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Technology-Facilitated Labor Trafficking Power and Control Wheel
Full text linkThis wheel is based on the Article, Digital Servitude , forthcoming in the Boston College Law Review
Racial Capitalism and International Tax Law: The Story of Global Jim Crow
No full textGlobal tax policy has long determined which states can access the resources necessary to flourish. Today, even the wealthiest states struggle to tax rich individuals and multinationals. Anti-Black racism has enriched affluent states at the expense of marginalized ones and undermined the taxing power of all nations.
In a compelling narrative interwoven with personal storytelling, Racial Capitalism and International Tax Law: The Story of Global Jim Crow connects Dr. Martin Luther King Jr.\u27s metaphor of the bad check -representing unfulfilled promises of freedom and equality to Black Americans-to contemporary anti-Black global tax policies. The book uncovers lost connections, such as those between Edwin Seligman, an architect of our global tax system, and the Dunning School, which laid the foundation for Jim Crow laws, and between Stanley Surrey, a Harvard professor and advisor to President John F. Kennedy, and key moments of the Cold War.
Furthermore, it takes a global view and reveals how racial panic triggered by African decolonization allowed an exclusive club of white countries to deliver a second bad check to newly sovereign states like Kenya and Nigeria. By circumventing the inclusive one-country, one-vote system of the United Nations, the OECD and its double tax treaty dismantled the generous arrangements that helped Europe rebuild after both World Wars.
Racial Capitalism and International Tax Law exposes the surprising role anti-Black racism played in shaping an international tax system that benefits billionaires at the expense of billions of people. This eye-opening account challenges readers to rethink the global tax system and its profound impact on racial and economic justice.https://scholarship.law.bu.edu/books/1377/thumbnail.jp
On the Meaning of Discrimination: Anti-Racism Versus Color-Blind Policy
Full text linkChief Justice Roberts of the United States Supreme Court has said that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”1 In this Article, I examine what it means to discriminate on the basis of race—or what it means to stop discriminating on the basis of race. I consider interventions designed to enhance social welfare in an economy with racially discriminatory games operating at its base. One set of interventions is color-blind, in the sense that it treats all actors alike regardless of race. The other set of interventions is color-conscious in the sense that it treats individuals differently on the basis of race. The color-blind policy exacerbates the racially discriminatory effects of the games already being played in the economy. The only policy with a hope of reversing or not exacerbating these racially discriminatory effects is a color-conscious policy. This difference points to a difficulty in determining what nondiscriminatory policy means. Does it mean nondiscrimination in action, or nondiscrimination in effect
Do Salary History Bans Mitigate Discriminatory Hiring Practices?
No full textMany states and localities have adopted salary history bans in recent years. The goal of these bans is to stop the use of a worker\u27s past salary to help formulate a starting salary for that worker at a new workplace. Advocates of the bans strive to diminish gender discrimination in the workplace and in particular to reduce the gender pay gap. The theory behind the ban is that on average women have a weaker salary history than men in part because of discrimination, and the use of salary history at a new employer perpetuates the effect of earlier discrimination. A growing body of empirical evidence supports the view that salary history bans work. Newly hired women in jurisdictions that implement a ban earn significantly more than newly hired women in other jurisdictions. Importantly, but less noticed, there is also evidence that salary history bans help to close the racial pay gap as well. We conclude with a discussion of the policy implications we draw from research on salary history bans
Celebrating 70 Years of Health Law at BU
Full text linkThis essay celebrates the BU Health Law Program upon its 70th anniversary, offering reflections on the founders of the program, Fran Miller, George Annas, and Wendy Mariner (“FGW,” endearingly), and their contributions to the field.
Current faculty offer reflections, including: Several speak to scholarly research, including Elizabeth McCuskey on health care finance, Aziza Ahmed on human rights, Dionne Lomax on antitrust, Christopher Robertson on trust, and Kathy Zeiler on the marketplace. Other contributors speak to the student experience, with Dianne McCarthy on mentorship, Laura Stephens on demanding excellence, Michael Ulrich on teaching, and Larry Vernaglia on merging law and public health. On FGW’s broader impacts, Nicole Huberfeld speaks to the translation of research to reach new audiences, and Kevin Outterson writes about FGW’s pivotal roles in establishing the health law field and the institutions that now define it.
