganizing of background noteshttps://scholarship.law.bu.edu/books/1002/thumbnail.jp
The Argument that Wasn\u27t\u27 and \u27King, Chevron, and the Age of Textualism
Get PDFIn these two short essays, I examine the somewhat bizarre — and potentially harmful — ways that Chief Justice John Roberts escaped the tension between legalism and realism in King v. Burwell, the Court’s latest Obamacare case. King presented a close legalistic case but a slam-dunk realist case in favor of an IRS interpretation of Obamacare. Roberts opted for the realistic result, but he got there through a bizarre combination of legalistic maneuvers. In “The Argument that Wasn’t,” I note that Roberts refused to make the full legalistic argument in the government’s favor, ignoring an invocation of the constitutional avoidance canon that got attention at oral arguments and that would have defeated the plaintiffs’ legalistic interpretation. I hypothesize that Roberts’s refusal to use constitutional avoidance might have been a quiet resistance to the plaintiffs’ willful blinders to an empirically obvious congressional intent. But in “King, Chevron, and the Age of Textualism,” I note that Roberts also refused to assert the empirically obvious interpretation of Obamacare as a legal conclusion at Chevron Step One, preferring instead to use Chevron Step Zero and the “major questions exception” to justify his turn to purposive interpretation. That maneuver, I argue, could do major damage to Chevron without providing any offsetting benefit. I argue that Roberts should have embraced the obviously correct interpretation of Obamacare as a legal conclusion at Step One rather than invoking Step Zero to escape his legalistic bind
Closing Protection Gaps: Handbook on Protection of Palestinian Refugees in States Signatories to the 1951 Convention
Get PDFhttps://scholarship.law.bu.edu/books/1018/thumbnail.jp
Tuttle in the Balance: A Novel
No full textLike many men his age, Ed Tuttle is having a mid-life crisis. He is bored with his job, uncertain about his faith, and unable to find love in the wake of divorce. Unlike most other men his age, however, Ed Tuttle is a justice on the United States Supreme Court. As the swing vote in one of the most contentious terms in recent memory, Justice Tuttle holds the future of the nation in his hands, a tall order for someone who can barely make it through a weekend without making a monumental life mistake. In this hilarious and poignant debut novel, Jay Wexler—law professor, humor writer, and former law clerk to Justice Ruth Bader Ginsburg—reminds us that power is wielded by real, often emotionally fragile people and that nobody, regardless of how successful, powerful, rich, intelligent, lucky, or influential they may be, is immune from the feelings of restlessness, doubt, and anxiety that are inherent in living in the modern world.https://scholarship.law.bu.edu/books/1023/thumbnail.jp
Repairing the Broken Market for Antibiotic Innovation
Get PDFMultidrug-resistant bacterial diseases pose serious and growing threats to human health. While innovation is important to all areas of health research, it is uniquely important in antibiotics. Resistance destroys the fruit of prior research, making it necessary to constantly innovate to avoid falling back into a pre-antibiotic era. But investment is declining in antibiotics, driven by competition from older antibiotics, the cost and uncertainty of the development process, and limited reimbursement incentives. Good public health practices curb inappropriate antibiotic use, making return on investment challenging in payment systems based on sales volume. We assess the impact of recent initiatives to improve antibiotic innovation, reflecting experience with all sixty-seven new molecular entity antibiotics approved by the Food and Drug Administration since 1980. Our analysis incorporates data and insights derived from several multi-stakeholder initiatives under way involving governments and the private sector on both sides of the Atlantic. We propose three specific reforms that could revitalize innovations that protect public health, while promoting long-term sustainability: increased incentives for antibiotic research and development, surveillance, and stewardship; greater targeting of incentives to high-priority public health needs, including reimbursement that is delinked from volume of drug use; and enhanced global collaboration, including a global treaty