Together these pieces testify to the astounding contributions of these scholar-teacher-leaders across many domains and dimensions of health law. While their contributions are countless and immeasurable, these reflections offer a start
Design Patents: A Potential Threat to Drug Competition
No full textBrand-name drugs are protected by patents that provide an incentive for investment in innovation by blocking competition from entering the market and thereby allowing manufacturers to charge high prices. In recent years, there has been growing controversy over how brand-name manufacturers gather patents on minor changes to drug formulation and even on the devices that deliver the medicine to build large portfolios that delay competition [1 ]. New legislation or administrative changes to patent review and issuance practices have been proposed to reduce drug patent portfolios and facilitate timely competition in the US drug market [2 ].
One component of these portfolios has not been widely discussed: the fact that brand-name drug manufacturers can seek and receive “design patents” that protect the ornamental appearance of the drug, such as the shape and look of a pill, injector, or inhaler (see Fig. 1 for examples of designs patented by pharmaceutical companies). Design patents protect only the appearance of a product and cannot cover its useful or functional elements. As compared with other patents, design patents go through a less rigorous examination process before being granted and are quicker and cheaper to obtain [3 ]. However, like all patents, design patents on brand-name drugs can be used to block entry of generics or biosimilars. Design patents on drugs have largely been ignored but are increasing in popularity and can pose a threat both to drug competition and to patient safety
U.S. Territories and the Criminal Law Curriculum
Full text linkIn this Article, I make a case for why issues concerning the territories should be taught in law school courses and suggest a few ways in which federal criminal adjudication in the territories can and should be incorporated into the criminal law and procedure curriculum.10 As I advance elsewhere,11 criminal adjudication in the territories functions differently than in the mainland United States.12 Using the framework of what I call the “territorial criminal legal system,” I have begun mapping the contours of the unique prosecutorial ecosystem produced by the territorial condition.13 Chief among the characteristics is the federal government’s ability to treat the territories differently than the states.14 This ability flows from the federal government’s plenary—or complete and virtually unrestricted—power over the territories, which provides Congress with the ability to serve as both the federal and local territorial legislature when it so chooses.15 Accordingly, Congress can choose to create federal district courts for the territories, allow federal prosecutors to prosecute local crime in the territories,16 unilaterally apply criminal codes to a territory, or create specialty courts to accommodate local conditions.18 This ecosystem not only produces uncomfortable prosecutorial arrangements but also justifies its existence in the name of territorial rule.
Below, I focus on how Puerto Rico and American Samoa are directly affected by their territorial relationship with the federal government20 and how that relationship provides fertile ground for important discussions in criminal law and procedure courses that challenge fundamental norms of criminal justice such as democratic accountability, representational criminal justice, and the function of the jury.21 As a preview, Puerto Rico and American Samoa stand on different ground with respect to criminal adjudication. They are both unincorporated territories of the United States, but only Puerto Rico has a federal district court;22 American Samoa does not.23 As a result, people accused of federal crimes in American Samoa must face their proceedings and trials elsewhere in the United States.24 And even though Puerto Rico has a federal district court, most islanders cannot participate as jurors.25 That is because the Jury Selection Service Act requires all federal jurors to have a certain level of English proficiency which about only ten percent of Puerto Ricans possess because the de facto language on the island is Spanish.26 These two realities are a direct product of territorial governance.
In the following pages, I encourage teachers of criminal law and procedure to use the territories as examples that challenge and complicate the traditional narrative of criminal law and procedure.28 Incorporating the territories, however, goes well beyond adding a case or two. Indeed, it requires us to re-imagine or reconstruct essential narratives about our courses. In criminal law, this means challenging the criminal law as a democratic expression when, for example, the people of the territories have never had a say in creating federal criminal statutes that apply to them. In criminal procedure, the territories require us to reflect on established parts of the class, such as the jury trial right, and rethink the meaning of community and how we conceive of inequality with respect to jury selection. This Symposium is about integrating the territories into the law school curriculum. When introducing territorial issues, we must think critically about how doing so complicates essential aspects of our established curriculum.
In Part II, I make the case for why issues concerning the territories should be taught in law schools. In Part III, I briefly describe the historical relationship between Puerto Rico, American Samoa, and the United States. In Part IV, I describe the parallel prosecutorial processes in the territories. I then explain how the current criminal adjudication arrangement in Puerto Rico and American Samoa challenges fundamental norms of our criminal legal system29 and how these unique circumstances can be used in criminal law and procedure courses to not only create awareness of the U.S. territories but also to further interrogate our democratic project
Measuring and Mitigating Drip Pricing Overcharge: Evidence from an Online Marketplace Experiment with a Digital Shopping Assistant
No full textWe study how much drip pricing (hidden mandatory fees revealed after consumers have begun the buying process) raises prices paid for identical goods and whether an automated shopping assistant mitigates the effect. In a randomized online marketplace experiment (n = 1608) with real purchases of gift cards funded by a $15 endowment, we vary the initial and final presentation of the gift cards’ prices across 33 levels and randomly assign participants to an automated assistant that flags a lower-price identical option and links to it. Relative to transparent pricing, drip pricing increases the average price paid by up to a plateau of about 10% (maximum 13%) for the same gift cards. The assistant reduces the incidence of overpayment by 63% and substantially lowers dollars overpaid, enough to flip the seller’s profit-maximizing strategy from drip pricing to transparent pricing. Participants exposed to drip pricing rate the platform as less trustworthy, even though it is the third-party seller that determines the fees. The digital assistant partially exacerbates this perception. Our findings inform policy responses to drip pricing and the value proposition of AI shopping tools
Chiles v Salazar—Conversion Effort Bans and Free Speech
No full textOn a dull autumn day in 1964, Carolyn Mercer was strapped to a wooden chair in a dark room, and electrodes were placed on her arm.1 Physicians projected pictures of women’s clothing on the screen in front of her and sent painful electric shocks into her arm with each picture.1 The treatment went on for months.1 The physicians hoped that if Carolyn associated femininity with pain, she would be “cured” of being transgender.1 They were wrong. She developed posttraumatic stress disorder, and the treatment threw her into a deep depression. She later told the BBC, “I don’t have a light anymore, or emotion like that, because I suppressed it for so long.”1
The constitutionality of state efforts to prevent such harms has reached the US Supreme Court, which recently announced it will review the issue in Chiles v Salazar.2 This case concerns a state-licensed counselor’s opposition to Colorado’s ban on conversion efforts for minors. The counselor asserts that the ban violates her First Amendment right to free speech. She notes that as “…a practicing Christian, [she] believes that people flourish when they live consistently with God’s design,”2 and so she seeks to “…reduce or eliminate unwanted sexual attractions, change sexual behaviors, [and promote growth] in the experience of harmony with one’s physical body.”2 Despite the religious motivation, the Supreme Court will focus not on religious freedom, but rather on whether Colorado’s law appropriately regulates substandard clinical practice or is a viewpoint-based restriction that violates the First Amendment’s protection of free speech
Quasi-Judicial: A History and Tradition
No full textIn challenging the historical assumptions underlying the unitary executive theory, scholars have made several seemingly unrelated discoveries. First, judicial power was conceived in English law as a subset of executive authority. Second, Congress at or near the Founding insulated certain court-like comissions from presidential control. Finally, the quasi-judicial and quasi-legislative powers that were central to the holding of Humphrey\u27s Executor flowed from a forgotten nineteenth-century legal tradition was guiding Congress\u27s construction of the modern state. This Essay connects these findings into a single claim: generations of American stretching back past the Founding have instinctively insulated administrators granted quasi-judicial functions from hierarchical control and presidential removal. Americans expect judge-like independence when politicians grant administrators judge-like powers and functions.
The quasi-judicial category deployed in Humphrey\u27s was the logical extension of English legal customs, Founding Era administration, and the evolution of the ninteenth-century law of officeholding. It reflected an Anglo-American instinct to insulate judge-like offices from direct hierarchical control. Whether you are an originalist or a believer in the history-and-tradition approach, these findings show that Congress may insulate quasi-judicial officials from presidential removal and direction. Beyond original public meaning, the quasi-judicial function from Humphrey\u27s is bound up with the Anglo-American constitutional project stretching back beyond the Founding. If the Roberts Court overrules Humphrey\u27s, it will imperil a primordial instinct that is part of our rule-of-law tradition